COMPLAINT
SENT VIA EMAIL ONLY electionlaw@doj.nh.gov
John M. Formella New Hampshire Attorney General 107 North Main Street, Concord, NH
December 21, 2022
Dear Attorney General Formella,
The integrity of our elections is the foundation of our Constitutional Republic. That integrity is built upon election officials who understand and follow all election laws and procedures in a transparent manner. It's unfortunate when procedural mistakes are sometimes made by local election officials during the management of an election. It's unacceptable when procedural mistakes become commonplace and are not corrected. Whether intentional or unintentional, election officials must be held accountable for their actions when they fail to follow election laws and procedures, especially when failures have been identified and attempted to be remedied by your office.
As you are aware, Windham election officials violated a multitude of election laws and procedures during the November 3, 2020 general election. These violations were identified in your office's joint letter with the NH Secretary of State that delivered a stern warning to Windham Officials on January 7, 2022.
Subsequent to that letter, it was our hope that Windham's election officials would ensure strict adherence to the New Hampshire Election Procedures Manual when overseeing and reporting our elections. Unfortunately, election issues in Windham have continued.
With this in mind, it is with great sadness that we file this complaint for what we believe to be many more egregious mistakes and discrepancies regarding the inaccurate reporting of election results of the Windham September 13, 2022, primary election during oversight by the following election officials:
Peter Griffin, Windham Moderator Betty Dunn, Windham Assistant Moderator Galen Stearns, Windham Assistant Moderator Nicole Merrill, Windham Town Clerk Roger Hohenberger, Windham Selectman Heath Partington, Windham Selectman Jennifer Simmons, Windham Selectman Al Letizio, Jr., Selectman pro tempore Gene Van Loan – Election Monitor for the September 13, 2022 Primary Election
It is our belief that all of the individuals listed above, excluding Election Monitor Gene Van Loan, also oversaw the Windham general election on November 3, 2020, which produced the largest numerical election discrepancy in the history of NH. Many problems regarding that election were uncovered during your office's joint investigation with the SOS's office. That investigation, as well as the findings, led your office to appoint an Election Monitor. RSA 659:77 III,
Per RSA 659:60, the moderator, or the moderator pro tempore if the moderator is disqualified under RSA 658:24, shall oversee the counting of votes by other election officers, including the selectmen and the town clerk, and may discharge any other duties relating to the counting of votes. In your office's Cease and Desist letter to Exeter election officials, your office acknowledged the joint responsibilities of all those election officials to oversee a town's election as defined by law and the Election Procedures Manual.
When election officials discharge their duties, they do not discharge their responsibilities.
We believe the Windham election officials are collectively responsible for not following election laws and procedures for at least three state and federal elections in a row: the general election on November 3, 2020; the primary election on September 13, 2022; and the general election on November 8, 2022.
This COMPLAINT identifies concerns with the general election on November 3, 2020 and the primary election on September 13, 2022. While your office has already investigated the November 3, 2020 election and has issued it's findings, we believe it is relevant to this complaint because it shows a continued pattern regarding the lack of due diligence by Windham's election officials to follow simple election procedures that have been put into place to ensure confidence, accuracy and integrity.
The November 3, 2020 General Election During the November 3, 2020 general election in Windham, a large number of documented mistakes were made. Many were not identified until after an independent audit was performed, as well as a year long joint investigation by your office and the Secretary of State.
Both of those investigations uncovered many violations of election laws and procedures by Windham's election officials, as was documented in your office's joint letter with the Secretary of State that was sent to Windham's officials on January 7, 2022. That letter included the following findings:
“Windham's election night results were not just imprecise, they were fundamentally flawed”
“Town election officials cut corners.”
“In the November 2020 General Election, Windham officials did not follow all of the necessary instructions and statutory requirements.”
“The Attorney General makes a finding that the November 2020 General Election returns from Windham had significant deficiencies.”
The independent audit that was performed during May, 2021 was expensive. It cost NH taxpayers over $770,000 and the findings contributed to a decline in voter confidence across the state. That costly lesson exposed mistakes that should not be repeated. One of those mistakes was the folding of absentee ballots through candidate ovals. When those ballots passed through the ballot counting devices, the folds were inaccurately interpreted as a cast vote – which triggered overvotes that caused all four Republican candidates in the Rockingham District 7 State Rep race to lose ~300 votes each (give or take 3 votes). Other times it incorrectly awarded votes to a Democrat candidate – which increased that candidate's vote total by 99 votes that were never cast.
There are many issues identified in the joint AG's and SOS's letter to Windham town officials, as well as in the auditor's report.
Unfortunately, based on pubic comments that have been made multiple times by some Windham election officials, it appears they do not acknowledge the failures and deficiencies that led to the poorly run election on November 3, 2020.
Per RSA 659:77 III, due to the issues that were discovered with the investigations of Windham's General Election on November 3, 2020, an election monitor was appointed for the September 13, 2022 Primary Election.
The September 13, 2022 Primary Election Even with the oversight of an election monitor during the Primary Election, there appears to be continued issues with Windham's elections. We believe the election monitor for the Windham September 13, 2022 primary election failed to provide proper oversight as he did not prevent, nor catch many problems regarding election procedures and reporting errors in Windham.
We believe the issues identified below regarding the September 13, 2022 primary election clearly reflect an inability of Windham's election officials to comprehend and implement their statutory obligations related to the reporting of election results, including but not limited to: the number of voters; the number of ballots received, processed and subsequently sealed in boxes; and even more importantly, the reported vote totals. Many statutory documents were submitted with significant defects multiple times. Each of which, we believe, are in violation of RSA 659:77 III.
The compiling and accurate reporting of election data is not difficult when strict adherence to NH's built in checks and balances are followed. Those procedures can be found in the Election Procedures Manual as well as on the statutory election reporting forms. When followed properly, these procedures aid to identify and correct any errors prior to announcing election results.
We believe to the best of our ability, that many easily identifiable and glaring errors were ignored, and that these discrepancies should have been apparent to Windham's election officials on election night – and corrected on election night – before announcing results.
There were multiple opportunities for all election officials to recognize the errors by cross referencing different sets of data that should match but didn't, e.g. the number of announced voters on election night did not match the number of voters counted by the AccuVote machines (plus hand counted ballots) – nor did it match the number of voters marked as having voted on the Election Day checklist. Neither of those actual number of voters was close to the number of voters announced on election night at 2:35am.
In addition, the number of announced voters should also match the number of cast ballots that were documented on election night – but none of those numbers matched. The following list of issues represents missed opportunities for Windham's election officials to follow appropriate procedures and accurately report election related results and data – but failed to do so.
The first error repeated the folding issue identified by the 2021 audit. After the debacle of the November 3, 2020 election, it is unconscionable that this mistake was repeated. The rest of the issues occurred on or after election night.
1. Ballot Folded Through Candidate Ovals The Windham audit in 2021 proved that a fold going through a candidate's oval can cause huge errors regarding election results. It is difficult to understand and accept that the same mistake was repeated again during the September 13, 2022 Primary Election. This link is an example of an absentee ballot that was received by a Windham voter. That ballot was folded through candidate ovals.
Ignored Discrepancies That Identified Glaring Errors
2. Discrepancy: Announced Voters on Election Night vs. Voters Marked on the Checklist The number of announced voters on election night (3,724) is 959 more voters than the number of voters marked as having voted on the election day checklist (2,765). These numbers should match, but Moderator Peter Griffin announced 959 more voters on election night than actually voted.
3. Discrepancy: Announced Voters on Election Night vs. Voters Reported in the Moderator's Worksheets The number of announced voters on election night (3,724) is 971 higher than the combined number of voters reported on the Democrat and Republican Moderator's Worksheets (2,753). Those numbers should be identical.
4. Discrepancy: Announced Voters on Election Night vs. Number of CAST Ballots Sealed in Boxes The number of announced voters on election night (3,724) is 372 less than the number of cast ballots that were sealed into the ballot boxes on election night per the chain of custody records (4,116). These numbers should be identical. There cannot be more ballots cast than voters.
Table 1: The total number of cast ballots is 4,116 per chain of custody records
5. Discrepancy: Announced Voters on Election Night vs. Counted Ballots (AccuVote Counted Ballots Plus Hand-Counted Ballots) The number of announced voters on election night (3,724) is 956 higher than the number of cast ballots on election night (2,768) per the AccuVote machines (see table 2 below) plus hand count totals. Those numbers should be identical. There cannot be nearly 1,000 more voters than ballots cast.
Note: Table 2 below shows a total of 2,705 ballots cast through AccuVote machines. In addition, there were 7 hand-counted Democrat ballots and 53 Republican hand-counted ballots listed on the Democrat and Republican Moderator's Worksheets.
Table 2: AccuVote Ballot Totals
6. Discrepancy: Number of CAST Ballots Sealed in Boxes vs. AccuVote Plus Hand-Counted Ballots The number of cast ballots that were sealed into the ballot boxes on election night per the chain of custody records (4,116) is 1,348 higher than the combined number of AccuVote cast ballots plus hand counted ballots on election night (2,768). Those numbers should be identical.
7. Discrepancy: Announced Voters on Election Night vs. Number of CAST Ballots on Moderator's Worksheets The number of announced voters on election night and in the local paper (3,724) is 960 higher than the combined number of cast ballots as reported on the Democrat and Republican Moderator's Worksheets (2,764). These numbers should be identical. There cannot be 960 more voters than ballots cast.
8. Discrepancy: CAST Ballots on Moderator's Worksheets vs. Number of CAST Ballots Sealed in Boxes The combined number of cast ballots as reported on the Democrat and Republican Moderator's Worksheets (2,764) is 1,352 lower than the number of cast ballots that were sealed into the ballot boxes on election night per the chain of custody records (4,116). These numbers should be identical.
9. Discrepancy: Voters Reported on Moderator's Worksheets vs. Number of CAST Ballots Sealed in Boxes The combined number of voters reported on the Democrat and Republican Moderator's Worksheets (2,753) is 1,363 lower than the number of cast ballots that were sealed into the ballot boxes on election night per the chain of custody records (4,116). These numbers should be identical. They are not even close.
10. Discrepancy: More Election Day Ballots Sealed on Election Night than Received From the Secretary of State The number of Election Day ballots that were sealed into the ballot boxes on election night per the chain of custody records (6,303) is 1,333 more ballots than the number of Election Day ballots that were received from the Secretary of State as defined in the Moderator's Certificate (4,970). These numbers should match.
Note: Table 4 below shows a total of 6,443 ballots were sealed into ballot boxes per the Ballot Chain of Custody records. 140 ballots are Absentee Ballots – as documented in line #9 of the Democrat and Republican Moderator's Worksheets, and 6,303 ballots are Election Day Ballots (Cast and Uncast).
Table 4: Sealed Ballots
11. Discrepancy: Inconsistent Reporting of Uncast Ballots The combined number of uncast ballots listed on line #3 on the Democrat and Republican Moderator's Worksheets (1,147 + 1137 = 2,284) is 43 ballots lower than the total number of uncast ballots that were sealed into the ballot boxes on election night per the chain of custody records (2,327 – see Table 4 above). These numbers should be identical.
12. Discrepancy: Voters Marked on the Checklist vs. Voters Reported in the Moderator's Worksheets The number of voters marked as having voted on the election day checklist (2,765) is 12 more than the combined number of voters reported on the Democrat and Republican Moderator's Worksheets (2,753). Those numbers should be identical.
13. Discrepancy: CAST Ballots on Moderator's Worksheets vs. Voters Reported on Moderator's Worksheets The combined number of cast ballots as reported on the Democrat and Republican Moderator's Worksheets (2,764) is 11 higher than the combined number of voters reported on the Democrat and Republican Moderator's Worksheets (2,753). Those numbers should be identical.
14. Incorrect Number Reported for CAST Election Day Ballots (Democrat) The “Total Number of Ballots Cast by ELECTION DAY voters” (line #5) in the Democrat Moderator's Worksheet was incorrect. The entered value is 672. The value per the formula for line #5 should have been 715.
15. Unexplainable Reporting of “Grand Total Number of Ballots Cast” (Democrat) The “Grand Total Number of Ballots Cast” (line #10) in the Democrat Moderator's Worksheet is a sum of line #5 and line #9. The entered value in line #10 correctly matches the number of voters marked as having voted on the Election Day checklist (within 1). However, as can be seen in Issue #14, the value in line #5 is wrong. How can line #10 be correct (within 1) when line #5 is off by 43?
16. Inconsistent Reporting of the Number of Hand-Counted Republican Ballots The number of Hand Counted Republican ballots in the Republican Moderator's Worksheet (56) is different than the number of hand counted ballots on the Windham Town Clerk's Hand Count spreadsheet (53). These numbers should match.
17. Incorrect Number Reported for AccuVote CAST Ballots (Republican) The number of “Total Ballots Cast from the ACCUVOTE election results tape” that is entered in Section C of the Republican Moderator's Worksheet is 1985 ballots. The correct number of Republican Ballots Cast is 1989, as can be seen in Table 3 below.
Table 3: AccuVote Republican Ballot Totals
Election Results: Republican Return of Votes
There were at least four versions of the Republican Return of Votes forms for the September 13, 2022 Primary. The first was created on election night, and at least three “CORRECTED” Return of Votes were produced between September 14, 2022 and September 19, 2022.
A summarized table of all four Republican Return of Votes forms highlights the differences between each version.
18. Republican Return of Votes CORRECTED Three Times There appears to be a total of 85 modifications to candidate vote totals over three corrected Return of Votes forms. Depending on the race, those changes ranged from a single vote to as many as 69 votes. Collectively, the vote changes add up to hundreds of changed votes. There is no explanation regarding how the original mistakes were made, nor how any of the modified totals were calculated, recalculated, and in some cases recalculated again. In addition, it is not clear when these changes were made, who made the changes, who was present when the changes were made, and who approved the changes to be made.
19. Wrong Candidate Declared Winner AFTER Second & Third CORRECTED Return of Votes The second and the third final CORRECTED Republican Return of Votes form changed the outcome of the State Rep Race for District 35, making Roger W. Fillio the winner over Julius F. Soti. The final correction was submitted to Secretary of State David Scanlan via an email on September 19, 2022 - three days after the statutory filing period had ended.
20. Correct Winner Declared After Recount – Restoring Election Day Result A recount of the State Rep Race for District 35 that was held on September 20, 2022 reversed the outcome from the Official “CORRECTED” results, and Secretary of State David Scanlan declared Julius F. Soti the winner. The recount totals on September 20, 2022 were within one vote of the vote totals on election day - raising questions why the results were modified after election day that incorrectly changed the outcome of the election.
21. Wrong and Missing Undervotes and Overvotes (Republican) There are many errors regarding the reported number of undervotes and overvotes for many races on each of the Republican Return of Votes forms – and in many cases there were no undervotes or overvotes reported at all. RSA 659:73 IV (k) & (l).
Election Results: Democrat Return of Votes
There were at least four versions of the Democrat Return of Votes forms for the September 13, 2022 Primary. The first was created on election night, and at least three “CORRECTED” Return of Votes were produced between September 14, 2022 and September 19, 2022.
A summarized table of all four Democrat Return of Votes forms shows and highlights the notable modifications between each version:
22. Two Candidates Received More Votes Than Ballots Cast (Democrat) Correction #2 of the Democrat Return of Votes – marked “OFFICIAL RESULTS” - showed Maggie Hassan and Ann McLane Kuster received more votes that ballots cast. An impossible outcome.
23. Wrong and Missing Undervotes and Overvotes (Democrat) There are many errors regarding the reported number of undervotes and overvotes for many races on each of the Democrat Return of Votes forms, and in many cases there were no undervotes and overvotes reported at all. RSA 659:73 IV (k) & (l).
“CORRECTED” Moderator's Worksheets
There is a “CORRECTED” Democrat Moderator's Worksheet and a “CORRECTED” Republican Moderator's Worksheet.
This summarized table shows the differences between the original Moderator's Worksheets and the corrected Moderator's Worksheets to make it easier to understand how each issue below impacted the reported results.
24. The Secretary of State Only Received the Original Versions of Moderator's Worksheets To our knowledge, only the original versions of the Democrat and Republican Moderator's Worksheets were delivered to the Secretary of State. This statement is based on a 91-A request to the Secretary of State and through communications with Orville B. Fitch II, Elections Legal Counsel. Shouldn't the Secretary of State have copies of ALL the versions of the Moderator's Worksheets (original and corrected)?
25. The Windham Town Clerk Only Had Corrected Versions of Moderator's Worksheets The “CORRECTED” versions of the Democrat Moderator's Worksheet and the Republican Moderator's Workheet were obtained from the Windham Town Clerk, who did not have a copy of the original Moderator's Worksheets. Shouldn't the Windham Town Clerk have copies of ALL the versions of the Moderator's Worksheets (original and corrected)?
26. Corrected Moderator's Worksheets Did Not Correct Reconciling Issues Identified Above Minor changes were made to the “CORRECTED” versions of the Republican and Democrat Moderator's Worksheets. None of the issues identified above were resolved with any of the “CORRECTED” Moderator's Worksheets. The large discrepancies for each issue identified above only changed by small amounts.
27. Incorrect Number Reported for Election Day CAST Ballots (Republican) The “Total Number of Ballots Cast by ELECTION DAY voters” (line #5) in the “CORRECTED” Republican Moderator's Worksheet was incorrect. The entered value is 1958. The value per the formula for line #5 should have been 1936.
28. Incorrect Number Reported for Election Day CAST Ballots (Democrat) The “Total Number of Ballots Cast by ELECTION DAY voters” (line #5) in the “CORRECTED” Democrat Moderator's Worksheet was still incorrect. The entered value is 673. The value per the formula for line #5 should have been 715.
29. Unexplainable Reporting of “Grand Total Number of Ballots Cast” (Democrat) The “Grand Total Number of Ballots Cast” (line #10) in the “CORRECTED” Democrat Moderator's Worksheet is a sum of line #5 and line #9. The entered value in line #10 correctdly matches the number of voters marked as having voted on the Election Day checklist. However, as can be seen in Issue #28, the value in line #5 is wrong. How can line #10 be correct when line #5 is off by 42?
30. Incorrect Number Reported for AccuVote CAST Ballots (Republican) The “Total Ballots Cast from the ACCUVOTE election results tape” on the “CORRECTED” Republican Moderator's Worksheet was changed to 1990 ballots. This number is still incorrect. Table 3 above shows the actual number of Republican Ballots Cast from the AccuVote results tape was 1989.
Signature Requirement Questions
31. Moderator's Signatures Are Missing The area for the Moderator's signature on the Names on Checklist and Names on Checklist Worksheet forms are blank. They are not signed. Do these actions violate RSA 659:73 IV?
32. Signature Question None of the four Moderator's Worksheets were signed by Moderator Peter Griffin. Mr. Griffin's name is listed in the Moderator field at the top of the form, but the form was signed by Assistant Moderator Galen Stearns. In addition, the Worksheets were signed after the statutory deadline of 48 hours after the poll closed. Do these actions conform with RSA 659:73 IV?
33. Signature Question The Moderator's Certificate was signed by Assistant Moderator Galen Stern, not Moderator Peter Griffin. In addition, the Moderator's Certificate was signed after the statutory deadline of 48 hours after the poll closed. Do these actions conform with RSA 659:73 IV?
Conclusion We believe that many of the issues above should have been identified on election night, using the built in system of checks and balances as defined in the statutory reporting procedures and forms.
Per the AG's 2019 Cease and Desist letter to Exeter, the responsibility and accuracy of counting the votes, reporting the number of ballots cast, and reporting of the votes cast, rests collectively with the moderator, the selectmen and the town clerk – and that it is their duty to ensure the accuracy of the tallies prior to the public announcement. Per the Cease and Desist Letter:
“It is the responsibility of the moderator to oversee the counting of votes. RSA 659:60. The selectmen and town clerk are required to assist the moderator in performing this task. RSA 669:58. 'After the counting, the moderator shall make a public declaration of the number of the ballots cast, with the name of every person voted for and the number of votes for each; and the town clerk shall make a fair record thereof in the books or the town.' RSA 669:58; See also RSA 659:70. Inherent in this responsibility is the duty to ensure the accuracy of the tallies prior to the public announcement.”
Your office's Cease and Desist letter to Exeter noted the ballot count was 110 ballots higher than the number of reported voters on election night. A multitude of discrepancies in the Windham September 13, 2022 primary dwarf that number. A few examples:
Issue #2 shows there were 959 more voters announced on election night than there were voters marked as having voted on the Election Day checklist.
Issue #4 shows there were 372 more cast ballots reportedly sealed in the ballot boxes than there were announced voters on election night.
Issue #6 shows there were 1,348 more cast ballots sealed in ballot boxes than counted by the AccuVote machines plus hand counts.
The issues identified in this complaint occurred with an appointed election monitor present.
There are many areas of concern identified. It appears: the announced number of voters on election night was over reported by 959; the reported number of cast ballots changed dramatically; hundreds of more ballots were sealed in ballot boxes than received from the Secretary of State; vote totals continued to change for nearly a week; simple math errors were made on multiple forms; some forms were missing signatures, and more.
This complaint raises many concerns and unanswered questions. As your office has pointed out, voters have a right to expect the number of voters, ballots and votes are accurately reported on election night. It appears that is not what occurred in Windham.
It is disheartening that it appears all of the time and expense of the Windham election audit was not taken seriously by Windham election officials. The audit uncovered the issue of votes being incorrectly counted by voting machines due to a fold going through a candidate's ovals. Care and due diligence should have been taken by Windham election officials to ensure the same mistake was never repeated.
In addition, there were a multitude of easily identifiable and therefore avoidable reporting errors for the September 13, 2022 election where many warning signs were ignored. That is the second federal election in a row where numerous errors were produced, and it reflects poorly on every one of Windham's elected election officials listed in this complaint.
It also reflects poorly on the Attorney General's and Secretary of State's Offices, and there remains a duty and obligation for additional action.
There are also issues related to the November 8, 2022 general election. An additional complaint related to that election will be filed with your office when it is completed.
Respectfully Submitted,
Ken Eyring 44 Indian Rock Rd, Suite 775, Windham, NH 03087 Ken@IntrinetSystems.com 603-327-7682
Thomas J. Murray Jr. 29 West Shore Rd, Windham, NH 03087 Tom@PuglieseContracting.com 781-389-6107