Lawsuit seeks to strike down tax-cap ballot question before November 

Republican lawmakers hope a new statewide ballot question will give voters a say this November in whether to impose a cap over their local school district property taxes.

But two challengers argue it will give voters something else: a grammar test.

In a lawsuit filed Monday seeking to stop the tax-cap ballot question, two plaintiffs, Kelly Wieser of Campton and David Bates of Warner, say the wording of the question is confusingly written and violates the right to vote in the state constitution. They are asking Merrimack County Superior Court to block the law with an emergency preliminary injunction. 

“The ballot question violates their right to vote by presenting a confusing and misleading question that contains fewer choices than the legislature intended,” states the lawsuit, filed by attorneys Edward Sackman of Hinckley Allen in Manchester and Samira Omerovic. 

Republicans have countered that the lawsuit is designed to obstruct the new law, House Bill 1300, because the plaintiffs don’t want the question posed to voters. The Attorney General’s Office is likely to defend the law and oppose the request for a block. 

“Opponents of this measure are using lawfare to deny Granite Staters their right to rein in our out-of-control property taxes,” said Executive Councilor Dave Wheeler, a Milford Republican, in a statement Monday. “People in my district are getting priced out of their homes by their property tax bill. They were promised a vote on a cap this November, and I want the state moving fast enough that they actually get one.”

Under the law, signed by Gov. Kelly Ayotte in July, all general election ballots must ask voters whether to cap the amount of property tax collected for the next two years, allowing it to grow only to reflect inflation and the property value of new construction. 

Voting yes would also mean approving a mandatory limit on administrative expenses of 6% of the overall budget.  

If at least 60% of voters approve the measure, it will take effect beginning in state fiscal year 2028, which begins July 2027, and continue through June 2029. The law requires the question to again appear on the general election ballot in 2028, which would allow another two-year cap lasting through June 2031. 

If approved, the taxation caps could be overridden for specific budgets, but only upon a 60% vote at that town’s school district annual meeting. 

The lawsuit leaves the court little time for a decision; the New Hampshire Secretary of State’s Office will be designing and printing general election ballots starting next week, following the Sept. 8 state primary results. Under federal law, it must mail those ballots to overseas and military voters 45 days before the Nov. 3 election — or by Sept. 19.

Confusing wording?

The ballot question, mandated for all ballots in the Nov. 3 election, asks, in full:

“Shall the [name of municipality] limit property tax growth for [name(s) of school district(s)] under RSA 32:5-i?  If adopted for a two-year period:  

“(1) the local property tax levy may not grow beyond the prior year’s amount, adjusted for inflation and new construction; 

“(2) SAU central office spending may not exceed 6 percent of total school district appropriations; and 

“(3) bonded capital costs are excluded from both limits.  

“These caps apply only to administrative operations of the SAU central office and do not affect classroom instruction, school-based services, or other municipal expenditures.  These limits may be overridden as provided in RSA 32:5-i. Adoption requires a three-fifths (3/5) majority vote.”

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In their lawsuit, Wieser and Bates say some parts of that question are not clear.

First, their lawsuit states, the question includes too many words and undefined jargon, such as “SAU,” “bonded capital costs,” and “new construction,” for voters to quickly understand in a ballot box.

Second, the plaintiffs say some components are unclear. In the sentence stating: “These caps apply only to administrative operations of the SAU central office and do not affect classroom instruction, school-based services, or other municipal services,” the question does not make clear whether “these caps” applies both to the property tax cap and the 6% administrative spending limit, or just the 6% limit, the plaintiffs argue.

That could make a big difference, both to the ultimate effect of the question and to whether a voter supports it, the plaintiffs argue.

The lawsuit also argues the law requiring the ballot question is internally inconsistent, because the law indicates voters could adopt or reject the tax cap and administrative limits separately, while the ballot question allows only a catch-all “yes” or “no.” 

“First, the question is confusing because its complex structure, language, and terminology make the scope and effect of the proposed school funding caps difficult for voters to understand,” the lawsuit states. “Second, the ballot question is misleading.”

A complex history of ballot question review

Unlike in other states, New Hampshire has no referendum system allowing citizens to force questions onto a ballot and pass legislation.

Instead, New Hampshire’s system to amend the state constitution — which requires a two-thirds majority ratification by voters — has long been the sole mechanism for a ballot question. And the state Supreme Court has occasionally ruled on whether such ballot questions were properly phrased.

In the 1957 case of Concrete v. Rheume Builders Inc., the court overturned the passage of a constitutional amendment that was intended to set a higher damage minimum for civil trials to get juries — from $100 to $500 — despite the fact that it received two-thirds support from voters. The court found that the question was worded too confusingly to make the voters’ intent clear.

“Whatever may have been the undisclosed intent of the voters, it cannot prevail over their clearly expressed intent,” the court wrote. “The courts cannot redraft legislation to make it conform to an intention not fairly expressed in it.”

That same year, in an advisory opinion to the New Hampshire governor, the court ruled that the court should always attempt to uphold the will of voters and uphold the results of a ballot question, but that question must also give “the ordinary person a clear idea of what he is voting for or against.” In that case, the court approved the constitutional amendment ballot question — allowing the New Hampshire governor to conduct state business even while out of state — because it was clearly worded. 

And in the 1967 case of Gerber v. King, the state Supreme Court again upheld the principle that the validity of a measure passed by voters should be assumed, but added that the language of the question “that the ordinary would have understood” must have a “meaningful relationship” to the effect intended by legislators, or else it could be found to be misleading and invalid.

HB 1300’s mandatory tax cap question is neither a constitutional amendment nor a statewide referendum. But this week, the plaintiffs are asking the Superior Court to apply those same Supreme Court precedents to strike down the ballot question in this case.

And they included an affidavit from Daniel Rossner, a business administrator for SAU 48 in Plymouth, to argue that the ballot measure does not disclose the potential financial effects a tax cap could have on a school district. 

“The HB 1300 ballot question is materially misleading in that it represents to voters that the school funding caps will not impact classroom instruction or school-based services, despite the fact that implementing the caps will inevitably impact those very services,” the lawsuit reads. 

Republicans countered the lawsuit itself was intruding on voters’ rights, not the mandated question. Rep. Ross Berry, a Weare Republican and vocal proponent of the tax cap measure, argued voters should be given the choice themselves.

“This is a shameless play by the Democrats to rob people of their ability to control their property tax bill,” Berry said in a statement Monday. “If they thought they could beat this at the ballot box, they would not be in court.”