ACLU-NH: Taxpayer standing holds the government accountable
The ACLU of New Hampshire encourages voters to vote “yes” on Ballot Question 1, which would restore the historic standing of taxpayers to challenge illegal and unconstitutional government actions.
Government accountability goes to the heart of our democracy. A key mechanism for citizens to hold their government accountable is through litigation in the courts. We know this firsthand at the ACLU of New Hampshire, where our job is to challenge illegal and unconstitutional government behavior through lawsuits.
However, the ability of Granite Staters to hold their government accountable took a severe hit in 2014 when the New Hampshire Supreme Court ruled that people, as taxpayers, did not have standing to challenge illegal or unconstitutional governmental actions. Being a taxpayer – a funder of the government – should absolutely give someone the ability to sue the government. Indeed, prior to 2014, for over 150 years, taxpayer lawsuits were allowed in New Hampshire as a way of holding our government accountable. In this 2014 decision, the Supreme Court cast aside this precedent and effectively closed the doors to the courthouse for taxpayers who seek to challenge government abuses. A “yes” vote on Q1 would reverse this 2014 court decision and restore taxpayer standing.
Q1 overwhelmingly passed the New Hampshire House of Representatives and Senate with bipartisan support. Q1 is not a partisan issue. It is in everyone’s best interest that our government be held accountable for its actions, all of which are done with our money and on our behalf.
In times like these, access to the courts to address civil liberties issues is critical to government accountability. If you care about voting rights and the separation of church and state, then you should especially support Question 1.
In the pending lawsuit challenging Senate Bill 3 – the legislature’s 2017 effort to make voting more difficult by requiring proof of domicile – the State is arguing that the plaintiffs seeking to vindicate the right to vote have no standing to bring suit, citing this 2014 decision. Taxpayer standing would eliminate this potential barrier to enforcing sacred voting rights in New Hampshire.
As the 2014 Supreme Court decision gutting taxpayer standing proves, taxpayer standing is also necessary to enforce the New Hampshire Constitution’s special protections ensuring that public funds are not used for private religious education. Indeed, our Constitution has been specifically crafted to preserve our freedom to live in a state where the government is not entangled with matters of faith – including religious education – which are properly reserved for individuals, families, and religious communities. Without providing taxpayers the ability to invoke these rights in court, these rights are meaningless. For example, school voucher programs that siphon funds to private religious education, if enacted by the legislature, may go unchallenged without taxpayer standing.
It is important to note that restoring taxpayer standing does not mean that these lawsuits will win; it only means that the merits of these lawsuits will be heard by the courts. Our constitutional rights become meaningless if we lack the means to enforce them against the government in the courts.
If Q1 is passed, New Hampshire would not be alone in providing this type of access to the courts. (Remember, New Hampshire provided such access for over 150 years before the Court’s 2014 decision.) For example, Ohio, Alaska, and New Mexico, among other states, allow citizen-taxpayer standing in cases of public significance.
And one need not worry about a flood of litigation if Q1 is approved. When New Hampshire had taxpayer standing for over a century, no such flood occurred. Courts can also easily dismiss frivolous lawsuits.
This proposed constitutional amendment was never a partisan issue and unites the left, right, and middle. That consensus led to a 309 to 9 vote for it in the House and 22-2 vote in the Senate. In these polarized times, rarely is there such bipartisan support behind an issue.
Though the Supreme Court got it wrong in 2014 when it ended taxpayer standing, voters can get it right by supporting Q1 when they go to the polls on Nov. 6.
Gilles Bissonnette is the legal director for ACLU-New Hampshire.