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New Hampshire voters to decide constitutional amendments

September 29, 2018

CONCORD, N.H. (AP) — New Hampshire voters will be asked to approve a pair of constitutional amendments aimed at restoring a historic right to sue and establishing a new right to privacy in the information age.

In addition to candidates for local, state and federal offices, the Nov. 6 ballots will feature two proposed constitutional amendments approved by lawmakers earlier this year. One would allow any taxpayer who is registered to vote to sue local or state governments alleging misuse of public funds. The other would create a right to “live free from governmental intrusion in private or personal information.” They require approval by two-thirds of voters to be adopted.

The question on taxes comes in response to a 2014 state Supreme Court ruling in which a former member of the state Board of Education was blocked from challenging newly-created education tax credits. The court found that Bill Duncan lacked standing to bring the suit because he had not demonstrated personal injury, and it struck down a 2012 amendment to state law that allowed taxpayers to establish standing without showing that their personal rights have been impaired.

The court said the 2012 law was unconstitutional because only the governor and Legislature, not private individuals, can ask the court for an advisory opinion. But proponents of the 2012 amendment and the new proposal before voters argue that courts as far back as 1863 allowed taxpayers to file such suits because they had legitimate interests in how their tax dollars were spent.

“This is an opportunity to restore the status quo,” said attorney Chuck Douglas, a former state Supreme Court justice who, along with Duncan, is leading efforts to urge people to vote “yes” on Question 1.

“It’s important, because with the Duncan decision, government accountability has been lacking. Increasingly when taxpayers want to challenge some action of the government, they’re thrown out of court on the grounds that they’re just taxpayers,” he said.

The proposed constitutional amendment passed the House on a vote of 309-73. It passed 22-2 in the Senate. Opponents argued that the change could burden courts with a flood of litigation, but Douglas said that’s unlikely.

“It’s never happened before,” he said. “There’s no reason to think suddenly now every taxpayer is going to file a lawsuit.”

Question 2 asks voters to approve adding language to the constitution stating: “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”

“Our founding fathers did a great job hundreds of years ago in crafting the language of our constitution, but they could not have known about the technology we have today and the information and how it streams through our citizenry,” GOP Rep. Claire Rouillard, of Goffstown, said during a floor debate in February.

The House passed the proposed amendment 235-96. The Senate passed it 15-9.

Democratic Rep. Tim Horrigan, of Durham, who voted no, said the proposal “uses a weak and incomplete definition of privacy and it couples it with what seems like a random set of three admittedly beautiful adjectives: Natural, essential and inherent.”

“It’s unclear how this language would be interpreted by our state’s lawyers and judges,” he said. “This legislation is literally not ready for primetime.”

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