Secretary of State Singles Out Two City Clerks in Records Requests Over Election Technology

Dec 15, 2016

It’s not unusual for local officials across New Hampshire to be asked to turn over emails or other records under the state’s right-to-know law. In Manchester, City Clerk Matt Normand estimates his office receives about 100 such requests each year.

It is unusual, however, for a city to be on the receiving end of a public records request from the state itself.

But that’s exactly the position Normand and Laconia City Clerk Mary Reynolds found themselves in recently, having received a right-to-know inquiry from the Secretary of State’s office.

  “I was sort of taken off-guard by the request,” Normand said. “The request is not a big deal, what it’s asking for is not a big deal, but who it comes from is kind of curious.”

The larger issue at stake here, however, is the relationship between the Secretary of State’s office and local election officials — and competing visions for how New Hampshire runs its elections.

The Secretary of State’s office singled out just two city clerks — in Manchester and Laconia — as the target of its records requests. The clerks in those cities also happen to be ones who have spoken openly about the need for changes to the state’s election processes.

Laconia City Clerk Mary Reynolds, who has voiced concerns that the Secretary of State’s office is too averse to changes in New Hampshire’s election processes, said she believes she and Normand are being targeted because of their disagreements with the Secretary of State.

“It takes you back a little bit, just to know that you’re being singled out because you stood up for something that you strongly feel would benefit the election process in this state,” Reynolds said. “It’s a little disturbing, but it is what it is."

Debate over voting technology

In letters dated Nov. 30, the Secretary of State’s office asked the city clerks in Manchester and Laconia to turn over 18 months’ worth of conversations they’ve had about electronic pollbook technology, stretching back to July 2015. Electronic pollbooks (or “e-pollbooks”) are a digital replacement for the paper-based checklists used to keep track of who shows up to vote on Election Day. Some other states have started using e-pollbooks, but proposals to do so in New Hampshire have failed in recent years.

In the first sentence of its letter, the Secretary of State’s office notes that it’s asking the cities for this information in response to another records request it received six months ago. But that request didn’t come from local officials in Manchester or Laconia — instead, it came from a progressive group that’s been critical of the state’s approach to voting modernization, America Votes.

In May, America Votes asked the Secretary of State’s office for a broad array of records related to its conversations on e-pollbooks and communications with local election officials, among other topics.

(Read the Secretary of State's letters sent to clerks in Manchester and Laconia, as well as the original records request filed by America Votes.)

Deputy Secretary of State Dave Scanlan said his office wants to find out what kind of conversations were taking place between local officials and outside advocacy groups, both in relation to America Votes and in anticipation of future legislative debates over election technology. Scanlan couldn’t recall any other time when the Secretary of State’s office filed right-to-know requests with local election officials, but he said it was necessary in this case.

“It’s only fair that if this organized group is out there trying to understand communications we had on our end, it’s a reasonable request that we understand discussions that were taking place on their end,” Scanlan said. “To the extent that they're arming themselves with information that consists of our communications with others on this process so it can be used against us, potentially, then we just want to make sure that we have a full understanding of the discussions that have taken place as well.”

"Organized effort"?

Reynolds and Normand deny any involvement in the America Votes records request, and both said they were perplexed by the state’s decision to draw a connection between their offices and the advocacy organization.

Paula Hodges, America Votes’ state director in New Hampshire, said the group filed its right-to-know request with the Secretary of State after struggling to get information about ongoing litigation, policy changes and guidance offered to local election officials.

“We have been working for many years trying to understand how to improve elections in New Hampshire. We weren’t getting answers to questions we were asking,” Hodges said, adding that she was troubled that the state would respond by “targeting local elected officials trying to do their jobs.”

Earlier this year, Normand and Reynolds were part of a group of local election officials who voiced support for a proposal to pilot e-pollbook technology in several communities during September’s state primary.

The Secretary of State’s office had supported a 2015 proposal to pilot e-pollbooks, which didn’t move forward, but opposed the one brought forward this year. This time, state officials were concerned about getting the technology ready in time for the state elections.

The 2016 e-pollbook pilot earned the support of a Senate committee but was ultimately killed before it could get a vote in the House.

Scanlan describes Manchester and Laconia as part of an “organized effort” — along with America Votes and other groups like the League of Women Voters — to push the pilot forward without fully engaging the Secretary of State’s office along the way.

Even though a number of other clerks spoke in support of an e-pollbook pilot, Scanlan said Manchester and Laconia were singled out in the state’s records requests because they seemed to be “most involved in organizing the effort to create a trial program.”

“We know this bill is coming back,” Scanlan said. “Because of the political nature of it the last time around, we want to be informed of the discussion around it on both sides.”

Working towards a fix

Normand, for his part, acknowledges his efforts to modernize New Hampshire’s voter checklists. But he said there was never any “hidden agenda” or any attempt to undermine the Secretary of State — he just wanted to improve what he considers a source of persistent problems on Election Day.

After this year’s presidential primary, Normand said he started researching ways to fix the long lines of voters he and other officials have witnessed, election after election, waiting to check in at the polls. Reynolds said she voiced support for exploring this as a possible solution after learning about it from Normand.

Normand said he reached out to an election technology vendor that was already doing business with the state, LHS Associates, which in turn offered to help set up a free pilot program with several New Hampshire communities for use during the September state primary.

Along the way, Normand said he made an effort to include the Secretary of State’s office early in the conversations about this new technology. Scanlan, however, disputes that characterization.

“This was highly unusual because this was coming from some city clerks that really had not worked with us to bring it forward,” Scanlan said. “It was last-minute at the end of the session. It really was little, if any, reach out to us to work on this proposal.”

Records provided by America Votes, in response to the request they filed with the Secretary of State’s office, show that Normand emailed Scanlan on March 15 with updates about his research into e-pollbooks and with an invitation to attend an upcoming demonstration of the e-pollbook technology.

On April 5, Normand reached out to then-Sen. David Boutin, who represented parts of Manchester at the time, about the possibility of bringing forward legislation to set up an e-pollbook pilot. Boutin eventually picked up the cause, adding the proposal to an existing bill that was already making its way through the Senate Public and Municipal Affairs Committee.

According to the records provided to America Votes, officials with the Secretary of State’s office had plenty of concerns about moving forward with an e-pollbook pilot in 2016.

An outline of “internal discussions” among the Secretary of State’s office, dated April 1 and shared over email, indicates that the office was at that point beginning to consider a number of issues that might be affected by an e-pollbook pilot. The document is titled “E Poll Books Background & Draft Principles for Potential Solution Enabling a Pilot,” and includes references to “Laws that appear to need changing to enable a pilot” and “Draft Principles for Secretary of State Solution Enabling a E Poll Books Pilot,” among other potential problem areas and issues under consideration.

On April 14, Assistant Secretary of State Anthony Stevens emailed Scanlan: “Here is an early draft of what pilot E Poll Books legislation might look like." That included an updated outline of questions to consider around e-pollbooks, and “Draft laws for single Manchester ward pilot in 2016 State Primary and General Election.”

At the time, Stevens said the legislation still needed “quite a lot” of work.

The proposal eventually got a public hearing in the Senate Public and Municipal Affairs Committee on April 27, at which time clerks from across the state and legislators from both sides of the aisle expressed support for moving forward with a trial program in three towns during the state primary. The only two people to testify against the e-pollbook trial at that hearing were Scanlan and Secretary of State Bill Gardner.

The Senate committee endorsed the proposal, sending it to the House for a vote — but it was rejected using a procedural rule before a vote could take place, effectively killing it for the year.

Searching for a positive solution

At this point, both Normand and Reynolds say their offices plan to comply with the state’s information request. But both said they would have preferred to have a conversation with the state officials to work out any misunderstandings beforehand.

“If they were interested in moving forward with this type of research on the technology, they could have picked up the phone and said, ‘Hey, we’re looking to jump start the conversation again,’” Normand said. “We would have been happy to do that without all of this fanfare.”

But more broadly, Reynolds said, she worries that the Secretary of State’s tactics might create a chilling effect among other local elections officials.

“It’s important that the Secretary of State’s office and the clerks of this state have a positive working relationship, and something like this does not instill a desire to have a positive working relationship,” Reynolds said. “I hope we can get back to a place where things become positive again, because this has put a very sour note on efforts that have been made just to simply make the election process in our state better.”