By GARRY RAYNO, Distant Dome

The recounts for House races have a particular significance this year with a nearly evenly split House between Republicans and Democrats.

That Democrats did as well as they did — their candidates received more votes than Republicans — is amazing as the House is gerrymandered to favor the GOP even more than it did the last decade.

The sad part of this is Republicans do not need any help tilting the scale in their favor and that is what they received in the Secretary of State Dave Scanlan’s decision to “continue” the recount of Hillsborough District 16 race for two House seats.

After the first recount, Maxine Mosley had a one-vote advantage over veteran GOP representative Larry Gagne to represent Ward 6 in Manchester and Scanlan declared her the winner.

Later last week, Scanlan announced an audit or reconciliation of the votes cast in the governor’s race in that ward would indicate some ballots may have been missed in the recount.

He said the recount would be continued this week assuming that some ballots may have been misplaced and put in the wrong pile in the recounting process.

The Democrats and Mosley sued seeking to block the recount saying state statutes forbid a second recount and there is no reconciliation process in a recount.

Scanlan argued he was not proposing a recount, but a “continuation” of the recount process by recounting the votes of the two Republican candidates for the seat who lost about 20 votes in the first recount.

He based his assumption on an audit of the Ward 6 vote under a new statute requiring the Secretary of State to audit a voting district in each of the state’s 10 counties.

The audit was announced and completed after Mosley was declared the winner. 

Being somewhat cynical after spending more than 25 years at the State House, I wonder how and why the Ward 6 race in Manchester was selected for an audit or reconciliation which looks at the votes cast in the ward, the votes for governor, and the over votes, where a voter votes for more candidates than seats, or under votes, by not voting on one or more races on the ballot. Someone needs to answer the question.

The process did not go unnoticed by Superior Court Judge Amy Ignatius, although she denied the Democrats request for an injunction to stop the “continuation.”
In her nine-page decision released Tuesday morning, she said the action would be a recount and the Secretary of State has no statutory authority to conduct a second recount or a reconciliation after the first recount was completed.

“The defendant does not propose to count only the uncounted ballots, because there is no way to know which ballots have been left uncounted. Because the defendant proposes to count votes already counted in a recount, his planned course of action would effectively be a second recount, and not solely a continuation of the initial recount,” Ignatius wrote. “The defendant does not maintain statutory authority to reconcile the results of a recount nor authorize the continuation of a recount. RSA 660:5 and 660:6 prescribe the conduct of a recount and declaration of a winner. Neither statute authorizes a reconciliation process after a recount, continuation of a recount after a winner is declared, nor a second recount.

“Further there is no history of conducting a reconciliation after a recount. A statutory analysis alone, requires the court to find in favor of the plaintiffs.”

But then comes the but.

“However, the court does not agree with the plaintiffs that the defendant is barred from conducting further review of the ballots in this circumstance,” Ignatius writes.

She notes she does not have evidence to prove Scanlan’s presumption, but says it is reasonable and instead quotes from a 1970 state Supreme Court decision saying the will of the people voting to select their representative is more important than whether an election officer has followed all the statutes.

“The issue is: What is the legally expressed choice of the voters,” she quotes from the Nickerson v. Aimo decision.

In other words, the Secretary of State has no legal standing to do what he is doing or did, but in the interest of free and fair election the will of the people is the final say. 

Ignatius says the situation is complex but believes the will of the voters is what needs to be determined.

Ignatius did refuse to go along with counting just the votes for the Republican candidates and ordered that all votes for the District 16 race be recounted.

Republicans were quick to criticize Democrats for “not wanting all the votes to be counted,” but don’t think for a minute they would have acted any differently if the results were reversed.

And it is clear, there was some — for lack of a better term — hanky panky to ensure the Manchester Ward 6 ballots were selected for the Hillsborough County audit after the recount results were known.

Ultimately the will of the Ward 6 voters will be determined, but it sure appears to be an attempt to recount the race until you get the results you want on the Republican side.

Voter fraud and election integrity have long been sound bites of Republicans. It may not be fraud, but there is something that does not smell right — integrity — about this situation and the smell is not emanating from the Democratic side.

Republicans do not want a 200-200 tie in the House because that is not to their advantage. It is far more likely a few GOP House members might be willing to join with Democrats to prevent what went on the last two years, while Democrats are not about to jump ship given the antics of the 2021-2022 Republican controlled House.

It would be better to have a special election for the two seats in Ward 6 in Manchester, and in the Rochester race that ended in a tie. Yes let the people decide without the political insiders using their magic to get their desired results.

Garry Rayno may be reached at garry.rayno@yahoo.com.

Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.