Secretary of State Requests Investigative, Prosecutorial Power Over Election Laws

Jan 24, 2017

Lawmakers heard input Tuesday on a bill that, if left unchanged, could drastically expand the power of the Secretary of State’s office.

As written, the proposal gives the Secretary of State office the authority to investigate potential violations under almost all of the state’s election laws, everything from campaign finance to voter identification to ballot procedures.

Right now, those responsibilities fall to the attorney general’s office —  which is opposing the bill, for now, because of concerns that it delegates too much authority to the Secretary of State.

At Tuesday’s hearing, Deputy Attorney General Ann Rice acknowledged that her office has struggled to keep up with investigating election law complaints in a timely manner. As of September, at least 50 election-related investigations were awaiting a resolution from the Department of Justice, some dating back as far as 2012. 

“We have been not doing a lot of elections enforcement. We have been very vocal about the fact that we do not have the staff to do it,” Rice said. “So I think it’s wonderful if the Secretary of State wants to come in and join us in some of these things.”

But, Rice said, this proposal goes too far.

“If we’re talking about criminal prosecutions, which I don’t think [the Secretary of State] is talking about, but I want to make clear, those should be done in a prosecutor’s office,” Rice told lawmakers. “It should not be done in an agency, an administrative agency.”

Deputy Secretary of State Dave Scanlan said the intent of the bill wasn’t to take over all election law enforcement powers, just some — such as those related to voter verification or violations around campaign materials. Rice said the attorney general’s office is willing to work with the Secretary of State and lawmakers to address concerns about the scope of the bill.

The attorney general’s office wasn’t alone in raising questions about the proposal.

Cordell Johnson, representing the New Hampshire Municipal Association, noted that the laws covered by the bill in its current form include those addressing how elections are run at a local level.

“If you’re talking about a violation of some of those chapters, that looks to me like you’re talking about some perceived violation, some perceived failure of a moderator or clerk to do his or her job,” Johnson said. “If this is intended to allow prosecution by the Secretary of State by local election officials for not doing their jobs, we have serious concerns about that.”

Gilles Bissonnette, the legal director for the American Civil Liberties Union of New Hampshire, argued that the bill also risks violating the state constitution because it grants prosecutorial power to an office that falls outside of the executive branch.

“Just as only the legislature can enact laws, only the governor — here, it’s through its judicial officers and the attorney general — can enforce the laws,” Bissonnette said.

The bill is awaiting review from the Senate Election Laws and Internal Affairs Committee, which will determine whether the proposal moves forward for a vote before the full chamber.