NH Election Law – State Supreme Court Motion to Reconsider

The Appellant respectfully motions this Honorable Court under Supreme Court Rule 22. to reconsider its opinion on Count I, and Count III, Count IV, Count V, and Count VI for plain error.

We want to thank Dan Richard for this update. Send your submissions to steve@granitegrok.com

FEDERAL ISSUES

The Appellant believes that the Court has either overlooked or misapprehend the Federal questions raised in this instant case and Lockstep Doctrine. The Appellant claimed from the beginning of this controversy that the Defendant’s statutory schemes which are detailed in Count I, III, IV, V, VI, infringe on the Appellant’s federal due process rights under the un-qualified command of the 14^th Amendment due process clause.

“nor shall any state deprive any person of life, liberty, or property, without due process of law;”

This Court has adopted its own version of the Lockstep Doctrine:

 In Desmaris v. Joy Manufacturing Co., 538 A.2d 1218 (N.H. 1988). the Supreme Court of New Hampshire stated that “we note that in exercising our jurisdiction with respect to what is essentially a federal question we are guided and bound by federal statutes and decisions of the federal courts interpreting those statutes.”

1. Under this court’s Precedent in Desmaris v. Joy Manufacturing Co., andThe Supremacy Clause, Article 6 of the U.S. Constitution, all of the federal precedents briefed and argued in this case are binding on this court and cannot be overlooked or ignored.
2. Under the recent 2024 U.S. Supreme Court decisions in Moore v. Harper et. al. (2023) and NAACP v. South Carolina legislature, this Court has duty to adjudicate federal constitutional issues effecting the federal elections clause, Article 1, Section 4. The Moore court quoted Marbury v. Madison, proclaiming that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). Judicial Review by state courts of state legislative action, was in effect in a number of states before the Constitutional Convention in 1787.
3. In the Federalist Papers, Alexander Hamilton maintained that “courts of justice” have the “duty . . .to declare all acts contrary to the manifest tenor of the Constitution void.” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). “[T]his doctrine” of judicial review, he also wrote, was “equally applicable to most if not all the State governments.” Id., No. 81, at 482.
4. It has long been held that state courts have a duty to answer Federal questions. “Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts.” Moore v. Harper et. al. (2023)
5. Quoting JUSTICE KAVANAUGH, in his concurring opinion in Moore v. Harper:

“I join the Court’s opinion in full. The Court today correctly concludes that state laws governing federal elections are subject to ordinary state court review, including for compliance with the relevant state constitution. Ante, at 15, 26, 29. But because the Elections Clause assigns authority respecting federal elections to state legislatures, the Court also correctly concludes that “state courts do not have free rein” in conducting that review. Ante, at 26. Therefore, a state court’s interpretation of state law in a case implicating the Elections Clause is subject to federal court review. Ante, at 26–30; see also Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (unanimously concluding that a state court’s interpretation of state law in a federal election case presents a federal issue); cf. Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___, ___, n. 1 (2020). Moore v. Harper et. al. (2023). (emphasis added).

• The Moore decision now requires state courts to examine state laws that affect the Federal Election Clause Article 1, Section 4. The U.S. Supreme Court has refrained from establishing any standard of review (until NAACP v. South Carolina legislature (2024)), by which federal courts must examine the decision of the state courts’ interpretations of state law when they implicate the Federal Elections Clause. Quoting the Moore Court:

“Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein. “State courts are the appropriate tribunals . . . for the decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis, 20 Wall. 590, 626 (1875). At the same time, the Elections Clause expressly vests power to carry out its provisions in “the Legislature” of each State, a deliberate choice that this Court must respect. As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.” Moore v. Harper et al. (2023). Pg. 26.

• The Moore Court also focused on what the state courts cannot do. “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections. Pg. 29.
• The Appellant believes that this Court has Illegitimately used a state standard of review to avoid addressing the Appellant’s Federal Due Process Rights under the 14^th Amdt. Due Process clause in order to avoid addressing the Appellant’s Federal Due Process Rights.
• The Moore Court expressed their concerns that state courts might adopt a novel reason to stifle the “vindication in state courts of… federal constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457— 458 (1958). Pg. 27 The court went on to explain by examples (citations omitted) concerns that state courts might read state law in such a manner as to circumvent federal constitutional provisions.
• The Appellant believes that the Moore Court precedent prohibits this court from using its interpretation of state law, in this case “state standing doctrine” in order to stifle the “vindication before this Court, of the Appellant’s federal constitutional rights.
• The Appellant believes that under the Moore precedent, state courts cannot substitute existing federal precedent governing “judicial review of federal questions” with “state standing doctrine” in order to avoid the examination of a federal question.
• The Appellant believes that record show’s this Court has used state standing doctrine in order to avoid rendering a judgement of multiple fundamental federal questions that are uncomfortable for this Court to answer for political reasons.
• Under the supremacy clause article six of the US Constitution the “state standing doctrine” is inferior to the precedent of the US Supreme Court when addressing federal constitutional rights. The state courts are to adjudicate under the supreme law of the land, as a rule binding upon them.
• The SCOTUS decision in NAACP v. South Carolina legislature (2024) has now established a federal standard review for the examination of the federal elections clause which this court overlooked, this is error in law.
• Justice Thomas in his concurring opinion in Alexander v. South Carolina NAACP has tied Moore v. Harper (2023) and Bruen (2022) together and reinforces the Appellant’s arguments by stating as a fact in law, that the standard of review for examination of the rights enumerated in the U.S. Const. including the Federal Elections Clause Article I, §4, cl. 1, must be examined under Heller/Bruen methodology, and not by means-end scrutiny or by state standing doctrine.
• Quoting Justice Thomas in Alexander v. South Carolina NAACP:

The historical record compels this interpretation of the elections clause text. Gerrymandering and vote delusion are not new phenomena. The founding generation was familiar with political districting problems from the American colonial experience. See Vieth, 541 U.S., at 274 (collecting examples) … “The Framers’ considered choice of a non-judicial remedy is highly relevant context to the interpretation of the Elections Clause. See New York State Rifle & Pistol Assn., Inc. v. Bruen,” 597 U.S. 1, 26—27 (2022)

1. Quoting Justice Thomas, in the Bruen decision:

“[t]he very enumeration of the right takes out of the hand of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U.S., at 634. We concluded: “A constitutional guarantee subject to future judges’ assessments of its use-fulness is no constitutional guarantee at all.” Ibid.

Under the Bruen precedent, SCOTUS has “made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.” 142 S. Ct. at 2137.—pg. 39.

1. The District of Columbia v. Heller, 554 U.S. 570 (2008) decision corrected past standards of review used by federal Courts to examine federal constitutional issues. By the New York State Rifle & Pistol Assn., Inc., et al. v. Bruen decision it clarified the Heller decision. Bruen reaffirms the manner in which courts must examine the text of the Constitution at the time in which a right or an amendment to the Constitution was adopted. The courts must focus on the plain text of the Constitution and the historical understanding at the time of its implementation. SCOTUS has rejected the use of means-end scrutiny by the lower courts when dealing with constitutional rights cases.
2. Quoting Justice Thomas in Bruen:

“In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg, 366 U. S., at 50, n. 10. Pg. 15…

This Second Amendment standard accords with how we protect other constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. 554 U. S., at 582, 595, 606, 618, 634–635. In that context, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” [emphasis added]. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620, n. 9 (2003). And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections. See, e.g., United States v. Stevens, 559 U. S. 460, 468–471 (2010) (placing the burden on the government to show that a type of speech belongs to a “historic and traditional categor[y]” of constitutionally unprotected speech “long familiar to the bar” internal quotation marks omitted) Pg. 15, 16 …

… And beyond the freedom of speech, our focus on history also comports with how we assess many other constitutional claims. If a litigant asserts the right in court to “be confronted with the witnesses against him,” U. S. Const., Amdt. 6, we require courts to consult history to determine the scope of that right. See, e.g., Giles v. California, 554 U. S. 353, 358 (2008) (“admitting only those exceptions [to the Confrontation Clause] established at the time of the founding” (internal quotation marks omitted)). Similarly, when a litigant claims a violation of his rights under the Establishment Clause, Members of this Court “loo[k] to history for guidance.” American Legion v. American Humanist Assn., 588 U. S. ___, ___(2019) (plurality opinion) (slip op., at 25). We adopt a similar approach here. Pg. 16…

• So, now under the federal precedent of the NAACP v. South Carolina legislature (2024), the Heller/Bruen methodology now applies to the examination of federally protected rights when implicated. Therefore, when the plain text of a right covers an individual’s conduct, the burden shifts to the government which must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition and implementation pertaining to the right or rights in question. Only then may the court conclude that the individual’s conduct falls outside any of the rights that have “unqualified commands”.
• The Appellant believes that the previous state “court standard of review” used by this Court to dismiss Counts I, III, IV, V, IV, is an error in law under the Supremacy Clause, Article 6 of the Constitution for the United States, as this case involves the Federal Elections Clause Article 1, Section 4. Clause 1. The challenged statutes in question in this case and the 1976 amendment affect the election of all federal offices. This Court is also bound by its own Lockstep Doctrine. Therefore, the precedents of the Supreme Court of the United States (SCOTUS) are binding on this Court.
• Under the Heller/Bruen standard of review (Text and History) this Court has a duty to apply a federal standard of review to examine the Appellants claims, that Defendants violated his Federal Constitutional Rights. Therefore, this Court’s decision is a plain error as the burden of proof lies with the Defendants (not the Appellant) to prove their statutory scheme passes the Text and History test called for under new precedent (Heller/Bruen) in order for the Defendants to meet their burden of proof.

STATE ISSUES

• The Appellant believes that this Court’s opinion is convoluted as affirming Count II, avoids the fact the equal protection violation is caused by procedural due process violations by the Defendants (the creation of colorable law), results in the violation of equal application of the law.
• This Court opinion on Count IV (Creation of Absentee Voting Rights by statute) and Count V (granting resident aliens the right to vote by statute, both violate this Courts own precedent the Opinion of the Justices on the right of suffrage: “Since 1863 it has been understood (as said by Ladd, J., in Copp v. Henniker, 55, N.H. 179, 193) and reaffirmed in 1921 by another Opinion of the Justices 80 N.H. 595 (N.H. 1921) 113 A. 293, Decided March 29, 1921:

“The legislature has no power to authorize the exercise of the right of suffrage,…”   

• This 1921 opinion has been cited in 9 state cases, and 3 federal cases, and last cited by the Pennsylvania Supreme Court in Mclinko v. Commonwealth 279 A.3d 539 (Pa. 2022). Therefore, under this precedent, this Court should uphold the Appellants claims detailed in Count IV and Count V.
• On its face, Count I, Count III, Count IV, Count V, Count VI, allege a concrete, personal injury, implicating legal or equitable State and Federal constitutional rights. Under Federal standards of review, the Defendants have failed to meet their burden of proof when challenged, to prove that the manner in which elections are conducted are permissible election procedures under the State and Federal Constitutions and the laws written pursuant thereof.
• If there is no constitutional right to have moderator sort and count ballots, then under what authority are 103 Towns operating under when humans sort and count ballots?

The Appellant respectfully motions this Court reconsider and uphold each Count in question and grant the relief the Appellant seeks, for the aforesaid reasons stated above, Thank you.