The New Hampshire Democrat Party has brought a lawsuit against New Hampshire’s Secretary of State, Bill Gardner, which effectively would prevent New Hampshire from participating in President Trump’s Presidential Advisory Commission on Election Integrity. (Yes it was nominally brought by the New Hampshire chapter of the ACLU, but the ACLU-NH is as a practical matter a surrogate for the Democrats.)
As I will discuss in more detail below, the law in New Hampshire is that in order to bring a lawsuit the persons or entities brining it (the plaintiffs or petitioners) must have “standing.” That is, they must be able to show that they will suffer a definite, personal injury from the unlawful conduct alleged in the lawsuit as opposed to suffering in some indefinite way in common with people generally.
The petitioners in this lawsuit are State Senator Bette Lasky, State Representative Neal Kurk and the ACLU-NH. None of them have standing. Indeed, none of them even allege they have standing. The lawsuit, therefore, is total bullcrap and should be dismissed.
In terms of standing, this lawsuit is no different than Duncan v. State, where the petitioners, which included the ACLU-NH, claimed that a law which allowed businesses to take a tax credit for funding scholarships to private schools -including religious schools- violated the Blaine Amendment provision of the New Hampshire Constitution: “no money raised by taxation shall ever be granted or applied for the use of schools or institution of any religious sect or denomination.”
The trial court, more specifically liberal-activist judge, John Lewis, ruled in favor of the petitioners. As I discuss here, Lewis’ decision is a text-book example of political-judging. On appeal, the New Hampshire Supreme Court, no bastion of judicial conservatism (see here for an explanation of a judicial liberal and a judicial conservative), unanimously vacated Lewis’ decision and remanded the case with instructions that he dismiss it because the petitioners lacked standing.
More particularly, the supreme court order the case dismissed because “the generalized interest in an efficient and lawful government, upon which the petitioners rely … [is] not sufficient to meet the constitutional requirements necessary for standing to exist.“ The supreme court explained that:
The text of the State Constitution nowhere suggests that the framers intended the judiciary to exercise a role of general superintendence over the whole of the State’s government — to function, in effect, as a body akin to the council of revision proposed at the Federal Convention of 1787. See J. Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 25 (Gaillard Hunt & James Brown Scott, eds., int’l ed. 1920) (proposing a “Council of revision,” comprised of “the Executive and a convenient number of the National Judiciary,” to “examine every act of the National Legislature”). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws)” is the function of the legislative and executive branches. Lujan, 504 U.S. at 576; see Merrill, 1 N.H. at 204 …
The petitioners in the lawsuit against Secretary of State Gardner, like the petitioners in Duncan v. State, merely claim that State government is acting in an unlawful manner. More particularly, they claim that New Hampshire law contains “privacy protections” for voter information that would be violated if Gardner provides certain voter information to the Presidential Advisory Commission on Election Integrity.
But even if one were to engage in the absurd fiction that a law that allows the information in question to be sold to political parties, political candidates and political organizations -and then disseminated or resold by these purchasers- is intended to protect the privacy of voter information, the petitioners do not allege any definite, personal injury that they would suffer that the rest of the voting public would not suffer if Gardner provides the information in question to the commission. Thus, the petitioners lack standing and the case should be dismissed.
It is important to understand that dismissing this lawsuit does not mean that Secretary of State Gardner does not have to follow the law. The State constitution provides that the Governor is “responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state.” If the Governor believes that Gardner is violating the law, he has the authority to prevent that violation.
But as noted above, no neutral person could look at the law in question -which allows the information in question to be sold to political parties, political candidates and political organizations, which in turn can disseminate or resell the information- and claim it is intended to protect voter privacy.