STATE
OF
NEW
HAMPSHIRE
 
 SUPREME
COURT
 
 No.
2012‐0816
 
 DEBORAH
SUMNER
 
 v.
 
 STATE
OF
NEW
HAMPSHIRE
 BY
ITS
SECRETARY
OF
STATE
 In
official
capacity
only
 
 ______________________________________________________________________
 APPELLANT’S
REPLY
 TO
STATE’S
MEMORANDUM
OF
LAW
 
 MANDATORY
APPEAL
PURSUANT
 TO
SUPREME
COURT
RULE
7
 ______________________________________________________________________
 March 11, 2013 Deborah
Sumner
 ProSe
 474A
Great
Rd.
 Jaffrey,
NH
03452
 
 
 
 
 
 
 
 
 
 





The
Petitioner/Appellant
responds
to
the
State’s
argument
as
expressed
in


its
Memorandum
of
Law
as
follows:
 I.
BRIEF
FACTUAL
AND
PROCEDURAL
BACKGROUND
 


The
Petitioner
has
made
it
clear
that
she
is
not
asking
the
Supreme
Court
to


allow
her
to
review
Jaffrey
ballots
cast
in
the
Nov.
2010
election,
which
reportedly
 were
destroyed
between
April
and
June
of
2012.
 


The
response
from
the
Secretary
of
State’s
Office,
see
Appellant’s
app.
p.
21,


was
signed
by
assistant
Secretary
of
State
Karen
Ladd.
The
state
has
never
 confirmed
that
William
Gardner
has
seen
the
request
or
responded
to
it.

 
 The
Petitioner
didn’t
request
a
preliminary
injunction
against
the
state.

Id.
p.
 61,
69
 
 
 The
State’s
Motion
to
Dismiss
was
granted
Sept.
24,
before
she
received
the
 State’s
Memorandum
of
Law,
dated
Sept.
28,
which
has
been
included
in
the
State’s
 appendix.
 


The
State
claims,
page
2,

¶
2
that
“The
State's
motion
to
dismiss
was
granted


on
September
24,
2012,
to
which
the
appellant
now
appeals.”

 


This
is
incorrect.
The
Petitioner
filed
a
motion
to
reconsider
on
Oct.
3,
2012,


which
the
court
denied
on
Oct.
17.
Id.p.
9.
She
has
specified
the
relief
sought
in
her
 opening
brief,
pp.
34‐35.
 II.
STANDARDS
OF
REVIEW
 


The
Petitioner
has
requested
de
novo
and
strict
scrutiny
review
because
the


questions
involve
two
fundamental
and
constitutional
rights:
1)
for
citizens
to
vote,
 have
their
votes
counted
and
reported
accurately
2)
citizens’
right
to
verify
that
 election
results
are
accurate.
 


1


III.
ARGUMENT
 


The
Petitioner
asked
the
Attorney
General’s
Office
on
Oct.
3,
2012
to


investigate
the
illegal
destruction
of
the
ballots
and
whether
there
was
 communication
with
the
Secretary
of
State’s
office
regarding
that
act.
Id.
p.
79.

On
 March
2,
2013
she
received
a
response,
but
questions
C‐G
Id.
pp.66‐67
remain
 unanswered.
There
is
a
concern
that
the
actions
that
prompted
her
initial
petition
 and
what
she
discovered
as
a
result
might
be
repeated
in
the
future,
Id.
p.
19

 B.
Longstanding
Policy
Supports
New
Hampshire
Citizens'
Right
to
Cast
Ballots
 Free
From
Public
Scrutiny
 


Evidently,
it
was
also
longstanding
policy
to
prevent
public
access
to
ballots


in
Vermont,
Michigan,
Wisconsin,
Colorado
and
other
states
before
citizens
 challenged
and
the
court
changed
it.
Those
courts
found
that
no
 privacy/confidentiality
exemption
was
warranted.
See
ref
to
OTHER
STATES’
 CASES,
Opening
Brief,
p.
8,
17
and
18.
 


The
state
claims,
p.
5
¶
2,
“the
legislature
saw
fit
to
impose
restrictions
in


2003
concerning
elections.”
See
Section
E
in
Petitioner’s
opening
brief,
beginning
p.
 23
and
the
rules
violated.
There
was
NO
public
discussion
of
the
ballot
exemption.
It
 appears
this
amendment
was
added
at
the
request
of
Deputy
Secretary
of
State
 David
Scanlan
and/or
Assistant
Attorney
General
Bud
Fitch,
not
at
the
request
of
 any
legislator.
It
also
appears
MOST
legislators,
except
key
legislative
leaders
and
 the
senator
removed
from
the
committee
of
conference,
were
unaware
they
were
 voting
for
this.
(part
of
very
long
bill
and
passed
at
very
end
of
legislative
session.).
 See
Section
E.,
Id
pp.23‐32
 
 


In
State’s
App.,
p.
23,
Deputy
Secretary
of
State
David
Scanlan
writes:
“the
 2


process
involved
in
passing
the
legislation
was
not
unusual.”
 


The
Petitioner
hopes
this
process
that
removed
a
fundamental
voting
right


from
the
people
will
be
unacceptable
from
now
on.
 


The
statement
on
p.
5,
¶
2:
“The
legislature
continued
to
restrict
public
access


to
ballots
with
2010
amendments“
appears
to
be
an
error.
 


Last
¶
p.
5,
and
top
of
p.
6
contain
significant
errors.
The
amendment
to


exclude
ballots
was
NOT
discussed
in
the
Senate
April
30
public
hearing,
because
it
 wasn’t
added
until
May
9,
AFTER
the
hearing.
The
amended
bill
was
recommended
 to
the
entire
Senate
on
May
15.
Id.
pp.
26‐32
There
was
NO
public
discussion
on
the
 ballot
exemption
amendment
and
no
opportunity
for
the
public
to
offer
opinions.
 


P.
6,
“the
analogous
privacy
exemption”
referred
to
driver’s
license
numbers


and
last
four
digits
of
social
security
numbers
on
voter
registration
forms/affidavits.
 Id.
p.
26.
The
Petitioner
and
most
reasonable
citizens
would
agree
that
kind
of
 confidential
information
should
be
exempt.
 The
Governor
in
2003
was
also
a
member
of
the
majority
party.
See
Section
 E,
Id.
IF
he
had
been
of
the
minority
party,
the
public
would
probably
heard
more
 about
the
entire
legislation.
We
didn’t
learn
about
the
ballot
exemption
until
2008.
 See
Pet.
App.
p.
26
 C.
New
Hampshire
Citizens
Fought
and
Won
the
Right
to
Cast
Secret
Ballots
 
 
 The
State’s
argument
fails
to
persuade,
either
that
the
 “privacy/confidentiality”
argument
exists,
except
in
rare
instances
specified
in
pp.
 17‐21
of
the
Petitioner’s
opening
brief
or
that
New
Hampshire
citizens
are
less
 trustworthy
than
citizens
in
other
states.






3





In
towns
that
hand
count
or
where
the
moderator
oversees
a
“parallel
hand


count”
to
verify
the
accuracy
of
the
computer
count,
citizens
(sworn
in
as
election
 officials)
count
their
neighbors’
ballots.
In
all
municipalities,
ballots
with
write‐in
 votes
are
hand
counted.

In
recounts,
people
hand
count
the
ballots.
As
a
ballot
clerk,
 the
Petitioner
has
helped
review
ballots
and
record
write‐in
votes.
In
all
cases,
 ballots
are
both
“secret”
and
anonymous;
otherwise
none
of
those
activities
would
 be
permissible.
 The
State
hasn’t
shown
a
single
example
of
how
anonymous
ballots
can
be
 traced
to
voters.
The
lower
court
didn’t
require
any
evidence.
During
oral
argument,
 the
Petitioner
hopes
the
Court
will
require
that
evidence
and
answers
to
the
 following
questions:
(Pet.
App.
p.
67)
 H. Are
there
any
special
markings
on
ballots
that
allow
them
to
be
traced
to
 individual
voters?
 I. The
Task
Force
on
Accessible
Voting
had
recommended
that
if
there
is
 only
one
voter
using
the
AVS
system
in
a
town,
that
at
least
nine
election
 officials/workers
would
cast
their
ballots
using
that
system
to
prevent
 any
possibility
of
a
single
voter’s
ballot
being
traced
to
the
voter.
Has
that
 been
recommended
and/or
implemented
as
a
matter
of
state
policy?



 
 See
Id.
pp.
75,
77
re:
illegality
of
special
markings
on
ballots,
RSA
659:35,
 Opening
Brief,
p.
vii.
 
 
 Colorado,
for
example,
does
follow
the
above
procedure
to
make
sure
AVS
 votes
cannot
be
traced
to
a
single
individual.
During
that
litigation,
Id
p.
17,
the


Plaintiff
discovered
that
ballots
had
unique
barcodes
that
allowed
election
officials
 and
voting
system
vendors
to
trace
the
ballots
to
voters,
in
violation
of
the
state
 constitution.

It
IS
possible
that
NH
ballots
can
now
be
traced
(without
the
public’s
 knowledge)
or
is
contemplating
this
for
the
future.

The
State
should
be
required
to
 reveal
whether
that
is
happening
now.

 


4


D.
Elections
and
Right­To­Know
Laws
Expressly
Prohibit
the
Appellant
from
 Examining
Original
Ballots
Cast
in
New
Hampshire
Elections
 
 
 See
above
re:
vote
counting
in
hand
count
towns,
parallel
hand
counts,
ballot
 clerk
review,
write
in
votes
and
recounts.
 


The
state’s
Memorandum
frequently
asserts
that
RSA
659:63
allows
public


viewing
of
the
vote‐counting
process,
but
ignores
the
fact
that
this
law
was
updated
 in
1979
BEFORE
electronic
voting
was
approved
for
use
in
New
Hampshire
in
1987.
 Electronic
vote
tabulation
does
NOT
comply
with
NH
CONST.
Pt.
II
Art.
32
nor
RSA
 659:63.
The
state
has
so
far
ignored
citizens
who
have
questioned
the
 constitutionality
of
electronic
voting.
 


The
importance
of
a
public
vote
count
can
be
traced
to
1703
English


Common
Law.
The
public
must
be
able
to
make
sure
votes
are
counted
and
reported
 accurately
(must
have
a
way
to
vindicate
and
maintain
their
right).
(See
Ashby
v.
 White
Id.
p.
9.)
 


Jaffrey
citizens
requested
that
their
moderator
conduct
a
public
vote
count


for
one
of
the
federal
races,
chosen
at
random,
for
the
Nov.
2010
election,
an
option
 recommended
by
a
state
advisory
group.
(See
ref.
in
State
App.,
p.
25,
¶18
and
 footnote,
p.
7.)
The
Secretary
of
State’s
office
did
not
want
the
Jaffrey
moderator
to
 do
that.
(Pet.
App.,
p.
54.)
As
a
result
of
that
inappropriate
interference
with
local
 decision
making,
the
Petitioner
was
not
allowed
to
serve
as
a
ballot
clerk
for
that
 election.
See
Opening
Brief,
p.
5
 


Before
her
town
purchased
the
Diebold
AccuVote
in
2003,
the
Petitioner
had


participated
in
the
public
vote
counting
process
in
her
town
and
knew
that
the





5


checks
and
balances
were
in
place
to
ensure
accurate
vote
counting
and
reporting.
 She
observes
public
vote
counts
regularly
during
Town
Meeting.
 


Electronic
vote
tabulation
is
not
public,
since
counts
are
produced
for
ballots


that
no
person
other
than
the
voter
has
seen.
The
computers
cannot
always
read
 voter
intent
(the
legal
standard)
and
they
are
subject
to
error
and
fraud.

 


Currently,
election
officials
and
citizens
would
need
a
court
order
to
find
out:





1.
Were
71
Jaffrey
voters
(2.5%
of
those
who
voted)
confused
when
they


voted
for
too
many
candidates
in
the
Nov.
2012
election?
Would
a
review
of
the
 ballots
determine
voter
intent
in
some
or
all
cases?
Was
there
a
problem
with
the
 computer?
 


2.
Why
was
there
a
30
vote
discrepancy
between
computer
and
public
vote


count
totals
for
the
three
gubernatorial
candidates
in
Brookline
in
Nov.
2012?
 


3.
If
a
recounted
race
showed
a
significant
error,
were
the
counts
for
other


races
also
in
error?
WHY
were
they
off?
Can
the
reason
be
prevented
from
 reoccurring?
 


In
2009,
the
German
Federal
Constitutional
Court
declared,
“voting


computers”
didn’t
meet
constitutional
standards
that
required,
“the
essential
steps
 of
the
voting
and
of
the
determination
of
the
result
can
be
examined
by
the
citizen
 reliably
and
without
specialist
knowledge.”1
The
German
government
has
protected
 citizens’
right/responsibility
to
observe
and
verify
their
election
results
as
a
 fundamental
basis
of
legitimate
elections
and
democratic
governance.
 























































 1
Press
release
describing
decision
 http://www.bundesverfassungsgericht.de/en/press/bvg09‐019en.html
 
 


6





The
Petitioner
has
addressed
much
of
the
State’s
argument
re:
fraud
in
her


Opening
Brief,
pp.
16,19‐20

 


The
State’s
App.
pp.
22‐25
contains
many
opinions
and
has
misleading


statements
regarding
computer
security.
NO
system
can
be
made
completely
secure,
 which
is
why
the
state
advisory
group
recommended
random
checks
and
that,
in
 addition,
moderators
continue
doing
parallel
hand
counts
for
high
 stakes/competitive
races.
2
 


The
computers
can
be
programmed
to
produce
a
sufficient
margin
of
victory


such
that
the
“loser,”
who
may
actually
be
the
winner,
would
be
unlikely
to
request
a
 recount.
 


In
most
states,
the
chain
of
custody
practices
for
ballots
to
be
recounted
is


questionable.
It
does
appear
that
New
Hampshire
has
improved
our
practices
since
 the
2008
Presidential
Primary
Recount.
Pet.
App.
p.
57
 


Pre‐election
voting
system
logic
and
accuracy
testing
does
not
guarantee
an


election
free
of
error
or
fraud.
Experts
have
testified
that
entering
a
special
test
 mode
to
conduct
such
tests
invalidates
the
assertion
that
successful
testing
ensures
 proper
counting
in
normal
election
mode.3
 


Vote
counts
in
many
New
Hampshire
municipalities
are
no
longer
public.


This
is
why
it
is
SO
essential
for
citizens
to
have
access
to
ballots
after
an
election
 (after
recount
period
has
ended)
so
they
can
validate
results,
deter
fraud
and
try
to
 prevent
any
significant
error
from
happening
again.
 























































 2

See
Final
Report,
Nov.
2009,
pp.
14,
22,
http://sos.nh.gov/ballotcountdev.aspx
 3
http://www.policyarchive.org/handle/10207/bitstreams/8684.pdf,
p.
45,
PDF
p.
 51
 
 


7


E.
The
Statute
Exempting
an
Election
Ballot
From
the
Right­To­Know
Law
is
 Constitutionally
Valid
Because
No
"Constitutional
Right
of
Access"
Attaches
to
 Ballots
 
 
 Cast
ballots
do
not
meet
the
standard
for
confidentiality
except
in
rare
 circumstances.
See
Opening
brief,
pp.
18‐19.
Other
states
have
dealt
with
legitimate
 privacy
exceptions.
So
can
New
Hampshire.





F.
RSA
659:95,
Exempting
an
Election
Ballot
from
Public
View,
is
 Constitutional
Because
it
is
a
"Reasonable
Restriction"
on
the
General
Right
to
 Know.
 
 
 This
claim
doesn’t
meet
the
standards
established
by
this
court.
(See
opening
 brief,
pp.
18,
Pet.
App.
pp.
15‐16.)
 


The
state’s
standard
for
“purity
of
elections”
lacks
needed
internal
controls


and
allows
significant
error
and
fraud
to
occur
without
any
possibility
of
detection.
 
 
 
 
 
 


“When
asked
why
{municipal
employee}
stole
the
money,
the
response
 was…`Because
I
could.
There
was
no
accountability
for
the
funds.”
 “Reducing
the
Opportunity
for
Fraud,”
by
Barbara
Reid,
New
Hampshire
 Town
and
City,
Feb.
2006
 On
p.
14,
¶
2,
the
State
claims
an
“individual
could
then
challenge
the
results


of
an
election.”
False.
The
State
knows
individuals
don’t
have
legal
standing
to
do
 that.
Election
results
would
have
been
certified
before
the
public
reviews
the
ballots,
 which
would
be
after
the
recount
period
has
ended.
Appeal
of
Peter
McDonough
 (Ballot
Law
Commission)
2003.
“In
the
absence
of
fraud,
illegal
votes
cast
by
 accident
or
mistake
which
do
not
change
the
outcome
will
not
invalidate
an
 election.”
Appeal
of
Soucy,
139
N.H.
110,
(1994).
 


The
public
pays
for
elections
and
the
salaries/stipends
of
election
officials.


These
officials
have
a
duty
to
ensure
our
votes
are
counted
and
reported
accurately.





8


Citizens
have
a
duty
to
make
sure
officials
are
doing
so,
which
is
why
our
Right
to
 Know
Law
should
include
public
access
to
ballots
after
the
recount
period
is
over.









 
 
 
 
 
 
 
 
 


“Our
ultimate
goal
in
construing
the
Right‐to‐Know
Law
is
to
further
the
 statutory
and
constitutional
objectives
of
increasing
public
access
to
all
 public
documents
and
governmental
proceedings,
see
id.
at
504,
and
to
 “provide
the
utmost
information
to
the
public
about
what
its
government
 is
up
to,”
Goode
v.
N.H.
Legislative
Budget
Assistant,
148
N.H.
551,
555
 (2002).



 
 
 


…knowing
how
a
public
body
is
spending
taxpayer
money
in
conducting
 public
business
is
essential
to
the
transparency
of
government,
the
very
 purpose
underlying
the
Right‐to‐Know
Law.
Professional
Firefighters
v.
 Local
Government
Center,
Inc.,
159
N.H.,
992
A2d
588,592
(2010)


“Public
scrutiny
can
expose
corruption,
incompetence,
inefficiency,
prejudice
 and
favoritism.”
See
International
Federation
v.
Superior
Court,
165
P.3d
488,
 495
(Cal.
2007).




Conclusion
 The
strength
of
a
democratic
system
is
in
its
ability
to
self‐correct.
It
also
has
 the
potential
of
a
collaborative
problem‐solving
process
(proposed
by
the
 Petitioner)
instead
of
a
top‐down,
power
and
control
model
that
destroys
public
 trust
and
stifles
innovation
and
creativity.
 


Not
many
citizens
can
spend
the
five
years
the
Petitioner
has
in
acquiring
the


understanding
of
our
election
system
and
constitution.
They
have
to
rely
on
experts
 and
public
officials.
They
should
be
able
to
trust
the
information
they
receive
and
 know
their
rights
are
being
protected.
Citizens
should
be
able
to
observe
vote
 counting
and
verify
election
results
IN
ALL
INSTANCES
as
the
constitution
 mandates.
NH
CONST.
Pt.II,
Art.
32,
Part
I,
Art.
8
 





Since
ballots
were
exempted
from
the
Right
to
Know
Law
(RSA
91‐A)
in


2003,
these
unanswerable
questions
have
arisen
about
our
past
elections:
 



 


1.
Why
was
there
almost
a
10%
discrepancy
between
exit
poll
projections
 9



 
 


and
reported
vote
totals
in
the
2004.Presidential
election?
Pet.
App.
p.
27
 
 2.
Why
have
other
discrepancies
the
Petitioner
has
noted
in
her
research
 occurred?

Id.,
pp.
81‐82
 
 3.
Did
ballot
washing
occur
during
the
2008
Presidential
Primary
Recount?
 Id.

p.
26
 
 4.
What
happened
with
the
Nov.
2010
election
in
Jaffrey?
The
moderator
was
 willing
to
conduct
a
public
vote
count
of
a
federal
race,
chosen
at
random.
The
 Secretary
of
State’s
Office
did
NOT
want
him
to
do
it.
The
ballots
from
that
election
 were
destroyed
before
the
Cheshire
Superior
Court
could
issue
a
ruling
allowing
the
 Petitioner
to
review
them.
 
 
 The
petitioner
asks
this
honorable
Court
to
support
the
people
of
New
 Hampshire
in
strengthening
citizen
oversight
of
our
democratic
institutions.
 Without
the
right
to
verify
election
results,
our
right
to
vote,
which
so
many
have
 struggled
and
died
to
obtain
and
protect,
has
no
value.
As
Thomas
Paine
wrote
in
 1795:
 
 
 
 
 
 
 
 
 


“The
right
of
voting
for
representatives
is
the
primary
right
by
which
other
 rights
are
protected.
To
take
away
this
right
is
to
reduce
a
man
to
 slavery,
for
slavery
consists
in
being
subject
to
the
will
of
another,
and
he
 that
has
not
a
vote
in
the
election
of
representatives
is
in
this
case.”
 
 
 
 



 
 
 



 
 
 



 
 
 



 
 
 



 
 
 


March
11,
2013
 
 Respectfully
submitted
 By
Petitioner/Appellant



 
 
 
 
 



 
 
 



 
 
 



 
 
 



 
 
 



 
 
 



 
 
 


Deborah
Sumner/pro
se
 474A
Great
Rd.
 Jaffrey,
NH
03452
 (603)
532‐8010


CERTIFICATE
OF
SERVICE



 
 
 
 I
hereby
certify
that
two
copies
of
this
Reply
to
the
State’s
Memorandum
of
 Law
have
been
mailed
on
this
11th
day
of
March
2013
to
Stephen
LaBonte,
Assistant
 Attorney
General.
 





10