Updated: Defying Judge's Orders, State Asks Supreme Court to Uphold SB3 In Upcoming Midterms

Oct 25, 2018

Credit Michael Brindley/NHPR

This story has been updated to reflect new court records filed Friday morning. 

Three days after he told state election officials not to use the voter registration law known as Senate Bill 3 during the upcoming elections, Superior Court Judge Kenneth Brown denied state attorneys’ request to hold off on making those changes until after the election.

Instead, Brown issued an updated order on Thursday clarifying his instructions on how election officials should handle the voter registration process in the weeks ahead. But state officials – still unsatisfied with Brown’s directives – say they don’t plan to communicate those instructions to local pollworkers until the state’s high court weighs in.

“Expecting the matter is going to go forward and the Supreme Court is going to issue an order tomorrow afternoon, it doesn’t make any sense to send out some type of interim instructions,” Associate Attorney General Anne Edwards told reporters after a hearing on Thursday.

Having trouble keeping track of this back-and-forth? Here's a rundown of the latest filings in the case:

The Secretary of State’s office did send a brief memo to pollworkers Thursday evening, addressing the process to be used ahead of the election: “Pursuant to the Superior Court’s October 25, 2018, Order on the States’ Motion for Clarification, local election officials must continue to use the current Senate Bill 3 registration forms for voters seeking to register prior to Election Day.” But the state did not elaborate on other instructions outlined in Brown’s latest order, and instead said more updates would be sent after the New Hampshire Supreme Court has a chance to review the situation.

Edwards and other state officials told Judge Brown they’re concerned they won’t be able to make the changes he called for in time for the upcoming elections. They also say they’re worried local pollworkers who don’t carry out his order could be held in contempt – though Brown, in his updated order, addresses this point head-on.

“Good faith actions by local officials will not result in a finding of contempt should there be noncompliance with the Court’s order,” Brown wrote.

Before issuing that order, Brown convened a hearing with state attorneys – at their request – to answer questions about an order he issued on Monday that blocked SB3 from use during this year’s midterms.

Citing concerns about SB3’s impact on lines at the polls and the “confusing or misleading” language it added to voter registration forms, Brown’s original order said the state should go back to using registration paperwork from 2016 “in the upcoming election.”

The state argued that Brown’s original order left a number of questions unanswered – like whether those 2016 forms should be used ahead of Election Day as well as on Election Day, or whether the order blocked all aspects of SB3 beyond just its paperwork.

Brown went point-by-point through the state’s questions in court on Thursday. Along the way, state attorneys raised repeated concerns about their ability to comply with his order and suggested Brown was sowing confusion among voters and local pollworkers by ordering such significant changes to the voter registration process with just weeks to go until Election Day.

Associate Attorney General Anne Edwards said the state has received upwards of 50 calls from local pollworkers seeking clarification on what voter registration rules to use, and that some pollworkers have started using incorrect forms since Brown issued his ruling on Monday.

Edwards also pointed out that the underlying motion on which Brown was ruling applied not just to state officials but also – in the state’s interpretation – local pollworkers. That motion sought to stop the state and “their respective agents, officers, employees, successors, and all persons acting in concert with each or any of them” from “implementing, enforcing or giving any effect to SB3” until the lawsuit challenging its constitutionality was resolved.

But Brown pointed the blame for muddling the situation right back at the state. At one point, the judge responded to a series of questions from Assistant Attorney General Galdieri by replying, “You don’t need to try to confuse it further than you already have, counsel.”  Later on, Brown seemed to try to pre-empt the state’s decision to ignore his order in favor of seeking relief from the State Supreme Court.

“The record that I’m hearing being corrected is one that allows you to go to the high court and raise your hands in the air and say we have all these problems that can’t be corrected – even though we had a successful hearing in front of Judge Brown – these issues and confusion are going to persist and they’re going to outweigh the effect of long lines,” Brown said. “I don’t buy it, I don’t. I appreciate that you want to create the record, you can. But that’s what I’m feeling is happening right now.”

State attorneys said they anticipate a response from the state Supreme Court sometime on Friday.