Richard v. Governor

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
Case No. 2023-0097
Citation: Richard v. Governor, 2024 N.H. 53

DANIEL RICHARD

v.

GOVERNOR & a.

Argued: November 29, 2023
Opinion Issued: September 12, 2024

Daniel Richard, self-represented party, on the brief and orally.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Matthew G. Conley, assistant attorney general, and Brendan A.
O’Donnell, assistant attorney general, on the brief, and Matthew G. Conley
orally), for the State.

Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J. Tierney on the
brief), for the Town of Auburn.
 MACDONALD, C.J.

¶1 The plaintiff, Daniel Richard, filed a complaint against the
defendants, the Governor, the Secretary of State, the State of New Hampshire
(collectively, the State), and the Chairman of the Board of Selectmen for the
Town of Auburn and the Town of Auburn Administrator (collectively, the Town),
seeking injunctive and declaratory relief as to specified New Hampshire election
laws. The Superior Court (Ruoff, J.) granted the defendants’ motion to dismiss
for failure to state a claim upon which relief may be granted. We determine
that the plaintiff has standing to bring his claims set forth in Counts I and II
and, accordingly, we review the trial court’s dismissal of those claims. For the
reasons set forth below, we affirm in part and remand for further proceedings.
We determine that the plaintiff lacks standing to bring Counts III through VI
alleged in his complaint. Accordingly, we vacate the trial court’s order as to
those claims and remand with instructions that they be dismissed for lack of
subject matter jurisdiction.

I. Background

¶2 The trial court found or the record supports the following facts. The
plaintiff is a registered voter in the town of Auburn. In August 2022, he filed
suit raising six counts: (I) that he was “deprived of his right to vote by the town
of Auburn” on March 9, 2022 when he “attempted to vote” but was not
permitted to vote by hand instead of using an electronic voting machine; (II) the
statutes contained in RSA 656:40 et seq. are unconstitutional because they
allow the use of electronic voting machines; (III) RSA 656:40-:42 (2016 & Supp.
2023) are unconstitutional because they permit the use of electronic vote
counting devices which lack testing or certification procedures; (IV) RSA 21:6
(2020), RSA 21:6-a (2020), and RSA 654:1 (2016) are unconstitutional because
they changed the definition of who can vote in New Hampshire; (V) RSA chapter
657 is unconstitutional because it improperly expands access to absentee
voting; and (VI) the 1976 amendments to the State Constitution resulting from
the outcome of a statewide ballot question related to elections are invalid
because the amendment process was contrary to the constitution.

¶3 The defendants moved to dismiss the complaint on grounds of both
standing and failure to state a claim upon which relief may be granted. They
argued that the plaintiff “does not have standing as he has not demonstrated
any kind of injury in bringing this suit,” but, rather, was seeking “resolution of
hypothetical issues and the airing of generalized grievances.” Therefore, they
asserted, any opinion issued by the trial court “would be advisory only and not
actually addressing a case or controversy properly before” the court.

¶4 The trial court granted the motion to dismiss. Although the court
noted that the defendants “persuasively” argued that the plaintiff “lacks
standing to bring some or all of his . . . claims,” rather than determining

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whether the plaintiff had standing — a question affecting the court’s
jurisdiction over the case — the court concluded that because the plaintiff
failed to state a claim upon which relief may be granted, “it need not address”
the defendants’ standing arguments. Accordingly, the trial court granted the
defendants’ motion to dismiss. The court subsequently denied the plaintiff’s
motion to reconsider. This appeal followed.

¶5 On appeal, neither party briefed the issue of standing. Given that a
determination that the plaintiff lacks standing would require dismissal of the
case for lack of subject matter jurisdiction, we ordered the parties to file
supplemental briefing on that issue. In his supplemental filing, the plaintiff
argues that he has standing to bring this suit because he is a citizen of New
Hampshire, an inhabitant of the town, and a taxpayer. Therefore, he asserts, “he
has . . . a constitutionally protected right to vote for state and federal offices”
under the State and Federal Constitutions. The State argues that the plaintiff
has failed to allege a concrete, personal injury “that rises above an abstract
interest in ensuring that the State Constitution is observed or an injury
distinguishable from a generalized wrong allegedly suffered by the public at
large.” The Town asserts that the plaintiff’s requested remedies — to prevent the
use of electronic voting machines in New Hampshire and to change who is
allowed to vote in this state — demonstrate that the harm he seeks to cure is
“precisely the type of generalized wrong allegedly suffered by the public at large
this Court has warned is insufficient” to establish standing. (Quotation omitted.)
The Town further argues that the plaintiff lacks standing “because his interests
are not adverse to the Town.”

II. Standard of Review

¶6 Generally, in ruling upon a motion to dismiss, the trial court must
determine whether the allegations contained in the plaintiff’s pleading
sufficiently establish a basis upon which relief may be granted. Avery v.
Comm’r, N.H. Dep’t of Corr., 173 N.H. 726, 736 (2020). However, when a
motion to dismiss challenges the plaintiff’s standing to sue, the trial court must
look beyond the plaintiff’s unsubstantiated allegations and determine, based
upon the facts, whether the plaintiff has sufficiently demonstrated his right to
claim relief. Id. at 736-37.

¶7 The doctrine of standing limits the judicial role, consistent with a
system of separated powers, to addressing those matters that are traditionally
thought to be capable of resolution through the judicial process. Carrigan v.
N.H. Dep’t of Health and Human Servs., 174 N.H. 362, 366 (2021). Because
standing implicates the court’s subject matter jurisdiction, it may be raised at
any time in a proceeding. See Appeal of Campaign for Ratepayers’ Rights, 162
N.H. 245, 250 (2011); see also Lonergan v. Town of Sanbornton, 175 N.H. 772,
775 (2023) (explaining that subject matter jurisdiction is a tribunal’s authority to
adjudicate the type of controversy involved in the action). “In New Hampshire,

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standing in the traditional sense is grounded in Part II, Article 74 of the State
Constitution, which provides: ‘Each branch of the legislature as well as the
governor and council shall have authority to require the opinions of the justices
of the supreme court upon important questions of law and upon solemn
occasions.’” Carrigan, 174 N.H. at 366. Thus, while the respective branches of
the legislature, the governor, and the executive council may request our advisory
opinion on important questions of law, other parties may not. Id.

¶8 Typically, standing under the New Hampshire Constitution requires
parties to have personal legal or equitable rights that are adverse to one
another, with regard to an actual, not hypothetical, dispute, which is capable
of judicial redress. See Conduent State & Local Solutions v. N.H. Dep’t of
Transp., 171 N.H. 414, 418 (2018). When evaluating whether a party has
standing to sue, we focus on whether the party suffered a legal injury against
which the law was designed to protect. Id. Neither an abstract interest in
ensuring that the State Constitution is observed nor an injury
indistinguishable from a generalized wrong allegedly suffered by the public at
large is sufficient to constitute a personal, concrete interest. Id. Rather, the
party must show that the party’s own rights have been or will be directly
affected. Id.

III. Analysis

A. Counts I and II

¶9 The plaintiff’s complaint alleges that on March 9, 2022, he
“attempted to vote in the Town of Auburn” where he is registered to vote but
“was deprived of his right to vote by the town.” The complaint alleges that he
“checked in to vote” and “was given a ballot” but, when he “asked where the
hand counting deposit box was,” he “was informed that voting machines would
be used to count the votes.” The plaintiff alleges that the moderator’s “refusal
to count [his] vote” by hand was a “denial of [his] right to vote, by attempted
coercion, as the only option made available to [him] was the use of
unconstitutional programable [sic], open source, electronic voting machines.”
(Bolding omitted.) The plaintiff seeks to enjoin the Town “from prohibiting [his]
right to” have his vote “hand counted.”

¶10 Applying the foregoing standing principles to the allegations in
Count I, we conclude that the plaintiff’s complaint identifies an alleged
personal injury — denial of his right to vote — and seeks relief that directly
benefits him — that “[his] vote . . . be hand counted.” On its face, Count I
alleges a concrete, personal injury, implicating legal or equitable rights, with
regard to an actual, not hypothetical, dispute, which is capable of judicial
redress by a favorable decision. See Carrigan, 174 N.H. at 367. Accordingly,
the plaintiff has established standing with respect to Count I. Therefore, we

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review the trial court’s grant of the defendants’ motion to dismiss Count I for
failure to state a claim upon which relief may be granted.

¶11 In doing so, we consider whether the allegations in the plaintiff’s
pleadings are reasonably susceptible of a construction that would permit
recovery. See Granite State Trade Sch. v. N.H. Mechanical Licensing Bd., 175
N.H. 708, 710 (2023). We assume the plaintiff’s pleadings to be true and
construe all reasonable inferences in the light most favorable to the plaintiff.
Id. However, we need not assume the truth of statements in the plaintiff’s
pleadings that are merely conclusions of law. Id. We then engage in a
threshold inquiry that tests the facts in the complaint against the applicable
law. Id. We will uphold the trial court’s grant of a motion to dismiss if the
facts pleaded do not constitute a basis for legal relief. Id.

¶12 The essence of Count I is the plaintiff’s allegation that he has a
right under Part II, Article 32 of the State Constitution to have his vote hand
counted. Count II alleges, inter alia, that RSA 656:40-:42, which authorize the
use of electronic voting machines, are therefore unconstitutional because they
exceed the authority of Part II, Article 32. Thus, when read together, the
allegations in Count I likewise establish the plaintiff’s standing with respect to
his allegations in Count II concerning his compelled use of voting machines.

¶13 Part II, Article 32 provides in pertinent part:

The meetings for the choice of governor, council and senators,
shall be warned by warrant from the selectmen, and governed by a
moderator, who shall, in the presence of the selectmen (whose duty
it shall be to attend) in open meeting, receive the votes of all the
inhabitants of such towns and wards present, and qualified to vote
for senators; and shall, in said meetings, in presence of the said
selectmen, and of the town or city clerk, in said meetings, sort and
count the said votes, and make a public declaration thereof, with
the name of every person voted for, and the number of votes for
each person . . . .

N.H. CONST. pt. II, art. 32. Examining its plain language, the trial court
reasoned that “Part II, Article 32 does not require a particular method through
which the public officials are to count ballots” and, thus, “the legislature has
the authority to permit the use of electronic counting devices because the
Constitution is silent on this matter.” In the absence of any law “clearly
establishing a constitutional right to have one’s vote counted by hand,” the
court determined that Count I was not reasonably susceptible of a construction
that would permit recovery.

¶14 On appeal, the plaintiff argues that “[c]ontrary to the Trial Court’s
opinion the Constitution is not silent on this matter but rather it is specific.

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The original intent of Part II, art. 32, the duty of [the] moderator is clear and
specific that ‘he’ ‘shall,’ . . . ‘sort’ and ‘count’ the votes has remained
unchanged since 1784.” The State argues that no part of the State
Constitution mandates hand counting.

¶15 Our standard for reviewing the plaintiff’s claims regarding Part II,
Article 32 and the constitutionality of RSA 656:40-:42 is well established. We
review a trial court’s interpretation of the constitution de novo. Bd. of
Trustees, N.H. Judicial Ret. Plan v. Sec’y of State, 161 N.H. 49, 53 (2010). We
will presume a legislative act to be constitutional and will not declare it invalid
except upon inescapable grounds. Id.

¶16 When interpreting the constitution our first resort is the natural
significance of the words used by the framers. Id. “While the constitution as it
now stands is to be considered as a whole as if enacted at one time, to
ascertain the meaning of particular expressions it may be necessary to give
attention to the circumstances under which they became parts of the
instrument.” Id. at 53-54 (quotation omitted).

¶17 Our prior cases interpreting Part II, Article 32 have not addressed
the issue raised by the plaintiff. Cf. Opinion of the Justices, 114 N.H. 711,
712-13 (1974) (a ballot cast by means of a voting machine is a “written ballot”
within the meaning of Part II, Article 100 of the New Hampshire Constitution).
By its terms, the provision prescribes duties for selectmen, the moderator and
the town or city clerk in the conduct of electing governor, the executive council
and senators. Specifically, the moderator shall preside at an open meeting,
shall “receive the votes” and shall “sort and count the said votes, and make a
public declaration thereof.” N.H. CONST. pt. II, art. 32. The constitution
establishes duties of the moderator — to preside at an open meeting, to receive
votes, to sort and count them and to make a public declaration — but it does
not prescribe how those duties shall be performed. To that end, by its terms,
Part II, Article 32 does not mandate that the moderator must hand count votes.

¶18 It is true, as the plaintiff notes, and as we state above, that “to
ascertain the meaning of particular expressions it may be necessary to give
attention to the circumstances under which they became parts of the
instrument.” Bd. of Trustees, 161 N.H. at 54. But, beyond the observation
that there was no electricity or technology at the time of the adoption of the
amendment, on appeal the plaintiff offers no developed argument, case law or
historical evidence to understand the context of this amendment and why its
framers would have mandated, albeit sub silentio, the use of hand counting.
In contrast, the amendment expressly mandates that meetings must be open
and, therefore, as we have observed, the moderator is to be held accountable
for his or her exercise of discretion. See Bell v. Pike, 53 N.H. 473, 477-78
(1873). It is beyond our authority to add words to the constitution that the
framers did not see fit to include. See Bd. of Trustees, 161 N.H. at 53.

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 [¶19] On the basis of the foregoing, we affirm the trial court’s dismissal of
Counts I and II to the extent they were based on the plaintiff’s interpretation of
Part II, Article 32. However, with respect to Count II, we read the plaintiff’s
pleadings as claiming more.

¶20 The plaintiff alleges in his complaint that “[t]he Defendants’
sanctioning of the discretionary use of voting machine[s] at the local level”
violates the equal protection clause of Part I, Article 1 of the State Constitution
and the Fourteenth Amendment to the Federal Constitution by authorizing the
“use of programmable, open source, electronic vote counting machines in some
towns, cities, or other political subdivision[s] of the State or not.” He argues
that the State’s action “sets up an unequal election process across the state”
wherein “103 communities in the State hand count, while at [the] same time
permitting voting machine counts in 135 communities.” According to the
plaintiff, this disparity between the methods of counting votes and the “non-
verifiability” of ballots submitted by electronic voting machine “at the time of
counting and for later auditing (re-counts) of the validity of each ballot/vote”
produce “an unreliable outcome and hidden opportunity to manipulate
computer-counted data,” thereby depriving him of a lawful count of the ballots
and diluting his vote.

¶21 Applying our standard of review, based upon the alleged facts, we
determine that the plaintiff has sufficiently demonstrated his right to claim
relief and has therefore demonstrated standing as to his equal protection claim
set forth in Count II. See Avery, 173 N.H. at 736-37; see also Baker v. Carr, 369 U.S. 186, 205-06 (1962) (noting that voters have standing to bring equal
protection challenges to complain of vote dilution and observing that “[m]any of
the cases have assumed rather than articulated the premise in deciding the
merits of similar claims”). Because the trial court did not address the plaintiff’s
equal protection claim, we remand for further proceedings consistent with this
decision. In doing so, we express no opinion on the merits of the plaintiff’s
claim.

B. Counts III-VI

¶22 Counts III through VI of the plaintiff’s complaint allege that: RSA
656:40-:42 are unconstitutional because they permit the use of electronic vote
counting devices which lack testing or certification procedures; RSA 21:6, RSA
21:6-a, and RSA 654:1 are unconstitutional because they changed the
definition of who can vote in New Hampshire; RSA chapter 657 is
unconstitutional because it improperly expands access to absentee voting; and
the 1976 amendments to the State Constitution resulting from the outcome of
a statewide ballot question related to elections are invalid because the
amendment process was contrary to the constitution. The plaintiff alleges that
he has been injured because the actions set forth in Counts III through VI
“have subjected [him] to unconstitutional laws, taxes, representation and

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changes to our form of government not consented to by the inhabitants of this
State and secured by the State and Federal Constitutions.” He seeks to
restrain the defendants from “exclusively using electronic means of vote
counting,” “ignoring the hand counting required by” the State Constitution,
“using electronic open-source voting machines,” and “entering any contractual
agreements used for voting without legislative approval of the body of a whole.”
In addition, the plaintiff seeks a declaration that the legislature’s statutory
authorization of electronic voting machines, the “use of the word resident
within the statutes,” and the expanded statutory exemptions for absentee
voting are unconstitutional.

¶23 The State argues that the plaintiff has failed to articulate a
concrete, personal injury that rises above a generalized grievance and has,
therefore, failed to establish standing. Likewise, the Town asserts that the
remedies requested by the plaintiff “on the whole, seek to prevent the use of
electronic voting machines in New Hampshire and change who is allowed to
vote in this state,” thereby demonstrating that the harm the plaintiff “seeks to
cure is not his personal, concrete injury.” The Town further argues that the
plaintiff has not identified “specific laws, taxes, changes to the form of
government, or changes to his State or Federal representation that have
impacted him directly.”

¶24 Every person in New Hampshire has an interest in the proper
application of the Constitution and state laws. Given that shared interest, we
agree with the defendants that the grievances set forth in Counts III through VI
of the plaintiff’s complaint raise only “generalized wrong[s] allegedly suffered by
the public at large.” Avery, 173 N.H. at 737. Likewise, the relief sought by the
plaintiff no more directly affects his rights than the rights of all New Hampshire
citizens. See id. In the absence of a “concrete factual context conducive to a
realistic appreciation of the consequences of judicial action,” Carrigan, 174
N.H. at 367 (quotation omitted), the plaintiff’s claims advance no more than “an
abstract interest in ensuring that the State Constitution is observed.” Avery,
173 N.H. at 737. Therefore, we conclude that the plaintiff lacks standing to
bring Counts III through VI. Accordingly, we vacate the trial court’s ruling on
the merits of those claims and remand with instructions that they be dismissed
for lack of subject matter jurisdiction. See Close v. Fisette, 146 N.H. 480, 483
(2001) (explaining that a decision rendered by a court without subject matter
jurisdiction is void).

Affirmed in part; vacated in part;
and remanded.

BASSETT and DONOVAN, JJ., concurred; HANTZ MARCONI, J., sat for
oral argument but did not participate in the final vote.

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