Despite some confusion at the state level, it was decided that the town had the legal authority to postpone the March 14 election because of a powerful nor’easter, according to the law firm representing the town.
Speaking at the March 28 Town Council meeting, attorney Brenda Keith, of Boutin & Altieri PLLC, said she was asked by the council to address the lingering questions surrounding the postponement of the election from March 14 to March 21 by town officials.
Derry was among a number of towns that postponed the election because of the potent storm that struck the east coast.
Following the postponement, former State Rep. Andrew Manuse, of Derry, filed the formal complaint to nullify the election.
In addressing the postponement, Keith said Derry’s Charter section 2.2 sets out the town moderator’s duties and specifically indicates that the moderator shall have “all the powers and duties under state law.”
And citing state statute, RSA 40:4, section II, she said that clearly states that the town moderator in a weather emergency can postpone the election.
Keith said there was a little bit of disagreement between the offices of the secretary of state and the attorney general on whether RSA 669:1 called for towns to hold elections on the second Tuesday of March. The secretary of state’s office holds that the statute requires towns to hold elections despite a weather emergency.
But Keith said RSA 40:4, section II, was adopted later than RSA 669, and does allow for voting day to be postponed in the event of a weather emergency.
Keith said she received multiple alerts from the town to the postponement and praised the way the town administrator, town clerk and town moderator handled publicizing the postponement.
“So I think that the town not only had the authority, but they used the authority and when the moderator postponed, the town government took great steps in getting the word out that the election had been postponed,” Keith said, adding,
“So I’m am perfectly comfortable with the actions of the town moderator and all of the town government in postponing the election. And as far as your town’s legal counsel is concerned this is a closed issue.”
As for Manuse’s complaint, the former state representative said he didn’t get a chance to vote because of the postponement and nothing was posted to alert voters.
Town Clerk Daniel Healey said the town recently received Manuse’s complaint letter.
In response, Healey cited a letter from Town Moderator Mary Till on the matter.
“I would refer you to Mary’s official letter on the day of the postponement for our view on the matter,” Healey wrote in an email.
In the letter, Till said she was advised by the town attorney, and
based on the results of a conference call with the governor, state
election officials, and various town attorneys and moderators, “it was determined that the Town Moderator is responsible for postponing a town election due to a weather emergency.”
Till wrote in the letter before the postponement, “Thus as indicated earlier, the polls in Derry will be closed tomorrow March 14 and the election postponed until Tuesday, March 21 from 7 a.m. to 8 p.m. The same three polling places will be open.”
The Secretary of State’s Office has determined that ballot voting must go on and that elections in New Hampshire can’t be postponed because of storms.
Healey responded in the email that, “The Secretary of State’s opinion has been publicly noted. We are one of many towns that postponed and every town I have spoken with had consulted with their legal counsel, as have we.”
In hearing from Secretary of State’s Office recently on the election’s postponement, State Rep. John O’Connor said it’s possible the election could be nullified. O’Connor said it is an extremely complicated situation.
“There’s a possibility that the election we this week had could be null and void we and may have to have another town election to ratify,” O’Connor said.