This story has been updated.
Secretary of State Bill Gardner says New Hampshire will turn over publicly available voter checklist information to the Trump administration’s Presidential Advisory Commission on Election Integrity, of which he is a member — but the state's still determining how it will share that information, and whether it will ask the commission to pay any money for it.
In request sent this week by Commission Vice Chairman and Kansas Secretary of State Kris Kobach, the commission asked states to turn over “publicly available voter roll data” including full names, addresses, birth dates, party affiliation, voter history, any felony convictions and the last four digits of voters’ social security numbers.
Gardner said he and other members of the commission had a chance to review a draft of the request earlier this week before it was sent to states, mainly to ensure "we were not going to ask the states for anything that was not public in their state."
In other states across the country, officials from both parties have pushed back on the request. The Republican Secretary of State in Mississippi told the commission, in part, "They can go jump in the Gulf of Mexico."
Faced with a flurry of questions from the press and the public about the state's response, Gardner said he wanted to emphasize that some of the information mentioned in the letter — like social security numbers — won’t be provided to the commission because it’s not public as part of New Hampshire’s voter checklists.
“What is public is what has been public for decades. In this state, every town and city clerk must keep every checklist they use in an election for at least five years so that any citizen can go in and look at the checklists,” Gardner said in an interview Friday afternoon in his office, where staffers spent the day fielding calls about the state’s plans to participate in the request.
“Checklists have always included names, addresses and party affiliation, if there is a party affiliation. So that’s all that’s being asked of us.”
The state already sells copies of its statewide voter checklist to political parties and committees for a fee. Members of the public can view the statewide voter list at the state archives, but they aren’t allowed to “print, duplicate, transmit, or alter the data.” Otherwise, someone could purchase individual copies of local checklists on a town-by-town basis.
Gilles Bissonnette, legal director for the New Hampshire ACLU, said that distinction between what's being asked of the state in the request and what is typically allowed is an important one.
"A member of the public can’t print that data out, access it, manipulate it," Bissonnette said. "But if this information at a statewide level is now being sent to a commission and therefore being accessible under the open records laws to other members of the public, that information now can be printed out, used, manipulated, et cetera. This is an expansion of what’s not a customary practice in New Hampshire."
If the state is going to turn over its voter files, Bissonnette added, "there’s a very strong argument to be made that the commission should have to pay for this information, just like any other individual requesting this information."
Also taking issue with the Secretary of State's plan is Paul Twomey, a former House legal counsel and attorney who specializes in voting issues. Following news of Gardner's plans to cooperate with the commission's request, Twomey wrote to other top state officials with the attorney general's office asking them to "immediately intervene to halt any transmission of voter file information to any entities associated with the federal government by [the Secretary of State or his office."
Twomey, who has also served as a lawyer for a number of Democratic campaigns, cited the state law limiting the availability of New Hampshire voter files but also argued Gardner shouldn't be the one to determine whether the state's information is released to the commission, because he was involved in reviewing the request as part of his membership on the same commission.
"Gardner thus is the requester and should not take part in any decisions about release of this information," Twomey wrote to the state officials. "I urge you to immediately review the applicable statutes and take action to safeguard the privacy of the states voters."
On Monday, Democratic Executive Councilor Andru Volinsky voiced his formal opposition in a letter to the governor and Secretary of State — citing the limitations of the state's voter checklist statute and concerns about voter privacy. Volinsky told the officials they are not required to turn over any information to the commission, and their stated plans to comply with the request "most likely violate New Hampshire law."
If the officials do move forward, Volinsky also formally requested "a full and complete copy of any information about me that is provided," citing New Hampshire's public records law.
As of Friday, Gardner hadn’t yet decided whether his office will ask the commission to pay for its voter information, as is required in those other cases.
Gardner said state officials are looking at whether a law passed last year allowing New Hampshire to share information from its voter registration database with the Interstate Voter Registration Crosscheck Program might also allow the state to share the information in this case.
Kobach, the vice chairman of the Trump administration’s election commission and the person making the request for states’ voter information, oversees the Interstate Voter Registration Crosscheck Program.
“When we became part of the Crosscheck program, we were sharing information with other states. We think that will apply to this, ” Gardner said. “We’re looking at it, because it says if you’re going to be sharing information with other states — it didn’t limit us to the Crosscheck program. It did not do that. We actually wanted it to do that, but that’s not the way it was done, because there are other programs like it out there, and some states are in multiple programs.”
According to the law Gardner was referencing, “The secretary of state may enter into an agreement to share voter information or data from the statewide centralized voter registration database for the purpose of comparing duplicate voter information with other states or groups of states.”
The same law stipulates that the state "shall only provide information that is necessary for matching duplicate voter information with other states and shall take precautions to make sure that information in the database is secure."
Gardner said the commission hasn’t discussed whether the information collected as part of the commission’s request to states will be entered into the same Crosscheck program.
That uncertainty around how the commission plans to use the data it gathers was another area of concern for Bissonnette, with the New Hampshire ACLU.
“I think for a lot of people, they very well may be surprised that particular information about them is being disseminated to the federal government," Bissonnette said, adding that many people might not even know that it's public in the first place. "For what purpose, we don’t know. How it’s going to be used, we don’t know.”
So far, Gardner says the commission hasn't discussed "anything of substance." He participated in a conference call with other commission members earlier this week and plans to travel to Washington for the commission's first in-person meeting, scheduled for July 19.
While the commission has been labeled by some as a "sham" and accused of being used as a tool to pave the way for voter suppression efforts, and Gardner specifically has been criticized for his involvement in the group, the secretary said he's trying to go in with an open mind.
"I don’t want to go in with preconceived ideas," Gardner said Friday. "I want to do a great deal of listening and I’ve been a strong believer over the years that a voter system that the public has confidence in, is a voting system that garners high turnout."
One of his main goals, he said, is to understand why public confidence in the nation's elections is so low and to focus on ways to improve it.
Gov. Chris Sununu first affirmed New Hampshire’s plans to comply with the request in an interview with MSNBC Friday morning.
“I think every state should comply. Any state not complying is simply playing politics at this point,” Sununu told MSNBC. “You have to have a system that people can trust, that people can believe in. And this is simply a review to make sure that where our system is today and where it’s going tomorrow has that integrity.”
In a follow-up interview with NHPR, Sununu clarified the state would only be providing publicly available information. Still, the governor affirmed his support for the group's mission more broadly.
“It’s an important commission to make sure we have integrity and viability in our electoral process, “ Sununu said, “not just here in New Hampshire but across the country.”