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Court denies request for new election

Judge finds Bristol officials’ errors did not affect voting outcome

By Thomas P. Caldwell

BRISTOL — A Rockingham County Superior Court judge has ruled that, despite irregularities in the municipal election last March, the plaintiff in the lawsuit against the town of Bristol failed to demonstrate fraud or prove that a new election is warranted.

John Sellers filed a complaint in Grafton County Superior Court after losing a close contest for town selectman. A member of the Bristol Budget Committee, Sellers challenged the results based on irregularities with absentee ballots, as well as an error in listing how many budget committee seats were open. A new election also might change the results of the warrant article seeking to adopt the provisions of RSA 40:13, the Official Ballot Act, commonly referred to as SB2, for the senate bill that established the procedure to replace the traditional town meeting with two sessions: a deliberative and a voting session.

Sellers’ lawsuit was transferred to Rockingham County as one of several cases dealing with the March 14 elections that were held in the middle of a snowstorm. Some towns postponed elections because of the storm, contrary to what state law requires.

Associate Justice David A. Anderson issued his decision on Sellers’ lawsuit on Aug. 21, finding that, although town officials made mistakes in the handling of absentee ballots, discounting those votes would not have affected the outcome of the election. Additionally, the error in the number of vacancies listed for the budget committee was easily corrected by established procedures, he wrote.

The Bristol Board of Selectmen issued a statement saying members were pleased with the ruling.

“The Board has always believed that Bristol’s election officials undertake the best efforts to ensure a proper and fair election,” they wrote. “The facts in this case and the ruling justify that belief.”

The statement continues, “The Court’s decision stems from a long held legal tradition and principle that elections are a means to determine the will of the people. Ultimately, this decision is a victory for the voters and serves as validation of the efforts of each of those individuals in performing one of the most sacred rights in a democracy — voting.”

Sellers responded with the statement, “This case was about the integrity of the vote and I may have lost the case, but Bristol voters won. Voting integrity and laws must be followed and are paramount in having fair elections.”

Sellers lost his bid for selectman by 16 votes to Donald Milbrand who had 224 votes to Sellers’ 208. Sellers argued in court that the 22 absentee ballots with irregularities could have cost him the election.

The judge acknowledged that 16 of the absentee ballots did not have signed applications, five did not have signed affidavits, and the signatures on one set of documents did not appear to match. However, “the law in New Hampshire provides that in the absence of fraud, irregularities will not render an election invalid unless they affect the result of the election.”

To determine whether they would affect the results, the judge analyzed the regular ballots without counting any absentee ballots. “Looking only at the 371 ballots cast in-person on election day, … [Rick] Alpers and Milbrand would still be the winners of the two open seats on the board of selectmen. In fact, Milbrand’s margin of victory over Sellers increases if the votes cast by absentee ballot are not considered. Indeed, Sellers is the candidate in the selectmen’s race who benefitted the most from the absentee votes cast in the election.”

Sellers also questioned whether 19 of the other absentee ballots were the result of “early voting” — obtaining absentee ballots to avoid having to vote during a snowstorm. Absentee ballots can only be obtained under strict guidelines pertaining to work commitments, religious observances, or physical disabilities.

Anderson found that Town Clerk Raymah Simpson properly pointed out to those seeking absentee ballots that they had to “certify under the penalties for voting fraud” that their request was based on one of the three allowable reasons. “New Hampshire law does not allow the town clerk to refuse to accept an absentee ballot from a registered voter who has executed the affidavit envelope,” he pointed out.

The judge also noted that the time to challenge an absentee ballot is after the moderator has announced the name of the voter, and before the ballot is removed from the envelope. “The reason for this is obvious,” Anderson wrote: “to avoid challenges motivated by how the voter voted.”

The judge found that town officials were at fault in 16 of the 22 absentee ballots with irregularities.

Those 16 ballots were cast without the signed applications, with five of them missing the documents because the requests came by email. “Because the town deemed the emailed requests acceptable, the moderator did not have a signature to compare to the signature on the affidavit envelope,” Anderson wrote. “Under these circumstances, the Court declines to disenfranchise these five voters where the noncompliance issue was the result of the Town’s conduct.”

Eleven other ballots without signed applications came from elderly housing units where checklist supervisors carried the ballots to make it easier for those residents to vote. “The failure to provide absentee ballot applications to these residents was an error by the Town, not these 11 voters,” Anderson wrote. Noting that the purpose of the application is to allow the town clerk to check whether the applicant is a registered voter, he said, “The supervisors of the checklist verified that each resident was a registered voter before providing the ballot and affidavit envelope. … In other words, the failure to require a signed application did not result in any ballots cast by unregistered voters.”

“This leaves 6 remaining absentee ballots that Sellers is challenging. Because Milbrand’s margin of victory was 16 votes, these 6 ballots cannot affect the results of the selectmen’s race, and the Court need not address Sellers’ substantive arguments,” Anderson wrote.

Sellers’ other challenge was based on the ballot error that listed three budget committee positions when four vacancies existed. The error was due to a misprint in the previous year’s town report where Milbrand’s term on the budget committee was listed as expiring in 2018, rather than 2017.

The court dismissed the complaint, pointing out that state statutes provide a means to address such an oversight by allowing the budget committee to choose a member when the town has failed to fill the slot.

22 August 2017

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