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Trial over new election law not likely until 2019

New Hampshire Union Leader

July 10. 2018 8:14PM

MANCHESTER — The lawsuit by the New Hampshire Democratic Party and League of Women Voters challenging the state’s new election law will not be settled in time for the September primary or November election, and is now not likely to go to trial until some time in 2019.

Lawyers for both sides agreed to a new timetable on Tuesday, built around plans for an 8-day hearing from Aug. 27 to Sept. 5, before Judge Kenneth Brown in Hillsborough County Superior Court, on a preliminary injunction that would stop the law from taking effect until the lawsuit is resolved.

Many of the issues that will be argued in the trial will come up in the hearing on the proposed injunction, prompting Associate Attorney General Anne Edwards to say, “The hearing on the preliminary injunction is starting to look a lot like the trial.”

The plaintiffs are challenging the new law, known as Senate Bill 3, which was signed by Gov. Chris Sununu a year ago on Tuesday.

They claim the law, which imposes new requirements for Election Day registration and financial penalties for failure to comply, will discourage college students, minorities and poor people from voting.

The case was moved from Nashua to Manchester last month, after Nashua-based Judge Charles Temple disqualified himself, citing a personal relationship with one of the lawyers recently hired by the state. Had Temple remained on the case, a trial was scheduled for August.

Temple last year allowed the law to take effect, but imposed an injunction on the state’s ability to levy any fines until the lawsuit is judged on its merits in a bench trial.

Pre-trial motions

In addition to setting new deadlines for the lawsuit moving forward, lawyers argued several pre-trial motions, which Brown took under advisement on Tuesday.

Lawyers representing the state Senate and House of Representatives argued that plaintiffs should not be able to depose Sen. Regina Birdsell, chief sponsor of SB 3, or representatives Kathleen Hoelzel and Barbara Griffin, who were among the chief proponents of the bill in the House.

“The New Hampshire Constitution’s speech and debate clause prohibits legislators from being questioned by potentially hostile judicial and executive branch members, and is essential to the separation of powers in this state,” said state Senate attorney Richard Lehmann, representing Birdsell.

He accused the plaintiffs of trying to create a “sideshow” with prominent lawmakers on the hot seat.

“They want to create a circus where legislators are called in and asked questions about why they chose to do what they did,” said Lehmann. “That is inappropriate intrusion into the legislative function. It’s completely unnecessary and will create a sideshow far outside of anything legislators sign up for.”

Attorney Bruce Spiva, representing the League of Women Voters, argued that precedent allows for such questioning, and it’s key to the plaintiffs’ effort to show legislative intent.

Expert witnesses

In addition to the question of lawmaker testimony, the state urged judge Brown to reject the plaintiffs’ request to depose attorneys Matthew Broadhead, the chief election law attorney in the Attorney General’s office, and Orville “Bud” Fitch, the chief election law attorney in the Secretary of State’s office.

The state maintains both men have been actively involved in defending the law, and anything they would have to say is protected by attorney-client privilege.

“It is extraordinary to depose opposing counsel,” said Edwards.

The state also wants Brown to disqualify three of the plaintiffs’ expert witnesses — Deborah Bosley, an English professor at the University of North Carolina; Muer Yang, a business and management professor at the University of St. Thomas in Minneapolis; and Lorraine Minnite, a public policy professor at Rutgers University in New Jersey.

Bosley would testify to the complexity of the language in the law and the documents voters would be required to read and fill out.

Yang, who specializes in logistics, would testify on the voting lines that SB 3 could create and the effect they would have on the process, while Minnite’s focus is on studies that debunk the notion of widespread voter fraud in New Hampshire.

The state argues that the witnesses are either not relevant to the case, or their research methods and results have not been independently verified.

Brown is expected to rule on the question of testimony by elected officials and attorneys like Broadhead and Fitch before any hearings, but is expected to listen to what the plaintiffs’ expert witnesses have to say before ruling on the relevance of their testimony.

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