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Gilles Bissonnette and Amy Vorenberg: Don’t put secretary of state in charge of voter fraud

March 01. 2017 6:13PM

THE LEGISLATURE IS CONSIDERING SB 47, which would give the secretary of state sweeping power to investigate and prosecute voters for voter fraud and politicians for campaign violations. HB 552 would similarly give that office the power to criminally investigate voters.

Proponents of these bills have argued that the attorney general doesn’t care about our election laws and is unwilling to investigate such offenses. This view is wrong. But more importantly, giving such power to the secretary of state creates serious concerns.

This all dates back to 2012 when New Hampshire added a new bureaucracy to our voting laws by having voters present photo identification at the polls. This legislation imposed on the Attorney General’s Office the new responsibility of investigating all voters who voted without ID and didn’t return the identity-verification postcard mailed to them by the secretary of state.

As is all too common, the Legislature provided no funding to the Attorney General’s Office to perform this significant task. This office only has one part-time election attorney. Since 2012, the office has publicly and repeatedly stated that it doesn’t have the resources to do this investigatory work. Just this year, the office requested the funds for an elections investigator, but the governor didn’t include this request in his budget. If the Legislature really thinks this investigatory work is so important, then it should adequately fund the office to get the job done.

It’s also important to note that these voter investigations are a waste of time and detract from real law enforcement work. Many voters simply don’t have qualifying identification, which doesn’t and shouldn’t preclude voting. According to one estimate, 11 percent of U.S. citizens don’t have government-issued photo ID. These voters are disproportionately low-income, the elderly, and people with disabilities. Such voters more frequently have difficulty obtaining ID because they cannot afford or cannot obtain the underlying documents that are a prerequisite to obtaining a government-issued photo ID card. And when a postcard from one of these New Hampshire voters isn’t returned, it’s almost always because that voter has forgotten or declined to return the postcard, or has moved since the election. In-person voter fraud is virtually nonexistent here and nationally.

Rather than fund the Attorney General’s Office to do this investigatory work, SB 47 and HB 552 would create a satellite criminal investigatory division within the Secretary of State’s Office, outside the attorney general’s supervision. This is the wrong approach for several reasons.

First, where there is credible evidence of an elections offense, it should be pursued by those who are most capable of doing so — namely, career law enforcement professionals in the Attorney General’s Office who are trained in how to investigate crimes, protect the rights of the accused, and comply with the prosecutorial rules of professional conduct.

If the Legislature is willing to fund these investigations through SB 47 and HB 552, then why not give those funds to the entity actually trained to conduct such investigations?

Second, SB 47 creates serious constitutional concerns. Under Part II, Article 41 of the New Hampshire Constitution, only the governor’s office, through its judicial officers and the attorney general can address violations of the law through enforcement actions. SB 47 would usurp this executive power by giving a separate entity — the Secretary of State’s Office — the “exclusive authority and jurisdiction” to enforce multiple chapters of our election laws. The secretary of state’s constitutional role is simply to administer our elections, not to investigate and prosecute criminal offenses related to our elections.

Third, New Hampshire has a long history of an apolitical election unit at the Attorney General’s Office. Unfortunately, SB 47 may compromise this tradition by putting enforcement power in the hands of an office that is subject to the will of the political majority in the Legislature after each election.

Finally, these bills are unprecedented. We are currently aware of only Kansas that deputizes the Secretary of State’s Office to investigate and prosecute voting offenses. For the same reasons above, local district attorneys opposed the Kansas measure.

The right approach to this issue isn’t to deputize an administrative agency to conduct criminal investigations. Rather, it’s to better fund the Attorney General’s Office. This is why we support SB 197, which will give the attorney general an additional $500,000 to do this important work.

In the meantime, SB 47 and HB 552 should be rejected.

Gilles Bissonnette is the legal director for the ACLU of New Hampshire. Amy Vorenberg is a law professor in Concord.

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