THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
CHESHIRE, SS. No. 213-2014-CV-139
DEBORAH SUMNER
v.
WILLIAM GARDNER
ORDER
This claim arises out of the denied request of the Plaintiff, Deborah Sumner, to access ballots cast in the town of Jaffrey during the 2012 election. Ms. Sumner brought this suit seeking injunctive relief and declaratory judgment that RSA 659:95, II; RSA 660:16, II; and RSA 669:33, II are unconstitutional. The Defendant, William Gardner, the New Hampshire Secretary of State ("the State"), has moved for summary judgment. Ms. Sumner objected and filed her own motion for summary judgment. For the following reasons the State's motion for summary judgment is GRANTED and Ms. Sumner's motion for summary judgment is DENIED.
I. Standard of Review
Summary judgment can only be granted if no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law. RSA 491:8-a. "When considering a motion for summary judgment, the trial court . . . must determine whether a reasonable basis exists to dispute the facts claimed in the moving party's affidavits at trial; if so, the trial court must deny the motion for summary [2] judgment." Sabinson v. Tr. of Dartmouth Coll., 160 N.H. 452, 460 (2010); Iannelli v. Burger King Corp., 145 N.H. 190, 192-93 (2000). A court cannot resolve issues of credibility or weigh evidence on summary judgment. Iannelli, 145 N.H. at 192. The New Hampshire Supreme Court has emphasized that while summary judgment affords savings in time, effort and expense, the value of judicial economy may not be gained at the expense of denying a litigant the right of trial where there is a genuine issue of material fact to be litigated. Concord Group Ins. Co. v. Sleeper, 135 N.H. 67, 69 (1991).
II. Background
On July 29, 2013, Ms. Sumner made a Right-to-Know request to the Secretary of State pursuant to RSA 91-A to review ballots cast in the town of Jaffrey during the 2012 general election. (Def.'s Ex. A.) She stated that she wished to review the ballots for the purpose of determining why seventy-one ballots contained "over votes" and researching when ballots are traceable to their voter. (Id.) On August 5, 2013, the State denied Ms. Sumner's request on the grounds that cast ballots are exempt from Right-to-Know laws under RSA 659:95, II. (Def.'s Ex. B.)
Ms. Sumner brought this claim on July 22, 2014. She seeks an injunction compelling the State to grant her access to the ballots. She also seeks declaratory judgment that RSA 659:95, II, RSA 660:16, II, and RSA 669:33, II, which exempt ballots from Right-to-Know laws, violate the New Hampshire Constitution because of process by which the ballot exemption was enacted and by which the legislature has declined to repeal the ballot exemption. She also seeks declaratory judgment that the statutes in [3] question her substantive rights under New Hampshire Constitution and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.1
III. Analysis
A. Standing
The State first moves for summary judgment on standing grounds. "For a court to hear a party's complaint, the party must have standing to assert the claim." Gen. Elec. Co. v. Comm'r, N.H. Dep't of Revenue Admin., 154 N.H. 457, 461 (2006). Generally, "a party has standing to raise a constitutional issue only when the party's own rights have been or will be directly affected." Id. The State argues that Ms. Gardner does not have standing because she does not have any greater interest in seeing the ballots than any other member of the general public. The Court disagrees.
The New Hampshire Constitution and RSA 91-A create a right to access government records. N.H. CONST. pt. I, art. 8. "In Right-to-Know Law cases, the plaintiff's motives for seeking disclosure are irrelevant. . . . This is because the Right-to-Know Law gives any member of the public as much right to disclosure as one with a special interest in a particular document[.]" Union Leader Corp. v. City of Nashua, 141 N.H. 473, 476 (1996) (quotation removed). Accordingly, any member of the public has standing to challenge a denial of access to governmental records and Ms. Sumner may bring this claim. See Petition of Keene Sentinel, 136 N.H. 121, 125 (1992).
B. Process Arguments
Ms. Sumner argues that the ballot exemption is unconstitutional under Part I, Articles 8, 28-a and 37, and Part II Articles 2, 5, 24, 32, 41, 44, and 90 because of [4] process by which the ballot exemption was enacted and by which the legislature has declined to repeal the ballot exemption. Among the violations she alleges are that the legislature failed to check the constitutionality of the ballot exemption with the Attorney General before enacting it, that the Attorney General improperly failed to encourage the legislature to repeal the ballot exemption, that the legislature did not adequately consider the constitutionality of the ballot exemption, that the legislature and Attorney General showed an "unhealthy deference" for the wishes of the Secretary of State, and that the ballot exemption was not germane to the bill in which it was passed.
The State argues that Ms. Sumner's prooess claim presents a nonjusticiable political question. The Court agrees. "A controversy is nonjusticiable-i.e., involves a political question-where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." Hughes v. Speaker of the N.H. House of Representatives, 152 N.H. 276, 283 (2005). "The authority to adopt procedural rules for passing legislation is demonstrably committed to the legislative branch by Part II, Articles 22 and 37 of the State Constitution." Baines v. N.H. Senate President, 152 N.H. 124, 130-31 (2005).
Although Ms. Sumner couches her claim in constitutional terms, what she is really asking is for the court to dictate the precise procedures that the legislature should follow in enacting legislation. The constitutional provisions she cites do not expressly forbid any of the specific procedures followed by the legislature. Accordingly, there is a clear lack of judicially discoverable and manageable standards that can be applied to this claim. Moreover, the authority to determine the legislature's procedures is [5] committed to the legislature. See Baines, 152 N.H. at 130-31. Accordingly, the Court the State is entitled to judgment as a matter of law with respect to Ms. Sumner's process claim because it raises a nonjusticiable political question.
C. Substantive Rights
Ms. Sumner next argues that the ballot exemption violates her substantive rights under Part I, Articles 2, 7, 8, 10, 11, 22, and 37, and Part II, Articles 5, 39, and 90 of the New Hampshire Constitution. Primarily, she argues that the ballot exemption violates her state constitutional right of access to public records. The state constitutional right of access to public records arises from Part I, Articles 7, 8 and 22 of the New Hampshire Constitution. State v. DeCato, 156 N.H. 570, 574 (2007). Most importantly, Part I, Article 8, of the New Hampshire Constitution states "the public's right of access to governmental proceedings and records shall not be unreasonably restricted."
"The public's right of access to governmental proceedings . . . is not absolute. . . . It must yield to reasonable restrictions." Hughes, 152 N.H. at 290. "To determine whether restrictions are 'reasonable,' we balance the public's right of access against the competing constitutional interests in the context of the facts of each case." Id. (quotation removed).2 "The reasonableness of any restriction on the public's right of access to any governmental proceeding or record must be examined in light of the [6] ability of the public to hold government accountable absent such access." Associated Press v. State, 153 N.H. 120, 125 (2005).
Ms. Sumner argues that the public should be permitted to examine ballots to ensure the accuracy of vote counting and to otherwise make sure the election process is being conducted with integrity. The State argues that making ballots available to the public would compromise voter anonymity because some ballots might be traceable to their individual voters.
The Court previously addressed this precise issue in a 2012 case brought by Ms. Sumner. Sumner v. State, Cheshire County Superior Court, No. 213-2012-CV-233 (Sept. 24, 2012) (Order, Kissinger, J.). In that case, the Court found the following:
In weighing the public's right of access against the concerns of the State, the Court finds that the State has the far stronger argument in this instance. "States certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes as means for electing public officials." Op. of the Justices (Voting Age in Primary Elections II), 158 N.H. 661, 670 (2009) (citation omitted). "A State indisputably [also] has a compelling interest in preserving the integrity of its election process." Id. (brackets in original). The Court finds that the integrity of the election process depends on voter anonymity. Therefore, the Court finds that the Legislature did not act in violation of the New Hampshire Constitution when it passed RSA 659:95, II, in order to exempt ballots from the Right-to-Know Law.
Id. at 6-7. The State's interest in ensuring voter anonymity is as compelling today as it was in 2012. Moreover, the public has various mechanisms for ensuring election integrity without accessing ballots. See RSA 659:63 (requiring that vote counting is public, but that ballots be kept four feet from the public); RSA 660:5 (granting candidates the right to inspect ballots during recounts). Finally, there is no historical right of public access to cast ballots. Hughes, 152 N.H. at 293 (considering lack of historical access as factor against making certain legislative proceedings public). [7] Accordingly, the Court reaffirms its reasoning from the 2012 case and finds that the State's interest in ensuring voter privacy far outweighs any benefits that could be obtained from the public accessing private ballots. Therefore, Ms. Sumner does not have a constitutional right to access cast ballots.
Ms. Sumner also argues that the ballot exemption violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because it discriminates against people in towns that conduct their ballot counts by computer. However, people in computer count towns are not a protected class under the Fourteenth Amendment, so the Court applies rational basis review to this claim. See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-41 (1985). The State clearly has a rational basis for exempting ballots, based on its interest in protecting voter anonymity. Therefore, Ms. Sumner's Equal Protection arguments are without merit.
Ms. Sumner next argues that the ballot exemption violates her fundamental right to vote under Part I, Article 11 of the New Hampshire Constitution. The Court is unaware of any authority, however, suggesting that the fundamental right to vote translates to a right to inspect ballots. Therefore, this argument is also without merit.
Finally, Ms. Sumner makes clearly underdeveloped arguments under several other state constitutional provisions that warrant no discussion in this order. Keenan v. Fearon, 130 N.H. 494, 499 (1988) ("[O]ff-hand invocations of the State Constitution [that] are supported neither by argument nor by authority . . . warrant[] no extended consideration."). Therefore, to the extent that Ms. Sumner intended to raise claims under constitutional provisions not addressed in this order, the State is entitled to judgment as a matter of law on those claims.
[8] Conclusion
For the foregoing reasons, there is no genuine issue of material fact in this case and the State is entitled to judgment as a matter of law. Accordingly, the State's motion for summary judgment is GRANTED and Ms. Sumner's cross-motion for summary judgment is DENIED.
SO ORDERED.
1 Ms. Sumner also suggests that she has also raised a First Amendment claim. (Pl.'s Mot. Summ. J. 1). However, the Court notes that it denied Ms. Sumner's motion to amend her complaint to include such a claim on February 4, 2015.
2 The State suggests that the Court should follow the "experience and logic test" to determine whether there is a public right of access to ballots. See Associated Press v. State, 153 N.H. 120, 133 (2005) (considering whether certain processes have historically been open to the public and whether public access plays a significant positive role in the functioning of a particular process). However, the Court reads Associated Press as applying the experience and logic test only to cases involving Court proceedings. Id. ("[W]e now adopt the United States Supreme Court's experience and logic test for determining whether the State constitutional right of access applies to certain court proceedings."). Nonetheless, Ms. Sumner's claims would fail under the experience and logic test as Ms. Sumner offers no authority suggesting that ballots have historically been open to the public in New Hampshire. See id.