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Judge Blocks Lawmakers’ Subpoena in SB3 Voting Case, Allows Questioning of Others


A trio of Republican lawmakers who supported the voting law known as Senate Bill 3 will not be forced to testify as part of a lawsuit challenging its constitutionality, according to a ruling issued Monday. 

The legal team challenging SB3 in court sought to depose Rep. Barbara Griffin of Goffstown, Rep. Kathleen Hoelzel of Raymond, and Sen. Regina Birdsell of Hampstead. Hoelzel and Birdsell sponsored the bill, and Griffin supported it in her role as the chair of the House Election Law Committee. 

Hillsborough County Judge Kenneth Brown — who assumed oversight of the SB3 case in June because its original judge declared a conflict of interest over his personal relationship with one of the attorneys brought on to help the state's side of the case — determined that forcing the lawmakers to testify would violate the New Hampshire Constitution.

In blocking the request to subpoena the lawmakers, Brown pointed to a clause that states that "freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever."

In the same ruling, however, Brown decided that the SB3 challengers could move forward with questioning two other state officials: Deputy Secretary of State Bud Fitch and Assistant Attorney General Matt Broadhead.

The state's attorneys tried to prevent Fitch and Broadhead from being deposed because they're also involved in the defense team for the SB3 case. But the judge determined that the proposed questioning is likely to focus on their official roles with the Secretary of State and Attorney General's offices, not on the legal strategy of the SB3 case. 

"Under the facts and circumstances of this case, the Court likewise finds that the ordinary rules applicable to depositions will adequately guard against improper inquiries during the depositions of Attorneys Fitch and Broadhead," Brown wrote in his ruling on the depositions.

The lawsuit challenging SB3 was originally filed almost a year ago, shortly after the law went into effect, but is unlikely to go to trial anytime soon. The two sides have spent much of the last few months squabbling in a series of ongoing procedural disagreements about the evidence, witnesses and other key aspects of the structure of the case.

A hearing that could decide whether the law is allowed to stay in place for this fall's election, and how it might be enforced, is scheduled for the end of August

But before that can happen, the state attorneys defending SB3 want the lawsuit dismissed because they don't believe the plaintiffs challenging SB3 actually have the legal standing to do so. They've asked for a hearing by the end of July to air all of their arguments on that matter, but the judge hasn't yet said whether he'll grant that request.

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