Opinion of the Justices, No. 7050

No. 7050 | N.H. | Nov 4, 1974

To His Excellency the Governor and the Honorable Council:

The first question, submitted by the Governor and Council this morning, is as follows: “1. Is a ballot cast by means of a voting machine a ‘written ballot’ within the meaning of Part II, Article 100 (c) of the New Hampshire Constitution?”

Our answer to this question is “Yes”. The purpose of the constitutional requirement of a “written ballot” is to ensure the secrecy and integrity of the voting process and to provide a method of voting other than by voice or show of hands. The use of a voting machine is consistent with this purpose. Annot., 66 A.L.R. 855 (1930); cf. Nichols v. Minton, 196 Mass. 410" court="Mass." date_filed="1907-10-30" href="https://app.midpage.ai/document/nichols-v-board-of-election-commissioners-6430005?utm_source=webapp" opinion_id="6430005">196 Mass. 410, 82 N.E. 50 (1907).

The second question submitted by the Governor and Council is as follows: “2. If the answer to the first question be in the affirmative, will the use of voting machines for the purpose of balloting on proposed constitutional amendments at the 1974 biennial election constitute the employment of ‘substitute ballots’ as permitted by RSA 59:21?”

Our answer to this question is “Yes.” RSA 59:21 provides for the use of substitute ballots in lieu of official ballots “in order that no voter shall be deprived of the right to vote for the lack of a ballot.”

It has been represented that a ballot which would comply with all the requirements (RSA 68-A:7; RSA ch. 59) cannot be placed in the voting machines in the city of Portsmouth in time for use at the biennial election tomorrow. It is further represented that the ballot which is presently in the voting machines conforms in every respect with the official ballot except for the color and possibly the exact size of the type provided for in the resolution adopted by the Constitutional Convention of 1974. See N.H. Jour. Const. Conv. 280 (1974); RSA 59:12; RSA 68-A:7.

“Statutes regulating the form of ballots are generally regarded as directory rather than mandatory. Annot., 165 A.L.R. 1263, 1264 (1946); 3 E. McQuillin, Municipal Corporations § 12.14, at 109-10 (3d ed. rev. 1963). They provide a convenient and uniform method for voting, but should not be applied to disenfranchise voters because of technical irregularities.” Keene v. Gerry’s Cash Mkt., Inc., 113 N.H. 165, 304 A.2d 873 (1973).

In view of our answers to questions number 1 and number 2 it is unnecessary to question number 3.

Frank R. Kenison Laurence I. Duncan Edward J. Lampron William A. Grimes Robert F. Griffith Warren B. Rudman, attorney general, Richard V. Wiebusch, attorney, and W. John Funk, attorney, filed a memorandum of law, in support of affirmative answers to questions one and two and in support of a negative answer to question three.