New Hampshire Has Its Own Kris Kobach

Trump’s “election integrity” commission may have disbanded, but the Granite State’s voter fraud czar is just getting started.

People wait in long lines to vote at Memorial High School in Manchester, New Hampshire, on Nov. 8, 2016.
People wait in long lines to vote at Memorial High School in Manchester, New Hampshire, on Nov. 8, 2016. Suzanne Kreiter/Boston Globe via Getty Images

From the beginning of its brief, nonillustrious existence, Donald Trump’s voter fraud commission had a special connection to New Hampshire. Trump launched the commission to justify his claim that millions of illegal votes were cast in the 2016 election, many of them in the Granite State. He placed New Hampshire’s Democratic Secretary of State Bill Gardner on the panel to give the group a phony patina of bipartisanship. The commission also traveled to the state for its second and last meeting, an acrimonious affair during which co-chairman Kris Kobach defended his false allegation that thousands of illegal votes swung the vote in New Hampshire in 2016.

In early January, the commission disbanded in response to a lawsuit by a Democratic member who was iced out of discussions by his Republican colleagues. The hunt for illegal voting in New Hampshire, however, will continue apace. Last year, the GOP-controlled legislature passed a law requiring the state to investigate voters who fail to provide certain documents after casting a ballot. Gardner appointed the state’s former Deputy Attorney General Orville “Bud” Fitch to carry out the work. Fitch will soon pass along a list of suspects to the attorney general’s office so prosecutors can bring charges against these allegedly fraudulent voters.

How did New Hampshire wind up with a powerful voter fraud czar given that there’s no proof voter fraud is an actual problem in New Hampshire? The story begins with a trade-off the state made with the federal government years ago. Congress passed the National Voter Registration Act in 1993, requiring states to make voter registration simple and accessible.
The next year, to obtain an exemption from the NVRA—and thus free itself from mandates like offering registration at motor vehicle agencies—New Hampshire’s Republican governor and legislature agreed to enact same-day voter registration, allowing new voters to both register and cast their ballots on Election Day.

In recent years, Republicans—unhappy with this decades-old trade-off—have asserted that same-day registration opens the door to voter fraud. A frequent fear is that Massachusetts residents pour over the border to vote illegally. Current Republican Gov. Chris Sununu endorsed this theory shortly before the 2016 election. “We have same-day voter registration,” Sununu said, “and to be honest, when Massachusetts elections are not very close, they’re busing them in all over the place.” He added that “there’s no doubt there’s election fraud here,” calling the system “rigged.” (After Trump echoed these claims in February, Sununu reversed himself entirely, stating that “I’m not aware of any widespread voter fraud in New Hampshire.”)

Republican state lawmakers have seized upon these allegations—which remain entirely unsubstantiated—as grounds to restrict the franchise. In 2012, the legislature passed a voter ID bill over the Democratic governor’s veto. The law included an exception: Voters without the necessary identification can sign an affidavit at the polls attesting to their identity and domicile. After the election, the state sends postcards to these voters’ addresses. If they do not return the postcards, or they bounce, their names are added to a list maintained by the attorney general’s office.

For several years, the attorney general lacked the resources to look into these individuals. In 2013, the state’s House Election Law Committee concluded that “the inability to deliver mail” does not prove voter fraud. And in February, the secretary of state’s office explained that unreturned cards don’t indicate illegal votes. For example, when the city of Dover, New Hampshire, looked into why hundreds of cards had bounced, it found an innocent explanation for each one. (Many voters had simply moved.)

But that wasn’t good enough for many Republicans. So, in June, the GOP-controlled legislature established and funded a new position in the secretary of state’s office to investigate each bounced or unreturned card. Under this new law, the state must also investigate individuals who, according to a program called Crosscheck, are registered in another state. It is not illegal to be registered in multiple states. Crosscheck, which Kobach developed, also has a 99.5 percent false positive rate.

Fitch began his hunt for fraudsters in August. He is authorized to conduct his own detective work, interviewing individuals who live at addresses provided by voters who did not return their postcards. (About 900 cards bounced or received no reply after the 2016 election.) He must also attempt to “confirm the eligibility” of voters flagged by Crosscheck. Eventually, he will send a list of names to the attorney general’s office whose voter eligibility he cannot verify, “for further investigation or prosecution.”

On Friday, I spoke with Fitch at the secretary of state’s office to discuss his work. I began by asking him to describe his job duties.

“This is not a legally appropriate moment in the process for me to provide that information,” he told me. I followed up by asking what issues he focused on in his work. “Elections issues,” he said. I asked what, exactly, that meant.

“What part of those words don’t you understand?” he replied.

I asked Fitch what steps he planned to take to confirm the identities of individuals who did not respond to the postcard after signing an affidavit at the polls.

“I’m not prepared to articulate them today,” he said.

“Why not?” I asked.

“Some of these processes are very new,” he told me, adding: “I would not want to go on record as saying exactly what all the steps are because I think we’re still working through exactly what they may be.”

“So just to be clear,” I said, “you won’t clarify how the state will confirm the identities of individuals who don’t respond to the postcards?”

“To be clear,” Fitch said, “we are in the midst of a relatively new process. We are trying to use the most efficient and effective process that we can. As we do so for the first time in some instances we are learning from that process and we are refining it. And I think it’s not an appropriate moment in time to say this is the final process we adopted because we haven’t got to the final process.”

“So what does the process look like now?” I asked. Fitch wouldn’t tell me. He did say that “transparency is very important to this office,” but added that “we have to know what [the process] is before we can be transparent about it.”

Fitch’s refusal to reveal any details about his investigative work is reminiscent of Kobach’s own tactics. His “election integrity” commission collapsed because he hid key documents from Democratic commissioners and the public. Moreover, as Kansas secretary of state, Kobach became notorious for misusing data in order to create the impression of mass voter fraud. (He did precisely that in order to claim rampant fraud at the New Hampshire polls.) Voting rights advocates fear Fitch’s office will produce a Kobach-like report that inflates spurious evidence to justify voter suppression measures—in particular, the end of same-day registration.

There is, of course, a chance that Fitch will discharge his duties impartially. At the end of our interview, he told me he feels “professionally obligated to be agnostic” about the existence of voter fraud in New Hampshire and approaches the question impartially. But it is impossible to evaluate this claim without some idea of what Fitch is actually doing. And his utter lack of transparency raises the distinct possibility that New Hampshire now has a Kris Kobach of its own.