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Anonymous election mailers and unsigned political websites are becoming too common in New Hampshire as cities and towns prepare for their school and town meetings, and Attorney General John Formella is advising the public to be wary.

Formella’s office announced Tuesday it is dealing with five election law violations this week, days before the start of the town and school meeting season.

“As the elections are so close, the identities of these individuals may not be known prior to the elections. As a result, (Formella) reminds voters to do their own research on candidates and warrant articles before they vote,” the statement from Formella’s office stated. 

Town meeting season, the oldest form of democracy in the United States, traditionally starts the second Tuesday of March. Formella’s office cites five reported cases of election law violations designed to impact voters.

People are encouraged to engage in the elections through mailers, websites, and other forms of campaigning, but they need to follow the law. Political communications and political signs— “express advocacy” communications—are required to have information identifying the person or entity responsible for the advertising, known as “paid-for” disclaimers, under New Hampshire law, the Attorney General’s Office reminded the public.

“Political advertising, mailers, and signs are one of the treasured traditions of New Hampshire elections. They are also a physical expression of people’s First Amendment right of free speech. However, voters also have a right, under New Hampshire law, to know who is issuing political advertising in support or opposition to a candidate or a question on the ballot,” Formella’s statement read.

Two of the five complaints investigated this week resulted in the people responsible being identified.

In Thornton, unidentified flyers were sent directing voters to visit the website “stopthetax.info.” The website, also unidentified, told voters to vote “NO” on certain warrant articles at the March 9 school district meeting. 

The Attorney General’s Election Law Unit and Thornton Chief of Police Daniel Gilman tracked the flier and website to a group of approximately 20 Thornton residents, including David Rivers, who is responsible for the “stopthetax.info” website. Bob Hatch was identified as the person who is responsible for the flyers. Rivers was directed to correct the website to comply with the law.   

In Milford, anonymous “Community Help LLC” published the website “milfordvoterguide.com” which contains endorsements of candidates and warrant articles on the Milford ballot for the March 14 election. Jeff Horn was later identified as the person responsible, and he will be correcting the website and adding his name to future political material.

However, investigations into three more anonymous websites remain open. That includes Raymond’s “raymondrights.com” website; the “supportnewfields.com” site trying to influence the Newfields elections; and the anonymous mailers in Hollis telling people to vote “no” on the town’s warrant article 2. The Hollis fliers were mailed under a Tampa, Fla. postal permit. 

However, the biggest open case of election fraud is from the 2022 Republican primary in New Hampshire’s Second Congressional District. A Democratic-affiliated print shop shipped at least four different illegal mailers designed to influence the GOP primary. The printer, Reynolds DeWalt Corporation, refused to reveal who paid for the mailers, prompting Formella to open an investigation last September.

The mailers were part of a successful effort to get MAGA Republican Bob Burns the GOP nomination, who was handily defeated by Democrat Rep. Annie Kuster in November.

Asked about the status of the illegal mailer case, a spokesperson for the Attorney General’s Office said the investigation remains active and ongoing.

Monday was supposed to be the calm before the storm, but in New Hampshire politics, the day was muddled with confusion over the legality of towns’ rights to postpone Tuesday’s elections due to the impending blizzard.

The day started with Secretary of State William Gardner saying, “We don’t have snow days in the law for elections.”

Yet, town officials throughout the state were taking matters into their own hands and postponing the annual “second Tuesday in March” elections for later in the week after the snowstorm subsided. Reasons for postponement were mostly due to ensuring the safety of residents and first responders from hazardous road conditions. Some parts of the state are expected to receive between 10 to 20 inches on Tuesday.

The secretary of state’s office maintained its position that by state law, towns are required to hold elections regardless of the snow and expected blizzard conditions. If they don’t, there could be legal consequences. Town officials say a different state law allows them to change the day of the election in an emergency situation.

“I don’t know what the consequences will be,” Paula Penney, elections assistant at the secretary of state’s office, told The Portsmouth Herald. “If they don’t have the election tomorrow, it may end up in superior court. But I don’t know what’s going to happen. I don’t have any indication that (the office’s) position will change.”

The two laws in question are RSA 669:1 and 40:4. RSA 669:1 is the law the secretary of state’s office was citing as requiring towns to hold the election, regardless of the snow. The law states:

“All towns shall hold an election annually for the election of town officers on the second Tuesday in March…”

RSA 40:4 is cited by the towns for giving them the flexibility to change the date of election in the event of an emergency. This law states:

“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.”

So which interpretation is right? Some legal experts said it’s not exactly clear if that law refers to voting for races in elections or voting for budget and other town issues at traditional town hall meetings.

John Greabe, a law professor at the University of New Hampshire, told NH Journal that the specific rule would “govern over” the general rule.

“It’s not uncommon for there to be two statutes that seem to be at odds with each other,” he said. “It’s a traditional approach to the conflict of laws where there is a more specific rule and a more general rule. It’s common for courts to go with the more specific rule.”

Cordell Johnston, government affairs council with the New Hampshire Municipal Association, said the organization sides with the towns.

“I don’t think there is any inconsistency in the law,” he told NH Journal. “We believe it’s very clear that they [towns] could move the election.”

He mentioned that a group of municipal lawyers on a list-serv “overwhelmingly” agreed that the moderator has the clear authority to reschedule the election.

With significant confusion surrounding the issue, Gov. Chris Sununu weighed in on debate. He spoke with municipal leaders and Attorney General Joe Foster in a Monday afternoon conference call encouraging them to hold elections, but said the state would not mandate them to do it.

“It’s our understanding that a lot of towns have already made a choice to postpone their elections,” he told reporters. “There are some differing opinions at the state level as to whether that is a valid process for them to take. The best we can do is to strongly recommend that all towns stay open for voting tomorrow. We think that’s a very important part of the process. But given the differing opinions, I don’t think we’re in a position to mandate that towns stay open or change their direction if they choose not to.”

Sununu cautioned town officials that if they postpone Tuesday’s elections, they are doing so “at their risk,” suggesting the town could be open to lawsuits for voter suppression.

“It would create a lot of confusion if one town voted on a school issue and another town did not, and you get into an issue of do you release the results and how is that processed,” he said. “You never want someone to have their vote suppressed, or have someone not be able to participate in the process because of confusion at the local level.”

Johnston said he interpreted Sununu’s message that “the state would not challenge a town’s decision to reschedule,” but an individual voter could.

“What I imagine could happen, although unlikely, a voter who is not happy about how things played out, would go to court and claim that the moderator violated his or her authority in rescheduling the vote,” he said. “But because the law is really clear, I don’t think the challenge will go that far.”

In order to make the interpretation very clear, and to avoid confusion like this in the future, New Hampshire Democratic leaders are planning to introduce emergency legislation this week to ensure that results from any town elections postponed due to snow are enforceable.

Senate Democratic Leader Jeff Woodburn and House Democratic Leader Steve Shurtleff released a statement announcing their plan to introduce legislation Wednesday during the Senate Rules and Enrolled Bills Committee:

“As elected officials, we have a solemn duty to ensure the safety of our citizens and no election should require voters to risk their safety in order to participate. Our election workers and town moderators are well-trained and take the task of facilitating transparent and fair elections seriously. We should trust them to make the best decision for their communities and for the safety of their people. That’s why we will attempt to introduce emergency legislation at this week’s Senate Rules Committee meeting to ensure that results from any elections postponed due to public safety concerns are enforceable and so that our local officials can make the right decision for their communities without fear of a legal challenge.”

Sununu agreed that the Legislature should take action to resolve the conflicts in state law, but it’s unclear if he will support the Democrats’ bill when it is introduced.

Is your local election and town meeting postponed? Check out the rolling list here as town officials make the decision.

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