Trump administration seeks to block New Hampshire voters from intervening in voter file lawsuit

The Justice Department brought a lawsuit against New Hampshire Secretary of State Dave Scanlan, seeking to compel Scanlan to hand over the state’s voter file so federal officials could check it for ineligible New Hampshire voters. (Photo by Kate Brindley/New Hampshire Bulletin)

Trump administration lawyers suing New Hampshire officials to gain access to the state’s voter file are now seeking to block a group of New Hampshire residents from entering that lawsuit. 

In a legal memo submitted Friday to the U.S. District Court of New Hampshire, attorneys for the U.S. Department of Justice said the residents do not meet the legal requirements to be added as intervenors. 

In September, the Justice Department brought a lawsuit against New Hampshire Secretary of State Dave Scanlan, seeking to compel Scanlan to hand over the state’s voter file so federal officials could check it for ineligible New Hampshire voters. Scanlan has refused to provide the file despite multiple requests this year, citing state law that prohibits most disclosure. The file contains the full name, date of birth, residential address, driver’s license number, and Social Security number for each registered voter. 

Days after that lawsuit, a bipartisan group of residents requested to the federal court to be added as intervenors, arguing the Trump administration’s actions would violate their privacy rights as voters, as well as the ability for some of them to recruit voters who may not want to be added to the list. The group, including former Republican state Rep. Neal Kurk, Portsmouth attorney Christopher Cole, former Democratic state Rep. Bob Perry, and liberal activist Louise Spencer, appealed to the federal court to be added as an intervenor. 

If granted, the intervenor request would give those residents a status similar to co-defendants and allow them to make their own arguments in favor of dismissal of the lawsuit.

“DOJ’s demands not only run roughshod over federalism principles and New Hampshire law — they spurn Proposed Intervenors’ privacy rights,” the residents’ September brief reads. 

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There are two paths for residents to become intervenors: “intervention as of right,” in which a judge finds they meet strict statutory criteria under the Federal Rules of Civil Procedure, and “permissive intervention,” in which the judge finds they have an interest in a common legal question that might be answered by the lawsuit. 

The Justice Department lawyers argue the residents don’t meet either criteria. Their lawsuit against Scanlan argues the state is violating both the Help America Vote Act of 2002 and the Civil Rights Act of 1960 by not supplying the voter file. They argue those statutes give the U.S. Department of Justice the authority and responsibility to ensure state voter lists are accurate, a point Scanlan has disagreed with. 

And in their brief Friday, the Justice Department attorneys say because none of the residents represent state government, the statutes at the heart of the lawsuits do not apply to them. The residents are not responsible for maintaining accurate voter files, for instance.  

“Rather, they assert only that they are individuals that perform voter engagement, assisted with legislation, and education for some voters and seek to maintain the privacy of voters they claim to represent,” the federal brief reads.  “… While these may be noble interests, they fall well outside the clear language of the parties covered under the provisions of HAVA and the CRA that the Attorney General is enforcing in this action.” 

The lawyers also said the residents’ fears of potential abuse of voter data by the U.S. government are unfounded.

“The Proposed Intervenors’ alleged injury — fear that voter data may be misused or chill voter engagement from the community — is not concrete or imminent, but hypothetical and baseless,” the brief reads. “The information at issue is already subject to extensive statutory protections under Federal law.”

New Hampshire is one of 14 states the Trump administration is currently suing over refusals to provide voter registration information, according to the Brennan Center for Justice, a voting rights think tank. Two states, Indiana and Wyoming, have provided their full lists, and other states have turned over only the publicly available versions of the lists. 

Progress on New Hampshire’s lawsuit faced a two-month delay caused by the 43-day federal government shutdown this fall.