Investigators Eye Voting Devices, Cards After Windham Recount

CONCORD, NH — The Election Law Unit of the New Hampshire Attorney General's Office has requested reams of information from the town of Windham in an attempt to find out why there was such a huge discrepancy between paper ballots optically-scanned on Election Day in November 2020 and wildly different totals after the ballots after a hand recount.

The attorney general's office was requested to look into the matter by the Ballot Law Commission in late November after a recount and a challenge to the recount.

After the Nov. 3, 2020, election, four Republicans bested four Democrats in Windham for four state representative seats. The highest vote-getter for the Democrats, Kristi St. Laurent, who was running for office for the sixth time, fell 24 votes short of winning. Because the race was so close, an automatic hand recount of the paper ballots was held with St. Laurent wanting one, too. After the recount, the totals of all eight candidates shifted wildly: The four Republicans, it turned out, were shorted by four different amounts of votes between 297 and 303, St. Laurent lost 99 votes, and three other Democrats gained between 18 and 28 more votes.

The separation between St. Laurent and the Republican in fourth place, Julius Soti, went from 24 votes to 420.

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State officials and witnesses from both political parties were baffled by the huge discrepancy which has no logical explanation.

New Hampshire law only allows for a single recount of a race so St. Laurent went to the commission to challenge the result. The commission, which is bipartisan, however, upheld the victory for Soti.

St. Laurent, in a letter to the commission, said there were only two explanations for the bizarre variation in the vote counts — "either the machines were programmed to reflect unwarranted adjustments in multiples of 100 to the totals of all Republicans and the top voter receiver among Democrats or a significant number of ballots were double-counted during the (recount) process." That double counting, however, did not explain, to any degree, why her count would drop by 99 votes, she said.

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The commission voted to have the attorney general's office look into what happened.

Nicholas Chong Yen, an assistant attorney general who heads up the election unit, began doing that earlier this month.

In a five-page memo to the town, Yen said there had been many concerns raised by voters after the election about voting machines and whether or not voters' votes were counted properly.

In New Hampshire, he noted, the AccuVote optical scanners used in all communities that have voting machines are an "older technology" and each moderator uses the device's results tape, at the end of the night, to reveal the results, on a paper "Return of Votes" form. AccuVote devices have been used for more than a quarter of a century in the state and are the only devices approved by the Ballot Law Commission.

"The device was originally manufactured by Unisys, then by Global Elections Systems Inc., which are no longer in business," Yen said. "The device used in New Hampshire is no longer being manufactured. Dominion (Voting Systems) owns the intellectual property of the AccuVote and its related election management system but does not manufacture the device."

The device memory cards are programmed in advance of the election and local officials are required to test each device, he said, using marked test ballots. Local officials can use the device at an election only if the test shows that the device is programmed properly and accurately counts the test ballots which are separately hand-counted as confirmation of each device's results.

The state had 16 hand recounts in 2020 and decades of other recount results that confirm the accuracy and reliability of the ballot counting devices used in November, he said.

And then, there is what happened with the Windham recount for the Rockingham County District 7 seats.

After the recount, the town of Windham requested an opportunity to recount the votes, using the devices, if necessary, or a hand recount, but that is not allowed by law. At the same time, Yen said, the attorney general has "no statutory authority" to conduct "an audit of the ballot counting devices where there is no basis to suspect an election law violation." State law does not use the term "audit" in the context of a post-election procedure, he said. The state also cannot authorize a recount by Windham and neither does the Ballot Law Commission, Yen added.

However, he said, the attorney general does have the authority to uphold election laws, provide training, review how ballots are counted and results reported, and ensure the process was in compliance with state law.

To that end, Yen requested several items including a walkthrough on how the town managed ballot counting devices, bags, and memory cards, as well as who was involved in testing the devices as well as the training involved. He also requested to know who supervised the devices, how often processed ballots were emptied, and if there were hand counts done during the evening. Yen also requested the town's "long report," a copy of the result tape for all the machines, as well as information about whether ballot diverters on the machines were functioning properly.

Ballot diverters are used to separate ballots with write-in votes so that those write-in votes can be counted, by hand, at the end of the night, without having to go through all the ballots and separate them, which could take hours, depending on the turnout.

Yen also asked for information about the people involved in the processes, who was working the polls, who counted the separated ballots, and how they were tallied. He requested the town preserve the primary and backup memory cards programmed for the election.

"We understand this will require you to work with LHS (the optical scanning machine vendor) to obtain substitute memory cards for programming your Spring 2021 town election," he wrote.

Yen said the town fulfilled most of the election unit's requests and called the process a "cooperative effort" to find out "what exactly happened." He was quick not to use the word "investigation" because the state was "working with the officials, to get to the bottom of this, and find answers." It is more of an overview of protocols, a walkthrough of procedures, and if necessary, a view of the scanning devices and software, too, he said.

"We're not ruling anything out," Yen said. "We're taking a holistic approach (while) not applying a label to what we are doing."

Yen said a final report, of sorts, will outline the findings, whatever that information leads to, and the department will not go above or beyond the state's existing authority. If, however, there is additional follow-up needed, investigators will make those requests.

"We can't cast any aspersions with what happened," Yen said. "We are looking at it (and) we are taking this seriously."

It is unknown when the overview of the case will be completed.

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