2015-0340, Deborah Sumner v. New Hampshire Secretary of State

669:33, II (2008) (collectively, “the ballot exemption statutes”), violate several Sumner argues that RSA 659:95, II, along with RSA 660:16, II (2008) and RSA exempts b allots which have been cast from the Right - to - Know L aw. On appeal, defendant denied her request, citing RSA 659:95, II (Supp. 2015), which ballots cast in the town of Jaffrey during the 2012 general election. The the defendant’s motion for summary judgment. Sumner sought t o inspect Hampshire Secretary of State, of her Right - to - Know Law request, an d granting Superior Court (Kissinger, J.) upholding the denial, by the defendant, the New HICKS, J. The plaintiff, Deborah Sumner, appeals an order of the

attorney general, on the brief), for the defendant. Joseph A. Foster, attorney general (Stephen G. LaBonte, assistant

Deborah Sumner, self - represented party, by brief.

No. 2015 - 0340 Cheshire

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

are reasonable, we balance the public’s right of access against the competing Representatives, 15 p. 2 2 N.H. 276, 290 (2005). “To determine whether restrictions . . . must yield to reasonable restrictions.” Hughes v. Speaker, N.H. House of We have noted that the constitutional “right of access [in Part I, Article 8]

a statute’ s constitutionality bears the burden of proof.” Id. (quotation omitted). constitutionality.” Id. (quotation and brackets omitted). “The party challenging constitutionality of a statute, those doubts must be resolved in favor of its Id. (quotation o mitted). “It also means that w hen doubts exist as to the unless a clear and substantial conflict exists between it and the constitution.” omitted). “This means that we will not hold a statute to be unconstitutional will not declare it invalid except upon inescapable grounds.” Id. (quotation ( p. 2 2011). “In reviewing a legislative act, we presume it to be constitutional and de novo.” New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 “The constitutionality of a statute is a question of law, which we review

access to governmental records. and, thus, the ballot exemption statutes violate her constitutional r ight of “there is no legitimate privacy reason to exempt ballots from public review,” unreasonably restricted.” N.H. CONST. pt. I, art. 8. According to Sumner, public’s right of access to governmental proceedings and records shall not be Sumner’s brief to focus primarily up on Part I, A rticle 8, which states that “the Articl es 1, p. 2 2, 7, 8, 10, 11, and 22 of the New Hampshire Constitution. We read Sumner first argues that the ballot exemption statutes violate Part I,

we will affirm.” Id. the litigation, and if the moving party is entitled to judgment as a matter of law, any genuine issues of material fact, i.e., facts that would affect the outcome of Dartmouth College, 160 N.H. 45 p. 2 2, 455 (2010). “If this review does not reveal the light most favorable to the non - moving party.” Sabinson v. Trustees of the affidavits and other evidence, and inferences properly drawn from them, in “When reviewing a trial court’s grant of summary judgment, we consider

court granted. This appeal followed. court denied. The defendant moved for summary judgment, which t he trial permission “to review [the] ballots as outlined in her complaint,” which t he trial exemption statutes are unconstitutional. S he then moved separately for to review the Jaffrey ballots and a declaratory judgment that the ballot sued in superior court, requesting, among other things, an orde r allowing her can be traced to a voter.” When the defendant denied her request, Sumner therefore invaliding votes of 71 individuals,” and to research “how . . . ballots Jaffrey ballots “[t]o determine why 71 ballots . . . contained over votes, The record supports the following facts. Sumner asked to inspect the

statutes do not violate our State constitution, and, therefore, we affirm. articles of the New Hampshire Con stitution. We hold that the ballot exemption p. 3 3

to ensure that the town accurately counted its residents’ votes. Although we Sumner’s principal reason for requesting access to the Jaffrey ballots is

certifying ballots after they are cast). 659:95 -: 100 (2008 & Supp. 2015) (mandating the process for sealing and 2015) (preventing voters from placing distinguishing marks on ballots); RSA handled “so that the marks on [them] cannot be seen”); RSA 659: p. 3 35, II (Supp. reflect this policy. See, e.g., RSA 659:23 (Supp. 2015) (requiring that ballots be mark [s]” on ballots, or showing their ballots to others). Current election law s compartment already occupied by another” voter, placing “distinguishing Laws 1891, 49:23, :29 (penalizing voters for “occupy [ing] a marking shelf or marking o n the back “to distinguish the vote or voter” will not be counted); preserved voter privacy. See Laws 1808, 49:4 (stating that a ballot with a voters by inspecting those ballots. New Hampshire’s elections laws have long voters, and the ballot exemption statutes prevent the public from identifying are signed by the voter, and c ertain abs entee ballots,” may be traceable to the State, “some ballots, such as those cast using [an] AVS machine, those that Second, the ballot exemption statutes protect voter privacy. According to

the State may be unable to verify vote counts. ballots are damaged or lost and election results are subsequently challenged, greater consequence because she seeks access to original ballots. If original misplace, damage, or lose them.”). Sumner’s request presents a risk of even Ct. App. 2015) (“E ach time ballots are handled, there is the potential to from public records laws. White v. Skagit County, p. 3 355 P.3d 1178, 118 3 (Wash. court ’s determination to hold that copies of cast ballots were statutorily exempt 765, 770 (R.I. 1981). We observe that these risks, in part, supported one state stability and finality of election results.” Buonanno v. DiStefano, 430 A.2d election. S uch behavior would compromise the “strong public policy favoring ballots, altering or hiding those ballots, and then challenging the results of an i n two ways. First, the statutes prevent members of the public from accessing According to the State, the ballot exemption statutes promote its interest

“an age qualification for voters,” among other election regulations. Id. at 671. party’ s ability to garner support and members,” including the establishment of “certain eligibility requirements for voters. . . even thou gh they limit a political Elections II), 158 N.H. 661, 670 (2009). It justifies the State’s imposition of indisputably compelling. See Opinion of the Justices (Voting Age in Primary efficiency of” the election process. We have noted that this interest is The State asserts an interest in preserving “the integrity, fairness, and

access.” Associated Press v. State of N.H., 15 p. 3 3 N.H. 120, 125 (2005). light of the ability of the public to hold government accountable absent such right of access to any governmental proce eding or record must be examined in and emphasis omitted). “The reasonableness of any restriction on the public’s constitutional interests in the context of the facts of each case.” Id. (quotations p. 4 4

expressive act. explain how her inspecti on of ballots cast by others involve s a similarly — their disclosure of photographs of their ballots. Id. Here, Sumner does n ot scrutiny.” H owever, Rideout concerned act s of expression by individual voters an invalid “content - based restriction on speech that [could not] survive strict take and disclose digital or photographic co pies of their completed ballots” was court ruled that a New Hampshire statute that made “it unlawful for voters to 2015 WL p. 4 4743731, at *1 (D.N.H. Aug. 11, 2015), in which the federal district infringes freedom of speech. She cites Rideout v. Gardner, No. 14 - cv - 489 - PB, Sumner also fails to show how prohibiting access to already - cast ballots authority suggesting that the right to vote includes th e right to inspect ballots. speech. N.H. CONST. pt. 1, arts. 11, 22. However, Sumner provides no guarantees the right to vote, and Part I, Article 22, which protects freedom of articles of the New Hampshire Constitution, including Part I, Article 11, which Sumner argues that the ballot exemption statutes facially violate other

restrictions under Part I, Article 8. ac cess. We therefore hold that the ballot exemption statutes are reasonable we find that, on balance, the State’s interest outw eighs the public ’s interest in and that state law incorporates public oversight into the vote counting process, State’s compelling interest in the integrity, fairness, and efficiency of elections, Given that New Hampshire’s ballot exemption statutes promote the

Elections, 570 S.E.2d 897, 898 (N.C. Ct. App. 2002). cast ballots. See, e.g., White, 355 P.3d at 118 p. 4 4; In re Decision v. State Bd. o f that other states have interpreted their public records laws to exempt access to from our Right - to - Know Law, w e find those cases unpersuasive. We als o note Act to allow access to ballots). Given that our statutes exempt cast ballots P.3d 118, 119, 124 (Colo. App. 2011) (interpreting the Colorado Open Records Access to Public Records Act to allow access to ballots); Marks v. Koch, 284 Price v. Town of Fairlee, 26 A.3d 26, 28 (Vt. 2011) (interpreting the Vermont two cases that were decided under the public records laws of other states. See constitutional right of access includes a right to inspect cast ballots. She cites Moreover, Sumner provides little support for the proposition that the

cast ballots to determine whether the ballots had been accurately counted. request recounts during which they or appointed representatives may inspect Further, RSA 660: 1 (Supp. 201 p. 5 5) and RSA 660:5 (2008) permit candidates to public, so that the public may observe the counting process as it occurs. instance, RSA 659:63 (2008) requires that vote cou nting be conducted in fraudulent election challenges, or infringement upon voter privacy. For public ballot inspection, do not increase the risk of lost or damaged ballots, enables public oversight of the vote counting process in ways that, unlike recognize the legitimacy o f this interest, we note that New Hampshire law 5

was neither untenable nor unreasonable. Jaffrey ballots, we concl ude that the trial court’s denial of the duplicate request merely replicated Sumner’s initial request, in her complaint, to review the to the prejudice of [her] case.” Id. Beca use the request for the court order demonstrate that the trial court’s ruling was clearly untenable or unreasonable standard.” Id. “To establish that the trial court erred, [Sumner] must management of discovery under an unsustainable exercise of discretion v. Jackson, 1 p. 5 58 N.H. 421, 429 (2009). “We review a trial court’s rulings on the discovery are within the sound discretion of the trial judge.” N.H. Ball Bearings order allowing her to review the Jaffrey ballots. “Decisions concerning pretrial Sumner also challenges the trial court’s denial of her motion for a court

was non - justiciable. therefore, hold that the trial court did not err in ruling that Sumner’s claim legislature “complete control and discretion.” Id. (quotation omitted). We, claim would have interfere d in an area in which the constitution gives the u p on alleged violations of the legislature’s procedural rules, a ruling on that Hughe s, 1 p. 5 52 N.H. at 284 (q uotation omitted). Because Sumner’s claim focuses shall observe, enforce, waive, suspend, or disregard its own rules of procedure.” (2005). “The legislature, alone, has complete control and discretion whether it of the State Constitution.” Baines v. N.H. Senate President, 152 N.H. 124, 130 demonstrably committed to the legislative branch by Part II, Articles 22 and 37 omitted). “The authority to adopt procedural rules for passing legislation is manageable standards for resolving it.” Hughes, 152 N.H. at 283 (quotation coordinate political department; or a lack of judicially discoverable and there is a textually demonstrable constitutional commitment of the issue to a “A controversy is nonjusticiable — i.e., involves a political question — where

allege d violations of the legislature’s procedural rules. the ballot exemption statutes after they were enacted; and there were other were passed; t he attorney general failed to encourage the legislature to repeal constitutionality; the provisions were not germane to the bill in which they o pportunity to request that the attorney g eneral verify the provisions’ added to a bill without legislators knowing about them or having the Constitution. According to Sumner: the ballot exemption provisions were legislature enacted the ballot exem ption sta tutes violated t he New Hampshire justiciable political question, her claim that the process by which the Sumner next argues that the trial court erred in rejecting, as a non -

warrant[] no extended consideration.”). Constitution [that] are supported neither by arg ument nor by authority . . . v. Fearon, 130 N.H. 494, 499 (1988) (“[O]ff - hand invocations of the State ballot exemption statutes violate the New Hampshire Constitution. See Keenan W e reject, as underdeveloped, Sumner’s remaining assertions that the p. 6 6

DALIANIS, C.J.