Deborah Sumner v. New Hampshire Secretary of State

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire
No. 2015-0340

DEBORAH SUMNER

v.

NEW HAMPSHIRE SECRETARY OF STATE

Submitted: January 7, 2016
Opinion Issued: March 22, 2016

Deborah Sumner, self-represented party, by brief.

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

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

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

“When reviewing a trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and inferences properly drawn from them, in
the light most favorable to the non-moving party.” Sabinson v. Trustees of
Dartmouth College, 160 N.H. 452, 455 (2010). “If this review does not reveal
any genuine issues of material fact, i.e., facts that would affect the outcome of
the litigation, and if the moving party is entitled to judgment as a matter of law,
we will affirm.” Id.

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

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

We have noted that the constitutional “right of access [in Part I, Article 8]
. . . must yield to reasonable restrictions.” Hughes v. Speaker, N.H. House of
Representatives, 152 N.H. 276, 290 (2005). “To determine whether restrictions
are reasonable, we balance the public’s right of access against the competing

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constitutional interests in the context of the facts of each case.” Id. (quotations
and emphasis omitted). “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 ability of the public to hold government accountable absent such
access.” Associated Press v. State of N.H., 153 N.H. 120, 125 (2005).

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

According to the State, the ballot exemption statutes promote its interest
in two ways. First, the statutes prevent members of the public from accessing
ballots, altering or hiding those ballots, and then challenging the results of an
election. Such behavior would compromise the “strong public policy favoring
stability and finality of election results.” Buonanno v. DiStefano, 430 A.2d
765, 770 (R.I. 1981). We observe that these risks, in part, supported one state
court’s determination to hold that copies of cast ballots were statutorily exempt
from public records laws. White v. Skagit County, 355 P.3d 1178, 1183 (Wash.
Ct. App. 2015) (“Each time ballots are handled, there is the potential to
misplace, damage, or lose them.”). Sumner’s request presents a risk of even
greater consequence because she seeks access to original ballots. If original
ballots are damaged or lost and election results are subsequently challenged,
the State may be unable to verify vote counts.

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

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

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recognize the legitimacy of this interest, we note that New Hampshire law
enables public oversight of the vote counting process in ways that, unlike
public ballot inspection, do not increase the risk of lost or damaged ballots,
fraudulent election challenges, or infringement upon voter privacy. For
instance, RSA 659:63 (2008) requires that vote counting be conducted in
public, so that the public may observe the counting process as it occurs.
Further, RSA 660:1 (Supp. 2015) and RSA 660:5 (2008) permit candidates to
request recounts during which they or appointed representatives may inspect
cast ballots to determine whether the ballots had been accurately counted.

Moreover, Sumner provides little support for the proposition that the
constitutional right of access includes a right to inspect cast ballots. She cites
two cases that were decided under the public records laws of other states. See
Price v. Town of Fairlee, 26 A.3d 26, 28 (Vt. 2011) (interpreting the Vermont
Access to Public Records Act to allow access to ballots); Marks v. Koch, 284
P.3d 118, 119, 124 (Colo. App. 2011) (interpreting the Colorado Open Records
Act to allow access to ballots). Given that our statutes exempt cast ballots
from our Right-to-Know Law, we find those cases unpersuasive. We also note
that other states have interpreted their public records laws to exempt access to
cast ballots. See, e.g., White, 355 P.3d at 1184; In re Decision v. State Bd. of
Elections, 570 S.E.2d 897, 898 (N.C. Ct. App. 2002).

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

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

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 We reject, as underdeveloped, Sumner’s remaining assertions that the
ballot exemption statutes violate the New Hampshire Constitution. See 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.”).

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

“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, 152 N.H. at 283 (quotation
omitted). “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
(2005). “The legislature, alone, has complete control and discretion whether it
shall observe, enforce, waive, suspend, or disregard its own rules of procedure.”
Hughes, 152 N.H. at 284 (quotation omitted). Because Sumner’s claim focuses
upon alleged violations of the legislature’s procedural rules, a ruling on that
claim would have interfered in an area in which the constitution gives the
legislature “complete control and discretion.” Id. (quotation omitted). We,
therefore, hold that the trial court did not err in ruling that Sumner’s claim
was non-justiciable.

Sumner also challenges the trial court’s denial of her motion for a court
order allowing her to review the Jaffrey ballots. “Decisions concerning pretrial
discovery are within the sound discretion of the trial judge.” N.H. Ball Bearings
v. Jackson, 158 N.H. 421, 429 (2009). “We review a trial court’s rulings on the
management of discovery under an unsustainable exercise of discretion
standard.” Id. “To establish that the trial court erred, [Sumner] must
demonstrate that the trial court’s ruling was clearly untenable or unreasonable
to the prejudice of [her] case.” Id. Because the request for the court order
merely replicated Sumner’s initial request, in her complaint, to review the
Jaffrey ballots, we conclude that the trial court’s denial of the duplicate request
was neither untenable nor unreasonable.

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 Finally, Sumner argues that genuine issues of material fact precluded
the trial court from granting the defendant’s motion for summary judgment.
However, the disputed facts that she mentions in her brief do not affect the
outcome of our decision, and are, therefore, immaterial. Having determined
that the ballot exemption statutes — RSA 659:95, II, RSA 660:16, II, and RSA
669:33, II — do not violate the New Hampshire Constitution, we hold that the
trial court did not err by granting the defendant’s motion for summary
judgment.

Affirmed.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

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