UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Coalition for Open Democracy et al.
v. Case No. 24-cv-312-SE Opinion No. 2025 DNH 066 David Scanlan et al.
MEMORANDUM ORDER
Several organizations and individuals bring suit against the New Hampshire Secretary of
State and the New Hampshire Attorney General seeking a declaratory judgment that 2024 New
Hampshire House Bill 1569’s (HB 1569) provisions violate their rights under the United States
Constitution and requesting injunctive relief barring state officials from implementing those
provisions. At issue here is the plaintiffs’ motion to compel the defendants to produce a copy of
the New Hampshire statewide voter database and all documents concerning the use of the
database, including instruction manuals or other guides relating to the data fields contained in the
database and their correct interpretation. Doc. no. 60. The defendants object. The court held a
number of conferences on the issue and also offered the parties oral argument and an evidentiary
hearing, which all declined. At a conference on May 20, 2025, the court explained that it was
granting the motion to compel, ordering the defendants to produce the requested information on
or before May 27, 2025, and would be issuing this memorandum order at a later date explaining
its legal reasoning. On May 23, 2025, the defendants moved for an extension of time to comply.
The court will address that motion in a separate order.
Standard of Review
Under the federal rules, “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). After providing notice and making the necessary effort to resolve the
discovery issue, a party may move to compel another party to produce requested information or
documents. Fed. R. Civ. P. 37(a)(1) & 37(a)(3)(B). “[T]he party seeking an order compelling
discovery responses over the opponent’s objection bears the initial burden of showing that the
discovery requested is relevant.” Abiomed, Inc. v. Enmodes GmbH, No. CV 23-10087-DJC,
2024 WL 4626240, at *2 (D. Mass. Oct. 30, 2024). Once that showing is made, the opposing
party bears the burden of showing that the requested production is improper. de Laire v. Voris,
No. 21-CV-131-JD, 2021 WL 6883274, at *1 (D.N.H. Nov. 29, 2021).
Background
On September 12, 2024, then-New Hampshire Governor Chris Sununu signed into law
HB 1569. The law went into effect on November 11, 2024. HB 1569 made several changes to
New Hampshire’s voter registration and identification requirements that the plaintiffs allege
violate their rights under the United States Constitution.
Specifically, before HB 1569 became effective, a prospective voter could register to vote
on Election Day by establishing her citizenship, identity, and age, either by presenting
documentary evidence or, if she did not possess the necessary documentation, by executing at
her polling location what is commonly known as the Qualified Voter Affidavit. Voters who
submitted the Qualified Voter Affidavit attested to their qualifications under penalty of voter
fraud and perjury. HB 1569 eliminated the Qualified Voter Affidavit. Count I alleges that HB
1569’s elimination of the Qualified Voter Affidavit constitutes an unjustifiable burden on the
right to vote in violation of the Fourteenth Amendment.
The plaintiffs also contest the constitutionality of HB 1569’s elimination of the
Challenged Voter Affidavit. Under New Hampshire law, if a voter challenges the qualifications
2 of any other voter registered in the town or ward in which the election is held, see New
Hampshire Revised Statute Annotated (RSA) § 666:4, the moderator must determine if it is
“more likely than not” that the challenge to the voter’s qualifications is “well grounded,” RSA
659:27. Before HB 1569 became effective, if the moderator determined that the challenge was
more likely than not well grounded, the prospective voter could cast an eligible ballot through a
Challenged Voter Affidavit, sworn under the penalties of voter fraud and perjury. HB 1569
eliminated the right to vote by Challenged Voter Affidavit. Instead, if the moderator deems the
challenge more likely than not well grounded, the prospective voter cannot cast a vote unless the
moderator’s decision is overruled by a New Hampshire Superior Court. Count II alleges that HB
1569’s elimination of the Challenged Voter Affidavit constitutes an unjustifiable burden on the
right to vote, Count III alleges that it violates the plaintiffs’ right to procedural due process, and
Count IV alleges that it violates their right to equal protection under the law.
Discussion
In the plaintiffs’ second request for the production of documents, they requested: “A copy
of the New Hampshire statewide voter database and all documents concerning the use of the
statewide voter database, including instruction manuals or other guides concerning the data fields
contained in the database and their correct interpretation.”1 Doc. no. 60 at 2. The defendants
objected, stating
“The voter database shall be private and confidential and shall not be subject to RSA 91-A and RSA 654:31, nor shall it or any of the information contained
1 Although the plaintiffs quote their second request for production and the defendants’ response thereto, they do not include a copy of either document with their motion to compel. Because the defendants do not dispute the plaintiffs’ representation as to the content of the request for production or the defendants’ response thereto, the court accepts that the plaintiffs’ description is accurate.
3 therein be disclosed pursuant to a subpoena or civil litigation discovery request.” RSA 654:45, VI. The parties have already met and conferred regarding this Request, Defendants have declined to produce responsive records, and the Court is expecting Plaintiffs to file a motion to compel production of the SVRS.2
Id. at 3. They further responded that “[n]either the Secretary’s nor Attorney General’s Offices
has the statutory authority to produce the SVRS. Indeed, they have a statutory obligation to resist
production of the database.” Id. The plaintiffs now move for an order compelling the defendants
to produce a copy of the SVRS and all documents concerning the use of the database.
I. Relevancy
The plaintiffs bear the initial burden of showing that the requested discovery is relevant.
They argue that the SVRS and accompanying documents are relevant because they will aid the
plaintiffs in demonstrating HB1569’s unconstitutional burden on the right to vote by illustrating
the character and magnitude of the injury caused by the law. The information in the database will
establish how individuals who participated in New Hampshire elections prior to HB 1569’s
effective date may have been affected by the law had it been in effect during past election cycles,
and how those voters may have been burdened by the law since it went into effect. Specifically,
they assert that the database will help them identify voters who used a Qualified Voter Affidavit
to establish citizenship to register to vote before HB 1569 went into effect and will help them
determine the extent to which voters have used Challenged Voter Affidavits in the past. They
add that the database will provide essential information about burdens on voters since November
1, 2024, confirming or dispelling news reports about voters turned away from polls as a result of
the implementation of HB 1569. They contend that this information is relevant to their claims
2 The defendants use “SVRS” as shorthand for New Hampshire’s Statewide Voter Registration System, the database that is the subject of the plaintiffs’ motion to compel. For ease of reference, the court will use that acronym for the remainder of the order.
4 because it will show how many voters will be and have been affected by HB 1569 and the
burden it places on the right to vote.
In their objection, the defendants argue that the SVRS and accompanying documents are
not relevant to any claim or defense in this case. They assert that the plaintiffs’ claims are limited
to how the elimination of the affidavits affects them individually, not voters generally. They
further contend broadly that the database would not provide the information that the plaintiffs
seek.
As a preliminary matter, the defendants have waived their relevance argument because
they did not object to the plaintiffs’ second request for production of documents on relevancy
grounds. See doc. no. 60 at 3; see, e.g., Katz v. Liberty Power Corp., LLC, No. 18-CV-10506-
ADB, 2020 WL 3492469, at *2 (D. Mass. June 26, 2020) (“Further, any objection that the
Defendants did not raise in their initial response is deemed waived.”).
Even if the court considered the defendants’ relevancy objections, they would not carry
the day. Where, as here, the plaintiffs challenge a statute for placing an unconstitutional burden
on the right to vote, the court is not limited to the burden placed on the named plaintiffs. See
Common Cause R.I. v. Gorbea, 970 F.3d 11, 14–15 (1st Cir. 2020) (looking to burdens placed on
voters generally as opposed to plaintiff parties specifically); Fish v. Schwab, 957 F.3d 1105,
1127 (10th Cir. 2020) (same in the context of requiring documentary proof of citizenship). Even
if it were so limited, at least one of the named plaintiffs, Coalition for Open Democracy, is an
organization that seeks to encourage participation in elections through voter education and
services, including voter registration and poll observing. Therefore, discovery related to the
direct effects of the elimination of the affidavits would still include the SVRS and accompanying
documents.
5 Defendants’ other relevancy arguments are likewise unpersuasive. The defendants
essentially contend that information that would shed light on whether HB 1569 affects voters’
ability to participate in elections is not relevant to the plaintiffs’ claims that HB 1569
unconstitutionally hinders voters’ ability to participate in elections. Generously construed, the
defendants argue that the information is not relevant because it would not be sufficient on its
own to carry the day for the plaintiffs. This is not the test for relevance. Because the plaintiffs
have carried their burden to establish that the requested discovery is relevant, the court will turn
to the defendants’ arguments that production would be improper.
II. The Defendants’ Objections
Initially, the defendants request that the court defer its ruling on the plaintiffs’ motion to
compel until it issues its ruling on the defendants’ pending motion to dismiss. Because an order
on the motion is forthcoming and at least certain plaintiffs and claims will survive the
defendants’ motion, and in light of the plaintiffs’ request for expedited treatment under Local
Rule 7.1(f) due to upcoming expert disclosure deadlines, the court will rule on the plaintiffs’
motion to compel before issuing a ruling on the motion to dismiss.
The defendants argue that disclosure of the database and accompanying documents is
improper for three reasons. First, the New Hampshire legislature has decided to prohibit
disclosure in exercise of its legislative power under the cooperative federalism required by the
Help America Vote Act (HAVA), Pub. L. No. 107-252, 116 Stat. 1668 (codified as amended at
52 U.S.C. §§ 20901-21145). Second, even if HAVA does not prevent disclosure, the SVRS is
critical infrastructure that cannot be disclosed to third parties. And third, the Federal Rules of
Civil Procedure prohibit disclosure of the SVRS. The court addresses each of these arguments in
turn.
6 A. HAVA and Cooperative Federalism
HAVA requires each state to maintain, “in a uniform and nondiscriminatory manner, a
single, uniform, official, centralized, interactive computerized statewide voter registration list
defined, maintained, and administered at the State level that contains the name and registration
information of every legally registered voter in the State.” 52 U.S.C. § 21083(a)(1)(A). Under
HAVA, “[t]he computerized list shall serve as the single system for storing and managing the
official list of registered voters throughout the State,” shall “contain[ ] the name and registration
information of every legally registered voter in the State,” and “shall serve as the official voter
registration list for the conduct of all elections for Federal office in the State.” Id., §
21083(a)(1)(A)(i), (ii), (viii).
HAVA also has several other provisions, two of which are relevant to the defendants’
arguments in this case. First, it requires states to “provide adequate technological security
measures to prevent the unauthorized access to the computerized list” of voters. Id., §
21083(a)(3). Second, it provides that the “specific choices on the methods of complying with the
requirements of [HAVA] shall be left to the discretion of the State.” Id., § 21085.
New Hampshire implemented HAVA’s requirements through RSA 654:45, which
authorizes the secretary of state to establish and maintain a statewide centralized voter
registration database. That statute further provides: “The voter database shall be private and
confidential and shall not be subject to RSA 91-A and RSA 654:31, nor shall it or any of the
information contained therein be disclosed pursuant to a subpoena or civil litigation discovery
request.” RSA 654:45, VI.
Although the language of RSA 654:45, VI prohibits disclosure of the SVRS in response
to a civil litigation discovery request, the defendants do not contend that the statute, standing
7 alone, prohibits disclosure of the database to the plaintiffs in this case. As the plaintiffs point out
in their motion, doc. no. 60 at 6-7, federal courts in this district and others have consistently held
that state law privileges must cede to federal civil discovery rules, e.g., Moses v. Mele, 10-cv-
253-PB, 2011 WL 2174029, at *5 (D.N.H. June 1, 2011); G.K. v. Sununu, 21-cv-4-PB, 2021 WL
6932204, at *3 (D.N.H. Dec. 30, 2021). Instead, the defendants argue that RSA 654:45, VI is
unique and prohibits disclosure of the database in this case specifically because it is part of
HAVA’s “cooperative federalism statutory scheme.” Doc. no. 70 at 4.
The defendants’ argument is a red herring. “[C]ooperative federalism ‘best describes
those instances in which a federal statute provides for state regulation or implementation to
achieve federally proscribed policy goals.’” Massachusetts ex rel. Exec. Off. of Health & Hum.
Servs. v. Sebelius, 701 F. Supp. 2d 182, 192 (D. Mass. 2010) (quoting Philip J. Weiser, Towards
a Constitutional Architecture for Cooperative Federalism, 79 N.C.L.Rev. 663, 668 (2001)).
Defendants appear to argue that HAVA’s embodiment of cooperative federalism imbues RSA
654:45, VI with enough federal character that it displaces the general understanding that “[s]tate
statutes, while binding on state courts determining privilege, do not bind federal courts deciding
federal questions.” G.K., 2021 WL 6932204, at *3 (quotation omitted); see 8 Wright & Miller,
Fed. Prac. & Proc. § 2016 (“Ordinarily, however, only federal provisions [related to privilege]
apply with respect to a federal claim.”). But they cite no authority supporting this theory. Here,
HAVA delegates state regulation and implementation of federal policy goals related to voting
but not related to civil discovery. The defendants do not explain how Congress’s direction to
New Hampshire to implement a statutory scheme related to voting absolves the state of its
discovery obligations in federal court. Nor do they cite any caselaw that supports that
proposition.
8 Indeed, the primary case on which the defendants rely, Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), deals with the interplay between state procedural
rules and the Federal Rules of Civil Procedure in a case based on diversity jurisdiction. In it, the
Supreme Court held that the plaintiffs could maintain a class action notwithstanding New York’s
law barring it because the prohibition was procedural and not substantive. It is even clearer that
requiring production of the SVRS in this case would not alter the substantive rights of the
parties. Moreover, the defendants’ legal argument is particularly weak here, where they seek to
avoid their discovery obligations in a case in which the plaintiffs assert federal constitutional
claims. And, while the defendants correctly note that the Shady Grove majority highlights
Congress’s ability to enact a separate statute overriding a Federal Rule of Civil Procedure, the
defendants offer no support for their contention that Congress’s directive to “provide adequate
technological security measures” or New Hampshire’s RSA 654:45, VI is a decision of Congress
sufficient to override the rules of civil procedure. In short, cooperative federalism does not
release the defendants from complying with their discovery obligations in this case.
B. Critical Infrastructure
“Critical infrastructure is defined as systems and assets, whether physical or virtual, so
vital to the United States that the incapacity or destruction of such systems and assets would have
a debilitating impact on security, national economic security, national public health or safety, or
any combination of those matters.” Curling v. Kemp, 334 F. Supp. 3d 1303, 1311 n.9 (N.D. Ga.
2018) (quoting 42 U.S.C. § 5195c(e)), aff’d in part, appeal dismissed in part sub nom. Curling v.
9 Sec’y of Georgia, 761 F. App’x 927 (11th Cir. 2019). On January 6, 2017, the Secretary of the
Department of Homeland Security designated election systems as critical infrastructure.3
The defendants argue that they cannot produce the database in discovery in this case
because the Secretary “cannot satisfy his obligation to protect critical election infrastructure from
cybersecurity threats if the SVRS is disclosed to third parties.” Doc. no. 70 at 10. They offer no
support for that statement, and they point to no caselaw supporting the notion that the
designation of election systems as critical infrastructure absolves them of their discovery
obligations in a case in federal court. That contention is especially undermined in this case,
where the plaintiffs are willing to enter into a strict protective order and the defendants
previously produced the SVRS, or an older legacy system, in discovery in a case in this court
after DHS designated election systems as critical infrastructure to plaintiffs represented by the
same attorneys who have appeared in this case. See Casey et al. v. N.H. Sec’y of State et al., No.
19-cv-149 (D.N.H. 2019) (doc. no. 52).4 The defendants do not contend that there have been any
cybersecurity or other threats to the SVRS associated with their disclosure of the database in that
prior case. Therefore, DHS’s designation of election systems as critical infrastructure does not
shield the SVRS from discovery in this case.5
3 U.S. Dep’t of Homeland Security, Statement by Sec. Jeh Johnson on the Designation of Election Infrastructure as a Critical Infrastructure Subsector (Jan. 6, 2017), https://www.dhs.gov/archive/news/2017/01/06/statement-secretary-johnson-designation- election-infrastructure-critical (last visited May 27, 2025). 4 The defendants in Casey preserved their right to object to disclosing the database information in future litigation. 5 The defendants have also raised concerns about criminal liability pursuant to RSA 654:45, VI. The court does not find this threat credible in light of this order and because the SVRS or prior voting databases have been disclosed voluntarily in prior federal litigation, subject to protective orders, with no adverse criminal consequences.
10 C. Federal Rules of Civil Procedure
The defendants contend that the plaintiffs’ request for the SVRS exceeds the permissible
scope of discovery. They argue that disclosure is not proportionate to the needs of the parties in
this case because the burden on the defendants to produce the SVRS substantially outweighs the
likely benefit to the plaintiffs. In addition, the defendants contend that they should be allowed to
produce the information that the plaintiffs seek in an alternative manner without providing the
plaintiffs with access to the entire SVRS.6
The defendants’ representations as to the burden of production focus largely on their
concerns regarding confidentiality and cybersecurity, which the court has already addressed.
They further state that it will take time to produce the SVRS and a necessary legacy system,
ElectioNet. These arguments do not demonstrate that the burden and expense of producing the
SVRS outweigh its likely benefit to the plaintiffs. That is particularly the case here where the
plaintiffs assert that the defendants have not timely responded to other discovery requests and
because the plaintiffs’ immediate need for a copy of the SVRS is critical for them to comply with
deadlines related to their experts.
The defendants also contend that the plaintiffs have propounded interrogatories regarding
voters’ use of the affidavits, to which the defendants have responded in part. They argue that,
therefore, production of the SVRS is duplicative and unnecessarily burdensome. The problem for
the defendants is that the plaintiffs contend that the defendants have not responded properly to
their interrogatories. The court understands that the defendants have recently provided additional
responses. There is nothing in the record, however, to suggest that these additional responses
6 The defendants also argue that the request exceeds the permissible scope of discovery because the SVRS is irrelevant to any claims or defenses in this case. The court has already addressed and rejected that argument above.
11 obviate the need for the production requested in this motion or render it disproportionate to the
needs of the case. Therefore, the defendants have not shown that the plaintiffs can obtain the
same information in less burdensome ways. And, if anything, given the representations that the
defendants have made about their limited resources and manpower, it is more efficient for the
plaintiffs’ experts to review the SVRS and identify the information they need rather than for the
defendants to attempt to search the database and respond to the plaintiffs’ interrogatories.
Conclusion
For the foregoing reasons, the court granted the plaintiffs’ motion to compel (doc. no. 60)
on May 20, 2025.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
May 27, 2025
cc: Counsel of Record