State Supreme Court To Decide Whether Voter Database Can Be Used in SB 3 Lawsuit

May 24, 2018

The New Hampshire Supreme Court has agreed to review whether a lower court judge was wrong to force the state to share information from its voter registration database as part of the ongoing lawsuit challenging Senate Bill 3. State attorneys, unsatisfied with a district judge's order to share the database, requested the review earlier this month.

SB3 requires people registering within 30 days of an election to provide documentation to show they live where they’re trying to vote. Its supporters argued that it was meant to enhance trust in New Hampshire elections and deter so-called “drive-by voting." (The available evidence shows that documented cases of voter fraud of any kind are rare in New Hampshire.)

The New Hampshire chapter of the League of Women Voters, the New Hampshire Democratic Party and several individual voters who say they’ll have trouble complying with the law are trying to get the courts to declare it unconstitutional.

Part of their argument against SB3 is that it will disproportionately deter certain types of voters — including “young voters, naturalized citizens, or individuals who may have moved to New Hampshire.” To evaluate that, the legal team challenging SB3 asked the state to turn over part of its voter database so that an expert can study voting patterns among these groups more closely.

That same legal team says they have crafted a “very strict protective order” for how the data should be shared. That order suggests that certain sensitive information — including social security numbers, driver’s license numbers, and information about voters who are under protective orders because of past experiences with domestic violence — should be redacted when the state shares the database with the opposing attorneys, and that the information should only be shared in an encrypted format with a limited group of individuals. 

“It would be produced in a format that would be protected that outside parties would not see, and it would be used solely for the purpose of litigation of this case,” attorney Bill Christie said after a hearing in the SB3 case earlier this month.

The judge presiding over the SB3 case in Nashua recently came down in their favor, ordering the state to turn over the requested voter registration information.

But the state is resisting that order — saying that it would jeopardize voters’ privacy and go against the law governing how the state should handle voter registration data — and recently asked the State Supreme Court to step in.

Meanwhile, Republican lawmakers responded to the lower court judge’s order to release the voter registration data by passing a law to specifically exempt the database from disclosure as part of “a subpoena or civil litigation discovery request.

Previously, the state law governing the database said it could not be disclosed as part of public records requests, though it did allow the Secretary of State to share information from the database with state and federal courts for the preparation of jury lists.

Rep. Neal Kurk, one of the lawmakers who helped to craft those rules protecting the database, also helped to introduce the new language to exempt it from disclosure in court cases.

“I don’t know very much about the case,” Kurk told NHPR earlier this month. “I do know that there’s a great deal of very private, personal and confidential information in that database, including last four digits of one’s social security number, driver’s license number, place where you entered the United States, your citizenship record.”

Many voters, he said, “would be disturbed to know that this would be available to anybody who brings a civil suit.”