My mother (1920-2009) had many sayings, some unprintable in polite company, but one of her favorites was “actions have consequences.” Thanks to one dedicated House member and a unanimous vote by both chambers, our state will now enjoy a good-government consequence in response to a recent craven action. With Gov. Kelly Ayotte’s May 29 signing of HB 1309, our proud New Hampshire tradition of using warrant articles to improve local governance will henceforth be immunized against deceptive ballot questions written by “clever” saboteurs.
In a 2023 column in this newspaper, I described how our town of Dalton nearly fell for two warrant articles whose true intent was the opposite of what was stated. A couple of cheerleaders for the monstrously flawed “Granite State Landfill” project proposed to “abolish” our Planning Board and our Conservation Commission. All the while, they chuckled with each other on Facebook how their true plan was to simply reconstitute both boards the following year, so they could fill them with new people sympathetic to the needless, ruinous project. No one voting for “less government” could have known from the articles’ text that they would in fact be voting for government of the same size, just one with an agenda.
A neighbor and I sued to block the articles, but the Coös Superior Court judge ruled — reasonably — that RSA 39:2 didn’t anticipate or forbid this kind of deception. He was helped along by defendants’ attorney Richard Lehmann, who actually testified that “there is no penalty [in New Hampshire] for saying things that aren’t true in the context of a political debate.” To require his clients to pose an honest ballot question would amount to an “incumbency protection racket,” he added, and he strongly warned the judge not to “interfere with political speech.” Two Casella executives were among the very few onlookers at the hearing; fortunately, the voters of Dalton rejected both questions.
Now HB 1309 fixes the underlying statutory problem. It simply adds 17 new words to RSA 39:2, such that warrant articles now must be “stated clearly and without commentary or ambiguity.” The Senate Election Law Committee’s hearing on the bill made clear its view that “ambiguity” is a more inclusive term (Sen. Gray) that covers both unintentionally vague wording as well as “deception with intent” (Sen. Rochefort).
The bill’s prime sponsor, Kelley Potenza (R-Strafford), also championed the new words “without commentary,” to prohibit ballot questions that surround the plain language with subtle (or not) advocacy, including words like “critically needed.” These embellishments continue to be fine when used in advertisements or flyers, just not as part of the question itself.
We should be able in New Hampshire to retain our peculiar (the good kind) traditions while rooting out corruption and undue influence. HB 1309 is a small success story and a cautionary message to the “swamp.” In this case, the attorney who defended the “clever” — and now illegal — deception simultaneously represents Casella Waste Systems (in an ongoing lawsuit against our state) while also on the state payroll as the Senate’s Legal Counsel, advising on legislation that affects his client. To their great credit, Republicans in both chambers were behind HB 1309 (all eight sponsors are from that party). The only discouraging word came from a democratic senator, who strangely said that she “didn’t hear a clear need” for reining in deceptive ballot questions.
I’m an environmental health scientist with many substantive ideas to protect our state’s people and resources from needless hazards. But regardless of which policies prevail, we deserve a policy process that listens to the voters at least as much as it follows the money. Now that we’ve reduced deception within referenda, we still need:
- Agencies that must explain why they insist on enacting weak regulations despite persuasive evidence from citizens and experts to the contrary. The Department of Environmental Services is a particular offender in its disdain for the public. Unbelievably, it proudly has explained its mission as “helping each applicant get to ‘yes’,” rather than the obvious “support only those projects that do more good than harm.”
- A Senate that posts public testimony online (and reads it) rather than listening only to invitees to its private pow-wows. That’s how you learn about “a clear need.” And both chambers should hold hearings the way the U.S. Congress does: require advocates and experts to testify alongside each other, so that factual disagreements can be aired openly.
- Some possibility of consequences for powerful interests who victimize New Hampshire citizens by filing bogus “SLAPP” suits alleging defamation over what is obviously protected political speech.
Despite the good news of a new law against deceptive ballot questions, we can’t revel in any “NH Advantage” if we continue to disadvantage ordinary citizens seeking a fair hearing from the public servants we employ.
Dr. Adam M. Finkel is or has been a professor of environmental science and policy at Princeton, Michigan, and U-Penn, and was a senior executive at OSHA and EPA in the Clinton and GW Bush administrations. He lives in Dalton.