Docket No.: 217-2024-CV-00488
Daniel Richard
Plaintiff
v.
DAVID SCANLAN
SECRETARY OF STATE OF NEW HAMPSHIRE
In his official Capacity
Defendant
MOTION TO AMEND WRIT OF MANDAMUS
A MOTION FOR EMERGENCY RELEIF
Now comes, Daniel Richard, pro se, respectfully submits this Motion to Amend the Writ of Mandamus and Motion for Emergency relief under Superior Court rule 12 (3). The Plaintiff wishes to enter Two new relevant matters of substance into the Court record. One, Passage of a new and relevant election law and two, a relevant decision of the State Supreme Court last week.
The first relevant issue is the passage of HB 1569, which was signed into law by Governor Sununu on the 12th of September, 2024. The new law “AN ACT relative to eliminating voter identification exceptions.” makes the Defendant’s motion to dismiss moot. Now the state will now have to defend this new law, requiring the state to up-hold the mandatory voter identification requirement that anyone casting a ballot must produce an approved form of identification to be permitted to cast a ballot in N.H.
This new voter identification law attempts to reinforces the equal application of the election law requirement that everyone that cast a ballot verify their identity. The stated purpose of this new law is to require that all voters must show identification with no exceptions. Unfortunately, this new law has a defect in it, a loop-hole. It still does not address or fix a statutory loophole that permits mail-in absentee ballots to cast without an verifying their identity.
Absentee voters who return their absentee ballot to their local polling station must show identification when returning an absentee ballot. A voter who cast an absentee ballot through the mail does not have their identification checked or verified, and counting such ballots dilutes the Plaintiffs vote.
Local moderators have a constitutional and statutory duty under NH RSA 659:50(b) to ensure that a voter is qualified and their ballot verified, when confirming that affidavit is properly executed. Failure to verify the identity of an absentee voter by affidavit leads to an un-equal election procedure.
Under Federal law U.S. Code 52 U.S.C. § 10101- (a)(2) No person acting under color law—
(A) “in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such laws, to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to qualified to vote;
The Plaintiff believes that counting un-verified absentee ballots without having to produce any proof of identification, just like all the other voters in the state have to is un-fair and un-equal. Voter identification requirements established by the legislature, and written pursuant to the State Elections Clause, Part I, art. 11, must be complied with in order for the election laws to be equally applied to all the inhabitants.
The Second relevant issue affecting this instant case is the N.H. Supreme Court Decision in Richard v. Sununu et al. case # 2023-0097 also issued on the 12th of September, 2024, which affirmed the Plaintiffs equal protection rights under the State and Federal Constitutions. The Court ruled that Mr. Richard has Standing as:
“he is citizen of New Hampshire, and inhabitant of the town, and taxpayer. Therefore, he asserts, he has… a constitutionally protected right to vote for state and federal offices” under the State and Federal Constitutions.” Page 3 [¶5] …
The second part of Item 20 of the Supreme Court opinion affirms that the voters have standing to challenge the disparity between methods of counting votes under the equal protection clauses of the State and Federal Constitutions, especially when the ballots and voters have not been verified by the moderators at local level depriving the Plaintiff of
equal protection of the law under the State and Federal Constitutions, because of the un-equal application of voting laws.
The Court goes on say in said opinion, that failure at the local level to verify the voter identification at the time of counting votes and that the use of voting machines to count “non-verified ballots” submitted by electronic voting machine produces an “unreliable outcome and a hidden opportunity to manipulate computer account data,” thereby depriving him of a lawful count of the ballots and diluting his vote. The following is the relevant part of the decision in Richard v. Sununu et al. 2023-0097.
[¶20] the plaintiff alleges in his complaint that “[t]he defendants’ sanctioning of the discretionary use of voting machine[s] at the local level” violates the equal protection clause of part one, article one of the State Constitution and the 14th amendment to the Federal Constitution by authorizing the “use of programmable, Open source, electronic vote counting machines in some towns, cities, or other political subdivision[s] of the state or not.” He argues that the States action “set up an unequal election process across the state” wherein “103 communities in the state hand count, while at [the] same time permitting voting machine counts in 135 communities.” According to the plaintiff, this disparity between the methods of counting votes and the “non-verifiability” of ballots submitted by electronic voting machine “at the time of counting and for later auditing (re-counts) of the validity of each ballot/vote” produce “and unreliable outcome and a hidden opportunity to manipulate computer account data,” thereby depriving him of a lawful count of the ballots and diluting his vote. (Emphasis added).
The Court also pointed out that counting un-verified ballots with a voting machine are also unreliable for later auditing (re-recounts). The Plaintiff alleges that once you remove an un-verified absentee ballot from its envelope, it cannot be verified on recount. This is why this step is so important, Under NH RSA 659:50(b) absentee ballots envelopes cannot be opened, nor the ballot cast if the Affidavit is not properly executed.
[¶21] Applying our standard review, based upon the alleged facts, we determine that the plaintiff has sufficiently demonstrated his right to claim relief and is therefore demonstrated standing as to his equal protection claim set for in Count II. See Avery, 173 N.H. at 736-37; see also Baker v. Carr, 369 U.S. 186, 205-06 (1962) (noting that voters have standing to bring equal protection challenges to complain of vote delusion and observing that “[m]any of the cases have assumed rather than articulated the premise in deciding the merits of similar claims”). Because the trial court did not address the plaintiff equal protection claim, we remand for further proceeding consistent with this decision. In doing so we express no opinion on the merits of the plaint is claim.
