EXHIBIT A Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 1 of 47UNITEDSTATES DISTRICT COURT DISTRICT OFNEW HAMPSHIRE LEONH.RIDEOUT; ANDREW LANGLOIS; andBRANDOND.ROSS, Plaintiffs, *CivilCaseNo. V.*1 :14-cv-00489-PB WILLIAM M.GARDNER, Secretary of Stateof the* StateofNewHampshire,in* hisofficialcapacity,* Defendant. DEPOSITIONOF WILLIAMM.GARDNER DepositiontakenattheDepartment of Justice. OfficeOf theAttorneyGeneral,33CapitolStreet, Concord,NewHampshire,onTuesday,February17,2015, commencingat1:02p.m. CourtReporter:MicheleM.Allison,LCR,RPR,CRR NHLCRNo.93(RSA31 0-A) 1APPEARANCES: 2 For thePlaintiffs: 3 SHAHEEN& GORDON,P.A. 4By:WilliamE.Christie,Esq. 107StorrsStreet 5Concord,NH03302 603-225-7262 6wchristie@shaheengordon.com 7-and-8NEW HAMPSHIRECIVIL LIBERTIES UNION By:GillesBissonnette,Esq. 918 Low Avenue Concord,NH03301 10603-225-3080 11 12For theDefendant: 13DEPARTMENT OFJUSTICE OFFICE OFTHE ADORNEY GENERAL 14ASSISTANT ATTORNEY GENERAL By:StephenG.LaBonte.Esq. 1533 Capitol Street Concord,NH03301 16603-271-3650 stephen.labonte@doj.nh.gov 17 -and-18 DEPARTMENT OF JUSTICE 19OFFICEOFTHE ATTORNEYGENERAL ASSOCIATE ADORNEY GENERAL 20By:Anne M.Edwards,Esq. 33 Capitol Street 21Concord,NH03301 603-271-3679 22anne.edwards@doj.nh.gov 23 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 -----------------------------------, 3 STIPULAliONS It is agreedthat the depositionshallbetaken inthefirstinstanceinstenotypeandwhen transcribedmaybeusedfor allpurposesfor which depositionsarecompetent under theFederalRulesof CivilProcedure. Notice,filing,captionandallother formalities are waived.Allobjections,except astoform,are reservedandmaybetakenincourt at timeoftrial. Itisfurther agreedthatifthe depositionis not signedwithinthirty(30) daysafter submissionto counsel,thesignatureof the deponent iswaived. INDEX WITNESS:WilliamM.Gardner EXAMINATION: ByMr.Christie EXHIBITS FOR IDENTIFICATION: Gardner 1 2 Description Finalversionof HB366 Plaintitrs First Set of Page 5 Page 13 Interrogatories toDefendant38 3Portion of legislative history from 4/9/1482 4Photograph of Rideout ballot120 5Photographs of ballot123 4 (Exhibits photocopied and appended to transcript.) 1(Pages1to4) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 2 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 that? WILLIAMM.GARDNER having been duly swornbyMs.Allison, was deposed and testified asfollows: ... MR CHRISTIE:Usual stipulations and all MR.LABONTE:Yes. MR.CHRISTIE:Whatever that means. MR.LABONTE:Yeah. EXAMINATION BY MR CHRISTIE: Q.Okay.Good afternoon.Would youplease state your name for the record. A.WilliamGardner. Q.And what do you do for a living? 5 AI'msecretary of the state of New Hampshire. Q.AllrightAnd are you testifying here today to your understanding in your official capacity as secretary of state? A.I guess so.I mean -- yeah. Q.No trick question there.Couldyou explain -- beforeI get there,you've -- Secretary Gardner, you've been deposed before,correct? 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1A.Yes.1 2Q.AllrightAndsoI know youknow the ground2 3rules,butI'mjust to go throughthemrealquickly.3 4Question-and-answer format.If youdon't4 sunderstand a questionI've asked you,please let me5 6know,andI'lltry torephraseit if I can.Okay?6 7A.(Witness nods head.)7 BQ.Andyouneed togiveyes-or-noverbala 9answers.Nods of thehead,a shake of thehead -- 9 10A.I don't mind if youget a little closer so I10 11canhear you.11 12Q.Oh,okay.Sure.Irememberedthat fromthe12 13last time.Okay.And if youneed a break at any13 14time,as longas there's no question pending,we'll14 15giveyou a break.15 16AOkay.16 170.It'snot an endurance test,not a memory17 18test,anythinglikethatOkay?1s 19A.Okay.19 2 oQ.Allright.As secretary of state,are youin2 o 21charge of administering election laws in the state of21 22New Hampshire?22 23A.Yes.23 7 Q.AllrightAnd ingeneral,what duties do youhaveinrelationtoadministeringelectionlawsin the state of New Hampshire? AWell,allof the election laws thatrequire the secretary of state toperformcertainacts,carry out certainrequirements in the law.It's not only thelaw,but thereare a number of articles inthe constitutionthat direct the secretary of state to do certain thingsrelatedtostate elections.So-Q.And--A.--we makesure that those constitutional provisions andthestate laws get carriedout,and what needs tobe distributed to the voters,citizens, getsdistributed andtheballotsget preparedandget thereontime.That's administeringthe election laws and the elections. Q.Okay.And inrelation toproposed legislationimpacting electionlaws,do youhave a. rolein that process as well? A.1 will testify oncertainlegislation at different times.I'll talk tolegislators about legislation,answer questions. Q.Allright.Anddo you or your office ever proposelegislationinrelationto --strike that. Do you or your office ever propose legislationthat may impact electionlawsinthe state of New Hampshire? A.Yes. Q.AllrightAndby way of example,couldyou give mea few examplesof that,when your office has proposedlegislation? 8 AWe havea billthat would allow us todo a commemorative ballot for thepresidential primary,and I talkedtoa fewlegislators about that idea for the 1 DOthanniversary of theNewHampshire Presidential Primarytohave some notation onthe ballot that it's the100th anniversary.So there's a bill-- someone chose toput thebillinto do that,so that's --that's anexample. Q.Allright.Can you think -- it's not a memory test,again,but any other examples youcan think of off the top of your headof issues where your office proposedlegislation impacting the election laws? A.Well,inthis cycle?Things came up that--at recounts or duringthefiHngperiod that wehave 2(Pages5to8) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 3 of 47911 1proposed that the- well,whenthefederalgovernment1undeclaredvoter again for therest of your life. 2passedthe Help America Vote Act,there weresome2Town clerks couldn't register voters.People onlyhad 3deadlines that werenew asa result of that act,so we3twodays --two days every two years before an 4proposed some changes to state law todeal with that4election,andelectionis September andNovember. sfederallaw.sTherehavebeen a lot of changes,a lot of changes to, 6Whensomethinglike that happens or whenwe6quote,makeit easier for people to vote. 7experience somethingduringanelectionor whenI'm70.Okay. awiththecityandtownclerks at their annualaA.But,youknow,fewer people are voting. 9meetings,sometimes theyhave ideas for proposals and9a.Andyouunderstandthesubject matter of this 10webringthose back to the legislatureandtalkabout10case that you're being deposed inrelatestoHouse 11it withlegislators.11Bill366 that waspassedinthe2014legislative 12So thereare a number of bills that wehave12session? 13someinput,not necessarily gettingsomeone to13A.Yeah,I certainly do. 14sponsor,but sometimes we will-- sometimes we14Q.Okay.Anddid your officehave anyrolein 15actually dothat.But wetalk about bills that come15proposing that bill? 16inandpropose sometimesamendments for them.16A.I don't think so. 17Q.Okay.Does your office- ina situation170.Okay.Andwhen yousay youdon't think so--18whena member of thelegislatureproposes a bill,does18A.I mean,I know I-- well,whichbill are you 19your office provide any advice or guidance onlanguage19talkingabout,this session or theonelast session? 20inproposed billsrelatingtoelectionlaws?20a.The sessionin2014.The billthat is the 21A.Well,inthecourseof a day,a lotof21current law for thestate of NewHampshire. 22legislators comeinto myoffice.l mean,I'm only3022A.Oh, yeah.No,I didn't --I mean,I-- what 23feet fromthe entrance of the house of representatives23turnedout,I don't like that.WhywouldI-- why 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 10 andthesenate is just near the-- andI ama1 legislator officer bystatute,soI haveaccess tothe2 floor of thehouse like thelegislators do.So I'm3 around the legislators all thetime,whether it'sin4 thehall or inmyofficeor downstairs.I've workeds inthat building for 44years.6 0.So istheanswer yes?7 A.I meanina year it'llbe 44yearsI've8 workedinthat building.So I've done - I know how9 toget aroundinthere.10 0.Andaspart-- 11 A.I know where theclosets are.12 0.Andaspart of that dolegislators come to13 you,members of thelegislaturecome to youfor advice14 or input onproposed bills relatingtoelectionlaws?15 A.Yeah, sometimes theydo.Sometimes people-- 16 thepublic comesin,people from-- citizens that have17 comein--some that -- but it primarilyhas to do with election.Something that they -you know,they 18 19 want to bethere tochange their party affiliationor2 o theywant --I mean,there's beentremendous change.21 WhenI was a legislator,you- andyou22 became a partymember,youcouldnever bean23 wouldI have proposed that? 0.Okay.Andwhydon't youlikeit? A.Well,it hurts thelittle guy.It hurts--it hurts thelittle guy.It hurts a person whowants tovote his or her conscience.AndI don'tlikewhen someone -- I've hadenough peoplethat-- I have visual memories of people that actually brokedown cryinginfrontof me,because theonly thingthey had onthisearth wasthe right tovote,theonlything 12 that madethemequal toanybody else.Andwhenthey thought it hadbeentakenfromthemor diminished, that it wasalltheyhad,andI've experienced that. MR.LABONTE:Bill,I'm a little confused rightnow.Areyoutalkingabout-- you'reaskingHB 366,which wasthe billtoamendRSA 659:35,right,or areyouaskingabout thecurrent bill andlegislation to repeal? clear. MR.CHRISTIE:Let's doit this waysoit's MR.LABONTE:I just want tomakesure--MR.CHRISTIE:Yeah. MR.LABONTE:I'm confused. MR.CHRISTIE:Let's markthisasExhibit1. 3(Pages9to12) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 4 of 4713 1(Discussionheldoff therecord.)1 2ALast year theymadeit a violationrather2 3than-- yousaid2014?3 40.BY MR.CHRISTIE:Correct,that's whatI was4 sasking youabout.s 6MR.LABONTE:Okay.6 7A.That was the billthat madeit a violation7 A.I mean,dowedisagree onthat or not? Q.I'mnot sure. A.Okay. 0.Let meseeif I canclarify. A.Doyouhave thebillthat wasintroduced somewhere? Q.Let's just stick with what's infront of you. 15 srather thana misdemeanor.a 9Q.Correct.9 10ARight,andI said that-- okay.10 11Q.And your testimony,if I understood it11 A.Right.Youhadaskedmeabout thebill that was proposed.I'dlike to see thebill that youasked me about,not thebillthat-- not what endedupin thebillduring the process that was--12correctly,was that that billthat was passedlast12 13year isthebillthat youdidnot like?13 14A.I didnot propose that bill.14 15MR.CHRISTIE:Okay.Just so therecord's15 16clear,let'smark this asExhibit 1.16 17(Exhibit 1 was marked.)17 180.BYMR.CHRISTIE:Okay.Secretary Gardner,18 19I'mgoing toshow youwhat'sbeenmarked-- 19 20A.Oh,okay.20 21Q.--as Exhibit 1.21 0.What you're --A.I just want tomake sure that-- I want to see the proposed bill. 0.Allright.I'mnot sureI have theproposed bill,solet's doit this way.I'mgoingtoask you about this bill--this versionof the bill.Okay? And then if weneed to get the proposed bill to further clarify,I'mhappy todo that.Allright? But I think we'llbe able tomove forwarddoingit this way.Okay? 22AMaybe that was..22 23Q.All right.Why don't you take a moment to23 So what has been marked as-- andagain,it's not a trap.We're just --that's why I markedthe 1416 1look through thisdocument.Thebill,I think,1document,becauseasSteve pointedout here,we want 2that-- the actual law that we're talkingabout will 3beon the second pageof thedocument markedat page 467. sMR.CHRISTIE:So while the secretary is 6reviewing the document, what Exhibit1 isisHouse 7Bill366 from the2014 session.Thisis theversion 8that passedandit was produced by thestate in this 9case,andit's Bates numberedpage66and67. 10A.Yeah,thisis the .. 11Q.Okay.Sonow having hadtheopportunity to 12look at Exhibit1,isthis thebill that youwere--13or thelaw that youwere talkingabout in your prior 14 15 answers,thelaw that was passedin2014 that youhad problems with? 2tomake sure we'reallreferringtothesame document 3here, so--4ABut your question was about theproposed sbilLThat waswhat youhadaskedme. 6Q.Okay.So that's whyI've marked thisas 7Exhibit 1,totrytoclarify tomake sure we're allon 8the same page about what you're testifyingabout and 9what my questionmay or maynothave beenabout. 10Okay? 11SoExhibit 1,what-- what isExhibit1 as 12youunderstandit? 13.A.Well,it's the final version of House Bill 14366. 15Q.Andis this theversion that wasenactedinto 16A.WeiJ,thisis--butyouwereaskingmeifwe16lawin2014? 17were proposing.This was not what wasproposed.VVhat17AYes. 18I'mreadingright now isnot what was proposed.18Q.Allright.Now, you had testified-- strike 19Q.What youhave infront of you-- 19that. 2 oA.Youasked me what wasproposed.20This versionof thebill that has been 21Q.Okay.21enactedintolaw andmemorializedhere asExhibit1, 22A.Thisisnot what wasproposed.22do youhaveanyissues withthisbill? 23Q.Okay.23.A.We\\, mypersonal preference would be to have 4(Pages13to16) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 5 of 471719 1left it --left thelaw alone,but tohave not-- to1dictator is able toprevent people fromvotingtheir 2have it-- not tohave it just bea violation.2conscience.Youcansee that ballot if you'dlike. 3Q.Andso wasyour personal preference tohave3You'llunderstand. 4thelaw bea misdemeanor rather thana violation?4Throughout history -- in1938Hitler decided sA.That's the wayitwas,I believe,before thisstotake over Austria.Sent hismilitaryinto Austria. 6passed.6A monthlater after thetake-over,theydecided to 7Q.Allright.Andwhy isit your personal7have a referendum to ask a plebiscite,do thepeople spreference for a violationof thelaw inExhibit1 to8wishthat hedid this?Andhecreated electionrules 9bea misdemeanor rather thana violation?9that allowed the voters to voluntarily show their 10A.It'stoprotect a voter's right of10ballot as they wereready tovote,andthose who did 11conscience.11not paid the price.Stalin didsomething similar in 12Q.And whenyousay protect a voter's right of12Poland,and a U.S.ambassador wrote about it calling 13conscience,how does thelaw as youunderstand it13it thebetrayalof Poland.It was the same kindof 14protect a voter's right toconscience?14technique. 15A.Yeah,I understandit.15What Hussein did was he-- it wasn't an 16Q.How does-- how does SenateBill[sic]366,16election.It was a plebiscite where they had this 17whichenacts or amendedRSA 659:35,how does that law17questionandthe question was:Doyou wishtokeep 18protect a voter's right to-- 18President Hussein-- SaddamHussein aspresident of 19MR.LABONTE:I would just object to the19theDemocratic Republic of Iraq,yes or no?And there 20extent theanswer maycallfor a legal conclusion.He20was a codenumber onthe ballot,and all thoseballots 21can go aheadandanswer to the extent hecan.21couldbecodedback tothe person who actually voted. 22MR.CHRISTIE:Sure.22What Hitler did wasa little different. 23A.I believe that a voter should beable tovote2 3Hitler saidit was voluntary,but if youdidn't show 1820 1accordingtohis or her conscience,and that tome is1your ballot,youwere markedasnot having shownyour 2a very,veryimportant right that a voter shouldhave2ballot,andthere were consequences. 3andit's -- it'sanunalienable right and a person3Andsoour constitution, Article 5,Part 1 4shouldbeable to vote their conscience.4talksabout the right of conscience.It was very 5Q.Andhow does the law protect that right?5important for thefounders.Andthey were new to 6MR.LABONTE:Same objection.6elections,soa lot of-- I mean,they -- over time 7AIt protectsit ina lot of ways.It protects7the knavery of manfoundways toactually prevent the ait becauseit's a factor inpreventingevilpeople8rightof conscience.But they continuedtofindways 9frombeing able to intimidate a voter so that the9toovercomeit,andthenpeople findways to overcome 10voter isfearfulto vote his or her conscience.10that.Andit'sbeena struggle throughout our--11Q.Allright.Andhow-- inyour view what-- 11throughout,youknow,our world. 12strike that.12I mean,yougoback to Plutarch's Lives,Cato 13Whenyou testified that it'sintended to13theYounger talkingabout thebribery of his time.l 14prevent evil people tointimidate a voter, what types14mean,humanbeings arehuman beings.The knavery of 15of conduct are youreferring to?15maOdoesn't stop existingbecause we're inthe modern 16A.Well,I have a copyinmy office of the16era.And for me the-- theideaof democratic 17ballot that wasused inthelast election of Saddam17equalitarian, the democratic device of universal 18Hussein.1was very curiousabout how a personcould18suffrage where allheadsareequal, whenI hadthose 19get 99percent of thevote inanelection.AndsoI19people comeinandactually cry tomeabout their vote 20was able toget a ballot froma soldier who was one of2 ohadbeen stolenbecause of something that happenedin 21thefirst togo into a buildingin AnNajaf inIraq21the pollingplace or their rightof conscience had 22andfounda ballot box withbothballots.Hesent the22beendiminishedbecause they were fearful,itmeans a 23ballots back andthat ballot isa typical waythat a23lot tome. 5(Pages17to20) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 6 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21 I hada guy who came twoor threeyearsago1 tothe archives.He used to live inNew Hampshire and2 he's a collector.Heshowedmea RomanRepublic coin3 from2,000 years ago,andhe showed me the laws across4 thecountry that were passedcreatingthe Australian5 ballot.That was the attempt at that time to prevent6 people frombeing able to vote their conscience by the7 technique that was used in voting.8 At the archives he laidthemacross the table9 stateafter state after state after state,allcalled10 the Free andIndependent Voting Act.It was a way to11 let people be freeand independent andvote12 independent of any intimidation.And it took off13 across thecountry.Because inNew Hampshire the14 estimate was that 8,000 out of 80,000 who hadvotedan15 electionhad been -- hadtheir votes bought.And16 there was another magazine that said that that number17 was actually low.It was more like15or 20 percent.18 Andthat's why these acts were passed. 19 InNew Hampshire if yougo back andlook at20 the journalof 1891, there's actually a petitionin21 there from theCity of Nashua where thecitizenshad22 calledonthelegislature tostop thiscryingshame of23 22 the day.And tenyears before that in1881, Governor1 Charles Bell who wrote the manuscript of every2 person -- abrief biography of every person who had3 beenalawyer inNew Hampshire since the Revolution,4 first hundred yearsof allthelawyers,he was electeds governor,andhis portrait is just outside the door of6 my office,andinthat inaugural addresshe talks7 about thecrying shameof the day where the person whos hadthelongest purse strings would always win the9 election.And the magazine article-- I mean,it took10 tenyears for the legislature to act -- butit was all11 about thetechniques of how they were able toget12 people to votenot the way they really wanted to vote.13 So I didalot of work onthis back inthe14 late '60s and the early '70s,andI have a very, very15 personal awareness of this.And the themes of the16 people whohave talked to me about whatitmeant for17 them to lose their right to vote their conscience and18 the -- I mean,this one woman just said,I'm apeon.19 Ihavenothing.I have nothing.I don't-- butI20 havemy vote andmy vote means the same -- has the21 same weight of allthese other people that havemore22 thanme.They're stronger.~ h e y r e smarter.They23 23 havemoremoney.Andwhenmyvote'sstolen,thenI've lost theonly thingI have that makes mefeel that I'm equal. So the person who was toldto vote a certain way,andshow me your ballot,becauseif you don't show me your ballot I amnot going tobelieve that you voted for me,and that person -- it'snot a bribe. That personmight beanemployee or attends the same religious services or go tothe same playground, whatever,intheir life.Anditputs that personina positionbehind that curtain of not being able tovote hisor her conscience without feelingsome fear or something that they are going to--they're going to pay somekindof aprice,whether it's beingshunned, or a year later not beingpromotedor beinghumiliated because that was -- because that person was votingfor someone that very few other people were actually voting for. I could -- I usebullies,brains,fame,money ina way that it's strength.I mean,I don't knowhow many thingsinlife where we're allequal,because our sizes are different,our brains are different,our physicalbodiesare different,our familiesare different,what we'veaccumulatedinour lifeis different,our possessions.And so most of our existenceisamong differences as humanbeings. But people that have nothing,asthis woman said,she was apeon--Q.Okay. A.--the right tovote --Q.I thought you were done,I'm sorry. A.-- is apreciousright.It's unique to this country,and the modernequalitarianidea of democracy;that thevice of universal suffrageis--was uniqueintheworld to hear,andit's beensince Catoin2000 [sic] whenhe complained about bribery. It'sbeena struggle allthrough the ages. And thecountry founda way to prevent itand dida good jobat it and didit quickly.Ina matter of three,four years,thewhole country adopted the Free andIndependent Voting Act.And that act has allowed thelittle guy to have that onerareright to 24 beequal, tohavea vote counted the same as any other human beingno matter how powerful or famous or whatever,good-looking. That'smy -- once youopen this up,once you 6(Pages21to24) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 7 of 4725 1say it's okay,you take thatperson's ability to say,1 2No,I'm not going toshow youbecause it's illegal,if2 3youtake that away,that diminishes thatperson's3 4opportunity to vote by conscience.4 sQ.And isyour answer to what you finishedups 6there,once yousay it'sokay,doI understand that to6 7meantakinga photograph of your ballot and then7 8publishingit?8 9A.Showingyour ballot.9 10Q.Okay.10 11A.Showingyour ballot.If it's legal toshow1i 12your ballot,thenyoucanbeaskedtoshow your12 13ballot,andif youdon't show it,do-- just do what13 14Hitler did.14 15Q.Okay.We'll get toHitler ina second,but15 16isyour testimony the sameif a voter wants toshow16 17their ballot tothe worldontheir owninorder to17 18express their political beliefs?1s 19A.My testimonyisthat a person who wishesnot19 2 otoshow hisor her ballot andisbeingaskedtodo so2 o 21cansay,If it's illegal,thenit's illegal,soI21 22can't do it.If that personnolonger cansaythat22 23because some other personis saying,It's more23 26 1important for me to be able toshow the worldsothat1 2you-- asa result,youwon't be able tovoteyour2 3conscience.3 4Q.Okay.l understand that,but myquestionis:4 5Isyour answer the sameif theperson who wants to5 6publishtheir ballot ispublishingtheir ballot on6 7their ownaccord to express their ownpolitical7 8beliefs?8 9A.The ballot-- theycansay whatever they want9 10about how they voted,but theballot is for-- isa10 11sacred document andthat-- that ballot,if theyshow11 12it,thenother people are gonnabeput ina position12 13of havingtoshowit.Soother peoplearebeing13 14affectedbysomeone whosays,I don't want to just14 15tell peoplehow I voted,I want toprove topeoplefor15 16whatever reasonhowI voted,andI'mhappy about the16 17wayI voted,andI want todothat.17 18But that action thendiminishes theperson-- 18 19a littleperson whonow cansay,I can't dothis,19 20because it'sillegal.Because oncethat personcannot20 21do that,thenyou'reputtingthat little personinthe21 22positionof being fearfultovote his or her22 23conscience.So what-- what isone'sright todo-- 23 27 toshow it tothe worlddiminishes another'sright of conscience. 0.Soit's your testimony inyour roleas secretary of state that it shouldbeillegal for an individualof their ownaccordtopublishtheir own ballot throughsocialmediainorder toadvocate their political views? A.Yes. a.Allright.And shouldit beillegalunder thelaw of thestate of New Hampshire for someoneof their ownaccord topublishtheir ballot onlinein order toadvocatea politicalposition? A.Yeah.I don't-- I mean,I toldyouwhat Hitler did,so .. a.We'll get toHitler ina second,but--AIt's -- theanswer is--the answer isyes. a.Okay.Andisit your view as secretary of state that it shouldbe against thelaw inthestate of New Hampshire for anindividual topost their ballot online of their ownaccordinorder toengage infundraising efforts for a political viewthat they advocate? MR.LABONTE:I wouldobject tothe extent it 28 appearslike you're asking thesame question over and over again.Hecananswer it,but.. Q.Okay. A.I believe ina person's right toconscience. It's important that personhasa freeandindependent way tovote.Andif-- andanythingthat youdoto deny that,as far asI'm concerned,I think that's terrible;that I think that that's-- the right of conscienceis-- isunalienable.Andwhenyou diminish that,you-- you're hurting thelittle guy. 0.Well,theright to freespeechisenshrined intheconstitution,correct? A.What does thishave todo withfreespeech? A personcansaywhatever-- walk out of that booth andtelltheworldhow the person voted,but that ballot is a sacreddocument.That'sbetween the conscience of the personandwhat's onthere.Andif youopenit up,youcan't openitup for some andnot openit upforothers.Youtakeaway theability of others. a.Soit's your testimony that publishing your ballot totheworld that youvotedfora political candidateisnot freespeech? 7(Pages25to28) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 8 of 472931 1MR.LABONTE:Objection to the-- 1Q.It'snever happened,right? 2Q.Is that your testimony?2A.Well, we've got laws that help toprevent it 3MR.LABONTE:Objection to the extent it3fromhappening,that's --4calls for a legal conclusion-- 4Q.It'snever happened? sA.I answeredthat with Hitler.I toldyou whatsA.We havea system that we created,theFree 6Hitler did.Hesaid-- 6andIndependent Votingsystem.Inthis state wehad 7Q.Okay.7our first electionunder it in1892.So we'vebeen sA.--it is voluntary.Youdon't have to dosunder ita long time and we've done pretty wellin 9this.Voluntarilyshow your ballot.But everyone9that area.I mean,therehave been-- it's beena 10knew.Why was thevote99.7percent?Thesoldiers10goodlaw. 11were right there watchingit.Thisis exactly on11Q.These issues have not existedinthe 12point tothis.12United States,theissues involve-- as youreferenced 13Q.Okay.13involvingSaddamHusseinor Adolf Hitler or Joseph 14A.The person who,No,I don't want to-- who14Stalin,correct? 1sgot hurt inallthis?Not thepeople who claimed,15AThereare-- there are people onearthlike 16Sure,freespeech,I'mvoluntarily doingthis.16thosepeople,andif they provide the-- something,a 11Q.Allright.17ripeprocess,it canhappen.It canhappen. 18A.No,it was theother personthat-- 18Q.My question is,sir,has it happenedinthe 19Q.Let's go back to your prior answer,then.19UnitedStates? 20Would youagree that-- you referencedSaddamHussein.20ANo.No.We've--21Saddam Husseinhas not heldelective office in the21Q.Okay. 22stateof New Hampshire since1976, correct?22A.We've done some things toprevent it from 23ARight.23happening,alot of things. 3032 1Q.Nor has Adolf Hitler?1Q.Andareyou-- canyouidentify anyinstances 2AI onlymentionedhimbecause I was curious 2wherethere'sbeenanyprosecutionsfor votebribery 3how somebody could get 99 percent of the vote.3inthestateof NewHampshire since 1976? Q.Okay. 4A.Well,votebribery-- we'vehadinstances 5AHow coulda dictator get 99 percent of theswheresomeonebought a candidate. 6vote and callit a democratic republic-- how could 6Q.VVho? 7youhave-- I was curioushow he was able topullit7A.EdwardGonyer ranfor sheriff inRockingham soff. 8Countyandhe wasaccusedof havingsomeonepay himto 9Q.Andyou would agree there'snoinstances of9filehiscandidacy.Andso there wasa hearingon 1 oany dictator or any public officialgetting99percent10thisinfront of theBallot LawCommission,and 11of the voteinthe state of New Hampshire since1975, 11Mr.Gonyer cameinandsaidthat yes,he wasat this 12correct? 12diner inDerryanda friendof hisaskedhimif he 13ACorrect. 13wouldrunfor a certainoffice andgavehim the money 14Q.And there'snoinstancesof anyoneusingany 14that itcost tofileit.Sohecameupandhefiled. 15ballotsinrelationtothereferendumof Saddam 15Someonechallengedhimandhe endedupin 16Hussein or the voluntary ballot in1938 involving 16front of theBallot LawCommission,andhesaid that's 17Adolf Hitler or the type of ballot that you testified 17exactly what happened.Theyaskedhim didheknow 18Joseph Stalinused inPoland--18why-- why wouldthey wanthim.Andit hadsomething 19AStalininPoland. 19todo withif he wasonthe ballot fromthis townit 20Q.--in thiscountry since1976,--20would take votesaway fromsomeoneelse.Andthen 21A.No. 21they said,Well,don't you feelthat you'vebeenused 22Q.--correct?No instances? 22here.thatsomeonehasbought your candidacy,that you 23AIt hasn't happened, but--23wouldn'thave runif thispersonhadn't paidfor you 8(Pages29to32) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 9 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 33 torun?Andhe said,Yeah,that's true.But hesaid1 the other party didit a few yearsago.Hesaid,I've2 done this before.And they said,Okay,you're off the3 ballot.4 Now candidates versus votes,whether someones isonthe ballot,how they got onthe ballot,6 that's -- theBallot Law Commission has arecordof7 that testimony.I'mparaphrasing,but that's whats happened inthat-- 9 Q.Okay.What year was that?10 A.It was duringmy years.11 Q.You'vebeen arounda longtime,so..12 A.I don't know whether it was 10 yearsor13 20years.I don't know.14 Q.Okay.15 A.It'sinmaybe-- 1 mean,it's easy to check16 it.I cancheckit for you.17 Q.Sure.Andyouwouldagree that that conduct,18 whatever it was,wouldnot bereachedbythe statute19 enactedinSenate Bill-- excuse me,House Bill366,20 correct?21 A.Well,I was just answering your question,22 but- 23 34 10.Andnow I'm askingyoua new question.That1 2wouldnot becovered -- 2 3A.Well-- 3 4Q.Yesor no?4 sMR.LABONTE:Objection to the extent itmay5 6callfor a legalconclusion.6 7Q.Therewasnoinstance there where someone7 sphotographeda ballot or showed a ballotinthevotinga 9place prior to votinginthat instance you just gave9 10me,correct?10 11A.It's not --that particular incident isnota11 12votingincident.That isa candidacy,someone buying12 13thefilingof the candidate.13 14Q.Right.Canyoucitea single example of any14 15person whohasbeenprosecuted for bribingsomeone in15 16how theyweregoingtovote inthe voting booth since16 171976?17 18A.Someone for voting?18 19Q.Yeah.19 20A.Well,wehave hadinstances of payingpeople20 21whoactually voted.21 22Q.Really?22 23A.Well,attempting to do that.23 Q.Well,who? A.I'dhave to-- I can't-- I just know that we had--Q.Who? A.Well,I'll -- ithappened.I just remember ithappening. 0.When? A.This was more recent than theother-- than 35 theEdGonyer,but someone was offering somethingin rewardfor actually voting. Q.Allright. A.Not--0.Who wasoffering thereward--A.Well,I-- I've lold you,I don't-- I don't-- I just remember it comingupbefore an electionandtheywere ordered to refrain,stop doing thai. 0.Who?Who wasordered tostop doing that? A.I can't tellyourightnow. 0.Allright.Who was --A.I just remember ithappening.I remember it happening. 0.Allright.Doyouknow what year this was? 36 A.Well,no,but il'sinthelast-- inthe last ten years. Q.AllrightAnd do youknow whal part of the state thishappenedin? A.I think it was-- ingeneral inthe state, not--0.All around? AYeah,I think it was-- yeah. Q.Okay.And--A.Wasn't just local. Q.And was somebody offering to buy votes;is that your belief? A.No,somebody who --if someone voted, they wouldbegiven some-- somethinginreturnfor having voted. Q.Allright.Anddo youknow who was offering thisinducement to vote? MR.LABONTE:I wouldobjectYou'veasked that questionalready. MR.CHRISTIE:Well,I'mprobing-- he's made a serious allegation andit contradicts the answers to interrogatoriesandall public information,so-- and he's your expert,so I'mprobinghim onhismemory 9(Pages33to36) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 10 of 47http://snipurl.com/gonyer_case A 1976 BLC case, when David Souter was a BLC commissioner.37 1 1 2A.Well,I told you,I remember this.I'll have2 3to-- I can't tellyou.I mean,youasked me the3 A.16? Q.Yeah. A.Yeah. 39 4questionandI'mtrying toremember if-- 4 5MR.CHRISTIE:Canwe take a break andgo get5 6thefiles?Because thishasn't beenproducedin6 7discovery,andI think thisisthe coreissueinthe7 sentire case.So does the statehave any knowledge ofs Q.Allright.16 says,"Please state whether anyonehas ever communicatedtoyoua complaint or concernregardingvote buyingor voter coercion occurringinNew Hampshire fromJanuary1,1976, to the present." 9 9 10MS.EDWARDS:1 do have to admit,this sounds10 11vaguely familiar,not that somebody's votes were being11 12bought but there was some type of inducement for12 13people togo vote.13 14A.Right.14 Responseis:"Yes, without a specific recollection,this office has receivedinquiries about whether or not itis appropriate tooffer freebies or give-aways toencourage voters toturn out at an election." My first questiontoyou,Secretary Gardner: 15MR.CHRISTIE:Well,dowehave this15 16information or not,because we'reprepared-- we're on16 17a short discovery schedule.We're after the17 Is thisanswer regardingfreebies or give-aways what you werereferring toinyour prior testimony beforeI showed youthis document? 18discovery-- the depositiondeadline,and this is18 19totally new information.So how do you want tohandle19 20this?20 21MR.LABONTE:I mean, we don't have a fileon21 22it.We don't.22 23MS.EDWARDS:At least not that we- I mean,23 38 A.What prior testimony? Q.Your testimonyabout people offering inducements tovote. A.No,no,that's -- no. Q.Okay. A.This is-- thisis what it is.We'vehad 1I remember this asa past history thing,soI don't1people .. 2know that we wouldhave-- andwecertainly don't have2a.So were youtestifyingabout something 40 3anything wecanpulluprightnow.Wecancertainly3different thanwasrespondedto inInterrogatory 16 or 4goback andlook to seeif wecanconfirmit. 5MR.CHRISTIE:Allright.Let's doit this 6way,let's mark answers tointerrogatories as 7Exhibit 2. 8 9 (Exhibit 2 was marked.) a.BY MR.CHRISTIE:Allright.Secretary,back 10ontherecord.J'mgoing to show you what'sbeen 11markedasExhibit 2,whichare the state'sanswers to 12interrogatories inthis case. 13A.Doyouwant more of those cases? 14a.Well,let's-- let's gototheanswers to 15interrogatories first.Okay? 16A.Okay. 17a.Andyoucanreadthe whole thingif you want, 18but I'm going to ask youspecifically theanswers--19if youcouldlook at Interrogatories16 and17. 20A.That other question,haveI finishedthe 21other question or do youwant more examples? 22a.I'll go back toyour more examples.16and 2317,it's onpage 9. 4were youtestifyingabout what isdiscussedin sInterrogatory 16? 6A.Well, thefreebiemay be part of it.I 7don't-- I don't know why else that wouldbethere, abut-- because we've certainly hadpeople callabout 9seeing theballots online,people's ballots.So we've 10hadpeople call about that.Therehave beenstories 11about that.TheNashua Telegraph dida few stories 12aboutita couple years ago,becauseitinvolvedsome 13of thelocalofficials there.But the freebies, 14probably someoneintheoffice mayhave-- have--15I'll see.I mean,I--16Q.Well,if youlook atInterrogatory 17,it 17states:"If your answer toInterrogatory 16is yes, 18please state,one,theidentity of thepersonwhomade 19the concern or complaint;two,the date that the 2 oconcern or complaint was made; three,thepersonwho 21receivedtheconcernor complaintandfour,thefull 22substance of the concernor complaint."Andthe 2 3response is:"There arenorecordsof specific 10(Pages37to40) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 11 of 4741 1identities."Doyouhave anyreasontobelieve that1 2answer isuntrue or incorrect?2 3AWell,probably to thebest of our-- I don't3 4know.I'mnot-- if theycan't findanyrecords,4 5maybe,but there-- yeah.5 60.So youhavenoreasonto state that this6 7answer isincorrect,do you?7 8A.I'dbemorecautious about that,but there8 9maynot be anyrecords,right.9 10Q.Well,sitting here todayyoucan't identify10 11anyrecords,right?11 12AYeah.12 13Q.Andsittinghere today youcan't even13 14identify a specific instance of a person making an14 15allegationof vote buying since January1,1976,can15 16you?16 17A.Well,we -- wehad a case usingaforeign17 18language,a bigcontroversy.This was allbefore the18 19Ballot Law Commission-- 19 200.I'mtalkingabout thecase of vote buying.20 21AWell,that's what this wasalleged.They21 22wereinfluencing people's votesina foreignlanguage22 23and they-- there wasa public theBallot Law23 42 43 because your brother -- it was -- it wasintimidation, andbribing ispart of intimidation. 0.Allright.So what was thespecific allegationof vote briberyinthe case involving people usingforeignlanguage,as you just testified to? A.It was-- it was influencing the vote. Q.How muchmoney were they offering people? AWell,I don't--a.Youdon't know,doyou? A.It was alldone ina foreignlanguage,so --0.That'snot illegal,isit? AWell--a.It's not illegaltouse aforeignlanguagein this country,right? A.I'm just tellingyou,go totheBallot Law Commissionrecords.Get themout- a.I'maskingyou.You're testifyingin this case about -- and I'm askingyouquestions about bribery.Doyouhave anyspecific information, because -- strike that. The answers tointerrogatories byMr.Scanlan is that thereare none.Andhe's a diligent public 44 1Commissionhada hearingabout it,andbecause it was1servant,right? 2a foreignlanguage,some people-- most people didn't2A.I don't have-- I can't tell youa specific 3know what was beingsaid,but it wasrelatedto3amount or whether there wasanamount.I canjust say 4intimidatingvoters about voting,about influencing4toyouthat there was a caseof influencinghow people stheir voteinthe pollingplace -- swere votingina pollingplace --6Q.We'll get tovoter intimidation.My question6Q.Allright 7isabout votebuying.Allright?7A.--that went before the Ballot Law sA.Well,it's thesame.Becauseit wasaaCommission,andthere'sa public recordof the 9foreignlanguage,whether intimidation,buying,9testimony before theBallot Law Commission. 10i t s ~ they're relatedtoit.1oa.Mr.Scanlan-11a.What was thespecific allegation?11A.There'sa lot of Ballot LawCommission 12A.They'rerelatedtoit.I mean,it'sa way of12hearings.You've got to filea lotof them.A lotof 13gettingsomeone tovote a certainway,whether it's13them--14bullyingor bribingor .. there's allkindsof14a.1 canrepresent toyounone of them have been 15different ways of intimidation.Andbribing,giving15producedinthiscaseasrelevant to this matter.So 16money isone way,but there are multiple other ways.16let mego back to my question.Mr.Scanlan's a 17a.I'm talkingabout bribery.All right?17diligent public servant,right? 18A.Yeah,andI'm saying that I don't -I can't18A.Mr.Scanlanis what? 19say.I'llhave toget back tothat case,whether19a.He'sa diligent public servant,right? 20it wasmostly about a different languageandwhat they20A.Saythat again. 21were trying toget thevoters todo whenthey were21a.He's a diligent public servant,correct? 22beinggiven their ballot at thetime.So whether it22Takes his job seriously? 23was,We'ff give yousomethinglater or,Youdo this23A.Yes. 11(Pages41to44) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 12 of 4745 1Q.Truthfulandhonest person?1 2AYes.2 3Q.Whenasked to respond to anofficial request3 4for information,he does that diligently and fullyand4 scompletely?s 6AYes.6 1Q.Okay.And-- 1 8AHemight not have remembered these things,8 9because he wasn't there.I'mtalkingover theyears9 10of my-- my service.10 11Q.Didhe consult withyouprior toanswering11 12theseinterrogatories?12 13A.Well,he talkedtomeabout it.u 14Q.Allright.And did yousay,Remember the14 1sforeigners were trying to voteand what wasgoingon1s 16there?16 17ANo,he wouldn't have -- 17 18Q.The foreignlanguage,excuse me.18 19A.He wouldn't have known to ask that19 2 oQ.Didyou tellhim?2 o 21A.Well,if heaskedmeif there wasa bribery,21 22a specific bribery case,then1 wouldhave said,I22 23can't tefl youof a specific bribery case.23 46 1Q.Andsittinghere today,youcan't tellus1 2about any specific bribery case either,can you?2 3AJust what I've toldyou.3 4a.Sittinghere today youcan't identify a4 sspecific bribery case since1976,can you?s 6A.I canonly tellyou what I've toldyou.6 7Q.Andin the-- 1 sA.What I've toldyouabout those incidents,s 9whether-- 9 10a.And in those two incidents that you've10 11testifiedabout,youdon't have anyspecific11 12information that there was vote briberygoing on,do12 13you?u 14ARight.14 1sa.Okay.You also inone of your prior answers1s 16inyour-- thissort of lengthy one yougave alittle16 17earlier,youexpressed aconcern-- I'm paraphrasing.17 1sThe-- 1s 19AWhich one is this?19 20Q.I'm just asking a question,I'mnot-- 20 21AOh.21 22Q.So let me back up again.Inone of your22 23prior answers you talkedabout a concern-- the23 47 purpose of thelaw wasa concernthat someone may be forcedto show their ballot to somebody.An employee, a relationtoreligiousservices or someone onthe playgroundmay beinduced or forcedtoshow somebody how they votedand they might not want todothat.Do 1 understandyour testimony correctly? A.They may want-- they maynot want todo that? 0.Correct. A.Yeah. a.Okay.And do youhave any specific instances since1976 of individuals being forcedto show their ballot toanemployer,to a religiousfigureor some other personof authority over them toshow-- to demonstrate how they votedina specific election? A.No,andthat's why weneed tokeep the law thewayitis,because the lawsmade it suchthat they don't do that without breaking thelaw.Youwant to makeit so they wouldn't break thelaw andbeableto do it.That's what you're trying todo. 0.Wouldyouagree that --let's assume-- well, strike that. I'll go back tosome other instances.You testified in your narrative answer about an election 48 where there was an estimate of somethingapproximating 8,000 out of 80,000 votes were bought.What year was that election? A.1876. a.Since1976, to your knowledgeastheperson inchargeof administering election laws inthe state of New Hampshire,doyouhave any evidence of a significant amount of votes in any election being quote-unquote bought? A.Being bought? a.Yeah. A.No. Q.Okay. A.Some people think campaignspendingisbuying votes,but.. 0.That's certainly legal,though, right, campaignspending? AYeah,unfortunately. 0.Youalso--AThere's been spending limits for 61yearsin thisstate.Itwouldn't be thecase if-- in this state,but theFECA in1974 after Watergate--12(Pages45to48) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 13 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 49 Q.I got it. A.Andit-- youknow,I'm against allof it. I'mnot pickingand choosing.I'm against the-- I wantpeopletovotetheir conscience,andthe freedom of that booth, the one place where they cando what theyreally want to do without owinganythingto anybody or any fear.That's -- I don't want tolose that. Q.Youalso testifiedinyour narrative answer about instances of votes being stolen,if l understood youcorrectly.Do youhave any evidence,any facts you canpoint toof any votes being stoleninthe state of New Hampshire since 1976? A.My quick answer isno,butI would --Q.Today isyour chance. A.Well,I want to--MS.EDWARDS:There's always anerrata sheet. AI knowof-- I know of anincident that happenedinmy owncity where voteswere stolen. Q.Allright.What's that incident? A.Twopeople went to jail forit inManchester, but it was beforeI became secretary of state,but it was -- I was of an age to-- toknow about itandI remember it.I remember when ithappened andI 50 remember how ithappened.Andthat's whenManchester decided not tohave paper ballots countedbyhand anymore.Itwasin the late '60s, early '70s whenit happened. 0.Since youbrought itup,what happened, the best youcananswer? A.They were stuffing theballot box. Q.Okay. A.They were actually -- a police officer heard thebell,walkedinthe room,andthey were--Q.Shocking.Andagain,thelaw passedatHouse Bill366,which is thesubject matter of thislawsuit, wouldnot cover that behavior,would it,someone stuffingthe ballot box? A.Not what? Q.It doesn't regulatethat behavior, doesit? MR.LABONTE:Objection to theextent it calls for a legal conclusion. Q.Correct?Correct?House Bill366 --A.Yeah. Q.-- does not regulateanindividual stuffing theballot box? 51 1A.No. 2Q.Okay.Allright.Let's goback to--3A.I mean,it's-- yeah.It's-- well,in 4general,it's all--the security and integrity of the 5process,theintegrity of thecount,theintegrity of 6thevotingbyconscience that reflectstheconscience 7of thepeople that vote,it'sall--that's alltome spart of the integrity of theprocess,whether it's--9it's human beings voting what they trulybelieve is 10theright way,not what someone else wishesor someone 11else interferes withor.. 120.Okay.Goingback toHB 366.Sittinghere 13today,do youknow how the law originated? 14A.What law? 150.The amendment tothestatute that--16A.To this bill? 170.Yes,that ended upas--18AI'm not that --I wasn't that personally 19involved withthat. 200.Okay.Do yourecallif--21A.I don't think I ever testifiedon that or 22that bill. 230.Okay.Were you involvedinany 1 2 3 4 5 6 7 8 9 communicationsregarding--with any member of the legislatureregardingwhether thelaw should be amended or not? A.Whether or not to do what? 0.Whether or not the law shouldbeamended. A.Well,I did -- I know I hadconversations about theviolation versus a misdemeanor,soI --I've-- yeah,I wouldhave had--0.Do yourecall withwho? 52 10 11 12 A.The chairmanof the --Vaillancourt.I think Steve Vaillancourt.Becausehe was tryingtoconvince me todo the other-- to take the other position. 13 14 15 16 17 18 19 20 21 22 23 0.How about RepresentativeHorrigan,did you have any conversations withhim about--A.Who? 0.Representative Horrigan,did youhave any conversations withhim? A.I don't recall,but probably,because he comes by.I mean,I may have made some comment to him,butI don't thinkI hadany conversationabout it or--Q.Okay. A.Because I knowhecameina few times. 13(Pages49to52) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 14 of 475355 10.How about any communications with1to-- youknow,I mean,I don't knowwhether she would 2Mr.Scanlan,do you-- 2ever not tellhim thetruthhowshevoted.Shenever 3A.Oh,yeah,I wouldhave.Sure.I wouldhave3drove,soshe was-- youknow,sheraisedmymother 4talkedwithhim about it.4and therest of the family.But it's thosekinds of sQ.Allright.And sittinghere today,do yousexperiencesthatpeople --I mean,I bringallof that 6recall what thesubstance of thosecommunications6to whatI feelabout this. 7were?Do yourecall what the substance of those7I just thinkthisishorrendous.I think scommunications were withMr.Scanlan?sthis willlead to things--so many electionlawbills 9A.Well,it wouldhave just been conversation.9endup withunintendedconsequencesandso manyof the 10Somethinglike,Goodluck.Go toit.10changes,because you theknavery of manis 11Q.Allright.But-- 11just ovetwhelming,andyoucan't thinkof everything 12A.I mean..12that other peoplecan think.Every systemthat we've 130.Do you recall having any dialogue withhim13hadhas beenover --there's beenunintended 14about whether thelaw shouldbe amendedor not14consequences,andso that's .. 15amended, whether itshouldextend to digital15Q.Okay. 16photographor not,whether itshouldbea misdemeanor16A.But anyways,that's what isinmeasfar as 17or violation?17at anearlyagehavingmy twograndparents whoI loved 18A.No,Idon't haveany-- I probably did,but I18dearly,but having-- but that happening-- andI 19just don't have-- 19don't remember a lot of thingsatthat age,but I 2 o0.Okay.20remember ridinginthat car with my grandmother togo 21A.I wouldhave talked withhimabout it.21tothat pollingplaceandmy grandmother not wanting 220.But sittinghere today,you don'trecall the22her husbandtoknow thatshe votedfor a certain 23specifics of any conversations that youlikely had?23person. 54 1A.No.I would have certainly hadconversations1 2about the thingsItalkedwith you about,my belief2 3about this.I just don't-- I think thisisawful,3 4what thisisgoingtoleadto.I feelpretty strong4 5about this.I careabout voter'sconscience.I ca.re5 6about people,theattempts to take that away from6 7 7 8Q.Doyou-- 8 9A.I wouldhave expressed that,andI wouldhave9 10expressed it to anybody that asked me or people inthe10 11officeor -- I mean,I -- I remember asa boy my -- I11 12was withmy grandmother.My grandmother hadsomeone12 13come to the house,pick her up,because she never13 14drove.I went in thecar withher to the polling14 15place.I waitedandshecameout andI asked her-- 15 Q.Andit'syour testimony that if my grandmother wantedthepublic toknow shevoted for a certainpersonbypublishing her ballot sheshouldbe precludedfromdoingso? A.Only because by doingthat youtakeaway somethingfrompeoplethat-- I mean,I don't--0.I understand --A.It's thelittle guy.It's thelittleperson. Q.Andsheshould-- andif shepublishes her ballot,she shouldbecriminally prosecutedfor it--MR.LABONTE:Objection. Q.-- is that your testimony? AShe couldtellanybodyinthe world.Yell--0.That'snot myquestion. A.--it fromtherooftops,but theballotisa 56 16the guy by the name of Lyons [ph],he wasrunning for16 17something inManchester.Andshesaid tome,I like17 sacreddocument betweenyour conscienceandthat piece of paper.Andinmy viewif you diminishthat inany 18him, but don't yousay anythingtopapa.Papawasmy18 19grandfather.That's what weallcall my grandfather.19 20SoI wasmaybe10 or12 years old,but I20 21always rememberedthat,that she didn't vote the way21 2 2my grandfather voted,andshe didn't want-- so those22 23arethe types of things inmy life that make me want2 3 way,youare-- youare ta.kingpeople'sright of conscienceawayfromthem. Q.Okay. A.By saying,freedomof speech,freedomof speech, 1heycan have freedom of speech,but thereare limits.Therearelimits to freedomof speech. 14(Pages53to56) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 15 of 475759 1Q.Who determines what those limitsare?1a guilty person go freebecause you want to protect 2A.Well,thecourt eventually.Thesupreme2someone whoisnot guilty from goingto jail, weall 3court will determine that.And the supreme court,you3paya bit of a pricefor that,but we're protecting 4know,they've -- they've said that if a personhas a4somethingreallyimportant, and tomethis-- this sbullhornandhis voiceislouder than other people'sssacrednessof theboothtovote your conscience is 6voicesbecause he's got themoney toturnthevolume6thatkindof situation.It's sacred. 7up to 5,000 whatever,that'sokay.On the other hand,7I don't want anybody tobeable to take that Bif youput people -- if youdrown out the voices ofaaway,because theycanfindother ways toget their 9people because their voicescan't beheardbecause9freespeechout or- theycanfindother ways,but 10someoneisspeakingso loud,thenthat's theother1 onot withthatballot.That document-- that isthe 11side of it.11sacreddocument of democracy. 12I happentobe onthe side of the little guy12a.I'm goingto tryitonemoretime or maybe 13whose speechisbeingdrownout,andI happen to be13more thanonemoretime,butI'lltryit onemore time 14the little-- youcan't yell fireina crowded14for now. 15theater.You can't prevent --I understand what this15Isit your testimony,I thinkit is,but I 16iscoming downto,but I'mwiththe little guyin16want tomake sure,that anindividual likemy 17this.17grandmother whobecauseshe wantspeople toknowwho 18a.I get that.19shevotedfor or wantsother peopletovote for that 19A.I was the person who was a peoninsociety19samepersonpublishes her ballot throughsocial media, 20whohas-- who has been dominated throughout the20thatshe shouldbeprosecutedfor a violation-lever 21person's life inallkinds of different ways,and that21offensein thestateof NewHampshire? 22person can't evenhave the one thingthat they're22A.Yes. 23equal.That's goingtobediminished.Youknow,you23a.Okay. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 58 could try totake it away.Youcan try totake that1 away,but I'm- I'mnot with you,andI'm going to2 feelreally-- 3 a.I get what your positionis.I just have4 some questions about it.If the peon - let's assumes my grandmother isa peon.If GrandmaPeonwants to6 publishher ballot online,as secretaryof state of7 thestate of New Hampshire isit your view that she8 shouldbecriminallyprosecutedfor that conduct?9 MR.LABONTE:Objectiontothe term criminal.10 Q.Andwhat's your answer?11 A.Some people,youknow,areinthetop insome12 areas and at thebottomof others,but todiminish13 anyone'sright of conscience-- 14 Q.My question is:Should theperson- 15 A.That diminishes someone's right of16 consciencebecause that nolonger gives the other17 person the right to say,This is illegal,I can't do18 A.Shecansayit.Shehas freedomof speech. Shecansayitinany way that she wants to sayit, but thatballot isa sacreddocument.Leave that ballotso that everybody else's ballot is sacred too, andtheyhavetheright tovote their conscience too. 0.Andshe should beprosecutedfor a violation-leveloffense even if there'snot a whiff of vote bribery involvedinher conduct? A.People-- you'vealready said,peoplehaven't beenprosecuted.Our law has been--0.So the answer is yes? A.Our law has been working.We'vehad thislaw for a long time.Theyfounda waytoget itto work andit's working.You'rechangingthat. a.Your answer is yes,correct? A.(Witness nods head.) a.You'renodding.Youhavetosayit.We can see it.The judge won't be able toseeit. 60 18 19 20 21 22 23 it when someone says,If you don't do it,I know19 you're not voting for me.And I'm goingtoalways2 o know that.That's all.No bribe.No money involved.21 Even intheabsence of anyallegation of vote bribery,myconductshouldbeprosecuted for a violation-leveloffense? If you do that,that personloses.22 Sothis concept of-- that sometimes youlet23 A.Isn't thisthesame question as thelast time? 15(Pages57to60) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 16 of 4761 1Q.It's a different question. 2A.Okay.Say the question again. 3Q.Andyour answer about my grandmother should 4beprosecuted for a violation-level offense for 5publishingher ballot because she wantspeople toknow 6whoshe votedfor is the same evenininstances where 7there'snoallegationof votebribery relatingtoher 8conduct? 9A.Yes. 10Q.Andeven-- your answer isthesame evenwhen 11there's noallegationof coercioninvolvedinher 12conduct? 13AYes. 14MR.CHRISTIE:Okay.Allright.Let's 15take--we've beengoing for about a little over an 16hour and15 minutes.It's a little warminhere. 17Let's take a quick break. 18A.Youhavemore todo? 19Q.Oh,yeah. 20(Recess taken.) 21Q.BY MR.CHRISTIE:Back ontherecordafter a 22short break.Secretary Gardner,I'm going toask you 23some questions about RSA 659:35 asitpreviously 62 1existedandasit existsnow. 2MR.LABONTE:CanI make a blanket objection 3towhatever callsfor a legalconclusion? 4MR.CHRISTIE:Yes. 5MR.LABONTE:Allright. 60.AndsoI've put infront of youExhibit1, 7whichhasthestatute,and the bold-- do you 8understandthat the boldletteringinsubparagraph1 9is the letter-- thelettering that showshow the 10statute was amendedinthe 2014legislative session? 11A.Well,youhave the statute-- do youhave --12do youhave what was 659:35 before this?Soyouhave 13thelaw thewayit was,and then youhave whatever the 14versionof thebill was at thebeginning,andwhether 15this waschangedinthe house or inthesenate,again, 16or--17Q.What thisisis thelaw --the boldprint 18shows how the law wasamendedin2014.SoI believe 19that thenonboldtext wouldshow thestatus of the law 20prior to the amendmentin2014. 21A.Was there anythinginthat statute that was 22takenout? 23Q.I believe theanswer to that is no. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 63 A.Because usually --MR.LABONTE:I don't know. AIf they're just going toamendintotal,they just rewrite it so you don't see the old one.If they're just going to change a word,they'll strike out the word.Andsowas the statute just thefirst sentence andthen they added this secondsentence? MR.CHRISTIE:Let's go off the record for a second. (Discussionheldoff therecord.) Q.BYMR.CHRISTIE:I'mgoing toshow you--back ontherecord,sorry -- Secretary Gardner,RSA 659:35 how it existed prior tothelaw beingamended in2014.Okay? A.(Witness peruses document.) Q.I just want tomake sure youhave it. A.Yeah.Sothat probably-- yeah.I'mnot sure that-- I don't know-- I thinkI doubtedthat we needed this -- this sentence. Q.Okay.What sentence were you-- that you pointedtoinExhibit 1 did you doubt that youneeded? AThe secondsentence. Q.Could youreadit. AI'mgoing toreadthe first sentence and then the secondsentence. Q.Okay. A"No voter shall allowhis or her ballot tobe 64 seenbyanyperson withthe intention of lettingitbe knownhow heor sheisabout to vote or how he or she has voted except asprovidedin659:20.This prohibition shallinclude takinga digital image or photographof hisor her marked ballot and distributingor sharing theimage viasocialmedia or by any other means." Q.Why do youbelieve the second sentence may not doanything? AWell,because it says youcan't show or let itbe knownhow youvoted.Doesn't say --"No voter shall allow his or her ballot tobe seen by any person withtheintentionof lettingit be known." So if you take apicture of the ballot,you arelettingyour ballot be seen. Q.Okay.Well,let'sbreak down the statute, allright,now that youbrought that up. AI do want tolook for the -- l do want to look for the foldingof theballot law,because it 16(Pages61to64) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 17 of 4765 1doeshave aneffect here,because a hundredtownsin1 2thestate are..2 3Okay.Look at that.3 4MR.CHRISTIE:I may go back totheground4 srulesfor a depositionina second,but..s 6MR.LABONTE:Uh-huh.6 7MR.CHRISTIE:Allright.So just so the7 srecordreflects,Secretary Gardner wanted tolook ats 9andfindRSA 659:23regardingfoldinganddepositing9 10theballot.correct?10 llMR.LABONTE:(Witness nods head.)11 12A.(Witness nods head.)12 13Q.Okay.Let's go back toRSA 659:35Okay?13 14SoSecretary Gardner,I'mgoingtostandover your14 15shoulder just to make sure we're going off on thesame15 16statute.16 17Prior to the amendment of thelaw thestatute17 18read:"No voter shallallowhisballot tobeseenby18 19anyperson withtheintentionof lettingit beknown19 20how he isabout tovote except asprovidedinRSA20 21659:20," correct?21 22A.That's-- what youreadiscorrect there.22 23Q.Okay.Andt h a t s ~ doyouunderstandthat's23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 66 how thelaw existed prior toits amendment in2014?1 A.Yes.2 Q.Okay.Andso thelaw regulate-- the law3 prohibiteda voter fromshowing his ballot withthe4 intentionof letting itbe knownhow heis about tos vote,correct?6 A.Allright.7 Q.Allright.Andso wouldyouagree that that8 law asit existedprior to2014 regulatedconductin9 the pollingplace?10 A.Conduct in the polling -- I don't get-- 11 Q.It regulatedsomeone-- or strike that.12 It prohibited someonefromshowing their13 ballot to another person in thepollingplace?l4 A.Why doyouaddinthepollingplace?15 Q.Becauseit says,"how heis about tovote."16 A.Well,areyousayingthathehasn't voted17 yet?1s Q.I'maskingyou,the statute says it is --I'm19 askingyouyour understanding."No voter shall allow20 hisballot tobeseen byanypersonwith theintention21 of lettingit beknownhow heis about tovote except22 asprovided inRSA 659:20," correct?2 3 67 A.Yeah. 0.And so the process when youenter a polling place,you walk up and you announce who youare, correct? A.Yeah. 0.They hand youyour ballot, correct? A.Yeah. Q.You go into the voting booth and you vote, correct? A.No. 0.What happens next? A.Youmark your ballot. Q.Well,yougo into thevotingbooth and you mark your ballot in the votingbooth,correct? A.No,--yes, you mark your ballot. 0Right. A.But you don't vote. 0.And then you take your ballot and you--A.And you vote it when you put it in the box. 0.Correct.Thank you.The act of voting is when you put itin the box,correct? A.Right. Q.Andso thisstatute before it was amended, 68 RSA659:35regulatesconduct prohibitingyouof showingyour ballot tosomeoneregardinghow youwere about tovote,right? A.Theoldstatute? Q.Yes. A.Yeah. 0.How heis about tovote.That's showingthe ballot beforeit goesintothe ballot box,correct? A.Right. Q.Okay.Andbecause after it's goneinthe ballot boxandafter you've left, you haven't-- it's not-- it's gone from thestatus of about tovote,you actually have voted? A.Right.Youcan't takea selfie of itonce you'vevoted.Youcanonly takea selfie whenyou're about to vote. Q.Right.Sothestatute prior to2014 regulatedconduct prior toit goingintotheballot box,right? A.Yeah. Q.Okay. A.But that's theonly-- I mean.youcan't get itoutof the ballot box.How wouldyoutakea 17(Pages65to68) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 18 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 69 picture of it onceit's in the ballot box? Q.Okay.And would youagree that the amended statutein2014 added the phraseafter "with the intentionof lettingit beknownhow he"-- it updated and added womentoo, "how he or she isabout to vote or how heor shehas voted," correct? AYeah.1don't think-- I mean,asI said,I don't think this sentence really changes the original law. a.Well,how he or shehas votedis past tense, correct?How you'reabout tovoteandhow youhave votedare two different things,correct? AYeah.You vote when youcast the ballot.A ballot's cast. a.Yeah.Andhow heor shehas votedisafter the voteiscast,correct? A.How he or shehas voted?How he or she has 18voted? 19a.It's the conduct after the vote is cast. 20It's past tense,correct? 21AI don't thinkI see that. 22a.All right.Then why was "how he or shehas 23voted" addedtothe statute? 70 1A.I don't know. 2Q.Okay.Youdon't see that "how he or she has 3voted" expandingconduct-- expanding thescope of the 4statute toafter somebody has castedtheir ballot? 5A.I guess I don't-- I don't-- I can't see 6what you-- I don't see it.I don't get what--7Q.Really? 8A.Yeah.I don't-- I don't know what you're 9getting at.I mean--10a.Well,youagree that the statute as 11previously written wrote -- regulatingconduct prior 12to the time youcast your ballot,right? 13AWhenyoumark-- when youvote,youare 14castinga ballot. 15a.Right.Andso "about to vote"means before 16youput your ballotina box,right,because you're 17about todoit?Yes? 18A.Well,I mean,people canprobablyhave a 19difference of opiniononce they mark --20a.I'maskingyour opinion."About tovote" 21means --and youtestified very clearly that votingis 22the act of putting the ballot --23ARight.If youpass them theballot,you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 71 couldget a secondand a third ballot if youmake a mistake. Q.Exactly. A- But 1 don't get what-- I don't get--Q.Let's focus onthis,because I thought we had an agreement when you testifiedabout the act of voting.To vote-- you were very clear onthis. You've correctedmeseveral times.To vote means to put the ballot intheballot box,correct?Correct? AI don't-- sayit again. 0.To voteisnot theact of fillingout thedot ontheballot.Tovoteis not walking around with your ballot.To vote is toput the ballot inthe ballot box,correct? A.Yeah,but a lot of people wouldn't-- that's the way I takeit,but I think most people would probably takeit a different way,but. .. Q.I'masking how youtakeit.You're the secretary of state. A.Well,when youcast-- youcanvote three times technicallyina pollingplace,so--Q.It only gets countedonce,right? A.Which isthe ballot that you've voted on? Q.Hopefully the one that's inthe ballot box, right? A.Right. 72 a.Right?And you'renot suggesting those other ballots youmade mistakes onendup inthe ballot box, right? A.But if you asked--I mean,most people would say when they made the mark onthe ballot,they have voted. Q.Allright. AIt's the technicalcase to say that it's when the ballot isactually cast,because untilit's in that box youcanget a secondone. a.Sodo younot know--A.If someone,you know,sees your ballot or says something or-- some states if you vote for two people rather than one,the machine tells you you voted wrongand you get theballot back.Youvote--but I don't reallyget the point you're tryingtoget at here.I don't know how toanswer it,because I don't know what--Q.Well,I thought youhad. AI don't know ... 18(Pages69to72) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 19 of 47 ----7375 1Q.Andsoletme doit this way.Let measkit1gave youtheanswer.Andthenyousay youaskedme a 2this way.As secretary of state for thestate of New2second time because I'm giving youdifferent answers 3Hampshire,ontheprocess when someoneisin the3during other questions? 4pollingplace,inyour view whenhave theyvoted?4SoI wouldlike to -- can youtellmeone, sA.When theballot is cast.5give me aninstance of one?You just saidit.Give 6Q.Andwhenis theballot cast?6me aninstance of one.Youjust saidthat,tell me. 7A.Whenit goesinto theballot box.7Give me aninstance. sa.Okay.sQ.1 think therecordspeaks foritself what's 9A.It's anuncast ballot before itbecomes a9been goingon.Andwouldyou-- soyouwouldagree, 10cast ballot,but whileit'sanuncast ballot-- 10just so we'reclear that--11Q.Andwhen thestatute-- 11A.Soyou'renot willing to answer that?You're 12A--people think that when-- 12gonnalet therecord--13Q.I'm not asking whatpeoplethink.I'masking130.Let's goback tothegroundrules.The 14about what youthinkistheofficial-- 14groundrulesareI ask thequestions andyouanswer 15ACanI say whatI want tosay?15them.Okay? 16Q.No,you can't.I'maskingyou what youthink16A.Yeah,but if yousay something that I don't 17astheofficialinchargeof administeringelection17thinkistrue,I don'thave the right tomention that 18lawsinthe state of NewHampshire,not what youthink18to you? 19somebodyelsemight think.19Q.That's what they're for,Mr.LaBonte and 2 oIn your roleas thesecretaryof state,the20Ms.Edwards.They'll -- if I've saidsomething that's 21personin chargeof administeringelectionlawsin21untrue, they'll correct me,trust me. 22NewHampshire,asI understandyour testimony somebody22A.ButI can't--23has voted when theyhaveput their ballot in the23a.Let's move on.Okay?SoI think we've 1ballot box,correct? 2A.Youjust asked that andI said yes. 3Q.Allright. 4A.Youjust askedthesame question and 5you're --6Q.AndI'm tryingtomove onfromthat question, 74 1 2 3 4 5 6 agreedthat inyour opinionasthe secretary of state the act of votingis whenyouput theballot inthe ballot box,correct? A.Yes. 0.Allright.AndsoI thought we agreedon this.I just want tomake sure the recordisclear. 76 7but youkeepchanging your answer.AndI have the 8patience of Job,andthat means I'll stayhereall 9day.Soif you want tokeepchanging your answers, 10youcan,butI'm going tokeepclarifying your answer, 7 8 9 10 InRSA 659:35 prior toitsamendment in2014 whenit regulatedconduct "how heisabout to vote," that reaches conduct before the ballot goes into the ballot box,correct? 11because I know what you're doing --12A.You'reaskingmemultiple questions because 13I'm changingmy answers?Youwant togo throughthat? 14You want togivemeanexample of that? 15Q.Let's--16A.Areyouwilling togive me anexample of 17that?You just said that. 18Q.I think therecordspeaks for itself onthat. 19A.But are you willing to --so this last time 20youaskedme the question. 21a.Yeah. 22A.I saidyes.1 saidwhenitiscast iswhen 23it's in the box.Andyouasked thesame question,I 11 12 13 14 15 16 17 18 19 20 21 22 23 AYes. a.Allright.Itdoes not reachconduct after theballot goes into the ballot box,correct? A."Lettingit be knownhow he is about to vote."That'sasthepersonisputting-- that's how I interpret it.As theperson'sputtingit in,the act of puttingit inis the act of castingtheballot. "Let it be knownhow heisabout tovote."Not while he's voting.When he's finished.When thepersonis thereabout to put it in.That's what marking a ballot,as someone is about tovote. 0.Andso thestatuteprohibits someoneinthe pollingplaceprior to puttingtheballot inthe 19(Pages73to76) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 20 of 47Gardner doesn't answer this question until p. 80.77 1ballot box fromshowingsomeone how they wereabout to 2vote,right? 3A.Yes. 4a.Okay. 5A.Andmeans by which youcan show someoneat 6some futurepoint.If you dosomethingthatallows 7you to show someone ata future point,that prevents 8that too. 9Q.Where?Where does it say that inthat 10statute? 11A.Well,itsays it right inthesentence. 12a.Readme--13A."Lettingitbeknown." 14a.Lettingitbe known --15A.Letting itbe knownhow you're about to --16a.Lettingitbeknown --17A.Letting itbe known how you're about to cast 18your ballot. 19a.Okay. 20A.Andthat-- that means you do anything as 21you're about tocast that ballot you're not supposed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 a.l'lllet therecordreflect I'm going to circle the phrase "has voted" on the exhibit.Do you see that,whatI circled there? A.I thought you were talking about what was newly added. a.That is--A.Oh,that is the yeah,okay.Okay.That's inthe first sentence.I thought you were talking about the second sentence. Q.Okay.Andyouwould agree that the phrase "has voted"isstated inthe past tense,correct? A.It's there.I mean,I don't it's-Q.It'spast tense,right? A."Lettingit be knownhow heisabout to vote." "Lettingitbe knownhowheor sheisabout tovoteor how heor shehas voted."What wasyour question? Q."Has voted"isinthepast tense,correct? A.Yeah.Yes. Q.Okay.Andbecause it'sinthepast tense, 79 22to. 23a. 22 Like what?23 wouldyouagree that thislanguage whichwas addedin 2014 "how heor shehasvoted" isintended toreach 7880 1A.Like anything.1conduct after theperson has put theballot in the 2Q.Like what?2ballot box? 3A.Take a picture of it.3A.Yeah,but they--4a.Allright.4a.Correct? sA.Or let somebody else take a picture of it.sAI guess yes,maybe. 6Or holdit away so somebody cantakea picture of it6a.Maybe?You're inchargeof the election laws 7onyour wayover."Lettingit beknown," there'sa7inthis state, correct?And the legislature is 8lot of ways to let things be known.8presumedto know what they're doingwhenthey amenda 9Q.Andyouwouldagree that whenthe statute was9statute, right? 10amendedin2014 it added the clause "or how heor she10AWell, when wehave a question aboutan 11hasvoted," correct?11interpretation, we'llaskthe AttorneyGeneral's 12A.Yes,itsays that.12Office if there'ssomething- but I think that here, 13Q.Andyouwould agree that language wasnotu"isabout to vote," thelegislature meant thesame 14there previously?14thing,maybe,butI don't know that,so .. 15A.Yes.15a.So do you not know what thelegislature meant 16Q.Andyouwouldagree "has voted" ispast16when theyamended thestatute? 17tense,correct?17A.I saidI thought thelaw,theoriginallaw, 18A.I-- 18covers .. 19a.Youdon't know?19Yeah.I mean,I don't know in 20AWell,it's askitagain.2 opracticality - inpractical ways how thisisreally 21Q.Youwouldagree that the phrase "hasvoted"21- how that makes any difference.I don't know. 22isstated inthe past tense?22a.Thedifference it could make is that the 23A.1don't see that inhere.23prior statute didn't regulateconduct outside the 20(Pages77to80) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 21 of 47After 4 pages of wrangling over a yes/no question, he finally answers "maybe."8183 1polling place,correct,andthecurrent statute does?1summary,I believe,of senatetestimonyon April9th, 2A.Oh,it doesn't regulate conduct-- nothing22014.ContainsBates range58 through 65.It's a 3regulatesconduct outside the pollingplace if the3portionof thelegislative history,not theentirety 4person-- the person can say whatever the person4of thelegislative history.I'llshow youon thepage swants,but theballot -- once the ballot isin thatswhichwasmarked60andask you some questions about 6ballot box,thepersonisnot able to get access to6Mr.Scanlan's testimonyas summarizedhere. 7that ballot to take a picture of the ballot.What-- 7A.(Witness peruses document.) swhat -- I don't really get what-- the meaning ofs0.Okay?Solet meshow you,direct your 9this.What-- 9attentiontopage 60.It's onthelower right-hand 10Q.Do younot understand themeaning of the10corner. 11statute -- 11AWhat page? 12A.Well,what are yougetting at?What isit12Q.60.You got it right there. 13you're asking?Are you saying that thissomehowuA.Oh,60.I'mlookingatpage2. 14allows someone toget into theballot box andthen140.It's page2 in the document.Theofficial 15takea picture of the ballot and then distribute it?15Batesnumber is60.Andthisisa summary of 16Q.I'masking you of your understandingof the16Secretary Scanlan's testimony.We'llpresumeit's 17addition of theclause after "about to vote," which17accurate.Itwasproducedby thestate in thiscase. 18you8gree regulatesconduct prior toputtingthe1sAndit says-- if youlookat the firstbullet point 19ballot intheballot box -- 19under histestimonyit says,"Currently the statute 2 DA.Well, you can't-- 20states youcannotshow your cast ballot toanyother 21Q.-- if adding the phrase "or how he or she has21personprior to depositingit in theballot box."Did 22voted," to your understanding, was that intended to22I readthat correctly? 23reachconduct inthisstatute that may take place23AThat's whatit says,yeah. 8284 1after thepersonhas voted?10.Allright.Doyouagree with Secretary 2MR.LABONTE:I'm just going toobject tothe2Scanlan's --Deputy SecretaryScanlan's descriptionof 3extent he wasn't inthelegislature whenthis was3thelaw as it existedprior totheamendment in2014? 4enacted.4A.Well,1 think-- I get what hewastryingto s0.Well,you've-- ssay there,soI don't know that it --I mean,he's 6AHow do youget a ballot-- 6saying that once your ballot getsput intheballot 7MR.LABONTE:You're askinga questionon the7box there'sno way youcanshow it toanybody, sintent of the legislature.aanyways.Soyoucan't show it until it gets in the 9MR.CHRISTIE:I'maskinghimfor his9box andonce it'sintheboxyoucan't showit to 10understanding as your proffered expert.Let's doit10anybody,anyways.That's what it says. 11this way,let's mark this as 3.110.What he'ssayingisthestatuteregulates--12A.I don't thinkithas anymeaning,but..12thestatute states youcannot show your ballot toany 130.So was therenot-- wasitaddedfor no13other personprior todepositingitintheballot box, 14purpose toyour understanding?14right? 15A.I don't know how youget access toa ballot15A.Well,yeah,that's-- that's-- youcan't 16whenit's already beencastHow do you-- how can16show your cast ballot. 17youdoanything withit?That's-- 17Q.Andthepurpose of not beingabletoshow 18MR.CHRISTIE:Let's doit thisway.Let's18your ballot before youput it intheballot box--19mark this as 3.19A.But youcan't show your cast ballot,anyway. 20(Exhibit 3 wasmarked.)20Youcan't show a cast ballot before it's inthebox. 21Q.BYMR. CHRISTIE.Allright.Let me show you21It doesn't exist.A ballot onlyis cast-- is a cast 22what'sbeenmarkedasExhibit 3,whichisa section of22 23thelegislative history relatingtothis law.It isa23 ballot onceit'sinthebox.Soyoucan't show--he--obviously he--whatever he--the statute 21(Pages81to84) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 22 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 85 statesyoucannot show your cast ballot to any other1 personprior to depositingina ballot box.2 Well,that statement is just wrong.You3 can't-- youdon't have a cast ballot until it's cast;4 it's onlycast whenit's intheballot box,so...5 Q.Allright.Let'spresume hemeant -- 6 AI'mnot presuming -- I mean,I don't know7 what hemeant,but -- s Q.Sohe's wrong?9 A.But that's not-- 10 Q.He's wrong?11 A.Youdon't havea cast ballot inyour12 possession.Nobody ever hasa cast ballot.A castu ballot isa ballot intheballot box.Andonce it's14 is:Quote,Deputy Scanlan reiteratedcurrent law states a person cannot show their markedballot prior to castingit,correct?DidI read that correctly? A.Yes, you readit correctly. 0.Allright.Would you agree with that interpretation of law prior to 2014? AI'mnot-- asI said,I don't know if this is a transcript.1 don't know if he actually saidthese words exactly the way they are.I wouldn't-- I mean, soI --but itsays what it says.I agree it says what it says,but itleaves a number of questions. Q.My question is:Do you agree with that statement of the law assummarizedinthe document? AYeah. 87 15 16 17 intheballot box,it stays inthat ballot boxuntil15 andunless there's a recount.16 Q.Allright.Thenlet's go downto -- sohe -- 17 0.Okay.So prior to2014,thelaw prohibited someoneinthe pollingplace fromshowing somebody the ballot,your ballot,before youcast it,correct? 18 19 20 21 tobullet point one,two,three,four.Do youhave1s A.Well,the law,lettingit-- it doesn't that?"Deputy Scanlanreiterated," doyouhave that?19 exactly say it the way you said it,but thelaw says, "letting itbe known"-- I mean,thelaw isa little different.The words aredifferent than the words here.1 don't even know if the words here are the words that heused. Let'sdo it this way.20 AYeah.21 22 23 Q."Deputy Scanlan reiteratedcurrent law states22 a personcannot show their marked ballot prior to23 8688 1castingit."DidI readthat correctly?10.Do youknow what thelaw was prior to2014? 2A.Isthisa -- is this a transcript?2Do youknow what thelaw was prior to2014? 3a.It is-- 3A.Do I know what-- what? 4A.Or is this someone'sinterpretation of what40.What thelaw was prior to2014. she said?I mean,what is this?Is this something5A.Yeah. 6that he submitted tothe committee and they just60.Inyour words what was thelaw prior to2014? 7printed this or is this something that was a sort of7A."No voter shall allow hisballot to be seen 8paraphrasingof what he was trying-- 8byanyperson withthe intentionof lettingit be 9Q.My questionis-- 9known how he is about to vote." 10A.--to say?100.Okay.And--11Q.--the document says,"Deputy Scanlan11A.So--12reiteratedcurrent law states apersoncannot show12a.And you just readfrom the statute? 13their markedballot prior to castingit."DidI read13A.So that means tome that you -you don't 14that correctly?14show your ballot or let it be knownhow you're about 15A.Okay.So thisissummary of testimony15tovote. 16presented insupport:"Current law states aperson160.So that regulates conduct prior to puttingit 17cannot show their marked ballot prior tocastingit.17inthe ballot box,right?We've agreedonthat several times.18This provision would extendbeyondElectionDay."But18 19once youcast it,youcan't showitbefore you cast 20it.Once youcast it,youcan't seeitanyway,so .. 21Q.Let's break it down. 22A.What's-- what was the question? 23Q.I'm going to try again.Okay?My question 19 20 21 22 23 A.Well,it means that you can't,to me, make it possible for someone --you can't capture themoment and then release it at some later point,because it's the moment that you'renot supposedto be doingthat. You'renot supposed to be doinganythingat that time 22(Pages85to88) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 23 of 4789 1until - until -- lettingit beknownhow theperson 2isabout tovote,at that timeyoudon't doanything. 3Youdon't play a trick andsay,Well,I'mnotgoingto 4show it toanybody,but I'm going todo something that 5I canshowit to somebody 15 minuteslater.That's 6not theway -- lettingitbe knownhow you're about to 7vote.That'show I readthat law.You don't--8you--9Q.You'renot supposed to show your ballot to 10somebody inthepollingplace to show themhow you're 11about to vote,correct? 12A.It sayslettingit beknownhow you're about 13tovote. 14Q.Would youagree that that wouldentail 15showingit tosomeoneinthe pollingplace? 16A.Well,youcanshowit tosomeonein the 17pollingplace. 18Q.Canyoushowit to someone whoispaying you 19to vote? 20A.You can show it tothe moderator if youneed 21a secondballot if youmade a mistake --220.Other thanthemoderator--23A.Wait a minute. 90 10.No. 2A.Wait. 30.No.Can youshow the ballot--4AYouaskedcanyou show the ballot tosomebody 5inthe polling place, I saidyes. 6Q.Allright.Other thanthe moderator,other 7than the exceptioninthe statute,allright--8A.Yeah. 9Q.--can you show your ballot under the laws 10that existedprior to2014 tosomeone elseinthe 11pollingplace? 12A.No. 130.Why not? 14A.Because you-- unless it's a mistaken 15ballot--160.Yeah. 17A-- that ballot isa sacreddocument. 180.Andit was to prohibit andprotect people 19from-- prohibit people from engaginginthe types of 20conduct that you've testifiedtopreviouslyinthis 21deposition like bribery andcoercionand things of 22that nature,right? 23A.Inside thepollingplace. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 91 0Yes. A.Youmaynot have-- I mean,it'spretty--it'spretty difficult to show a ballotunless-- if--hundreds of our townshave ballots that youhave to fold,soyouhave the ballot foldedtwice.So there's four parts to a ballot.It's eight-and-a-half by eleven.Soone-fourthis what yousee.And the cover-- there's a cover toit,and youcan't put that ballotinthe boxunless youhave foldedit. So there's different ways of votingin New Hampshire depending onthesystem that isusedin that pollingplace.Andif a --so you--with a ballot like that if you walk out holding theballot, that'sillegal.You can't do that.Youcan't holdit uptoshow people who arewaitinginline.Inthe po\\ingarea therearesomepeople that are voting. You'renot supposed toshow theballot toanybody. Q.Andpart of the policy behind thatisto discourage voter coercion,voter intimidation,and vote bribery,right? A.Inmy opinionit's toallow people to vote their conscience. 0.Right. 92 AAndthat's part of it. Q.So thestatute wasnot intended to stop vote bribery,correct? A.You can't show your ballot. 0.Was the statuteintended to stop vote bribery,yes or no? ASay that again. 0.Was the statute,RSA 659:35,prior toits amendment intended to stop votebribery inthe state of New Hampshire? A.Say theendof it again. 0.Was the statute,RSA 659:35,prior to 2014 intended to stop vote bribery inthe state of New Hampshire? A.Yeah. 0.Okay.Was itintended to stop voter coercion? A.Yes. 0.Was itintended tostopvoter intimidation? AYes. Q.Allright.If I would bribe someone to vote in1890,how wouldI determine if that personhad voted how I wanted them to? 23(Pages89to92) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 24 of 479395 1A.Youcouldsee theballot.1castingit.Thisprovision wouldextendbeyond 2Q.Correct.That's what thestatute prior to2ElectionDay.Youcouldnot takeanimage of the 3itsamendment in2014 was intended tostop,right?3ballot andthenpost itthefollowingday because it 4A.Right.4stillcreates the opportunity for potential fraud,in sQ.It wasintended tostopsomeone from walkingsterms of buying votes."DidI readthat correctly? 6in-- the example,husbandandwife walkingin.The6A.Yeah.I don't know whyhewouldsay that. 7husband wants tocoercethe wife to vote for Mitt7Q.Allright. BRomney.She wants tovotefor Barack Obama.ItwassA.1don't know if heactually saidthat,but--9intendedtostopthehusband fromsaying,Show me your90.Allright.We'll findout MM 10ballot before yougo into thepollingplace,correct?10A.Because once theballot goes inthe ballot 11A.Show theballot M- 11box,there'snothingMMyoucan'tdo anythingwitha 12Q.Before it goes into theballot box,correct?12ballot.Onceit'sinthat box,it's inthat box. 13A.No.13a.Inyour roleassecretary of state, you 14a.Itwasn't intended to stop that?14believe there was a concernthat the statute prior to 15A.Well,that'snot the way it worked.That's15its amendment didnot prohibit somebody fromtakinga 16not the wayit worked.16photographof their ballot andpostingit online after 17Q.Not the way what worked?17theyhadvoted? 18A.Youweren't given a ballot in1890.18A.Well,I didn't think that -MI don't think 19Q.I'm talkingabout today.I've usedthe19that --I think that statute actually coveredit 20reference of Barack ObamaandMitt Romney.We're20myself. 21talkingnow about 2012.Okay?21a.Allright.Why wasitamended? 22A.Okay.22A.I'mnot sure. 23Q.In2012a husbandandwife walkinto the23a.Allright.Sittinghere today,doyou 94 1pollingplace.Husband says to wife,I want youto1 2votefor Romney.Doesn't know how shevotedbecause2 3they'reinseparatebooths,correct?3 4A.Right.4 5Q.Andthe statute wasintended tostop the5 6husband fromsayingto wife,Show me your ballot6 7beforeitgoesinthe ballot box,correct?7 sA.Yes.Yes.8 9a.Allright.It was meant toregulate that9 10typeof conduct,right?10 11A.Well,any kindof conduct showingsomeone11 12else the ballot,whether it washusbandor wifeor12 13anyM- 13 14a.Oranyone.It's just anexample.14 15A.Right.15 16Q.Andit wasintended tostop conduct before16 17that ballot went to theballot box,right?17 18A.Yes.18 19a.Okay.Back to Secretary Scanlaninhis MM19 2 othesummary of his testimonyhere.Hestated2 o 21according to this document,whichisinExhibit 3 at21 22page 60, "Deputy Scanlanreiteratedcurrent law states22 23a person cannot show their markedballot prior to2 3 have -- can youoffer any testimony why it was amended? 96 A.1mean,1M- I know what theissue wasat the time,that thereMMthis new technology wasallowing it to be easier for people to takepictures inthe polling place,not only pictures-- people taking their ownpictures,but takingpictures of other people's ballots.Walkingaroundwitha phonein their hand or-- andtakingpicturesof other people's ballots.That was MMthis came up --0.The statute doesn't reachyou takingpictures of other people's ballots,correct? A.1 just said that.Youaskedme a question--Q.Okay. A.--of what came up.I was tellingyou,that came up.People were askingabout that. a.And the concern was that thelaw MMA.Youcan't takea picture of somebody else's --0.Andthe concern was thelaw prior to its amendment didnot prohibit thepublishingof a photograph of your ballot after youhadvoted? A.Yeah.I think some people thought that might 24(Pages93to96) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 25 of 47!?!?~ ~ ~ ~ ~ ----9799 1be thecase.I wasn't sosure that that-- that'smy1Q.You've expressedconcerns about votebuying, 2personal opinion.2 3Q.Okay.AndwasDeputy Scanlanoneof those3 4people who thought thelaw might reachthat - not4 sreachthat conduct?s 6A.I'm not surethat his--I don't know.I6 7~ ~ ~ 7 B0.Didyouconsult atallwith the Attorney8 9General's Officeprior totheamendment of thelaw to9 voter coercion. A.I've expressed what I've expressed. a.I understand. A.Intimidation,voting your conscience. Briberyisone part of it.There'sbullying,fame, money,economic disparity.All the different inequalities that exist. Q.Other than-- leavingaside RSA 659:35 for 10get a legal opinionabout whether thelaw might be-- 10 11MR.LABONTE:Objection,that's privileged.11 12MR.CHRISTIE:Whyisthat privileged?12 the moment, to your knowledge are there other statutes whichprohibit votebuying and voter coercioninthe stateof New Hampshire? 13MR.LABONTE:Because I'mhis attorney,and13 14thepersonhewouldhave consulted atthe timeishis14 15attorney.15 A.Well,that's -well, under the purity of elections,but this -- thisfolding,depositingof the ballot,that was --that went into the law back in--16Q.Prior totheamendment of thelaw,it's a16 17matter of- I'llask it this way.Inrelationto the17 18law that wasin-- that wasunder consideration,18 19HB 366,didyou at any time,yes or no,seek a legal19 at the verybeginning when theFree andIndependent Voting Act was passed.So that was the way that the voter shall foldhis or her ballot inthe same wayit was foldedwhenit was received. 20opinion about whether or not the law needed to be20We have to print the ballots ina way that they're foldedthat protects evenmore,so that21amendedtoreachsomeone takinga photograph of their21 22ballot and publishing thatballot online?22when-- so that it's easier-- somebody comes out and doesn't have it folded,people inthe pollingplace23MR.LABONTE:Objection tothe extent he23 98 1would have talked tocounsel. 2MR.CHRISTIE:It's a yesor no. 3MR.LABONTE:It's still privileged. 4MR.CHRISTIE:No,it's not. 5MR.LABONTE:Yes,itis. 6MR.CHRISTIE:No,it's not. 7MR.LABONTE:It's privileged. aMR.CHRISTIE:I'm not asking what the advice 9was. 10MR.LABONTE:Yes or no whether or not he sought advice? MR.CHRISTIE:Legaladvice. MR.LABONTE:Youcananswer that. a.Yes or no,did you seek legaladvice? AI don't think so. a.Okay.Didyou consult-- yes or no,did you consult any lawyer,any lawyer in theSecretary of State's Office on that issue? A.I don't think I've askedanybody for advice 1can see it.So that'spartly whyit wasn't easy to .. 2Q.I'm going to show youRSA 659:40.Do you 3have that infront of you? 4MR.LABONTE:William,I think as it's sprintedhereis an old version.Back inthe pocket 6part there's a newer versionof--7MR.CHRISTIE:I'm glad we have a lawyer in 8theroom. 9 10 (Discussionheldoff therecord.) MR.CHRISTIE:We're showing thesecretary 11the pocket part -12MR.LABONTE:From2012. 13MR.CHRISTIE:-from 2012. 100 14Q.BY MR.CHRISTIE:Would you agree that this 15statuteprohibits separate anddistinct-- strike 16that. 17Assume for a moment that RSA 659:35 doesn't 18exist.Would youagree that RSA 659:40 prohibits the 19conduct that you've been testifyingabout,about 11 12 13 14 15 16 17 18 19 20 21 22 23 on this.I have my own pretty strong opinions and my20 own background about this.So I'm not sureI've ever21 bribing someone tovote,intimidating someone to vote, coercingsomeone how they should vote? talked to anybody.I don't have anyrecollectionof talkingtoanybody in the AG's office about this. 2 2A.I don't-- I mean,whenit comes tothis, 23Attorney General's Office --25(Pages97to100) Case 1:14-cv-00489-PB Document 19-1 Filed 03/27/15 Page 26 of 471 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 101 Q.Okay.1 A.I mean,thisis-- 2 Q.Youdon't know?3 A.- not --this is their- their area.4 Q.Okay.s A.This..6 Q.Doyouknow if your electionmanualsissued7 bythe