According to the two bookends who provided testimony to legislators about the best juridical interests of state judges this week, the legislators can just kick back and skip a resolution to return to Constitutionally defined voting processes in state elections.
Go home and take a pass was the message.
Is it time to abandon judicial political policy-making as court-favored witnesses testified? Should the legislature take a break from their duty, role, and work of establishing public policy and instead allow judges to handle election challenges that define voting process in state elections? De facto, that advice establishes judges as the best determiners of public policy.
Legislators, give yourselves a break. You should let go & go home because the judges got this, was the smiling message delivered with a wink and nod to House Committee members.
Yesterday, two high-level politicos bookended the house hearing and advised legislators to ignore House Resolution No. 25 – designed to thwart the new voting practice allowing anyone to show up on election day to cast a vote without identification, preregistration, or proof of any kind.
This ‘alternative’ to Constitutionally mandated procedures that pre-qualify voters to avoid election fraud is one of many questionable political expansion maneuvers that have been challenged in state and national courts over the last four years. Cynical voters have watched with dismay at the variety of slanted political alterations to states’ voting process and then they sued election officials. (Largely (57 cases nationally) they then lose and are tossed out of court for lack of standing. In New Hampshire, in response to election officials’ alterations of the voting process, a legislative resolution was filed calling for a return to the rules specifically printed in the state constitution. Ergo, this legislative hearing followed on adopting that resolution as a formal statement of public policy as a matter of legislative law/process. (2nd Branch rule.)
Two political advisors (the bookends) argued that legislators (2nd Branch) should skip all the work and disregard voting on a public policy statement. Just let the judges (3rd Branch) handle election voting issues. After all, they said, there are multiple state and federal cases in court concerning election law reform
So why bother yourselves with establishing a public policy resolution that has no clout? No teeth? said first speaker (the Parliamentarian) waving around his old outdated Mason’s Manual as defining authority. Skip it, he advised. Take a pass, he told the resolution committee.
Committee legislators then heard a citizen explanation of a recent U.S. Supreme Court case of Moore v. Harper, (June 2023) which reversed and clarified State duties and clearly defined the duty of states to act and not reject outright claims and complaints of Constitutional fundamental rights regarding election voting rights. The Moore case, taken together with a pair
of earlier Supreme Court 2nd Amendment rights cases, explained Daniel Richard, a Constitutional scholar, to the committee; it establishes a state duty to protect citizens’ fundamental constitutional rights including fundamental election and voter rights to a fair election process The state neglected that duty regarding constitutional questions, he said, and this resolution would recognize it.
The 2nd bookend testimony to the committee was private attorney Bryan Gould, who argued that the courts were the place to handle public policy of this sort (not the legislature) and that Richard’s opinions about the 2nd Amendment cases was “too aggressive” in interpretation — and Richard’s “opinion about a Constitutional duty to protect fundamental rights was in error.” He called the U.S. decision about 2nd Amendment cases “inconsequential” to the election-rights resolution, because the newly clarified Moore v. Harper duty-to-protect was applicable only to 2nd Amendment cases, and not to all fundamental Constitutional challenge cases (1st, 2nd,.5th).
Here, the resolution is about government manipulation of the voting process in violation of the Constitution. It falls into the Heller & Bruen case rulings that STATES bear the burden of proof at trial (not citizens) so an election-process resolution would also be protected by the umbrella of similar Constitutional rights. Gould was wrong when he advised the Committee that “[Richard’s] his opinion is in error” because unlike constitutionally protected gun rights, voting and fair election rights are not required to be fundamentally protected by state law, he said.
With a broad wink, Attorney Gould launched into the narrative of his earlier experiences as the state political fix-it guy for election law cases, bemoaning a federal court LOSS of an earlier voting case on residency and domicile. Gould told the committee that “the greatest legal minds in the state” had “carefully crafted the legislation (of SB 3)” attempting to clarify voter qualifications. (And circumvent the constitution.) They proposed a fancy-schmancy state legislative act to instill a different process for qualifying voters than that process provided in the state constitution. And the federal court struck it down.
What he did not say however was that Mr. Political Fix-It-Man (for the SOS, the State AG, and the State GOP) lost that case that attempted to redefine who was qualified to vote in New Hampshire. [All the while billing the state for valuable attorney time.]
I was so disappointed we lost, he moaned to the committee. [Note: Lesson missed. Try again. More billable hours.]
“Too aggressive,” he said, referring to the prior speaker’s explanation that this resolution fit the Heller & Bruen legal criteria and therefore should be adopted as a statement of public policy. Instead, his message was: ‘State voters seeking fundamental fairness in the election-vote process should leave the issue to the courts, not pass a toothless public policy resolution in the legislature.’ That message was delivered to legislators with a smile, followed by a wink.
Hours before the legislative hearing on Resolution 25, a federal judge tossed out the Testerman election process case. Her challenge of alterations to the GOP political voter registration process
avoided the Constitutional election process. That Constitutional process is a due process mandate.
The judge wrote that Testerman and others had no standing to sue. In other words, the NH SOS can unilaterally extend primary election dates (although specific dates are explicit in the State Constitution) in a way that enables non-party voting (against Trump in 2024) in the GOP primary. [This is a quiet tactical voting scheme of the NH SOS and GOP Party chairman designed and implemented to disrupt 2024 election results.]
Gould was wrong about the law that he advised to the committee — not once, but repeatedly. But he is not stupid. He simply is a tool of a top-tier political agenda, urging and confusing the Committee to leave public policy to the Courts to handle. With flawed case interpretation and his earlier election cases already lost (flawed thinking), this advice to committee members was offered to protect the political “schema” that averts qualified votes into a barrel of monkey results. (The quiet plan was to alter registration deadlines, attached to a campaign for a significant number of Democrats to change to undeclared party status, then to use/ask for a Republican ballot on Primary Day to keep Donald Trump’s name off the fall election ballot. Then to use their undeclared status to vote in the general election, where they are not prevented from voting.
The tactical voting scheme goes much deeper than that. It is also a challenge of power about which branch of government should decide public policy – the legislature or court?
The process of extending and encouraging non-party voting in a party primary is called “a tactile voting process interruption.”
By design, it renders election-day voting a politically manipulated outcome. It violates State Constitutional mandates for election registration and process. It is also alleged to be an act of RICO.
The area of Election Day voting abuse by public officials has been drastically reshaped by court decisions across the country –designed in law theory and practice to deny injured parties “standing to sue” with no other relief available. Injury without relief. Judges have callously advanced a no-recourse solution as ‘take your problem to the voters’ because judges systematically disallow (reject) election challenge lawsuits. This is not the first time in our nation’s history that the court has expanded political power to take over the role of the legislature.
Can courts convert state election policy and constitutionally mandated voting practices by avoiding hearing these cases? What if the effect is –to politically “expand voting rights to anyone” by using court rulings (or denial of standing) for all election-challenge cases? Can they control the outcome of the election?
This take-over of function encroaches on the legislature’s role in creating public policy, and it circumvents the American Constitutional system. The result is to neuter or ‘amend’ the Constitution by judges’ practices, but not by operation of law. 1925 to 1930 saw multiple jurists and legal scholars work to reinterpret the Constitution using “a crude version of Marxism to reinterpret the Court’s decisions…” (see Gustavus Myers’ book, History of the Supreme Court of the United States, and James Smith’s book, The Growth and Decadence of Constitutional Government).
Court-packing and judicial activism are considered blatant political aggressions viewed through the different lense of political scientists. The difference is political scientists are more likely to regard judicial activism as “a perversion of the democratic process” and not a legal operation under the Constitution and rule of law. [See Wallace Mendelson’s book, Justice Black and Frankfurter: Conflict on the Court.]
By systematically avoiding legal challenges and as in the present situation–by politically encouraging legislators to skip the bother of a frivolous election-rights resolution [because judges have election challenge cases in hand]—it sidesteps the underlying agenda to defeat democratic rule. ‘
The judges have got this, you don’t have to’ is the message. It’s the same “Trust us” message Clerk of Court Howard Zibel told legislators mere days before the NH House Subcommittee voted for a full impeachment investigation about decades-old court cronyism and corruption. You can trust the judges. This historic refrain echoed yet again in the state legislative committee room this week.
Submitted by Caroline Douglas, J.D.
Former New Hampshire legislative bill drafter
Former NH attorney
Legal Analyst and Author of The Dark Side, a law treatise on judging National whistleblower and skeptic
Contact: nssri@pm.me
