My Turn: Why ACLU-NH’s lawsuit over the statewide voter list mattered

  • Secretary of State Bill Gardner gives a history of New Hampshire’s Electoral College participation before electors cast their votes at the State House in Concord on Monday, Dec. 19, 2016. Elizabeth Frantz / Monitor staff

For the Monitor
Published: 8/16/2017 12:15:10 AM

There has been a lot of revisionism about what transpired last week in the ACLU-NH lawsuit challenging Secretary of State William Gardner’s original decision to send information on over 984,000 voters from New Hampshire’s electronic statewide voter list to the Presidential Advisory Commission on Election Integrity.

Here’s what happened in the ACLU-NH’s lawsuit, why what the secretary of state initially planned to do was illegal, and why the case’s resolution precluding the sharing of this electronic statewide voter list is important.

On June 28, the vice chairman of the commission – Kansas Secretary of State Kris Kobach – sent letters to all 50 states and the District of Columbia requesting a list of all registered voters (first and last name and middle initial), the last four digits of their Social Security numbers, their addresses, dates of birth, political party affiliation and voting history from 2006 onward, as well as other personal information. Given Kobach’s long history of advocating for voter suppression measures, the commission, as well as its request, appear to be designed to undermine confidence in our voting system, to reach a pre-determined result, and to justify laws that make it harder for people to register and vote as a result.

On June 30, Secretary Gardner – who is also a member of the commission – agreed to produce statewide voter information that is deemed “public” under New Hampshire law. This information consists of each voter’s name, domicile address, mailing address and party affiliation, if any.

Critically, however, the method the secretary of state was considering to produce this information was illegal. That same day, the Secretary of State’s Office informed the ACLU-NH that it was considering producing this information in the form of “data fields” from the centralized statewide voter list. This list is maintained in an electronic database by the secretary of state. These fields would have been aggregated on a statewide basis and easily searchable to the commission.

The Secretary of State’s Office also told three separate media outlets that it believed that a 2016 law allowing New Hampshire to share data from the electronic statewide voter database to other states to “crosscheck” voter information could give it the authority to send this information to the commission.

But this is not the case. Producing this information in this manner would not only have been unlawful, it would have been a misdemeanor. As a result, the ACLU-NH immediately sued to block the production of this information.

Under RSA 654:31, how and to whom the electronic statewide voter list is disseminated matters. The secretary of state can give copies of electronic information from the statewide list only to political parties, political committees or candidates for New Hampshire office that pay for it. Everyone else who wants to see the electronic statewide voter list – including the commission – is required to go to the State Archives during normal business hours, where it can be viewed only at a computer terminal. But there, the viewer is prohibited from printing, duplicating, transmitting or altering the data. In short, the requester cannot get a copy. And, of course, the secretary cannot treat the commission differently than he would treat any member of the public seeking this information.

As the Concord Monitor succinctly explained: “The database of New Hampshire voters maintained by the Secretary of State’s Office that everyone is fighting about is a nonpublic government record, containing public information.”

In 2006, the Legislature carefully crafted these restrictions on how and to whom the electronic statewide voter list can be disseminated in an effort to balance voters’ right to privacy with the public’s right to know about the voting process. In particular, the Legislature imposed these restrictions to limit the prospect of mass dissemination of statewide voter information, to help ensure that voter information is only used for political purposes, and to help prevent statewide voter information from being used for commercial purposes.

On the eve of last Monday’s hearing in the ACLU-NH’s lawsuit, the secretary of state backtracked and, for the first time, finally agreed to not produce these data fields from the electronic statewide voter list. Instead, the secretary of state stated, again for the first time and over one month after the commission’s initial request, that he would produce only scans of the publicly available marked checklists used by towns in prior elections. These different hand-marked checklists are currently available to members of the public at the State Archives.

But – unlike the searchable data fields from the electronic statewide voter list that the secretary initially said he wanted to produce – these hand-marked checklists used by towns in prior elections will be virtually useless to the commission, and their disclosure carries far less of a privacy impact on voters. Unlike the electronic statewide voter list, these hand-marked checklists are scanned paper copies and are not easily searchable. They do not exist in a searchable data file accessible in a database. Moreover, these checklists are disaggregated town by town, and thus do not contain easily digestible statewide information.

This litigation could have been avoided if the secretary of state would have simply agreed last June to comply with the law concerning how he must treat the electronic statewide voter list. His decision to reverse course on the eve of last week’s court hearing was the right one, and the ACLU-NH applauds it. We further hope that the secretary of state reconsiders his participation in this sham commission or at least only joins commission conclusions that support voting rights and are based on actual proven facts.

(Gilles Bissonnette is legal director for the ACLU of New Hampshire.)

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