Dr. Adam M. Finkel is a professor of environmental health sciences at the University of Michigan School of Public Health, and a former senior executive in the Clinton and GW Bush administrations.  He lives in Dalton and has been an alternate member of the Planning Board since January.

In losing an election-law case this past week in Coos County Superior Court, my fellow plaintiff and I unexpectedly revealed a giant-sized loophole in New Hampshire ballot law, one that the attorney for the defendants actually admitted that his clients were pleased to drive through. We thought this might be an uphill battle, but we had no idea that our state allows ballot questions to be factually untrue.

A group of residents of Dalton that openly support the burying of 18 million tons of solid waste at a site 2,800 feet from Forest Lake, within an active sand/gravel operation where the soil has virtually no capacity to slow or absorb the flow of polluted leachate, garnered the necessary signatures to place two articles on the ballot for the March 14 Town Meeting. One would “abolish” the town’s Planning Board, and the other would “abolish” its Conservation Commission.

I’ve put the only verb in the ballot questions in “air quotes” because the petitioners made it clear, not to the voters of Dalton, but to selected allies, that neither board will ever be “abolished,” despite the plain text that residents will cast their votes on.

Instead, their private social media posts chuckled about how easy it will be for them to “take over” the three-person select board within a year’s time, and then simply re-create each board by appointing all new members favorable to the landfill.

Indeed, two executives for the landfill company were among the dozen or so onlookers on the WebEx link for the hearing, connecting the dots for all to see. On private Facebook pages, the petitioners use “abolish” in ironic or clever quotation marks, but the ballot uses the verb as if it was real, perhaps as a dog whistle to libertarians that they can strike a blow for less government by voting yes now (only to find they’ll have more activist government soon).

We made it very clear to the Court that we’d have had no legal quarrel with an honest pair of articles that simply asked “shall Dalton fire all the volunteers so we can replace them later?” Shameless power plays are, as we all know, one of the prices of admission to a majority-rule system. After all, what’s an unneeded landfill in the worst possible location, against the joy of watching rich landowners get richer and — good luck! —trickle some of the profits down?

The Court ruled against us, saying that despite any “hidden agenda” the authors of the ballot questions have, NH law (RSA 39:2) only requires that the “subject matter [to be voted on] shall be distinctly stated.”

We knew the Court might have some trepidation about ruling that the petitioners were offering voters more than an ambiguity, but a lie. So imagine our shock when the attorney for the defendants, Richard Lehmann, volunteered in his oral argument that the deception was permissible, and knowingly so.

“There is no penalty [in New Hampshire] for saying things that aren’t true in a political debate,” was the heart of his argument. To require his clients to pose an accurate ballot question would amount to an “incumbency protection racket,” he added, and he strongly warned the judge not to “interfere with political speech.”

Wait, the First Amendment protects the right to lie on the ballot? I’m not a lawyer, and I certainly recognize that our country allows citizens to make false statements about a piece of legislation or a ballot item. I just had no idea that in New Hampshire the ballot or bill itself can be untrue.

Our collective love for free speech doesn’t extend to “yelling ‘fire’ in a crowded theater,” though it does (according to the Supreme Court) extend to symbolic speech such as flag-burning. So if the New Hampshire legislature doesn’t move to amend RSA 39:2, these petitioners have proven that you can get away with yelling “vote for X” onto a crowded ballot, even if you know that a successful election would result in “the opposite of X.”

We let tobacco companies try to persuade, even deceive, customers to smoke despite the mandatory warning labels, but we don’t let them change “causes cancer” to “doesn’t cause.”

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