Official Ballots, Official Ballot Referendum and Secret Ballots Understanding the Differences

New Hampshire Town and City, January 2005

By Susan Slack, Esq.

Q. Under what circumstances can the selectmen put a warrant article question on the town's official ballot?
A . Use of the official ballot is prohibited unless a statute specifically authorizes or requires the official ballot to be used for that article or type of article. For example, RSA 675:3 requires zoning amendment questions to be put on the official ballot if the town elects its officers by official ballot. If a law requires a ballot vote on an article and the statute uses the term "official ballot," that statute "shall be deemed to require the use of the official ballot for voting on that article, in towns which use the official ballot for the election of officers." RSA 39:3-d, II(a). If a statute includes required wording of a question, but the term "official ballot" is not used, the statute "shall be deemed to authorize, but not require, the use of the official ballot for that question, unless a contrary intent is specified." RSA 39:3-d, II(b). In that case, the selectmen have the option of either placing the question on the official ballot or including it as an article in the warrant. Even when petitioners of an article request the official ballot, the question cannot be put on the official ballot unless it is the type of question that a statute permits or requires to be on the official ballot. However, any warrant article question can be put to a secret yes-no ballot vote.

Q. Can bond issue questions be placed on the official ballot?
A. The only circumstances under which bond and note questions can be voted on by official ballot is if the town has adopted the provisions of RSA 40:12 through 14, known as the official ballot referendum form of town meeting (SB 2), or has adopted a charter that provides for voting on bond questions by official ballot. RSA 39:3-d. Otherwise, bond questions are put to the voters in the form of articles in the town meeting warrant. They must be voted on by written yes-no ballot distributed to voters at the meeting. If the bond is for an amount in excess of $100,000, that warrant article must be acted on by the town meeting before other articles, and written ballot voting must remain open for at least an hour. RSA 33:8 and 8-a.

Q. What is the difference between the official ballot and the official ballot referendum town meeting?
A. A few of New Hampshire's smaller towns still use the unofficial ballot system for electing town officers, whereby nominations of candidates are by motion from the floor of the town meeting and paper ballots are used by meeting voters to write the name of the person they want to elect to that position. RSA 669:54 through 669:60.

The official ballot system for the election of town officers is sometimes referred to as the Australian ballot. Any town may vote to adopt the partisan or non-partisan official ballot system for election of town officers. The vast majority of towns have adopted the nonpartisan official ballot. One of the defining characteristics of any official ballot system is the requirement of provisions for absentee voting. In towns that have adopted an official ballot system, the town election is conducted in the same manner as a state general election, as provided in RSA Chapter 658 and 659.

The official ballot referendum system must be adopted by voters under the provisions of RSA 40:12 through 14 or by town charter in accordance with RSA Chapter 49-B and 49-D:3, II-a. Under this system, town meeting is divided into two sessions, one in which warrant article questions are discussed and may be amended, but in which final action is not taken until second session voting where all articles are voted on by official ballot.

Q. What is the role of the moderator in official ballot or official ballot referendum towns?
A. The moderator is the chief election official in the town. Under both systems, the moderator must be thoroughly familiar with the state election laws, as summarized in the New Hampshire Election Procedure Manual available from the Secretary of State. The moderator's election duties include: setting up the polling area so as to provide an orderly flow of voters (guardrails must be placed so that no person outside the rail can approach closer than six feet to the voting booths and no person can be within the rails except by authority of the election officials); instructing and preparing all other election officials (RSA 658:2); appointing an assistant moderator and other staff deemed necessary as determined by RSA 658:7, 658:14, including supervisors pro tempore in case supervisors are absent (RSA 658:21) or an assistant clerk on request of the clerk (RSA 658:7); designating ballot clerks (RSA 658:12); certifying ballots received from Secretary of State (RSA 658:32); and overseeing the entire voting procedure (RSA 659:9).

Q. How is a secret yes-no ballot conducted?
A. The moderator must conduct a secret yes-no ballot whenever five town meeting voters (three voters in a town of 500 or less) make a written request prior to a voice vote or division vote on the article. RSA 40:4-a. The procedure for a secret yes-no ballot is not prescribed in detail by the statute. Some towns use blank white paper, and voters are requested to print "yes" or "no." Other towns print the words "yes" and "no" with boxes beside them in which the voters place an X. Many towns use different colored paper for each question to avoid confusion. Some moderators have been confronted with a petition submitted by five voters before a meeting asking for secret yes-no ballots on all questions. Although no court has ruled on this, it is likely that the written requests for secret ballot votes must come during the meeting "prior to a voice vote or division vote on the article," not earlier. Often a moderator can sense when there is an overwhelming desire for a secret ballot vote and will call for one without any specific request. This is perfectly valid under the general power of the moderator to prescribe rules, unless overruled by a majority of voters present.

Voters at the first session of an official ballot referendum town meeting (SB 2) also have the ability to ask for a secret written ballot. They can request a secret ballot on a proposed amendment or a motion that differs from the printed article. However, the secret yes-no ballot under RSA 40:4-a and 4-b does not include any opportunities for absentee voting.

Q. Can voters request recounts of secret yes-no ballots?
A. RSA 40:4-a permits five voters to request a recount of any vote taken by secret yes-no ballot. The request must be made immediately after the announcement of the result. If the vote margin is less than 10 percent of the total vote cast, the moderator must order the recount immediately.

Q. How are recounts of official ballot votes conducted?
A. Ten voters may apply in writing to the town clerk, within seven days after the town meeting, for a recount on any question appearing on the official ballot. The clerk must appoint a time and place for the recount, not earlier than five days nor later than 10 days after the receipt of the application. The applicants for the recount must pay a fee of $10. The recount shall be held at the time and place appointed, and the ballots shall be recounted by the board of recount in accordance with the procedures for recounts of town elections found in RSA 669:30 through 33. See also RSA 40:4-c. If the recount shows a result on the question that differs from that declared by the moderator, RSA 40:4-d provides that the board of recount declares the result. The town clerk, moderator and board of selectmen constitute the board of recount. RSA 669:32.