Why I Oppose Gordon MacDonald’s Nomination to NH Supreme Court

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Jan 18, 2021, 10:58:08 AMJan 18
to Jaffrey Voices
Posted by Deborah Sumner Jan. 18, 2021

Dec. 30, 2020

Dear Deputy Attorney General Young,

Re: Gordon MacDonald’s failure to enforce RSA 641 and 643 when reported to him in Nov. 2017. As a result, I have suffered a substantial harm in lost trust in the AG and the courts.

I request a restorative justice approach to resolve his failure to take any action re: the enclosed communication of Nov. 2017 (which was copied to Anne Edwards and Brian Buonamano).

I include this from my enclosed Oct. 4, 2020 communication with Nicholas Chong Yen, copied to others….

6. I discovered a material fact [RSA 641:1] that would probably have changed the outcome of the case after the court’s March 2016 opinion and reported it to the AG in November 2017. He took no action against the SoS individual who KNEW the state’s main argument was false.

The court, in effect, said that hiding evidence of election fraud was a “political” decision of the legislature. I do not believe a unanimous Supreme Court would have upheld the lower court’s opinion IF Mr. LaBonte and Mr. Scanlan had told the court the truth.

Along with my lost trust in the secretary of state and our elections, I suffered a loss of trust in both the attorney general’s office and the courts. If that is what Mr. MacDonald and current members of the AG’s office want to leave as their legacy to NH, do nothing as he and others have chosen to do so far. I hope you and he will make a better choice.

Mr. MacDonald’s failure to take action against David Scanlan and Stephen LaBonte was an abuse of public trust that needs to be addressed so it will be less likely to happen again.

A restorative justice remedy would require Mr. MacDonald’s acknowledgement of the error and a willingness to work with me on an acceptable resolution. He is not responsible for the culture of impunity (in the AG/SoS relationship) he inherited from previous AG’s. However, he needs to show NOW he does not protect and enable that culture to continue.

Thank you for your attention to this matter. Please let me know you have received this.

Sincerely,

Deborah Sumner

includes: Nov. 27, 2017 and Oct. 4, 2020 communications

Nov. 27, 2017

To NH Attorney General, his assistants and members of the media,

This new information copied below proves the “Experience and Logic” claims Mr. Labonte made in his Feb. 5, 2015 Memorandum of Law in Support of Summary Judgment in my case are false. Prior to 2003, a Superior Court evidently saw no reason to deny access to ballots because of confidentiality and NO court would have reason in 2015 or today.  Since one reason I requested to review the Jaffrey ballots was to make sure no fraud occurred with over voted ballots (2.5% of all cast, with at least two known possibilities for fraud), your office is complicit in covering up the possibility of election fraud. That needs to change.

I ask the Attorney General to take appropriate action. Four possibilities are:

1) review court filings beginning with my July 18, 2014 petition (Deborah Sumner v. Secretary of State) through the NH Supreme Court Opinion of March 22, 2016. Develop policies for future conduct for attorneys representing your office in litigation and consequences for violations. Make a public statement to the media and to the Legislature of your expectations.

2) Since your guidelines, based on legal precedent, recommend that governmental bodies use the following three-step analysis when considering whether disclosure of governmental records constitutes an invasion of privacy, use that criteria to say (as your colleagues in Ohio in 2004 and Michigan in 2010 did) that there is no legitimate privacy reason to exempt all ballots from public records law.  (See links below)

i. Is there a privacy interest at stake that would be invaded by the disclosure?

ii. Would disclosure inform the public about the conduct and activities of its government?

iii. Balance the public interest in disclosure against the government’s interest in non-disclosure and the individual’s privacy interest in non-disclosure.

Ohio 2004

http://www.ohioattorneygeneral.gov/OhioAttorneyGeneral/files/47/47137eb6-270b-4868-968b-f63a4a4e2a90.pdf

Michigan 2010

http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm

3) Work with me to improve and publicly support passage of HB 1520 in 2018.

http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=1327&type=4

4) David Scanlan doesn’t belong in a position of public trust.

Thank you.

Respectfully,

Deborah Sumner (address included below)

PS Gordon MacDonald should have received printed copies of pages 48 and 54 from HB 577 legislative history by regular mail. Others can find the pages through this link.

http://gencourt.state.nh.us/SofS_Archives/2003/senate/HB577S.pdf

It will show that the public hearing was April 30, where NONE of this was discussed. David Scanlan and Bud Fitch submitted this request to the committee and its chair in a draft dated May 2, 2003:

#9 “Add a new section to HB 627, exempting ballots used for elections from RSA 91-A. This proposed amendment is prompted by a recent Superior Court Order declaring that the ballots cast in an election are not exempt from the right-to-know law and requiring a town to provide a person making a 91-A demand to have access to all the ballots preserved from a recent town meeting. The integrity of ballots and the finality of election results requires that there be limited and highly controlled access to the ballots used for elections. The existing recount and recount appeal provisions provide adequate access to ballots under circumstances…” (my emphasis added)

Here’s the lie Sen. Boyce told the Senate May 22, 2003  about WHY the ballot exemption was needed (included in court filings). “The [Senate Internal Affairs] committee amendment [of May 15] ensures that  the provisions of this bill are consistent with the Help America Vote Act legislation that we just passed.”

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Sent November 22, 2017 by regular mail including AG MacDonald

To: Professional Conduct Committee and Committee on Judicial Conduct

Re: 2015 Professional Conduct Complaint against Stephen LaBonte and the Judicial Conduct Complaint against John Kissinger I decided wasn’t worth filing, because it would likely be handled the same way the LaBonte complaint was handled. 

On April 17, 2015 I wrote: “Evidently judges in NH have the discretion to rely on what individuals tell them, not on what objective criteria would show is true. If a judge chooses to believe that 2+2=5, he can base his written opinion on that belief. ”

On May 1 2015 I wrote: “These three motions show clearly Mr. Scanlan’s style.  He tells the Legislature and the public that citizens can access ballots through the Court. But now his attorney, with compliance so far from this judge, are saying ballots cannot be accessed for ANY reason because election integrity depends on ballot anonymity (which is required by law and `the facts’ would show would not be compromised by public review of ballots.)”

On March 22, 2016, the NH Supreme Court issued an opinion (case # No. 2015-0340) that will be relied on in deciding similar cases across the country.

The ONLY facts the court showed it cared about were 1) ballots were exempted from public records law in 2003 2) the law REQUIRES ballots to be counted in public so the public can observe. By ignoring other facts and legal precedent in NH right to know cases, it showed it does not care about our votes or democratic elections in our state. 

I remain deeply disturbed by that decision. The court COULD have stated clearly it expected the Executive branch to enforce election laws, including public observation of the vote count. Instead, it supported Executive branch officials’ wish to hide evidence of significant error/and or fraud in our elections with no way to deter or detect it if it occurs.  

I have said previously, in court filings and to Jaffrey officials, that election fraud PROBABLY occurred in my town in November 2010 and I can’t rule out the possibility that individuals in the Secretary of State’s office and the Attorney General’s office were involved. Documentation available. 

And, I have discovered new evidence that strengthens my concern about Mr. Scanlan and then Deputy AG Bud Fitch.

THEY are the ones who asked the Senate Internal Affairs Committee to add a non-germane amendment to a bill required by federal law and remove ballots from public records because, evidently a Superior Court had allowed a petitioner access to them. (Enclosed pages from legislative history of HB 577, ANOTHER bill filed in 2003 to bring NH into compliance with federal law). Discovery in my case showed that then AG Peter Heed didn’t know anything about this exemption and PROBABLY Secretary of State Gardner didn’t know either. Mr. Scanlan said he couldn’t remember WHO suggested adding the exemption to HB 627 and claimed attorney-client privilege in any discussions he had with Mr. Fitch.

For the record, the unanimous NH Supreme Court decision now PROVES that the ballot exemption from public records law was a violation of NH CONST. pt. 1, art. 28-a.  I am now exploring the possibility of fundraising to hire an attorney to go to federal court and request to examine ballots for two Nov. 2016 contests. Jaffrey taxpayers will have to pay an attorney to argue AGAINST public accountability, transparency and democratic elections in NH. Disgraceful!

I hope someone will make sure that Judge Kissinger and the NH Supreme Court justices know that this new information (see enclosed) is now public and shows that the court COULD have been the check against rogue members of the executive branch in abusing their influence with a key legislative committee. Three members were willing to violate legislative rules and ethics guidelines and the chair was willing to lie to the Senate for what becomes increasingly clear was illegitimate and POSSIBLY illegal purposes.  

Sadly, the courts had access to the facts  and COULD have provided the needed check and balance in our system but chose to ignore them. The court is now complicit in covering up potential election fraud.

 I hope those who have influence in what happens in our current court system will review what appears to be “normal” court practices so that this kind of mistake will be less likely in the future.

Thank you.

Sincerely,

Deborah Sumner

Encl. pp. 48 and 54 re: amendment S 1640 to HB 627, legislative history of HB 577 (2003)

Copies:

NH CONST. pt. II, art. 32 requires that the moderator “sort and count” votes in “open meeting” in the presence of the town clerk, selectmen and “all others who may take an interest in the election, and be able and willing to detect and expose any error, and obtain a correction of it immediately, when it can be most easily corrected.” Opinion of the Justices, 53 N.H. 640, 1873 

…more significant than the irregularities themselves is the degree to which they undermined public confidence in the election process—an election process which, when undertaken in accordance with the law, is revered and admired by citizens of this State, our Country and the World. (emphasis added). Appeal of Soucy, 139 N.H. 110, 17 (1994)

Oct.4, 2020 

Re: David Scanlan and Bud Fitch, continuing misleading, of local election officials this time.

To: "ChongYen, Nicholas" <Nicholas...@doj.nh.gov>, Gordon.M...@doj.nh.gov, "Edwards, Anne M." <Anne.E...@doj.nh.gov>, Jane....@doj.nh.gov, "Tracy, Richard" <Richar...@doj.nh.gov

Let the record show:

1. Mr. Chong Yen has not acknowledged receipt of the previous communications, copied below

2. My knowledge of the pattern of criminal intent involving individuals in the NH SoS and AG offices begins in 2003, when instead of codifying this provision of HAVA law, they and legislative allies violated legislative rules and code of ethics to exempt ballots from public records.

3. Before the November 2010 election, an individual in the SoS office interfered with the Jaffrey moderator’s decision to verify (hand count) the computer count of one of the two federal races on the ballot. The moderator had previously sought AG advice and knew he could do this, yet this AG individual did not stop the SoS individual from interfering in the Jaffrey election.

Reports of law violation to the Attorney General after the November 2010 election were ignored. Those violations involved the Secretary of State’s office.

4. When November 2010 ballots from Jaffrey were reportedly illegally destroyed before the court could decide whether to give me access, the AG ONLY issued a cease and desist order to prevent the Jaffrey town clerk from repeating that action. He did NOT investigate to determine WHEN those ballots were destroyed or whether someone had advised her to destroy them.

The AG individual heading that investigation also represented the State in my appeal of the first court case to the NH Supreme court.

5. In my second attempt to review Jaffrey ballots after the November 2012 election, the same AG individual represented the state, arguing against access. The lower court gave its opinion based on provably false claims by the SoS and AG and the Supreme Court did not correct the error.

6. I discovered a material fact [RSA 641:1] that would probably have changed the outcome of the case after the court’s March 2016 opinion and reported it to the AG in November 2017. He took no action against the SoS individual who KNEW the state’s main argument was false.

7. In October 2016, the AG and SoS took illegal and unconstitutional action against a town moderator, thus “forbidding” local election officials to fulfill their constitutional duty to voters to ensure a legitimate count.

Legislative leaders took no action on a request from citizens to independently investigate the SoS and AG action.

8. The violation of federal law was reported to the NH AG in Sept. 2017. His non-action gave permission for individuals with the right connections and opportunity to continue cheating in NH elections.

9. In January 2018, two individuals in the SoS office collaborated to misinform a legislative committee about NH’s compliance with federal law. House leadership of a particular party also opposed HB 1486.

10. Beginning May 2018 through today, the USDOJ has taken no action on the reported federal law violation, thus giving these same individuals permission to continue cheating.

11. On Oct. 18, 2019, Governor Sununu gave his written permission for those individuals to continue violating the federal law requirement and cheat in NH elections.

12. On November 20, 2019, the NH AG gave his written permission for those individuals to cheat.

13. One particular September 2020 contest shows evidence that cheating MAY have occurred and votes from thousands of NH voters stolen. There may be others I’m not aware of yet.  Because of the pattern of criminal intent shown by individuals in the AG and SoS offices, an outside, investigation would be needed to determine whether this cheating did or did not occur.

14. I will forward this thread to legislative leaders for their review and ask them WHO should investigate the September 2020 contest and to initiate a truth and reconciliation process that would 1) remove criminal penalties from those involved in what appears to be criminal conduct 2) let the public hear the truth of our NH elections so we can help prevent this kind of treasonous conduct from re-occurring in the future.

15. The next communication will be with House and Senate ELC chairs to see how we can return NH elections to the “rule of law” consistent with our constitution and vision of our ancestors.

PS At least 13 of my NH ancestors fought in the Revolutionary War from NH. My dad, born and raised in NH, and the source of my deep roots here, was a doctor in WW II.


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