See supporting information at the end of this blog.
To AG Formella, copied to House and Senate ELC members
Re: HB 154 (attached) amending current election laws to prepare for using new digital scanners not yet approved for use. The governor signed the bill on March 6.
Question for Mr. Formella: Will the NH AG require that ballot images and cast vote records be stored and retained for the 22 months federal law requires? Please respond by March 15. If I hear nothing, I will contact the USDOJ about NH’s non-compliance with the intent of federal law.
p. 10, Section IV “printed images shall be stored” has been removed, implying that only a printed copy of write in votes will be saved, not images themselves, with no retention date referenced and NO mention of cast vote records.
Digital scanners don’t count the original hand-marked paper ballot. They count the picture of that ballot that it makes as the ballot is scanned into the machine – thus making it a public record that is in the chain of custody as defined in federal law.
Ballot images can be tampered with by nefarious actors, including election insiders, which makes one more security risk local officials are responsible for protecting against and PROVING to us voters their plan works.
HB 154 doesn’t include any language to tell them protecting against this and all other cybersecurity risks are local election officials’ legal and financial responsibility. It should.
In response to SoS questions asked Dominion representative LHS on March 20, 2019, the vendor responded that the “save” images feature could be turned off and that the ImageCast doesn’t store records of scanned ballots on internal storage. This was for the ImageCast (2005 VVSG) guidelines, not the most recent ones required by the Ballot Law Commission.
HB 154 passed in February and SB 283 passed in 2019-20 failed to require ballot images and cast vote records to be retained for 22 months, required by federal law, same as their paper equivalents. Local officials who don’t save them for the 22 month requirement for federal elections, 60 days for local elections, would be subject to fines and/or possible imprisonment.
See p. 3 of my attached testimony to the House Election Law Committee re: public access to ballots and ballot images.
Lawsuits and July 28, 2021 clarification from USDOJ that ballot images need to be retained for 22 months for federal elections as well as their paper counterparts. “The materials covered by Section 301 extend beyond `papers` to include other `records.’ Jurisdictions must therefore also retain and preserve records created in digital or electronic form.” 52 U.S.C. § 20701
https://www.justice.gov/opa/press-release/file/1417796/download
This was included in my draft language re: ballot images, next to last page of testimony. You may have a better idea for legislators to include in some bill that hasn’t been passed yet this session.
Amend RSA 91-A:5
XIV. Ballot images and cast vote records shall be retained as RSA 33-A:3a XXXVII and XXXVII require for paper ballots and in compliance with RSA 91-A:4.
PS this was sent out to counties from the CA SoS in May 2020, but I expect they already have the retention requirement in state law.
Election Record Retention- As a reminder, pursuant to California Elections Code sections 17301-17306, the retention and preservation of election records, which includes digital ballot images is 22 months. Several voting system tabulation components are capable of producing digital ballot images. Additional information regarding how to backup, retain, and preserve the digital ballot images, and whether or not your jurisdiction’s voting system has this capability, can be found in the respective Use Procedures, here: https://www.sos.ca.gov/elections/ovsta/voting-technology-vendors/
