This is the third in a series of posts about a lawsuit the ACLU-NH has brought against Secretary of State Bill Gardner that is intended to prevent New Hampshire from participating in President Trump’s Presidential Advisory Commission on Election Integrity.
In the first post, I demonstrated that neither the ACLU-NH nor any of the other named plaintiffs have a legal basis to sue Gardner:
… 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 the second post, I discussed my concern that Governor Sununu and his Attorney General would not vigorously defend the lawsuit:
… even though there is a significant chance that the lawsuit will be heard by an activist judge who will ignore the law and rule in the ACLU-NH’s favor, Sununu has already taken an appeal off the table. The appeal would be to essentially the same supreme court that relatively recently vacated a similar attempt by the ACLU-NH to set policy (the Duncan vs. State of New Hampshire case) for lack of standing … .
I hate to say I told you so, but I told you so:What’s wrong with Sununu’s Attorney General agreeing to postpone the case in light of the Presidential Advisory Commission’s request that the States hold off on submitting voter information? What’s wrong is the message that the Attorney General is sending by not demanding that the case be dismissed because the plaintiffs lack standing. From my first post:
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 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.“ …
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.
By not taking the position that the lawsuit immediately be dismissed for lack of standing, the Attorney General is leading the public to believe that it is legitimate for the ACLU-NH to sue the State whenever the ACLU-NH disagrees with the way the executive branch is executing a law.
This is not the way that our system of government is supposed to work. The State Constitution does not give the judiciary the power to act as the overseers of the other two branches. In other words, the Attorney General, and Governor Sununu who endorsed the Attorney General’s decision, are implicitly agreeing with the notion of government of the elites, by the elites and for the elites.
This helps explain why the Attorney General got the votes of the two ultraliberal Democrats on the Executive Council.
The Attorney General’s decision also hangs Secretary of State Gardner, as well as President Trump, out to dry.
Gardner, who agreed to serve on the Presidential Advisory Commission, has defended providing the information:
Gardner has been defending the request for detailed voter information from the Trump administration’s commission on voter fraud. Gardner, a member of the commission, plans to provide publicly-accessible information, though critics argue state law allows the entire database to be provided only to political parties, political committees and candidates. …
By agreeing with the ACLU-NH to kick the can down the road, the Attorney General has fostered the impression that he is not on the same page as Gardner. This needlessly hangs Gardner out to dry, by among other things implying that Gardner does not understand the law he is charged with administering. Sununu did not help matters, in this regard, by subsequently publicly endorsing the Attorney General’s decision.
Sununu has gone from enthusiastically supporting the Presidential Advisory Commission to pretty much washing his hands of it, hanging the President out to dry as well.