CHAPTER 284

SB 289-FN – FINAL VERSION

03/07/12 0972s

03/07/12 1146s

15May2012… 2169h

06/06/12 2466CofC

06/06/12 2500EBA

2012 SESSION

12-2853

03/04

SENATE BILL 289-FN

AN ACT relative to presenting photo identification to vote in person.

SPONSORS: Sen. Prescott, Dist 23; Sen. Bradley, Dist 3; Sen. Carson, Dist 14; Rep. Itse, Rock 9; Rep. Tucker, Rock 17

COMMITTEE: Public and Municipal Affairs

AMENDED ANALYSIS

This bill requires that a voter present a valid photo identification to vote in person. Voters without photo identification may execute a qualified voter affidavit. Voters who do not present a valid photo identification shall be mailed and instructed to return an identity verification letter. This bill requires that the secretary of state pay the cost for a nondriver’s picture identification card upon presentation of a voucher to the division of motor vehicles. This bill also establishes minimum sentences for certain voter fraud violations. Beginning September 1, 2013, voters who prove identity by executing a qualified voter affidavit shall be photographed or execute an affidavit of religious exemption.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/07/12 0972s

03/07/12 1146s

15May2012… 2169h

06/06/12 2466CofC

06/06/12 2500EBA

12-2853

03/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT relative to presenting photo identification to vote in person.

Be it Enacted by the Senate and House of Representatives in General Court convened:

284:1 Obtaining a Ballot. Amend RSA 659:13 to read as follows:

659:13 Obtaining a Ballot.

I. A person desiring to vote shall, before being admitted to the enclosed space within the guardrail, announce his or her name to one of the ballot clerks who shall thereupon repeat the name; and, if the name is found on the checklist by the ballot clerk, the ballot clerk shall put a checkmark beside it and again repeat the name. The ballot clerk shall state the address listed on the checklist for the voter, and ask if the address is correct; if the address on the checklist is not correct, the ballot clerk shall correct the address in red on the paper checklist and the supervisors of the checklist shall cause the centralized voter registration database to reflect the correction. The ballot clerk shall request that the voter present a valid photo identification meeting the requirements of paragraph II. If the voter does not have a valid photo identification, the ballot clerk shall inform the voter that he or she may execute a qualified voter affidavit. The voter, if still qualified to vote in the town or ward and having presented a valid photo identification verifying the voter’s identity or executed a qualified voter affidavit, and unless challenged as provided for in RSA [659:27-33] 659:27 through 659:33, shall then be allowed to enter the space enclosed by the guardrail. After the voter enters the enclosed space, the ballot clerk shall give the voter one of each ballot to be voted on in that election which shall be folded as it was upon receipt from the secretary of state. The ballot clerk shall also mark the checklist using a ruler or other straight edge to ensure accuracy of the mark in order to show that the voter obtained his or her ballot. The person entering voter information into the centralized voter registration database shall cause the records to indicate when a voter has not presented a valid photo identification and whether such voter executed a qualified voter affidavit.

II. The following forms of identification bearing a photograph of the voter shall satisfy the identification requirements of paragraph I:

(a) A driver’s license issued by the state of New Hampshire or any other state, regardless of expiration date.

(b) An identification card issued by the director of motor vehicles under the provisions of RSA 260:21.

(c) A United States armed services identification card.

(d) A United States passport, regardless of expiration date.

(e) Any other valid photo identification issued by federal, state, county, or municipal government.

(f) A valid student identification card.

(g) A photo identification not authorized by subparagraphs (a) through (f) but determined to be legitimate by the supervisors of the checklist, the moderator, or the town or city clerk, provided that if any person authorized to challenge a voter under RSA 659:27 objects to the use of such photo identification, the voter shall be required to execute a qualified voter affidavit as if no identification was presented.

(h) Verification of the person’s identity by a moderator or supervisor of the checklist or the town or city clerk, provided that if any person authorized to challenge a voter under RSA 659:27 objects to such verification, the voter shall be required to execute a challenged voter affidavit.

III. If a voter on the nonpublic checklist executes a qualified voter affidavit in accordance with paragraph I, the affidavit shall not be subject to RSA 91-A.

IV.(a) The secretary of state shall cause a letter of identity verification to be mailed by first class mail to each voter who executed a qualified voter affidavit in accordance with paragraph I. The letter shall be mailed within 60 days after the election, except that if the election is a state primary election, the letter shall be mailed 60 days after the general election, and if the election is a regularly scheduled municipal election, the letter shall be mailed by the July 1 or January 1 next following the election. The secretary of state shall mark the envelope with instructions to the United States Post Office not to forward the letter and to provide address correction information. The letter shall notify the person that a person who did not present valid photo identification voted using his or her name and address and instruct the person to return the letter within 90 days with a written confirmation that the person voted or to contact the attorney general immediately if he or she did not vote. The letter shall also inform the person of the procedure for obtaining a free nondriver’s picture identification card for voting purposes.

(b) The secretary of state shall cause any letters mailed pursuant to subparagraph (a) that are returned as undeliverable by the United States Post Office to be referred to the attorney general. The secretary of state shall also prepare and forward to the attorney general a list of all persons who were mailed letters under subparagraph (a) and have not confirmed that they voted. Upon receipt of notice from a person who receives a letter of identity verification that the person did not vote, or upon receipt of a referral from the secretary of state, the attorney general shall cause an investigation to be made to determine whether fraudulent voting occurred.

(c) Within 60 days after a state general election, the secretary of state shall compile a report of the number of voters that did not present valid photo identification at each election occurring since the previous state general election, and forward the report to the speaker of the house of representatives, the president of the senate, and the chairpersons of the appropriate house and senate standing committees with jurisdiction over election law.

284:2 New Subdivisions; Voter Identification Advisory Committee; Notice of Voter Identification Requirements; Voter Education Requirements. Amend RSA 652 by inserting after section 23 the following new subdivisions:

Voter Identification Advisory Committee

652:24 Voter Identification Advisory Committee.

I. There is established a voter identification advisory committee. The committee shall review the implementation of voter identification requirements after every state general election. If the committee determines that problems exist requiring statutory changes, the committee shall report its findings to the senate and house standing committees with jurisdiction over election laws.

II. The members of the committee shall be as follows:

(a) The secretary of state or designee.

(b) The president of the senate or designee.

(c) The speaker of the house of representatives or designee.

(d) The governor or designee.

(e) The president of the New Hampshire City and Town Clerks’ Association, or his or her representative.

III. The committee shall meet at the call of the secretary of state or designee, who shall serve as chairperson.

Notice of Voter Identification Requirements

652:25 Notice of Voter Identification Requirements. Every town and city clerk shall prominently display a notice prepared by the secretary of state explaining the photo identification requirements for voters and directing voters to the department of state’s website for additional information. Such notice shall be displayed for at least 14 days prior to each election held after the effective date of this section.

Voter Education Requirements

652:26 Voter Education Requirements.

I. The secretary of state shall prepare an explanatory document explaining the proof of identity requirements of RSA 659:13, including all the permissible methods for proving identity and the dates of applicability of these requirements. The secretary of state shall provide copies of the explanatory document to all towns and wards, so it will be available to all persons registering to vote at the city or town hall and at all polling places at each election held after the effective date of this section.

II. The secretary of state shall take whatever measures he or she deems necessary to educate the public about the voter identification requirements in RSA 659:13. Such measures shall include prominently displaying on the department of state’s website information for voters relating to the voter identification requirements in RSA 659:13. The department shall also provide explanatory information relating to voter identification requirements to media outlets that request such information and shall encourage such outlets to assist the department in educating the public about the voter identification requirements in RSA 659:13.

284:3 Election Fund Reimbursement. Amend RSA 5:6-d, III to read as follows:

III. The secretary of state is authorized to accept, budget, and, subject to the limitations of this paragraph, expend monies in the election fund received from any party for the purposes of conducting elections, voter and election official education, the purchase or lease of voting equipment which complies with the Help America Vote Act of 2002, Public Law 107-252, reimbursing the department of safety for voter identification cards, election law enforcement, and improvements to related information technology, including acquisition and operation of an automated election management system. The secretary of state shall not expend any monies in the election fund unless the balance in the fund following such expenditures shall be at least [15] 12 times the estimated annual cost of maintaining the programs established to comply with the Help America Vote Act of 2002, Public Law 107-252.

284:4 Identification Cards; Voucher. Amend RSA 260:21, V to read as follows:

V.(a) The fee for such card shall be $10 and is not refundable, except that no fee shall be charged to any person who, for reason of health or age, turns in his or her driver’s license before the expiration date of such license. For purposes of this section, reasons of age shall be deemed to apply only to those persons over age 65. A person who requires a photo identification card only for voter identification purposes may obtain a voucher in the form provided for in subparagraph (b) from his or her town or city clerk or the secretary of state exempting the voter from the identification card fee. Upon presentation of the voucher to the division, the actual costs of issuing the card shall be paid by the secretary of state from the election fund established under RSA 5:6-d. An identification card paid for by the secretary of state shall be valid for voter identification purposes only, and the card, which shall be known as a voter identification card, shall be marked “for voter identification only.”

(b) The identification card voucher shall be in the following form:

IDENTIFICATION CARD VOUCHER

To be completed by applicant:

Name: ____________________

Domicile Address: ____________________

Mailing Address: ____________________

I hereby swear or affirm that I require a photo identification for voting purposes and that I do not possess a form of identification that meets the requirements of the election laws of this state.

I hereby swear or affirm that I am the identical person whom I represent myself to be and that to the best of my knowledge and belief the information above is true and correct.

__________________________

(Signature of applicant)

To be completed by town or city clerk:

I, the clerk of ________________ (town or city), hereby swear or affirm that the person identified on this voucher is listed on the voter checklist in this city or town.

________________________________

(Signature of town or city clerk)

In accordance with RSA 659:34, the penalty for knowingly or purposefully providing false information when voting is a class A misdemeanor with a maximum sentence of imprisonment not to exceed one year and a fine not to exceed $2,000. Fraudulently registering to vote or voting is subject to a civil penalty not to exceed $5,000.

284:5 Statutes Posted. Amend RSA 658:29 to read as follows:

658:29 Statutes Posted. The secretary of state shall prepare and distribute copies of the following RSA sections which the selectmen shall post or cause to be posted outside the guardrail in the polling place at all elections: RSA 654:7-a, RSA 654:7-b; RSA 659:13, RSA 659:27, RSA 659:30, RSA 659:31, RSA 659:32, RSA 659:34, RSA 659:35, RSA 659:37, RSA 659:38, RSA 659:40, RSA 659:41, RSA 659:103; RSA 666:4, RSA 666:5, RSA 666:8. In addition, the secretary of state shall include any other statutes or regulations that are required to be posted by state or federal law. The secretary of state may also include statutes or regulations that, in the secretary of state’s judgment, would aid a voter in casting a vote or in contacting the appropriate official if the voter believes that his or her voting rights are being violated.

284:6 Wrongful Voting; Penalties for Voter Fraud. Amend RSA 659:34, I-II to read as follows:

I. A person is subject to a civil penalty not to exceed $5,000 if such person:

(a) When registering to vote; when obtaining an official ballot; [or] when casting a vote by official ballot; or when applying for a photo identification card for voting purposes, purposely or knowingly makes a false material statement regarding his or her qualifications as a voter to an election officer or submits a voter registration form, an election day registration affidavit, a qualified voter affidavit, a domicile affidavit, an affidavit of religious exemption, an identification card voucher, or an absentee registration affidavit containing false material information regarding his or her qualifications as a voter;

(b) Votes more than once for any office or measure;

(c) Applies for a ballot in a name other than his or her own;

(d) Applies for a ballot in his or her own name after he or she has voted once;

(e) Votes for any office or measure at an election if such person is not qualified to vote as provided in RSA 654; [or]

(f) Gives a false name or answer if under examination as to his or her qualifications as a voter before the supervisors of the checklist or moderator; or

(g) Presents falsified proof of identity at any election.

II. A person is guilty of a class B felony if, at any election, such person [purposefully] purposely or knowingly commits an act specified in subparagraph I(b) or I(e). A person is guilty of a class A misdemeanor if, at any election, such person [purposefully] purposely or knowingly commits any of the other acts listed in paragraph I, and, if the act involved the use of false proof of identity or voting using the name of another person, the person shall be sentenced to a mandatory sentence in the county correctional facility of not less than 30 days for a first offense under this section, 90 days for a second offense under this section, and 180 days for a third or subsequent offense under this section.

284:7 Obtaining a Ballot. RSA 659:13 is repealed and reenacted to read as follows:

659:13 Obtaining a Ballot.

I.(a) A person desiring to vote shall, before being admitted to the enclosed space within the guardrail, announce his or her name and address to one of the ballot clerks who shall, if the name is found on the checklist by the ballot clerk, repeat the name and address. If the address announced by voter is different from what appears on the checklist, but is in the same town or ward, the ballot clerk shall correct the address in red on the paper checklist and the supervisors of the checklist shall cause the centralized voter registration database to reflect the correction.

(b) The voter, if the ballot clerk determines that he or she is qualified to vote in the town or ward, and unless challenged as provided for in RSA 659:27 through 659:33, shall then be asked to present proof of his or her identity meeting the requirements of paragraph II. If the voter presents such proof of identity to the ballot clerk, the ballot clerk shall give the voter one of each ballot to be voted on in that election which shall be folded as it was upon receipt from the secretary of state. The ballot clerk shall also mark the checklist using a ruler or other straight edge to ensure accuracy of the mark in order to show that the voter obtained his or her ballot. If the photo identification is an out-of state driver’s license or nondriver’s identification card, the ballot clerk shall record the state of issuance on the checklist in accordance with uniform procedures developed by the secretary of state in a color designated for such entries and the supervisors of the checklist or designee shall submit the information to the secretary of state within 30 days of the election. The voter shall then be allowed to enter the space enclosed by the guardrail to mark and cast his or her ballot.

(c)(1) If the voter does not have a valid photo identification, the ballot clerk shall inform the voter that he or she may execute a qualified voter affidavit in accordance with RSA 654:12. The voter shall receive an explanatory document prepared by the secretary of state explaining the proof of identity requirements. If the voter executes a qualified voter affidavit, the ballot clerk shall mark the checklist in accordance with uniform procedures developed by the secretary of state.

(2) If the voter executes a qualified voter affidavit, the moderator or the moderator’s designee shall take a photograph of the voter and immediately print and attach the photograph to, and thus make it a part of, the affidavit form. The photograph shall be 2 inches by 2 inches, or larger, and be in color. The moderator or his or her designee who took the photograph and the voter shall then sign the qualified voter affidavit. The moderator or designee shall delete the photograph from the camera in the presence of the voter. If the moderator or his or her designee is unable to take the voter’s photograph due to equipment failure or other cause beyond the moderator’s or his or her designee’s reasonable control, the voter may execute a qualified voter affidavit without a photograph.

(3) If the voter objects to the photograph requirement because of religious beliefs, he or she may execute an affidavit of religious exemption in accordance with RSA 659:13-b, which shall be attested to by an election officer and attached to the qualified voter affidavit.

(4) The person entering voter information into the centralized voter registration database shall cause the records to indicate when a voter has not presented a valid photo identification and has executed a qualified voter affidavit.

II. A valid photo identification shall show the name of the individual to whom the identification was issued, and the name shall substantially conform to the name in the individual’s voter registration record; it also shall show a photograph of the individual to whom the identification was issued; and it shall also have an expiration date that has not been exceeded by a period of more than 5 years from the current date. The following forms of identification bearing a photograph of the voter shall satisfy the identification requirements of paragraph I:

(a) A driver’s license issued by any state or the federal government.

(b) A nondriver’s identification card issued by the motor vehicles division, department, agency, or office of any state.

(c) A United States armed services identification card.

(d) A United States passport.

(e) A qualified voter affidavit in accordance with subparagraph I(c).

III. If a voter on the nonpublic checklist executes an affidavit in accordance with subparagraph I(c), the affidavit shall not be subject to RSA 91-A.

IV.(a) The secretary of state shall cause a letter of identity verification to be mailed by first class mail to each voter who executed a qualified voter affidavit or affidavit of religious exemption in accordance with paragraph I, unless the same person is sent letter of identity verification pursuant to RSA 654:12, V(b). The letter shall be mailed within 60 days after the election, except that if the election is a state primary election, the letter shall be mailed 60 days after the general election, and if the election is a regularly scheduled municipal election, the letter shall be mailed by the July 1 or January 1 next following the election. The secretary of state shall mark the envelope with instructions to the United States Post Office not to forward the letter and to provide address correction information. The letter shall notify the person that a person who did not present valid photo identification voted using his or her name and address and instruct the person to return the letter within 30 days with a written confirmation that the person voted or to contact the attorney general immediately if he or she did not vote. The letter shall also inform the person of the procedure for obtaining a free nondriver’s picture identification card for voting purposes.

(b) The secretary of state shall cause any letters mailed pursuant to subparagraph (a) that are returned as undeliverable by the United States Post Office to be referred to the attorney general. The secretary of state shall also prepare and forward to the attorney general a list of all persons who were mailed letters under subparagraph (a) and have not confirmed that they voted. Upon receipt of notice from a person who receives a letter of identity verification that the person did not vote, or upon receipt of a referral from the secretary of state, the attorney general shall cause an investigation to be made to determine whether fraudulent voting occurred.

(c) Within 60 days after any election held after November 1, 2012, the secretary of state shall compile a report by voting district of the number of voters who registered or voted on election day but did not present valid photo identification, and forward the report to the speaker of the house of representatives, the president of the senate, and the chairpersons of the appropriate house and senate standing committees with jurisdiction over election law.

V.(a) The secretary of state shall provide to each town or city the photography equipment, supplies, and printing device that are necessary to enable it to comply with the photograph provision of subparagraph I(c), along with instructions in their use.

(b) If the moderator or his or her designee is unable to take the voter’s photograph due to equipment failure or other cause beyond the moderator’s or his or her designee’s reasonable control, the secretary of state may waive a voter’s compliance with the photograph requirement of subparagraph I(c).

284:8 Election Fund Reimbursement. Amend RSA 5:6-d, III to read as follows:

III. The secretary of state is authorized to accept, budget, and, subject to the limitations of this paragraph, expend monies in the election fund received from any party for the purposes of conducting elections, voter and election official education, the purchase or lease of [voting] equipment [which] that complies with the Help America Vote Act of 2002, Public Law 107-252, or with RSA 659:13, V, reimbursing the department of safety for the actual cost of voter identification cards, election law enforcement, and improvements to related information technology, including acquisition and operation of an automated election management system. The secretary of state shall not expend any monies in the election fund unless the balance in the fund following such expenditures shall be at least 12 times the estimated annual cost of maintaining the programs established to comply with the Help America Vote Act of 2002, Public Law 107-252.

284:9 Statutes Posted. Amend RSA 658:29 to read as follows:

658:29 Statutes Posted. The secretary of state shall prepare and distribute copies of the following RSA sections which the selectmen shall post or cause to be posted outside the guardrail in the polling place at all elections: RSA 654:7-a, RSA 654:7-b; RSA 659:13, RSA 659:13-b, RSA 659:27, RSA 659:30, RSA 659:31, RSA 659:32, RSA 659:34, RSA 659:35, RSA 659:37, RSA 659:38, RSA 659:40, RSA 659:41, RSA 659:103; RSA 666:4, RSA 666:5, RSA 666:8. In addition, the secretary of state shall include any other statutes or regulations that are required to be posted by state or federal law. The secretary of state may also include statutes or regulations that, in the secretary of state’s judgment, would aid a voter in casting a vote or in contacting the appropriate official if the voter believes that his or her voting rights are being violated.

284:10 New Section; Proof of Voter Identity Instructions to be Posted. Amend RSA 658 by inserting after section 29 the following new section:

658:29-a Proof of Voter Identity Instructions to be Posted. The secretary of state shall prepare a notice explaining to voters the photo identification requirement in RSA 659:13, including all the permissible methods for proving identity, and directing voters to the department of state’s website or to the town or city clerk to obtain the explanatory document described in RSA 652:26, I, for additional information. Such notice shall also include the penalties as described in RSA 659:34. The governing body of each town or ward shall prominently display this notice for at least 14 days prior to each election held after the effective date of this section. The poster shall be placed outside the guardrail at each polling place at all elections.

284:11 New Section; Affidavit of Religious Exemption. Amend RSA 659 by inserting after section 13-a the following new section:

659:13-b Affidavit of Religious Exemption. The affidavit of religious exemption shall be in the following form:

AFFIDAVIT OF RELIGIOUS EXEMPTION

Name: ____________________

Domicile Address: ____________________

Date of birth: __________

I hereby swear or affirm that because of my religious beliefs, I object to having my photograph taken and that I do not possess a form of identification that meets the requirements of the election laws of this state showing my photograph.

I hereby swear or affirm, under the penalties for voting fraud set forth below, that I am the identical person whom I represent myself to be and that to the best of my knowledge and belief the information above is true and correct.

__________________________

(Signature of affiant)

In accordance with RSA 659:34, the penalty for knowingly or purposely providing false information when voting is a class A misdemeanor with a maximum sentence of imprisonment not to exceed one year and a fine not to exceed $2,000. Fraudulently registering to vote or voting is subject to a civil penalty not to exceed $5,000.

This affidavit was executed before us on the date shown and the person who subscribed his or her name to the foregoing affidavit swore that the facts contained in this affidavit are true to the best of his or her knowledge and belief.

_________________________________ ______________

(Name of Election Officer) (Date)

_________________________________

(Signature of Election Officer)

284:12 Right to Know Exemption. Amend RSA 654:31-a to read as follows:

654:31-a Right to Know Exemption. The information contained on the checklist of a town or city, specifically, the name, domicile address, mailing address, town or city, and party affiliation, if any, of registered voters, except as otherwise provided by statute, is public information subject to RSA 91-A. All other information on the voter registration form, absentee registration affidavit, qualified voter and domicile affidavits, affidavit of religious exemption, and application for absentee ballot shall be treated as confidential information and the records containing this information shall be exempt from the public disclosure provisions of RSA 91-A, except as provided by statutes other than RSA 91-A. Notwithstanding the foregoing, qualified voter and domicile affidavits are public records subject to RSA 91-A for the sole purpose of challenging an individual registering to vote or voting, challenging ballots to be recounted, to the extent that such ballot challenges are specifically authorized by law, or determining the accuracy of any qualified voter or domicile affidavit. Election officials and law enforcement personnel in furtherance of their official duties may access and may disclose information from the voter registration form, qualified voter and domicile affidavits, affidavits of religious exemption, absentee registration affidavits, and applications for absentee ballots, if necessary to resolve a challenge to an individual registering to vote or voting, or if necessary to investigate or prosecute election law violations or any crime. Law enforcement access and use of such records for the investigation or prosecution of crimes unrelated to election law violations shall be limited to the records of the specific individuals who are the subject of the investigation or prosecution.

284:13 New Paragraph; Disposition and Retention Schedule. Amend RSA 33-A:3-a by inserting after paragraph CLV the following new paragraph:

CLVI. Affidavits of religious exemption: until voter is removed from checklist plus 7 years.

284:14 Applicability. In accordance with RSA 659:13, as amended by this act, ballot clerks shall request that the voters present a valid photo identification at all elections after the effective date of this act. Notwithstanding the provisions of RSA 659:13, as amended by this act, prior to November 1, 2012, if the voter does not present such identification, he or she may vote without executing a qualified voter affidavit, but the ballot clerk shall provide the voter with a copy of the explanatory document specified in RSA 652:26 and explain the need for photo identification after November 1, 2012. The ballot clerks shall tally the number of voters that do not present a valid photo identification at the September 2012 state primary election, and the town or city clerk shall report the number with the election return.

284:15 Effective Date.

I. Sections 7-13 of this act shall take effect September 1, 2013.

II. The remainder of this act shall take effect upon its passage.

Approved: Enacted in accordance with Article 44, Part II, N.H. Constitution, without signature of governor, June 27, 2012.

Effective Date: I. Sections 7-13 shall take effect September 1, 2013.

II. Remainder shall take effect June 27, 2012.