By: Samuel Holliday

On March 14, 2017, municipalities in the state of New Hampshire were set to have their annual town elections. However, a powerful nor’easter was approaching New England, bringing with it near blizzard conditions, and many were concerned that the inclement weather would hinder the democratic process. Almost eighty towns decided to postpone their elections despite Governor Chris Sununu (R)’s warning that they would be exposed to potential lawsuits. The issue that arose and, as of November 1, 2017, remains in question is a conflict between state laws governing town elections. Section 669:1 of the state code requires that towns hold their elections on the second Tuesday in March, but Section 40:4 allows town moderators to reschedule the “voting day of a meeting” during weather emergencies.

In the short-term, an initial legislative attempt to quell concerns over the postponed elections’ legitimacy garnered enough support to be passed by the General Court — the state legislature of New Hampshire — and in turn allowed towns to hold public hearings and ratify their results. For the long-term, the General Court also created a “study committee” to evaluate confusion-reducing solutions and attempt to balance the competing interests of public safety and fair access to the democratic process.

The Committee to Study the Rescheduling of Elections and Relative to Absentee Voter Signatures published its final report on November 1, 2017, and provided very little in the way of resolution of the central issue of authority. The recommendation stated that the members disagreed over who should have the ability to postpone elections, but went on that “. . . all members agree that a uniform process is needed . . .  and that this is best solved by way of legislation.” The creation and enactment of such legislation is now left up to the General Court as a whole.

One solution proposed by the New Hampshire Municipal Association would make such decisions discretionary for town moderators. Arguments favoring this plan center around the disparate impact winter storms can have on different regions of the Granite State. While naturally popular with local government officials, the plan drew concerns from state lawmakers who felt that some administrative bodies might not be up to the task.

An alternate proposal put forward by New Hampshire Deputy Secretary of State David Scanlan would create a hybrid system, in which the Governor could declare a weather emergency enabling the Secretary of State to postpone elections regionally or statewide. Scanlan’s plan would make some allowance for local discretion in highly local emergencies, such as a shooting or town government building fire. Arguments favoring this plan highlight the expertise and resources available to the state government but beyond the reach of towns.

While it is difficult to predict which proposal would garner enough support in the General Court for passage, it is worth noting that New Hampshire is a Dillon Rule state. This means that the only power localities have is that which has been given to them by the state government, so would appear likely that the state would retain such decision-making power for itself. In any event, expect this issue to come up when General Court reconvenes in January.

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