NOTICE OF LATE AUTHORITY AND INTERVENING MATTERS
I. INTRODUCTION
Pursuant to Supreme Court Rule 16(3)(b), Plaintiff-Appellant respectfully submits this supplemental brief to bring to the Court’s attention new authorities, legislative enactments, and intervening matters that have become available after the filing of Plaintiff’s appeal brief on [insert date of original brief filing]. These developments directly address the core issues raised in this appeal concerning the proper execution of affidavits under RSA 659:50 and RSA 659:30 in the context of absentee voting, the duties of the moderator, and the interference with election processes by state officials. Specifically, this supplemental brief identifies and discusses: (1) recent legislative changes to the absentee ballot application process, including new notarization and identity verification requirements; (2) a joint memorandum from defendants directing the destruction of state affidavit envelopes (Form A); (3) continued mischaracterization of absentee ballot envelopes as affidavits; and (4) the New Hampshire General Court’s House of Representatives Election Law Subcommittee report released on September 15, 2025, which addresses affidavit issues pending before this Court. Additionally, this brief incorporates the relevant public testimony of Secretary of State David Scanlan before the Election Law Committee on February 4, 2025, regarding HB 608-FN, which constitutes admissions against interest and highlights conflicts between state officials.
These matters reinforce Plaintiff’s arguments that defendants have unlawfully redefined a “properly executed affidavit” contrary to established law, published misleading election procedure manuals, and enforced non-statutory requirements, thereby interfering with the electoral process. The Attorney General’s statutory duty under RSA 7:6 to render opinions to the Legislature and RSA 7:37 to report thereon has been invoked but remains unfulfilled with respect to the 33 questions of law raised in this case, including affidavit execution. The Attorney General’s silence, coupled with Secretary Scanlan’s testimony, opens the door to evidence of coordination and conflict of interest between defendants.
II. NEW LEGISLATIVE AUTHORITIES AND INTERVENING MATTERS
- HB 288: Changes to Absentee Ballot Application Process and Notarization Requirement House Bill 288, effective September 30, 2025, amends the absentee ballot application process by adding a notarization requirement for proof of identity. This legislation permits the counting of all absentee ballots lacking a verified affidavit, emphasizing that the moderator’s duty under RSA 659:50(I)(b) is limited to ensuring the affidavit appears to be properly executed. RSA 659:50(I)(b) states: “If the name of the voter is on the checklist, and the affidavit appears to be properly executed, and the signature on the affidavit appears to be executed by the same person, then the absentee ballot gets processed.” This codifies a legislative solution to prior loopholes, affirming that ballots without full verification must still be counted absent clear invalidity. This directly supports Plaintiff’s claim that defendants’ prior enforcement of stricter, non-statutory standards violated voters’ rights.
- Joint Memorandum from Defendants: Directive to Destroy State Affidavit Envelopes (Form A) Defendants issued a joint memorandum instructing election officials to destroy all remaining state affidavit envelopes (Form A) from previous elections, while retaining other envelopes supplied by the Secretary of State. This directive, issued post-brief filing, evidences an intent to eliminate physical records that could substantiate claims of improper affidavit handling. It continues defendants’ pattern of redefining affidavit requirements outside statutory bounds, as Form A envelopes were integral to verifying execution under RSA 659:30.
- Continued Mischaracterization of Absentee Ballot Envelopes as Affidavits Despite statutory distinctions, defendants persist in referring to absentee ballot envelopes as “affidavits” in official communications and manuals. This semantic conflation undermines RSA 659:30’s definition of a properly executed affidavit—sworn before an authorized person—and RSA 659:50’s processing requirements, further evidencing interference with election integrity.
- Senate Bill 287: Identity Verification Requirement for Absentee Ballot Applications Senate Bill 287, effective September 30, 2025, adds an identity verification mandate under RSA 657:17-c for absentee ballot applications. Applicants must verify identity by: (1) submitting a copy of photo ID per RSA 659:13, II(a); (2) presenting photo ID to the clerk; or (3) having their signature on the application notarized. No ballot is issued without such verification. Notarization accepts remote methods via real-time audio-video if the notary is in New Hampshire, with clerks verifying the notary’s seal per RSA 456-B:3. For special cases (e.g., nursing homes), if photo ID is unavailable, notarization is required, and a nursing home administrator may verify identity via oath to the notary. This bolsters Plaintiff’s arguments by clarifying that while notarization is now an option, it does not retroactively validate defendants’ prior non-statutory impositions.
III. VOTER ID AND NOTARIZATION REQUIREMENTS UNDER NEW LEGISLATION
Summarizes key new requirements effective today, September 30, 2025:
- New proof of qualification for absentee registration (SB 218, RSA 654:17):
Absentee registrants must provide proof of citizenship, age, domicile, and identity, unless previously or currently registered in NH (exempt per HB 464, RSA 654:12, from proving citizenship or age).
- Identity verification for absentee ballot application (SB287, RSA 657:17-c).
Verification via: (1) copy of photo I.D. (RSA 659:13, II(a)); (2) presenting photo ID to clerk: or (3) notarized signature. No ballot issued without verification.
- Notarization requirements (SB 287, RSA 657:17-c):
Notarization of application accepted; Remote via audio dash video if no ID; administrator verifies via oath.
These enactments, while prospective, underscore the flaws in defendants past practices and the need for clear statutory guidance on affidavits.
IV. INTERVENING MATTER: HOUSE ELECTION LAW SUBCOMMITTEE REPORT (SEPTEMBER 15, 2025)
The New Hampshire General Court, House of Representatives Election Law Subcommittee, released its report on September 15, 2025—after Plaintiff’s appeal brief was filed—making it a matter of public record. This report directly addresses affidavit issues pending before this Court, including the definition and execution of affidavits in absentee voting under RSA 659:50 and RSA 659:30. It highlights legislative intent to close loopholes without invalidating ballots lacking full verification, aligning with Plaintiff’s position.
The New Hampshire Attorney General is statutorily bound by RSA 7:6 (authority to render opinions) and RSA 7:37 (annual reports to the Legislature, including copies of opinions unless detrimental to public good) to provide guidance on election law questions. Despite this duty, the Attorney General has chosen not to address or answer the 33 questions of law raised in this case, including affidavit execution, nor contradicted them in defendants’ appeal brief. This silence is particularly notable given Secretary of State Scanlan’s public testimony, now part of the record, which constitutes an admission against interest.
Secretary Scanlan’s testimony before the Election Law Committee on the definition of an affidavit is relevant as evidence in this case. By testifying publicly, Secretary Scanlan has “opened the door” to scrutiny, especially as the Attorney General and other defendants have remained silent. Both officials are accused of collaborating to interfere with state and federal elections by redefining proper affidavit execution—contrary to RSA 659:30—through a published election procedure manual enforced as law, though it lacks statutory force.
V. SECRETARY DAVID SCANLAN’S RELEVANT PUBLIC TESTIMONY BEFORE THE NH ELECTION LAW COMMITTEE (FEBRUARY 4, 2025)
Plaintiff wishes to begin by pointing out the misleading and conflicting testimony of Secretary of State David Scanlan on HB 608-FN, which sought to clarify the definition of a properly executed affidavit and its usage and custom relative to absentee voting. Some of Secretary Scanlan’s answers to the Committee are quite concerning. For the record, Plaintiff testified first, alongside Representative Panic, the bill’s sponsor, followed by Secretary Scanlan’s testimony.
The following testimony, delivered before the full Election Law Committee on February 4, 2025, affirms Plaintiff’s arguments in part, is misleading in part, and dishonest in part—putting it nicely. This Committee needed to know what Secretary Scanlan withheld from the full Committee during his testimony, particularly when asked a great question by Rep. Lane: “What do you consider then to be an affidavit?” Let’s review his testimony.
There are eight relevant issues to this election law case regarding Secretary Scanlan’s public testimony on the affidavit questions (admissions):
A. The Secretary’s testimony addresses the proposed legislative amendment to the affidavit requirement in RSA 659:50(I)(b), the proper execution of an affidavit, and a legislative solution to the loophole in the law.
B. The Secretary testified that the current RSA 657:7 does not contain language directing the Secretary of State to print a notary certificate on the return envelope.
C. The Secretary would go on to affirm in his testimony the original intent of the Legislature regarding the absentee-voting procedure and the legal definition of a properly executed affidavit as part of the absentee-voting process.
D. Secretary Scanlan affirms the Plaintiff’s arguments that the state election laws were recodified in 1979 (436:1). The aforesaid changes include most of the N.H. election statutes now in question before the Court today.
E. That he, the S.O.S., has “directions” on the language that shall appear on the envelope.
F. There is now a conflict of interest between the Secretary of State Scanlan and Attorney General Formella, and the Election Law Committee needed to get to the bottom of it.
G. Secretary Scanlan was asked directly by Rep. Lane of the Election Law Committee, “What do you consider then to be an affidavit?”
H. Secretary Scanlan’s testimony is also relevant because of conflicting testimony between the S.O.S. and the A.G. to further a conspiracy to continue their interference with the State and Federal election process.
Secretary Scanlan’s Testimony (Excerpted):
“Thank you, Mr. Chairman and members of the committee. I am Secretary of State David Scanlan and I understand it’s been a really long day for you so I’ll try and be as brief as I can on this. What the bill calls for if you look at the bill itself is responsibility of the Moderator when processing the absentee ballots to make sure certain things are correct. When they do that, that’s RSA 659:50 and this deals with Roman numeral I (b). So, if you look at the statute completely, it just says the Moderator is supposed to do his duty. And it says if the name of the voter is on the checklist, and the affidavit appears to be properly executed, and the signature on the affidavit appears to be executed by the same person, then the absentee ballot gets processed. What this bill does, is adds the language when the Moderator is looking at this. If the affidavit on the envelope is a fully executed legal affidavit, that is witnessed and signed by a notary, election officer, or any other person authorized by law to administer oaths, now if that’s the policy that the legislature wants, that’s one thing. And I’m not gonna take an opinion on that today. But I am trying to point out with this language that this will cause mass confusion because the language that we need to be looking at, or what is contained on the so-called affidavit envelope is in RSA 657:7 and that language says, ‘the Secretary of State shall put the following language on the affidavit envelope…’ There is no provision in the statute that says that they’re supposed to be a place for an opportunity on there for a notary or some other person to take the oath of office to do that. So, if that were added, then this language that is being proposed to this, might be appropriate, but it’s at this point I don’t believe it is.
So, the other thing that I’d like to point out is absentee balloting really started taking place in the Constitution statutorily in the area of the 1940s and in 1943. And the law book and the election laws at that time, there was an opportunity for the voter to sign the statement that they were where they say they are. And as Mr. Richard said, have a witness watch them; not mark the ballot, but take the marked ballot done in private, put it in the envelope, which contain the affidavit on it and then sign a witness oath that they did in fact observe the voter following through that process. In 1955, the law was changed to remove that provision. And in that time, that statement on the affidavit envelope was not ‘affidavit’ it was called the ‘certificate’ and that language, as continued, up until the legislature started addressing the absentee ballot laws within the last 10 years or so. In 1979 was when the legislature recodified a lot of the election statutes, but those provisions that I mentioned before kinda carried beyond that. And so today language has changed recently, but it calls the affidavit the envelope with the statement on it and affidavit envelope. But I believe it still calls the statement that is on their certificate. Bottom line is, the Secretary of State has directions on the language that shall appear on the affidavit. That’s what we do and that’s what the Moderators are supposed to be watching for when they processed the absentee ballot. And with that I would be happy to answer any questions.”
Chair Ross Berry: “Questions from the committee.”
Representative Lane: “What do you consider then to be an affidavit?”
Secretary Scanlan: “Well, I think in this case the affidavit is what the legislature calls it. But sure, there is a legal definition of what an affidavit constitutes, and I think Mr. Richard is well schooled in that. But I think the legislature can say something and mean something else. The bottom line, maybe I should rephrase that? I think in this case, it was just loosely throwing words around. What they actually mean, I will leave it at that.”
This testimony, now public record, directly contradicts defendants’ prior positions and the election manual’s enforcement, warranting judicial intervention.
VI. CONCLUSION
These new authorities and intervening matters compel reversal and remand for further proceedings consistent with statutory law. Plaintiff respectfully requests that the Court take judicial notice of these developments and grant such relief as deemed just.
The Appellant request pursuant to Supreme Court Rule 16 (3)(h), that oral arguments be presented by Daniel Richard, in such a manner and time, as to address both the Town and State Appellee’s in this case.
Respectfully submitted,
/s/ Daniel Richard
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