An attempt to close the New Hampshire Republican presidential primary election to allow only Republican voters has failed, even though opening it to all voters may have violated the law.
Karen Testerman, who serves as chair of the Merrimack County Republican Committee, unsuccessfully ran for governor, and whose husband is New Hampshire State Representative David Testerman (R-Franklin), drafted a resolution that was adopted by the New Hampshire Republican Party a year ago demanding that New Hampshire Secretary of State David Scanlan close the primaries. She also sued him last fall, but the lawsuit was dismissed on January 9, with the judge stating Testerman and the other plaintiffs did not have standing.
According to The New Hampshire Center for Public Interest Journalism (NHCPIJ), Scanlan said he couldn’t close the primary until he received a letter from the New Hampshire Republican Party (NHGOP) chair instructing him to do so, citing RSA 659:14-2 in Special Provisions for State and Presidential Primary Elections.
“The party chair is required to write a letter to the Secretary of State to inform him or her of any change in party rules that would determine who can participate in a party primary and that letter has to be delivered before the filing period for office opens up,” he said last October. Scanlan ignored the resolution passed by the NHGOP, which was provided to him by other Republican officials.
New Hampshire law states that the parties may open or close their primaries without legislation. Testerman told The New Hampshire Star that the NHGOP never told the secretary of state to open the presidential primary, so previous elections have been conducted illegally for years.
RSA 659:14-2 provides:
The secretary of state shall include on the voter instruction cards required by RSA658:28 whether a party rule has been adopted which permits a person who is registered as an undeclared voter to vote in the party’s primary. The party chairman shall notify the secretary of state in writing prior to the filing period for state offices whether the party has adopted such a rule. This rule shall not be changed or rescinded by a party until the results of the primary have been announced, and any change or rescission shall be mailed to the secretary of state by the party chairman.
Scanlan admitted in an email response to New Hampshire attorney Normal Silbur dated October 9, 2023, that he knew of no letter from the NHGOP changing the presidential primary election to open primaries and instead justified the practice due to it being in place for years.
“In response to your RSA 91-A request my office has not been able to locate any ‘written notice’ of a Republican State Party rule change relative two which voters can participate in a New Hampshire primary election,” he said. “The current practice of permitting undeclared voters to declare their affiliation with the Republican Party and then change back to undeclared or remain in the party after voting has been in place for decades. For me to administer a change related to participation in a party primary would require written notice of a rules change from the party chair.”
In the 1986 case Tashjian v. Republican Party, the U.S. Supreme Court held that political parties had the ultimate say in whether other registered voters could participate in their primaries, not state legislatures passing laws. The majority said, “We conclude that § 9-431 impermissibly burdens the rights of the Party and its members protected by the First and Fourteenth Amendments.” Testerman said this shows the decision by the NHGOP passing a resolution to have a closed primary is authoritative.
Testerman told The Star she intends to seek a court order asking that the votes from non-Republicans in the primary be sequestered from the votes of Republicans until her appeal and the issue can be fully adjudicated first. She said opponents of former President Donald Trump do not want a closed primary because they want him to suffer a loss in New Hampshire’s important presidential primary.
Unless the election is closed, 320,000 non-Republican voters will be able to participate in the Republican presidential primary election on January 23. The Star asked NHGOP Chair Chris Ager for comment but did not receive a response before press time.
– – –
Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “People Voting” by Aaron Webb. CC BY-NC-SA 2.0.
