Petition of New Hampshire Secretary of State and New Hampshire Attorney General
Petition of New Hampshire Secretary of State and New Hampshire Attorney General
Opinion
**729 The court accepted this petition for original jurisdiction, see Sup. Ct. R. 11, to determine whether the Superior Court ( Temple , J.) erred in ordering the New Hampshire Secretary of State and the New Hampshire Attorney General, defendants in litigation pending before that court, to produce to the plaintiffs in the litigation, the League of Women Voters of New Hampshire, the New Hampshire Democratic Party, and various individuals, the New Hampshire Centralized Voter Registration Database established pursuant to RSA 654:45 (Supp. 2018). We conclude that the Database is exempt from disclosure by statute, and we therefore vacate the trial court's order.
The record establishes the following pertinent facts. The cases 1 before the trial court involve challenges to the lawfulness of Senate Bill 3 (SB 3) under the New Hampshire Constitution. Enacted as Laws 2017, chapter 205 and codified in RSA chapter 654, SB 3 changes the way in which persons must substantiate their domicile when registering to vote. See generally RSA 654:2 (Supp. 2018) ; RSA 654:7 (Supp. 2018) ; RSA 654:7-a (Supp. 2018) ; RSA 654:7-b (Supp. 2018) ; RSA 654:12 (Supp. 2018). The procedure for verifying one's domicile under the new law differs depending on whether registration takes place more than 30 days before an election or within 30 days of an election, including on election day. The plaintiffs allege that SB 3 violates the New Hampshire Constitution because it: (1) unduly burdens the equal right to vote guaranteed to all persons domiciled in New Hampshire; (2) contradicts the domicile requirements therein; (3) denies prospective registrants the equal protection of the law; and (4) is void for vagueness.
During discovery, the plaintiffs requested the current version of the Database, as well as the completed past versions of the Database "as of April 1, 2009, 2011, 2013, 2015, 2017, or the date on which the [D]atabase contained the complete voter history following the 2008, 2010, 2012, 2014, and 2016 General Elections."
Unlike voter checklists, which contain only "the full name, domicile address, mailing address, and party affiliation, if any, of each voter on the checklist," RSA 654:25 (Supp. 2018), and which, subject to limited exceptions, are public records subject to RSA chapter 91-A, see RSA 654:31 (2016); RSA 654:31-a (Supp. 2018), the Database contains substantially more personal information about each respective voter, including the following: voter date of birth, gender, driver's license number, last four digits of social security number (for voters without a driver's license number), place of birth, naturalization information, place where and name under which last registered to vote, form of identification used to prove identity, whether the voter is in the military service or located overseas, information concerning use of absentee ballots, and voting history. At the time of the discovery request, RSA 654:45, VI provided:
The voter database shall be private and confidential and shall not be subject to RSA 91-A and RSA 654:31. The secretary of state is authorized to provide voter database record data to the administrative office of the courts to assist in the preparation of master **731 jury lists pursuant to RSA 500-A and to the clerk of the District Court of the United States for the District of New Hampshire to assist in the preparation of federal court jury lists. The voter checklist for a town or city shall be available pursuant to RSA 654:31. Any person who discloses information from the voter database in any manner not authorized by this **732 section shall be guilty of a misdemeanor.
RSA 654:45, VI (2016).
The defendants objected to production of the Database on the grounds that it was irrelevant and was not subject to disclosure under RSA 654:45, VI. The plaintiffs moved to compel production and, following a hearing, the trial court granted the motion. The court found that the Database *80 was relevant because it contains material that the plaintiffs' expert could use to provide the court with information about the persons who are burdened by SB 3 and the extent of the burden. Specifically, given the plaintiffs' allegations that SB 3 makes same-day voter registration more difficult and that same-day registrants are more likely to support Democratic candidates, the court found that information as to the identities and voting patterns of same-day registrants that could be gleaned from the Database would shed light on the issues in dispute. 2
The court next concluded that the Database was not exempt from discovery by virtue of RSA 654:45, VI. The court recognized that RSA 654:45, VI, as then in effect, made the Database "private and confidential and ... not ... subject to RSA 91-A (the Right to Know Law) and RSA 654:31 (which makes the voter checklists maintained by each municipality open to public inspection)," and provided that "[a]ny person who discloses information from the voter database in any manner not authorized by this section shall be guilty of a misdemeanor." However, the court disagreed with the defendants' position that these terms created a statutory privilege. Rather, relying on
Marceau v. Company
,
*81
See
Marceau
,
The court also rejected the defendants' argument that the information sought by the plaintiffs could be obtained through means other than the Database. Citing
Breagy v. Stark
,
The plaintiffs proposed a protective order in which they agreed to limit production to only those fields of the Database that they believed were necessary to their expert's analysis, which excluded disclosure of voters' driver's license and social security numbers. The plaintiffs also agreed that the portions of the Database produced to them would not be maintained on any devices connected to the internet, would be accessed only by plaintiffs' attorneys and experts, and would be promptly returned to the defendants at the conclusion of the litigation. Not satisfied with these proposed limitations, the defendants filed the instant petition for original jurisdiction, which this court accepted on May 23, 2018. 5
*82 While the case was pending before this court, the legislature responded to the trial court's order by amending RSA 654:45, VI. Added as a floor amendment to a pending bill, the purpose of the legislation was explained as follows:
Based on the highly confidential information contained in the voter registration database, including information obtained in the absentee ballot process, the legislature reiterates that this information must be protected and shall not be disclosed except as set forth in RSA 654:45 and never in response to a subpoena or civil discovery request.
Laws 2018, 329:7. To accomplish this purpose, the legislature adopted and the Governor signed into law an amendment to RSA 654:45, VI, which added the highlighted language to the first sentence thereof: "The voter **734 database shall be private and confidential and shall not be subject to RSA 91-A and RSA 654:31, nor shall it or any of the information contained therein be disclosed pursuant to a subpoena or civil litigation discovery request ." Laws 2018, 329:8, (codified as amended at RSA 654:45, VI (Supp. 2018) ) (emphasis added). The amendment took effect on June 25, 2018.
II
Although we generally review trial court decisions regarding discovery management and related issues deferentially under our unsustainable exercise of discretion standard,
Kukesh v. Mutrie
,
The defendants contend that the trial court erred in construing the version of RSA 654:45, VI in effect at the time of its order as not making the Database exempt from discovery in civil litigation. The plaintiffs, on the other hand, argue that the trial court correctly applied our decision in
Marceau
in concluding that the Database is subject to discovery. We find it unnecessary to decide whether the trial court's application of
Marceau
was correct or erroneous, or whether its construction of the pre-amendment version of RSA 654:45, VI was correct or erroneous. Even if we assume that the trial court did correctly construe the statute as then in effect, the 2018 amendment to the statute conclusively demonstrates that the legislature disagreed with the trial court's construction and effectively overruled that decision. As we have frequently had occasion to observe, subject only to constitutional limitations, when the legislature disagrees with a judicial decision, it is at liberty to change the law through statutory enactment.
See,
e.g.
,
Tuttle v. N.H. Med. Malpractice Joint Underwriting Assoc.
,
Citing
Appeal of Silk
,
Furthermore, the 2018 amendment of RSA 654:45, VI addresses the issue of discovery, a quintessentially procedural matter.
See
McDuffey v. Boston & Maine R. R.
,
In light of the foregoing authorities, the plaintiffs' argument that the amendment should not apply retroactively to this case necessarily fails. Indeed, this claim rests on the plaintiffs' assumption that the law was substantive and that they
*84
had a vested right to the information contained within the Database. The rights were not vested given that there was no final judgment and the trial court retained the discretion to reverse itself on the matter.
See
Haycock
,
Notwithstanding that the law is procedural, the plaintiffs argue that it would be "exceptionally problematic" to apply the 2018 amendment retroactively in this case because it involves a situation "where a self-interested party changed the law to interfere directly with a pending lawsuit, thereby insulating itself and a law it passed - SB 3 - from full, meaningful review." There are two answers to this argument. First, the only basis the plaintiffs offer in support of their claim that the legislature acted for the purpose of inhibiting them from discovering evidence that would allegedly reveal the unconstitutionality of SB 3 is the bare circumstance that the 2018 amendment was enacted as a response to the trial court's discovery order. But that circumstance simply will not bear the weight which the plaintiffs **737 ask it to carry. The reason is that the circumstance is equally susceptible to the conclusion that the legislature acted for the purpose of maintaining the confidentiality of the Database, which the legislature deemed important to preserve.
Second, the plaintiffs do not cite - nor are we aware of - any authority supporting the proposition that we may refuse to enforce a duly enacted legislative directive merely because doing so would make it more difficult for the plaintiffs to pursue a challenge to another law enacted by the legislature. Aside from their allusion to a separation of powers violation, an issue we address below, the plaintiffs do not contend that the 2018 amendment violates any other provision of the State or Federal Constitutions. That being the case, we are aware of no legal basis upon which we could fail to give effect to the legislation. In this regard, we note that, to the extent the plaintiffs suggest that the legislature acted with a nefarious motive in enacting the 2018 amendment, such motivation "is not a recognized basis for declaring a statute unconstitutional."
Libertarian Party N.H. v. State
,
*85
Finally, citing
Merrill v. Sherburne
,
Vacated .
HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
The litigation before the trial court was initiated by two separate complaints, one filed by the New Hampshire Democratic Party and the other filed by the League of Women Voters of New Hampshire and several individual plaintiffs. The trial court thereafter consolidated the cases.
Relying on an affidavit submitted by Deputy Secretary of State David Scanlan, the court observed that "the Database contains a significant amount of information regarding registration and domicile," including:
(1) whether the voter registered 30 days or less prior to an election or on election day; (2) whether the voter provided evidence of domicile when registering or subsequently; (3) whether the voter initialed a verifiable action of domicile (if yes, whether the voter provided evidence of domicile); (4) whether a voter who did not provide proof of domicile initialed the voter registration form indicating that they were not aware of having any evidence of domicile; and (5) [f]or voters who register and do not provide proof of domicile when registering a yes/no value for whether: (a) the voter used the verifiable action of domicile section of the voter registration form; (b) the voter initialed that he or she possesses proof of domicile and will provide the proof after the election; (c) whether the voter provided the evidence; or (d) whether the voter initialed that he or she was not aware of possessing any proof of domicile. (Quotations omitted.)
Marceau
dealt with an action for assault and battery by a tenant against her landlord.
Marceau
,
The court also relied on
Marceau
in rejecting the argument that the criminal penalty provided for by the statute for unauthorized disclosures precluded the defendants from producing the Database in discovery. The court reasoned that, as
Marceau
explained, production of the covered materials in response to a subpoena would not expose the department employees to the criminal penalty because "the evil intended to be forestalled and prevented [by the penalty] clause of the statute was the voluntary imparting by State employees of information [they] acquired. It was not intended to impede the administration of justice in the courts by the suppression of pertinent testimony."
Marceau
,
In the petition for original jurisdiction, in addition to seeking interlocutory review of (1) the trial court's order requiring the defendants to produce the Database (Question 1), the defendants also sought interlocutory review of (2) the trial court's orders requiring the defendants to produce discovery concerning all communications and meetings within and between the defendants' offices regarding SB 3 (Question 2), and (3) the trial court's orders denying the defendants' motions to dismiss based on the plaintiffs' lack of standing (Question 3). This court's May 23 order accepted the petition with respect to Question 1 only. The May 23 order also denied the plaintiffs' motion for summary affirmance of the trial court's orders.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.