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AG: Send voter suit over Election Day registration to state Supreme Court

State House Bureau

May 06. 2018 9:32PM

CONCORD — The attorney general wants the state Supreme Court to take over the lawsuit filed by the state Democratic Party and the N.H. League of Women Voters over a new election law, Senate Bill 3, which establishes requirements for Election Day voter registration.

The key issue is an April decision by Superior Court Judge Charles Temple ordering the state to turn over its voter registration database to the plaintiffs, who say they need the data to make their case.

“The court exceeded its authority in ordering the release of the (database), and has put in jeopardy the privacy rights of over a million active and inactive New Hampshire registered voters,” according to the motion filed by Associate Attorney General Anne Edwards, representing the state in support of the law.

The lawsuit has been working its way through Hillsborough County Superior Court in Nashua since last September, when Temple temporarily allowed the new law to take effect hours before a special election in Belknap County, but prohibited implementation of the fines and penalties for any violations.

A bench trial in front of Temple has been scheduled for August, but the state wants the Supreme Court to reverse Temple’s ruling about the release of the database and remove the case from his jurisdiction.

In their response, attorneys for the Democrats and LWV-NH argue that their request for the database is reasonable, and that they are willing to agree to severe restrictions on its use.

Limited access request

Lawyers for the plaintiffs say they want access to the database only for a short period of time, for use only on individual computers and never on the internet, to establish certain patterns of voter behavior.

“Plaintiff alleges that the burden imposed by SB 3 falls disproportionately on young, low-income and minority voters,” according to attorney Wilbur Glahn in a May 3 response to the state’s motion.

“The state disputes these allegations, yet refused (and still refuses) to produce pertinent information from its Statewide Voter Registration Database, which contains precisely the types of records that are critical to any expert analysis of SB 3’s impact on New Hampshire voters.”

The database was created in compliance with the Help America Vote Act, enacted in 2002 by Congress, which provided funding.

Its searchable and contains far more information than the publicly available voter checklists, which show only name, party affiliation and voting status (voted or did not vote).

In addition to that information, the statewide database includes domicile address, mailing address, date of birth, driver’s license number or last four digits of a Social Security number, place of birth or naturalization information, military status and gender.

In permitting the Secretary of State to accumulate all of this information, the Legislature passed a law limiting its use to political parties or political committees for purposes of campaign planning or fund raising, at a cost of about $8,000 per release.

Dangers of release

The law makes it a criminal offense for anyone to disclose the information under other circumstances, which is what the attorney general says the court is asking it to do.

“The Legislature did not include a mechanism to allow litigants to obtain this private, confidential information from the Secretary of State’s office through civil discovery requests,” according to Edwards.

“Despite the many apparent dangers of releasing such a database in this day and age, the trial court ordered production of the entire database to the plaintiffs and has put the defendants in the position of having to commit a crime in order to release that information, or otherwise face being held in contempt of court.”

Such a release would also have a chilling effect on the right to vote, according to Edwards, who argues that voters will shy away from providing personally identifiable information if they know it will be given away to third parties “every time a person decides to challenge the constitutionality of an election law.”

Legislature involved

The matter came up before the state Legislature on Thursday, in House deliberations on a Senate-passed bill regarding verification of absentee voter documents (SB 527).

State Rep. Neal Kurk, widely known as a privacy advocate, introduced an amendment to the bill at the request of the attorney general, which passed on a voice vote.

The amendment makes clear the Legislature’s intent that “the voter database shall be private and confidential and shall not be subject to (the Right to Know law), nor shall it or any of the information contained therein be disclosed pursuant to a subpoena or civil litigation discovery request.”

“This comports with my understanding of privacy protections we placed on the centralized voter database,” said Kurk.

It’s rare for the Supreme Court to take over a case prior to a lower court ruling, but it has been done.

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