Independent New Hampshire Journalism · Northfield, NH

If the School Tax Cap Vote Is Close, the Law Doesn’t Say How the Ballots Get to the Recount

Five days after HB 1300 was signed, a warning that its recount rules cannot work reached the Secretary of State’s elections office. The statute bears out most of the warning, and it carries a ballot-retention problem the warning missed.

On July 20, 2026, a school finance official at the New Hampshire Department of Education forwarded a one-page document to Patricia Piecuch, whom he addressed as Director of Elections in the Secretary of State’s office. Mark Manganiello wrote that “someone provided information” to the department about how ballots on the new school tax cap question would be handled. The document is unsigned. Its author is not named anywhere in the record.

Its claim was blunt. HB 1300, the law that puts a school tax cap question on the 2026 and 2028 general election ballots in every town and ward, sets up a recount that asks town clerks to do things they are not allowed to do. The document called its recount provisions “literally impossible to implement.”

I read the recount paragraph of the enrolled law against the state’s election statutes and the federal records law the warning cites. The warning is right that the recount has no workable route from the clerk’s vault to the school board’s table. It overstates the federal crime. And it missed a third problem in the same section: the law tells clerks to keep these ballots under the schedule for elections with no federal races, on a ballot that carries a U.S. Senate race and both U.S. House seats.

What the warning said

The document makes two arguments. First, it reads HB 1300 to require the town clerk to hand the ballots to the school board when voters ask for a recount. Because the tax cap question sits on the same ballot as federal offices, it says, federal law requires the clerk to keep those ballots, and they may go to other election officials only when the law requires it. School board members are not election officials, the document argues, so a clerk who hands them over breaks federal law and risks up to a year in prison.

Second, it asks what happens when voters want a tax cap recount and a candidate wants a recount of a race on the same ballot. The secretary of state recounts candidate races. The school board recounts the tax cap question. There is one set of paper ballots.

Manganiello copied Caitlin Davis of the Department of Education and told Piecuch he was passing it along because she works with election officials on HB 1300. The copy Granite State Report received came from the files of the Department of Revenue Administration, released under the Right-to-Know law on July 31. Its printout carries the name of Jennifer Ramsey, the department’s tax policy counsel. The released records show no reply, though the department withheld six other emails responsive to the request as privileged.

What the law says about recounts

Paragraph VII of RSA 32:5-i is the whole recount procedure for the school district question. Any 10 registered voters from a town in the district may apply in writing to the school district clerk within 7 days of the general election. The recount is to be conducted by the school board, no earlier than 5 days and no later than 10 days “after the date the secretary receives the petition.” The fee is $10. A parallel subparagraph has the SAU secretary receive petitions on the SAU fixed cap question and the school administrative unit conduct the recount.

That is everything. The paragraph does not say who brings the ballots to the school board, who opens the sealed containers, who watches them, how they are counted, or where they go afterward. It cites no other statute. Subparagraph (a) assigns scheduling, and starts the recount clock, with “the secretary” without naming one. It could mean the SAU board secretary, who receives the district’s results under paragraph VI, or it could be a carryover from subparagraph (b), where the SAU secretary receives the petition. The fee goes to “the school clerk,” a third title in three sentences.

Compare the recount law New Hampshire already uses for town ballot questions. Under RSA 40:4-c, the town clerk receives the petition, sets the time and place, mails notice, and posts it publicly. The ballots are recounted by the board of recount under the procedures for town elections in RSA 669:30 through 33. The Legislature had a working model with a chain of custody built in. HB 1300 copied its 10 voters, its 7 days and its $10 fee, and left out the rest.

Meanwhile the ballots themselves sit where state law puts them after every election: in sealed containers signed by the moderator and selectmen, held by the town or city clerk. For candidate recounts, RSA 660:5 has the state police collect the ballots from “the town or city clerks having custody of them” and deliver them to a site the secretary of state picks. HB 1300 gives the school board the job of recounting and gives nobody the job of moving the ballots.

The schedule the law picked

Paragraph VI(c) contains one sentence on what happens to the ballots: “Preservation of ballots shall be pursuant to RSA 33-A:3-a, XXXVII.”

RSA 33-A:3-a is the state’s records-retention schedule. It has two paragraphs for ballots. Paragraph XXXVI covers federal elections and requires the town clerk to keep ballots until any contest is settled or “at least 22 months after the election,” whichever is longer. Paragraph XXXVII, the one HB 1300 cites, covers elections that are not federal. Its minimum is 60 days.

The tax cap question has no ballot of its own. Paragraph II of the same law puts it on the state general election ballot, on the back if the front runs out of room, or on a separate ballot if the back is impracticable too. On Nov. 3, that ballot carries a U.S. Senate race and both of the state’s U.S. House seats.

A clerk who follows HB 1300 to the letter could treat these ballots as 60-day records. A clerk who follows paragraph XXXVI, as the federal races on the same sheet require, keeps them 22 months. Read that way, the error never destroys a ballot. But a law that will be read in a contested recount names the wrong retention rule for the paper it governs, and nobody in the record has said so.

The federal crime is less certain than the warning says

The federal law the warning cites is 52 U.S.C. § 20701. It requires every “officer of election” to keep, for 22 months, the records and papers of any election that includes a federal race. Willful failure carries a fine of up to $1,000, up to a year in prison, or both. The warning has that penalty right.

The warning knows about that exception. Its case rests on one premise: that school board members are not election officials. Federal law defines “officer of election” broadly, in 52 U.S.C. § 20706: any person who, under color of state law, performs a function, duty or task in connection with any registration or “other act requisite to voting” in an election with federal candidates. A school board ordered by RSA 32:5-i to recount ballots from a federal election is performing a task under state law, which supports reading the board as an officer of election and the hand-off as one “required by law.” The definition’s tie to acts requisite to voting cuts the other way: a recount happens after the voting is done.

That argument does not make the recount safe. The Justice Department’s 2021 guidance on post-election reviews says the duty to preserve federal election records “remains intact regardless of who has physical possession,” and that federal law requires procedures giving election officers ultimate management authority over those records. A school board that receives ballots under a statute with no custody rules, no observers and no return procedure takes on a federal preservation duty the statute never mentions. The clerk who hands the ballots over has no instructions to point to.

Granite State Report found no court ruling on whether a New Hampshire school board conducting this recount counts as an officer of election under federal law. The warning states the crime as certain. It is a real risk with a credible defense, and a clerk should not have to bet a federal charge on which reading wins.

Two recounts, one stack of paper

The second argument in the warning holds up without qualification. Under RSA 660:1, a candidate must ask the secretary of state for a recount by the Friday after the election. In 2026 that is Nov. 6. A tax cap recount petition is due within 7 days of the election, by Nov. 10, and the school board must hold the recount 5 to 10 days after “the secretary” receives it. The windows overlap.

If both requests land, the same sealed containers are wanted by the state police for the secretary of state and by the school board in a different building. HB 1300 says nothing about which comes first, whether the board must wait, or whether its 10-day deadline pauses. The law gives the board a deadline it may not be able to meet without breaking a seal someone else is entitled to.

The sharper problem is at the multi-town level. A school district that serves five towns has five clerks holding five sets of ballots. The petition goes to one school district clerk. The law never says how the other four sets arrive.

What happens next

The Secretary of State’s office prints the ballot that carries this question, supplies the sealers on every ballot container, and conducts candidate recounts. The records released to Granite State Report do not show whether it answered the July 20 warning or issued guidance on HB 1300 recounts. A reply sent to the Department of Education would not necessarily sit in the revenue department’s files. I found no published guidance from the office on the question.

The fixes are not hard. A recount of the tax cap question could run through the town clerks and boards of recount that already handle town ballot questions, with results reported to the school board. A one-line amendment could point paragraph VI(c) to paragraph XXXVI. A sequencing rule could hold any tax cap recount until a candidate recount of the same ballots is finished. The Legislature is not scheduled to meet before Nov. 3. All of it can pass before the question returns in 2028.

For the 2026 vote, the people who need an answer are the clerks. If the tax cap vote in any district lands close to 60 percent, 10 voters can file a petition. On the law as written, the clerk who receives it has no instructions to follow and a federal records statute to answer to.

Granite State Report has reported the ballot question’s mismatch with the law and what three court orders decided about it. The recount paragraph is the part that will matter on the night the margin is thin.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Sources: Department of Revenue Administration records released July 31, 2026; the enrolled text of HB 1300; the New Hampshire statutes and federal code cited above. Neither Granite State Report nor its editor is a lawyer; the federal-law analysis is reporting, not legal advice. Corrections to granitestatereport@gmail.com.

Corrections: Granite State Report corrects verified errors promptly and appends a dated note identifying what changed and when. The corrections policy and the corrections register are public, and correction notes are never removed.