Sununu Has No Authority to Allow Mail-in-Voting

So on April 8th, President Trump tweeted this:

And on April 10th, Governor Sununu announced that he was allowing Mail-in-Voting:

Sununu has no legal authority to allow Mail-in-Voting, but let’s first dispose of the claim that Sununu has not done so.

From the link in Sununu’s tweet:

4. September 8, 2020 Primary and November 3, 2020 General Elections

It is impossible to predict the course of the COVID-19 public health crisis or how it might be affecting our state in September and November 2020 when the Primary and General Elections will be held. Nonetheless, it is important for election officials, voters, and candidates to have a clear understanding now about how public-health related concerns will be addressed.

It is reasonable to anticipate that voters may feel apprehension about voting in person in the September 2020 Primary and November 2020 General Elections. Voters should not have to choose between their health and exercising their constitutional right to vote. Thus, any voter who is unable to vote in person in the September 8, 2020 Primary Election or the November 3, 2020 General Election because of illness from COVID-19 or who fears that voting in person may expose himself/herself or others to COVID-19 will be deemed to come within the definition of “disability” for purposes of obtaining an absentee ballot. Any voter may request an absentee ballot for the September 2020 Primary and November 2020 General Elections based on concerns regarding COVID-19. We anticipate providing further guidance to election officials about planning for and accommodating what could be a significant increase in absentee ballots.

If all that is going to be needed to vote absentee is “concerns regarding COVID-19,” you have created … AS A PRACTICAL MATTER … the proverbial exception that swallows the general rule of in-person voting.

Anybody can say that he or she is “concerned” about exposure to COVID-19 if they vote in-person … as anybody can also say they are “concerned” about getting in a traffic accident if they vote in-person … as anybody can also say they are “concerned” about having their home robbed if they vote in-person … etc., etc., etc.. In other words, such a low threshold for obtaining an absentee-ballot is the practical equivalent of Mail-in-Voting because anybody can meet the threshold.

If you don’t think that the Democrats … the instant absentee-ballots become available … aren’t going to put their limitless money and resources into identifying every potential Democrat voter … “assisting” them to obtain absentee-ballots … further “assisting” them to fill out the ballots … and finally “assisting” them to timely return the ballots … then you are DELUSIONAL.

So now let’s turn to Sununu’s lack of authority to allow Mail-in-Voting. Here is the absentee-voting statute:

I. Any person who will be absent on the day of any state election from the city, town, or unincorporated place in which he or she is registered to vote or who cannot appear in public on any election day because of his or her observance of a religious commitment or who is unable to vote there in person by reason of physical disability may vote at such elections as provided in this chapter. A person who is unable to appear at any time during polling hours at his or her polling place because of an employment obligation shall be considered absent for purposes of this chapter. For the purposes of this section, the term “employment” shall include the care of children and infirm adults, with or without compensation. 

As noted above, the DOJ’s position is that “any voter who is unable to vote in person in the September 8, 2020 Primary Election or the November 3, 2020 General Election because of illness from COVID-19 or who fears that voting in person may expose himself/herself or others to COVID-19 will be deemed to come within the definition of “disability”.

Note the sleight of hand. The statute says “physical disability.” The DOJ ignores the term “physical.” It does so because the fear of coming down with an illness is … needless to say … NOT a PHYSICAL disability. In other words, the DOJ is rewriting the statute from who is unable to vote there in person by reason of physical disability to “who WOULD PREFER NOT to vote there in person by reason of FEAR OF a physical disability.”

Governors do NOT have the power to rewrite statutes. Sununu does not have the authority to allow anyone to vote absentee by claiming fear of Coronavirus.

Unfortunately, as a practical matter, there is nothing that can be done about this except to try to get Sununu to change his mind. The New Hampshire judiciary is composed of Democrat-activists in black-robes masquerading as judges. The New Hampshire judiciary is not going to oppose Sununu’s power-grab because the Democrats stand to benefit from his power-grab.