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ACLU, state come to terms on release of voter data to Trump election commission

State House Bureau

August 07. 2017 5:46PM
Hillsborough County Superior Court Judge Charles Temple listens to proceedings during a hearing Monday, Aug. 7, 2017, in Hillsborough Superior Court in Nashua, on a lawsuit that would prevent the state from sending voter information to President Donald Trump's commission investigating election fraud. (AP Photo/Mary Schwalm, Pool)

NASHUA — The Secretary of State will proceed with the release of information from voter checklists to a presidential commission on election fraud, now that a lawsuit filed by two New Hampshire lawmakers and the ACLU to stop the release has been resolved.

The resolution was announced in a Nashua courtroom just as a hearing was about to get under way Monday on a request for an injunction to stop Secretary of State Bill Gardner from providing the information to the election commission.

The case came down to interpretation of language within the same state statute (RSA 654), which in one part states “the information contained on the checklist of a town or city ... is public information subject to (the Right to Know law),” but in another section regarding the statewide database maintained by the Secretary of State, says “The voter database shall be private and confidential and shall not be subject to (the Right to Know law).”

The state maintains that Gardner is releasing information from the paper checklists kept by cities and towns, not the statewide electronic voter database launched in 2002 in compliance with the federal Help America Vote Act.

The voter database contains information that is broader than what is contained on voter checklists, including current information on the voter registration form, accepted absentee ballot applications, information from the voter checklist and voter actions as recorded on the checklist (voted, did not vote).

The checklist itself contains only full name, domicile address, mailing address and party affiliation.

Gardner pledged in a letter to the ACLU and other plaintiffs that he would release only the information from the checklist, in PDF format, essentially a picture of each document.

Lack of clarity alleged

Attorney Paul Twomey, representing the plaintiffs in the case, said Gardner has not been clear on that point for the past two months as the controversy surrounding the matter raged on.

Associate Attorney General Anne Edwards, representing the state, said Gardner has said all along he would release only the information that was publicly available, and that a close reading of the statutes would show he was referring to the checklists for each precinct, not the statewide voter database.

“Perhaps more specificity early on might have been more helpful in clarifying all of this,” she said, “but I don’t know that the lack of specificity falls at the Secretary of State’s feet. I think the plaintiffs were also not specific with what they were talking about.”

Gardner, who sits on the presidential commission, has contended for weeks that he has the authority to send information to the commission that includes a voter’s name, address, party affiliation, and voting history, which he has characterized as public information.

The lawsuit filed by the ACLU-NH and Twomey on behalf of state Sen. Betty Lasky, D-Nashua, and Rep. Neal Kurk, R-Weare, claimed that state law prohibits release of the data in the fashion proposed.

Superior Court Judge Charles Temple was about to hear arguments for a preliminary injunction to stop any release of the data while the case worked its way through the courts when he announced the resolution on Monday afternoon.

Not a 'settlement'

The state refused to describe the agreement as a legal settlement, because that would suggest the state acknowledged that the ACLU, Kurk and Lasky had standing to bring the lawsuit in the first place, which the state challenged in its motions.

“Secretary of State Gardner wants it to be very clear that he had no intention at any point of releasing voter information inappropriately or any voter information that was not public,” said Edwards.

Temple concluded the hearing by saying, “This appears to me to be an entirely appropriate resolution of the issues raised by the complaint.”

Gardner expressed frustration that his intentions were misrepresented in the court filings. “We’re sending exactly what I said we’d be sending from the beginning,” he said.

Twomey took issue with that characterization. “Yesterday was the very first time he (Gardner) indicated he was not going to send digital data but photographs of pieces of paper,” he said.

“This data in this form is worthless, and restricting (the commission) to getting it in this form protects, as the legislature intended to protect, the privacy of voters. This is millions of pages. In this form it presents far less a threat to the privacy of people than a searchable database.”

Information will be provided on elections from 2006 to 2017, according to Edwards.

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