(This story has been updated with new information.)
The Secretary of State’s office is holding off on sending voter information to the Trump commission, after discovering that some public checklists included confidential information, including details about domestic violence victims that were not supposed to be made public.
Under state law, domestic violence victims who present a valid protective order are allowed to request that their information is kept off of public checklists when they vote. People who have experienced domestic violence, sexual assault or stalking are also eligible to enroll in an "address confidentiality program" operated by the Department of Justice, which allows them to use a substitute address to protect their safety.
The state says it recently learned that information that was supposed to be confidential under such provisions appeared in dozens of communities' voter checklists that were available for public inspection at the local and state level.
In a joint press release issued Tuesday morning, Attorney General Gordon MacDonald and Secretary of State Bill Gardner said the state detected "a very small number of handwritten entries related to voters who at one time were entitled to vote non-publicly by absentee ballot because they had domestic violence protective orders issued by courts but were added to the public checklist as voters who voted in person at the 2016 General Election."
Later in the day, in a notice sent to local town clerks about the issue, MacDonald and Gardner said they found "handwritten confidential, non-public information on the official checklists used on Election Day" in about 51 polling places across 42 communities.
"This information includes, among other things, dates of birth, driver’s license numbers, and telephone numbers," the Tuesday afternoon notice to town clerks read. "This non-public information should never be written on the public checklist used on election day, as that checklist remains a public document."
Gardner’s office says it will not release any checklist records to the Trump commission until the state can confirm all confidential information is redacted. The state is also shutting off access to marked voter checklists at the state archives until further notice, and it's instructing local clerks to conduct their own review to redact any confidential information maintained in checklists at the town level.
“The Attorney General’s Office is contacting the individuals involved,” the morning statement from MacDonald and Gardner read. “Subject to a more thorough review, the inclusion of this information appears to be the result of informal and well-intentioned practices adopted by a minority of municipalities. However, these local practices create the risk of exposure of non-public information.”
Associate Attorney General Anne Edwards said staff from the Secretary of State's office first notified her office of the issue on Wednesday or Thursday last week.
The Secretary of State's office is treating the Trump administration's request for voter data like a public records request under the state's right-to-know law. As part of the routine review required before the state releases public records, Edwards said officials discovered "some telephone numbers for individual voters and some dates of birth" that weren't supposed to be included in the public checklists.
"Before we release documents under right-to-know requests, every agency goes through them to determine which documents should be released," Edwards said. "In going through the checklists, the Secretary of State's staff realized there were handwritten notes on checklists which should not be there."
The American Civil Liberties Union of New Hampshire said it, too, became aware this was an issue on Friday and immediately alerted the attorney general’s office.
"On Friday, we became aware of this issue and the fact that the Secretary of State was aware of it by a third party," ACLU New Hampshire Legal Director Gilles Bissonnette wrote in an email. "We were not notified of this issue by the Secretary of State’s Office or any government agency. We then notified the Attorney General’s Office of our concerns on Friday."
The checklists under review for release to the Trump administration's election commission are maintained at the state archives, but that information is compiled by collecting checklists from individual cities and towns across New Hampshire. Edwards said the Secretary of State's office plans to send instructions to towns later today advising them to conduct a manual review of their own checklist records and to close those records to public access until that review is complete, to ensure confidential information isn't compromised.
Jessica Eskeland, a public policy specialist with the New Hampshire Coalition Against Sexual and Domestic Violence, said the Secretary of State's office should consider offering clearer directives and training to local election officials in light of this issue.
"I don’t believe that any of this was done maliciously, but maybe there needs to be an enhanced understanding of the importance of why those names and information don’t appear anywhere," Eskeland said. "All along we’ve been saying it’s OK, if you apply and you’re in the address confidentiality program or have a protective order, you are safe. We’ve been assuring folks of that, and this sort of breach — even the possibility of it — is a worst-case scenario for them."
In light of this news, the coalition has called for a full audit of checklist information and “a town-by-town manual review of all hand-marked checklists to ensure that victim privacy has adequately been maintained.”
"We are concerned about not just 2016 but how long this has been sort of an unrecognized but common practice whereby election officials are writing down names and information about victims who are confidential but voting," Eskeland said. "This was only brought to our attention because this was being sent to the commission in Washington, but we have no way of knowing how long this has been going on and what information may be jeopardized."
The coalition has a guide available on its website explaining domestic violence survivors’ options for maintaining confidentiality when voting.