With more than a foot of snow forecast in some parts of the state on Tuesday, it feels like déjà vu for many towns who had to scramble to accommodate a late-breaking nor’easter that swept in on town meeting day in March 2017.
Last year, many towns encountered conflicting state guidance on how to proceed when Mother Nature threatens to upend a vital annual democratic tradition — and municipalities are now frustrated that the state hasn’t done more to address the issue in the year since.
“Maybe no one thought lightning could strike twice and this could happen two years in a row,” Londonderry Town Manager Kevin Smith said. “It’s very frustrating that if they’ve had a year to fix it, and here we are again, the same situation we had last year – and very little has changed.”
At least one thing has changed about the state's response this time around: While more than 70 towns opted to delay voting last year, the state is now adamant that no community can reschedule its elections.
“New Hampshire law does not contain a provision that authorizes any public official to postpone an election,” the Secretary of State and attorney general’s office wrote in a March 6 memo to municipalities.
The state acknowledges that moderators can “postpone the business meeting of the traditional form of town meeting or the deliberative session for a jurisdiction that has adopted the use of Official Ballot voting” due to weather. But they argue that no such provision applies to town elections — so on Tuesday, voting must go on.
"This is just one more thing that’s added to their plate, so I empathize with them," state elections attorney Matt Broadhead said on Monday, following a conference call with more than 200 local election officials about the plans for Tuesday. "Unfortunately, the law doesn’t allow them to postpone an election."
That directive has rankled plenty of local moderators, clerks and town managers, who view it as a violation of local control. Some municipal attorneys also disagree with the state's interpretation of the law on election scheduling, pointing to the following language in a statute on the duties of town moderators:
"In the event a weather emergency occurs on or before the date of a deliberative session or voting day of a meeting in a town, which the moderator reasonably believes may cause the roads to be hazardous or unsafe, the moderator may, up to 2 hours prior to the scheduled session, postpone and reschedule the deliberative session or voting day of the meeting to another reasonable date, place, and time certain."
But at this point it seems most — if not all — towns are moving forward with plans to vote on Tuesday, however begrudgingly, because they don’t want to risk being told by the state that ballots cast on any other day are invalid.
“Nobody wants to have their warrants or their votes undermined, it’s a very difficult position,” said Judy Silva, executive director of the New Hampshire Municipal Association. “They’re between a rock and a hard place. They’re between the Secretary of State saying you don’t have the authority to do this and concern that their local voters aren’t going to come out and vote when they have the opportunity to do that, because of the weather.”
Legislative fix still not final
Just last week, the State Senate approved a bill meant to clarify some of the confusion that came up after last year's snow day debacle. But that still has a long way to go before it's law.
The fact that a similar forecast is in store for Tuesday is highlighting a key point of tension in that legislation: Many municipalities disagree with the proposed fix, which gives the Secretary of State ultimate authority over scheduling decisions.
Bedford Town Clerk Lori Radke said letting towns make the call to postpone on their own would avoid a lot of the chaos that's unfolding in her community and elsewhere today.
"We would have made this call yesterday,” Radke said Monday, in between meetings to make preparations for tomorrow’s snowfall. “We could have postponed it, yesterday, and let everybody know so we're not having people scrambling at the last minute."
So now, Bedford and other communities across New Hampshire are scrambling to field last-minute absentee ballot requests, line up extra plow routes or come up with other ways to make sure everyone who wants to vote in tomorrow’s town meetings can do so without putting their safety at risk. "I even called the state, the local state garage to be sure they could get some extra plow passes to keep that as clear as possible including after the polls close to make sure my pollworkers can get home alright," Candia Town Moderator Clark Thyng said.
Absentee questions abound
In lieu of postponement, some towns are allowing residents who don't want to brave the snow to to submit last-minute absentee ballots on Monday. Londonderry Town Clerk Sherry Farrell says her town wants to make sure everyone who wants to vote can do so safely.
"We are allowing voters who might feel their safety's in jeopardy to come vote absentee today, by 5 o'clock," Farrell said Monday morning. (Under state law, clerks have until 5 p.m. the day before the election to provide absentee ballots to interested voters.)
On the town's Facebook page, however, Londonderry officials clarified that they couldn't guarantee that weather concerns would be considered a valid excuse for an absentee ballot, because it's not one of the reasons specifically identified as an acceptable justification under state law. Other towns issued similar notices.
Broadhead, the elections attorney with the attorney general's office, said the state considers questions about individual voters' circumstances on a case-by-case basis — but he also emphasized that voters would need to meet one of the specific criteria allowed by state law in order to vote absentee.
"If their disability is preventing them from driving to the polls or getting to the polls or voting, then that's certainly one provision they can avail themselves of," Broadhead said.
He also noted that the law allows exemptions for voters with "employment obligations," including "the care of children or infirm adults."
"So, in the event that schools are closed, they are unable to arrange childcare, that certainly could be the basis for requesting an absentee ballot.
Voters who have questions about what's allowed should contact their local town clerk for more information or can contact the state's Election Day Hotline on Tuesday at 866-868-3703.