Opinion of The Justices

• Decision Date: 29 December 1976
• Docket Number: No. 7664,7664
• Citation: 116 N.H. 756,367 A.2d 209
• Parties: OPINION OF THE JUSTICES. Request of Governor and Council,
• Court: New Hampshire Supreme Court

Page 209

367 A.2d 209

116 N.H. 756

OPINION OF THE JUSTICES.

Request of Governor and Council, No. 7664.

Supreme Court of New Hampshire.

Dec. 29, 1976.

The following resolution was adopted by the Governor and Council and filed in this court on December 22, 1976:

'WHEREAS, at the biennial election on November 2, 1976, the voters of this state were asked to consider an amendment to the Constitution of the State of New Hampshire described in the following question:

'Are you in favor of amending the Constitution to provide for annual sessions of the legislature and to allow mileage payments for actual attendance for a maximum of ninety legislative days per biennium;' and

'WHEREAS, the statewide vote total on this question was 188,567 affirmative, 95,632 negative, the proposed amendment thereby failing by 993 votes to obtain the required two-thirds favorable vote for adoption (Part II, Article 99, New Hampshire Constitution); and

'WHEREAS, the Governor and Council, pursuant to RSA 59:101 (supp.), have ordered a recount of this constitutional question; and

'WHEREAS, the Town Clerk of Newmarket has informed the Secretary of State that the constitutional question ballots in that community were inadvertently destroyed after they had been counted on election night and an official return certified to the Secretary of State; and

'WHEREAS, according to that return 1,789 ballots were cast in Newmarket on this question, 690 affirmative, 440 negative, there being no specific challenge to that result and no allegation of fraud or wrongdoing in the manner in which the election was conducted, the ballots counted or the ballots destroyed; and

'WHEREAS, it is possible to recount this question for the rest of the state; and

'WHEREAS, the vote in Newmarket as officially certified and reported is such that unless a massive alteration in the result in that town were discovered in a recount, the vote would not affect the final state outcome; and

'WHEREAS, the said Governor and Executive Council consider the present situation to be a solemn occasion creating an important question of law pursuant to Part II, Article 74 of the New Hampshire Constitution;

'NOW THEREFORE BE IT RESOLVED that the Court's opinion be given on the following question:

'Should the Governor and Council allow its order for a recount of this constitutional question to stand, given the absence of the ballots from the Town of Newmarket, when there is an official, certified tally from that town, with no allegation of fraud or wrongdoing; and if your answer is in the affirmative, would it be possible to include the original ballot tally certified by the Town Clerk of Newmarket as totals for the Town of Newmarket in with the recount ballots to provide the necessary and desired solution?'

'AND BE IT FURTHER RESOLVED that seven (7) copies of this Resolution be forwarded to the Clerk of the Supreme Court by the Secretary of State.'

The following answer was returned:

'To His Excellency the Governor and the Honorable Council:

'Your resolution presents to this court the question whether an otherwise statutorily authorized recount pursuant to RSA 59:101 (Supp.1975) may proceed in the face of a town's innocent destruction of its ballots, and, if so, whether the original certified ballot tally of the town should be included in the recount.'

Subsequent to the submission of the original question, the court was advised that ballots in two additional towns were also inadvertently destroyed after they had been counted on election night and an official return certified to the secretary of state. According to the return for the town of Mason, 273 ballots were cast on the question: 169 affirmative, 104 negative; and for the town of Nottingham, 583 ballots were cast: 376 affirmative, 207 negative. In both instances there are no specific challenges to the results and no allegations of fraud or wrongdoing in the manner in which the elections were conducted, the ballots counted, or the ballots destroyed.

RSA 59:101 (Supp.1975) provides that upon presentation to the Governor and Council of a petition requesting...