Lawmakers don’t have to show privilege

Judge rules logs not needed in SB 3 case

NASHUA – With the 2018 New Hampshire primary only about a month away, the lawsuit challenging the contentious voter registration law, commonly known as SB 3, continues.

In the lawsuit, two legislators who helped create and push the law through the state house last year – Rep. Kathleen Hoelzel, R-Raymond, and Rep. Barbara Griffin, R-Goffstown – won victories in court this week. Judge Kenneth Brown in the Hillsborough Superior Court-North in Manchester ruled they do not have to produce so-called privilege logs as they were previously ordered to do so. The lawmakers were already successful in quashing subpoenas ordering them to hand over evidence in the case, citing legislative privilege granted under the New Hampshire Constitution.

“In light of the court’s finding that the information sought by the plaintiffs’ discovery requests are subject to the legislative privilege, the court agrees that the creation of privilege logs is unnecessary at this time,” Brown wrote.

State officials are being sued by the New Hampshire Democratic Party, the League of Women Voters, and several individual voters over SB 3, which establishes potential criminal penalties for some people who register to vote on election day. New Hampshire is the only state in the country that allows same-day registration and voting. Other states with same-day registration give voters provisional ballots. Provisional ballots are typically not counted on election days.

Under SB 3, people who register to vote on Election Day would have a set number of days to come back with specific information proving that are legally entitled to voter in New Hampshire. The law also sets out possible criminal penalties for people who fail to bring this proof in the time specified.

The plaintiffs in the case claim the laws will discourage poor people, young people, and minorities from registering to vote, and create long lines at the polls, which will further depress voting.

At the time, the law was deemed necessary to keep out-of-state voters, specifically from Massachusetts, from crossing the border on Election Day and illegally voting in New Hampshire elections.

Secretary of State William Gardner has said there is no evidence of massive fraudulent voting during the 2016 election. So far, the state has sent 51 cases of suspected fraudulent voting in 2016 to the Attorney General’s Office.

The plaintiffs wanted Hoelzel and Griffin and State Sen. Regina Birdsell, R-District 19, to provide communication they had with other legislators and state agencies, including the AGs office, in the lead up to the votes on SB 3.

Under the New Hampshire Constitution, such communication is deemed privileged, and not subject to Right to Know requests, or orders for court evidence. However, under the law, lawmakers are typically responsible for keeping a log of information which they deem is privileged as they create it. That log is allowed to be reviewed in case of a legal challenge.

The lawsuit is headed for a preliminary injunction hearing later this month that could keep it from being enforced during the November midterm election. A prior court order already blocks the state from enforcing any criminal penalties associated with the law as the lawsuit progresses.

Damien Fisher can be reached at 594-1245 or dfisher@nashua

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