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Kris Kobach, the Kansas Secretary of State and Vice Chairman of the Presidential Commission on Election Integrity, has alleged voter fraud in the New Hampshire 2016 election. But his evidence is circumstantial at best.
Kobach penned a Breitbart column on Sept. 7, 2017, claiming that 5,313 fraudulent votes likely altered the results of the Senate race between Democrat Maggie Hassan and Republican Kelly Ayotte and the presidential general election.
Hassan won her race by 1,017 votes, and Clinton won the state over President Donald Trump by 2,732 votes.
"Facts have come to light that indicate that a pivotal, close election was likely changed through voter fraud on Nov. 8, 2016: New Hampshire’s U.S. Senate Seat, and perhaps also New Hampshire’s four electoral college votes in the presidential election," Kobach wrote.
Kobach repeated his point in Manchester, N.H., on Sept. 12, 2017, during the second meeting of the Presidential Advisory Commission on Election Integrity, which Trump formed to analyze vulnerabilities in the voting system after his widely debunked claim that millions of illegal voters participated in the election. Kobach didn’t respond to our request for comment but Kobach’s spokeswoman, Samantha Poetter, said he stood by his column after the meeting.
"About 5,300 (voters) as of 10 months (after voting) still had not obtained a New Hampshire’s driver’s license, which is required of residents 60 days after moving to the state, nor had they registered a vehicle in the state of New Hampshire," Kobach said. "So this obviously is a subject of concern because there have often been anecdotal reports of people driving into New Hampshire because it’s a same day registration state and voting because it’s a battleground state."
Kobach also said that unlike his state of Kansas, New Hampshire has people "flooding across the border to possibly cast a vote."
Trump and his Cabinet have repeated baseless claims that thousands of Massachusetts residents "brought in on buses" voted illegally in New Hampshire, which we originally rated Pants on Fire.
Do we have reason to doubt New Hampshire’s general election results? Again, not really.
"The problem that has occurred because of what you wrote is that the question of whether our election as we have recorded is real, and valid," said New Hampshire Secretary of State Bill Gardner, who is a fellow member of the panel co-chaired by Kobach. "And it is real and valid."
Gardner said that the facts laid out by Kobach don’t create proof for the accusation of voter fraud. He pointed out that in the column, as well as in his speech, Kobach had fudged the line between domicile and residency, which is crucial in understanding New Hampshire voting law.
A state Supreme Court decision determined that a person can lawfully vote in New Hampshire while holding motor vehicle registration or a driver’s license in another state.
In other words, it’s not necessary for the 5,313 voters in question to have become residents in order for their votes to be valid.
That’s because eligible voters can be domiciled in the state without having to be residents — something Gardner acknowledged has caused confusion, even among polling officials. Domicile is defined as the place where a person sleeps, more than any other place, most nights of the year, or where they intend to return after a temporary time away.
"The basic difference between a ‘resident’ and a person who merely has a New Hampshire ‘domicile,’ is that a ‘resident’ has manifested an intent to remain in New Hampshire for the indefinite future, while a person who merely has a New Hampshire ‘domicile’ has not manifested the same intent," Gardner wrote.
Kobach said that residents must obtain a New Hampshire’s driver’s license or register a vehicle in the state 60 days after moving, but that’s limited to drivers of motor vehicles. As multiple articles pointed out, college students are typical examples of people who would drive in another state without establishing residency in New Hampshire.
New Hampshire Public Radio’s analysis of out-of-state IDs used to vote in November found that "the towns that see the highest rates of out-of-state IDs used at the polls are all home to college campuses."
Kobach was unconvinced.
"Being enrolled in a college does not free you from the legal obligation to become domiciled," Kobach said in his testimony. But that’s misleading, as becoming domiciled isn’t as complicated as he makes it sound.
A voter can prove domicile using a New Hampshire driver’s license, a vehicle registration in the state, or a non-driver ID or other government issued photo identification that lists a New Hampshire address.
But in some towns, providing a form issued by a New Hampshire college or university is sufficient to prove domicile. In Manchester, a voter can prove domicile by presenting a monthly bill, a medical bill, pay stubs showing a current address, or postmarked mail within the last 30 days. Other towns accept similar documentation.
Otherwise, voters can simply sign an affidavit attesting they live there. In the case of affidavits, the state mails a letter to the listed address and if undeliverable or ignored, the case gets forwarded to the attorney general’s office for review.
"The result is that yes, it is possible and legal for someone to drive into a polling place in a car with out-of-state tags, register to vote, and vote," Fergus Cullen, who ran the New Hampshire Republican Party from 2007-08, told PolitiFact in February. "Of course they have to sign affidavits and they would be risking significant legal penalties if they voted in more than one place or state. The odds of being caught are pretty high."
According to the New Hampshire Department of State and Department Safety, 196 people are being investigated as possibly having voted in New Hampshire and one other state — but even that isn’t proof that they did.
"Until further research is done and until you make the next cut to find out how many are non-domiciled and then the final cut to actually determine how they voted, we will never know the answer regarding the legitimacy of that election," Kobach said in the panel.
But Maine Secretary of State Matthew Dunlap, another member of the committee who affirmed New Hampshire’s voting integrity, said Kobach’s need to find out how voters cast their ballot was unnecessary in determining fraud, as fraudulent votes don’t necessarily equal votes against the Republican candidates.
"We shouldn’t know how they voted," Dunlap said. "There’s a secret ballot, and it protects the voter."
Dunlap also said Kobach was conflating fraud with the oft-contested New Hampshire voting statute that allows non-residents to vote.
Kobach expressed his support for New Hampshire's Republican-backed SB 3, a recent law that calls on those registering to vote within 30 days of an election to provide documents that show they live where they are voting. A judge blocked the law's penalties.
Kobach said, "Facts have come to light that indicate that a pivotal, close election was likely changed through voter fraud on November 8, 2016: New Hampshire’s U.S. Senate Seat, and perhaps also New Hampshire’s four Electoral College votes in the presidential election."
He cited 5,313 votes cast with out-of-state IDs, but New Hampshire law says there’s nothing inherently fraudulent about them, as a person can lawfully vote in New Hampshire while holding motor vehicle registration or a driver’s license in another state.
As of yet, there is no evidence proving fraud, or that fraudulent votes pivoted the election against Trump and Ayotte.
We rate this statement False.
Breitbart, Kobach: It Appears That Out-of-State Voters Changed the Outcome of the New Hampshire U.S. Senate Race, Sept. 7, 2017
Phone interview with Matthew Dunlap, Maine secretary of state, Sept. 14, 2017
WhiteHouse.gov, Speaker Receives Voter Registration Statistics Requested of Departments of State and Safety, accessed Aug. 14, 2017
PolitiFact, White House senior adviser repeats baseless claim about busing illegal voters in New Hampshire, Feb. 12, 2017
WMUR.com, Part 1: Election integrity commission meets at NHIOP, Sept. 12, 2017
WMUR.com, Part 2: Election integrity commission meets at NHIOP, Sept. 12, 2017
State of New Hampshire, Proof of voter identity documents, Sept. 1, 2015
State of New Hampshire, Letter, Sept. 6, 2017
New Hampshire Public Radio, Where Were Out-of-State IDs Used to Vote in New Hampshire Last November?, Feb. 14, 2017
New Hampshire Public Radio, How N.H. Tries to Guard Against 'Fraud' On Election Day, Feb. 13, 2017
ManchesterNH.gov, How to register, accessed Sept. 15, 2017
New Hampshire Public Radio, Despite Court Order, Controversy Over N.H. Voting Law Continues, Sept. 14, 2017
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