Three Takeaways From the ACLU’S Bogus Lawsuit Against Secretary of State Gardner

I previously blogged about the ACLU-NH’s lawsuit against Secretary of State Gardner here, here and here.  A hearing had been scheduled for this past Monday (August 7th), but at the last minute was canceled because:

Three takeaways:

(1.)  The ACLU-NH Capitulated

According to the ACLU, the lawsuit was “resolved” to its satisfaction because:

… the Secretary of State has elected to produce to the Commission, the distinct voter checklist-marked copies that are used by individual municipalities on Election Day and that are distributed to the State Archives after each election pursuant to RSA 659:102.  Critically, this information — unlike the current statewide checklist at issue in this litigation — is not aggregated on a statewide basis (but rather on a town-by-town basis) and is not text searchable.  This information — which only contains whether the voter’s name, domicile address, mailing address, party affiliation, and whether that voter voted — will be disseminated in the same manner in which they are made available today to anyone in the public requesting this information from the individual towns or from the Secretary of State.

What a bunch of bull, the objective of the lawsuit was to prevent the Presidential commission from obtaining the data by seeking a ruling that the commission could only: (a) view in Concord, New Hampshire, but not reproduce, State-wide data or (b) obtain copies of the data only on a town-by-town basis and only by dealing directly with each town in New Hampshire.  Here is the specific relief requested from the Court in the ACLU-NH’s lawsuit:

RSA 654:31(II) and RSA 654:31(III) provide as follows:

    II. In towns and cities, the public checklist as corrected by the supervisors shall be open for the examination of any person at all times … . The supervisors of the checklist or city or town clerk shall furnish one or more copies of the most recent public checklist of their town or city to any person requesting such copies. The supervisors of the checklist or city or town clerk may only provide checklist information for their town or city. The supervisors of the checklist or city or town clerk shall charge a fee of … . The supervisors of the checklist or city or town clerk may provide public checklist information on paper, computer disk, computer tape, electronic transfer, or any other form.
    III. Any person may view the data that would be available on the public checklist, as corrected by the supervisors of the checklist, on the statewide centralized voter registration database … , but the person viewing data at the state records and archives center may not print, duplicate, transmit, or alter the data.

In other words, this lawsuit was never about whether the information would be provided in a searchable text format.  It was about making it impractical for the Presidential commission to obtain voter data from New Hampshire at all by, as stated above, requiring the commission to obtain the information on a town-by-town basis.

The ACLU’s claim that the information to be provided by Secretary of State Gardner is not text searchable is also bull.  Using commercially available OCR software, anybody can easily convert the data into computer-searchable data:

In sum, the outcome was in reality a capitulation by the ACLU-NH.

(2.)  The Attorney General BLUNDERED Massively by Letting the ACLU Withdraw its Lawsuit, Instead of Seeking to Have the Case Dismissed on Standing. 

The Attorney General raised the plaintiffs lack of standing in a motion to dismiss the lawsuit:

But rather than seek dismissal of the lawsuit on standing grounds, the Attorney General instead entered into an arrangement under which it put in writing how Secretary Gardner would respond to the Presidential commission and the ACLU-NH withdrew the lawsuit.  This arrangement, as discussed above, allowed the ACLU to say the case was resolved to its satisfaction and the Democrats to say the case was settled, which creates the false impression that the lawsuit was meritorious.  For example, from NHPR:

Still unsettled, however, is what exactly to call this outcome.

In the courtroom, the judge presiding over the case initially referred to the agreement between both sides as a settlement — but the state objected to that term, because they were not willing to concede that the ACLU or the lawmakers suing Gardner had standing to bring the lawsuit in the first place.

News releases issued later in the day from the the Attorney General, the House Republican Office and the New Hampshire Republican Party instead cast it as a “dismissal.” 

The New Hampshire Democratic Party and House Democratic Office called it a “settlement.” The ACLU, meanwhile, referred to it as a “resolution.”

“You can use any term you want — the parties came together, in the end we agreed on the law, we agreed on the appropriate actions by the Secretary of State,” Twomey said. “We agreed on what he could do, and what he couldn’t do, and as far as what I’m concerned, it’s entirely consistent on what we asked for from the beginning.”

In addition to allowing the ACLU-NH and the Democrats to create the impression that  the lawsuit succeeded in forcing Secretary Gardner to follow the law, the Attorney General’s failure to seek a dismissal creates the false impression that it is legitimate for the ACLU-NH to sue whenever they disagree with how a public official is carrying out his or her duties (it is not) and encourages the ACLU-NH to bring similar lawsuits in the future.

(3.)  The Coverage by the #NHpolitics Press Was Even More #FakeNews Than Usual.

As far as I can tell, the #nhpolitics press failed to report that the ACLU’s claim that the data to be provided the Presidential commission is unsearchable is semantics because, as discussed above, OCR technology can easily turn the data into computer-searchable data.  Instead, the #nhpolitics press prominently reported as fact that the data is unsearchable.  A glaring, and undoubtedly purposeful omission such as this is what people mean by the term #FakeNews.

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