A lawsuit that sought to restrict New Hampshire's ability to share voter information with the Trump administration’s election integrity commission was resolved in court Monday.
Both sides compromised on a plan to allow Secretary of State Bill Gardner to share scanned, unsearchable copies of local voter checklists from all wards across the state— not the larger, digitized version of that information that is collected in the central statewide voter database.
State attorneys representing Gardner in this lawsuit, brought by the New Hampshire chapter of the American Civil Liberties Union, said he never intended to subvert state law by providing anything beyond what is publicly available under existing rules.
“Our office strives to foster a sense of integrity and transparency in the elections process and to help increase voter confidence which in turn increases voter turnout,” Gardner said in a statement released after the hearing. “For the ACLU to argue, without justification, that this office would seek to harm the voting public by disclosing historic voter information only served to unnecessarily undermine voter confidence and frustrate the positive and trustworthy impression our office tries to give the voters of New Hampshire.”
When the Trump administration first made its request for publicly available voter data, Gardner — who is a member of the commission making the request — was quick to signal that he planned to cooperate. At the time, he did not specify what file format he planned to use, or what provision under state law would justify that transfer.
In a letter dated Monday, Gardner now says he plans to treat the Trump commission’s request for voter information like any Right-to-Know request under New Hampshire open records laws. He’ll share PDF copies of local voter checklists that are aggregated after every election at the state archives – something the state says is available to any member of the public who asks.
Deputy Secretary of State Dave Scanlan said this kind of copy of the state checklists is not frequently requested, but it has been provided to those who requested it in the past.
And Attorney Paul Twomey, who represented a pair of lawmakers in the ACLU's suit, says their concern was never a matter of whether any information could be released — but rather, to make sure Gardner was following the appropriate state laws.
There’s a big difference between giving the commission a searchable copy of the statewide voter database, which is only available to political candidates and committees under state statute, and providing copies of a paper checklist.
“To enter those into a digital form, it took two or three employees of Manchester three months — just to do Manchester. It would be an enormous task for this committee to enter the entire state's 300 or whatever it is municipalities,” Twomey said. “It's not going to happen. Is it conceivable it could happen? Sure, if you devoted enough resources to it. But that's what the law allows for.”
Associate attorney general Anne Edwards, speaking after Monday’s hearing where the agreement was finalized, said Gardner plans to provide checklist information dating back to 2006. The checklists include voters’ names, addresses, party affiliation and information on their participation in past elections.
“[Gardner] believes that information is valuable to the commission,” Edwards said. “And it’s part of the information they’re looking for to be able to do the cross-checks and the other information they’re searching for.”
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.
“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.”