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Petition of New Hampshire Secretary of State

Supreme Court of New Hampshire

January 24, 2019

PETITION OF NEW HAMPSHIRE SECRETARY OF STATE AND NEW HAMPSHIRE ATTORNEY GENERAL

          Argued: November 27, 2018

          Gordon J. MacDonald, attorney general (Anne M. Edwards, associate attorney general, and Anthony J. Galdieri, assistant attorney general, on the brief, and Mr. Galdieri orally), and Cleveland, Waters, and Bass, P.A., of Concord (Bryan K. Gould, Cooley A. Arroyo, and Callan E. Maynard on the brief), for the petitioners.

          McLane Middleton, Professional Association, of Manchester (Wilbur A. Glahn, III and Steven J. Dutton on the joint brief), Paul Twomey, of Epsom, on the joint brief, and Perkins Coie LLP, of Washington, D.C. (Mark Erik Elias, John M. Devaney, Bruce V. Spiva, Amanda R. Callais, Elisabeth Frost, and Uzoma Nkwonta on the joint brief, and Mr. Spiva orally), for the League of Women Voters of New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Lopera, Phillip Dragone, Spencer Anderson, and Sesha Mehta.

          Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy Spencer on the joint brief), for the New Hampshire Democratic Party.

          LYNN, C.J.

         The court accepted this petition for original jurisdiction, see Sup. Ct. R. 11, to determine whether the Superior Court (Temple, J.) erred in ordering the New Hampshire Secretary of State and the New Hampshire Attorney General, defendants in litigation pending before that court, to produce to the plaintiffs in the litigation, the League of Women Voters of New Hampshire, the New Hampshire Democratic Party, and various individuals, the New Hampshire Centralized Voter Registration Database established pursuant to RSA 654:45 (Supp. 2018). We conclude that the Database is exempt from disclosure by statute, and we therefore vacate the trial court's order.

         I

         The record establishes the following pertinent facts. The cases[1] before the trial court involve challenges to the lawfulness of Senate Bill 3 (SB 3) under the New Hampshire Constitution. Enacted as Laws 2017, chapter 205 and codified in RSA chapter 654, SB 3 changes the way in which persons must substantiate their domicile when registering to vote. See generally RSA 654:2 (Supp. 2018); RSA 654:7 (Supp. 2018); RSA 654:7-a (Supp. 2018); RSA 654:7-b (Supp. 2018); RSA 654:12 (Supp. 2018). The procedure for verifying one's domicile under the new law differs depending on whether registration takes place more than 30 days before an election or within 30 days of an election, including on election day. The plaintiffs allege that SB 3 violates the New Hampshire Constitution because it: (1) unduly burdens the equal right to vote guaranteed to all persons domiciled in New Hampshire; (2) contradicts the domicile requirements therein; (3) denies prospective registrants the equal protection of the law; and (4) is void for vagueness.

         During discovery, the plaintiffs requested the current version of the Database, as well as the completed past versions of the Database "as of April 1, 2009, 2011, 2013, 2015, 2017, or the date on which the [D]atabase contained the complete voter history following the 2008, 2010, 2012, 2014, and 2016 General Elections."

         Unlike voter checklists, which contain only "the full name, domicile address, mailing address, and party affiliation, if any, of each voter on the checklist," RSA 654:25 (Supp. 2018), and which, subject to limited exceptions, are public records subject to RSA chapter 91-A, see RSA 654:31 (2016); RSA 654:31-a (Supp. 2018), the Database contains substantially more personal information about each respective voter, including the following: voter date of birth, gender, driver's license number, last four digits of social security number (for voters without a driver's license number), place of birth, naturalization information, place where and name under which last registered to vote, form of identification used to prove identity, whether the voter is in the military service or located overseas, information concerning use of absentee ballots, and voting history. At the time of the discovery request, RSA 654:45, VI provided:

The voter database shall be private and confidential and shall not be subject to RSA 91-A and RSA 654:31. The secretary of state is authorized to provide voter database record data to the administrative office of the courts to assist in the preparation of master jury lists pursuant to RSA 500-A and to the clerk of the District Court of the United States for the District of New Hampshire to assist in the preparation of federal court jury lists. The voter checklist for a town or city shall be available pursuant to RSA 654:31. Any person who discloses information from the voter database in any manner not authorized by this section shall be guilty of a misdemeanor.

RSA 654:45, VI (2016).

         The defendants objected to production of the Database on the grounds that it was irrelevant and was not subject to disclosure under RSA 654:45, VI. The plaintiffs moved to compel production and, following a hearing, the trial court granted the motion. The court found that the Database was relevant because it contains material that the plaintiffs' expert could use to provide the court with information about the persons who are burdened by SB 3 and the extent of the burden. Specifically, given the plaintiffs' allegations that SB 3 makes same-day voter registration more difficult and that same-day registrants are more likely to support Democratic candidates, the court found that information as to the identities and voting patterns of same-day registrants that could be gleaned from the Database would shed light on the issues in dispute.[2]

         The court next concluded that the Database was not exempt from discovery by virtue of RSA 654:45, VI. The court recognized that RSA 654:45, VI, as then in effect, made the Database "private and confidential and . . . not . . . subject to RSA 91-A (the Right to Know Law) and RSA 654:31 (which makes the voter checklists maintained by each municipality open to public inspection)," and provided that "[a]ny person who discloses information from the voter database in any manner not authorized by this section shall be guilty of a misdemeanor." However, the court disagreed with the defendants' position that these terms created a statutory privilege. Rather, relying on Marceau v. Company, 97 N.H. 497 (1952), [3] the court ruled that, while the foregoing language demonstrated that the Database was to be confidential, in the sense that it was not to be voluntarily disclosed by the defendants, it did not amount to "a clear legislative mandate" prohibiting the production of the Database "for use in judicial proceedings." See Marceau, 97 N.H. at 498-500.[4] In so ruling, the court contrasted the language found in RSA 654:45, VI with that used in statutes such as RSA 151:13-a, II (2005) and RSA 400-A:37, IV-a(a) (2018), which specifically provide that the materials protected by their provisions shall not be subject to discovery or subpoena. See RSA 151:13-a, II (noting that the covered materials "shall be protected from direct or indirect means of discovery, subpoena, or admission into evidence in any judicial or administrative ...


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