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Daniel Richard November 29, 2023, Supreme Court Oral Arguments

Proceedings commence at 9:31 a.m.

The Clerk: This is case 2023-0097, Daniel Richard v. Governor, State of New Hampshire, et al.

Justice MacDonald: Good morning.

Mr. Richard: Good morning.

Justice MacDonald: Good morning, Mr. Richard. I understand you reserved two minutes for rebuttal.

Mr. Richard: Yes, sir.

Justice MacDonald: And for the record, on the appellee side, I understand Attorney Conley, you'll be going first for 10 minutes and 2 minutes for Attorney Tierney; is that correct?

Justice MacDonald: All right, Mr. Richard, please proceed.

Mr. Richard: Thank you. May it please the Court, my name is Daniel Richard. I'm representing myself in this matter. I'm not an attorney; I'm a pro se litigant and not trained in the practice of law. I would also like to extend my apologies in advance for any procedural errors I may have made or that I may make before you here today.

I requested this Court to reserve approximately two minutes for rebuttal. I believe I was wrongly denied by the trial court a hearing on the merits of my case including, but not limited to, the benefit of discovery and an opportunity to present expert witnesses. Respectfully, I'm seeking from the Court the following relief. However, in the alternative, I would ask for the Court to reverse the lower court's ruling and remand my case back to the lower court for a trial by jury so a jury can decide whether the Defendants either misunderstood or simply violated New Hampshire's law of the land.

Mr. Richard: The body of my rights enumerated in my briefs and under the new standard of review, I believe that we'd have a different outcome. So, under the recent cases that I cited in the late authorities, what we have is a shifting of the burden. The burden of proof is no longer upon me; it's now upon the State to prove that its statutory scheme would have been applicable at the time my rights were enumerated. In the lower court, none of that was an opportunity. We had an emergency hearing based on the safety concerns that I had raised and that was the extent of it. My expert witness was denied the right to testify, and we had no proceeding on the merits of the arguments. But that's my answer to what I would say differently.

Justice Hantz Marconi: Along the same lines as Justice Donovan's question, what discovery would you have sought and how would it have related to your claims?

Mr. Richard: Well specifically, the State, the Secretary of State's office, there's conflict in the law so there was no ability for me to question them. We have a conflict with the affidavit issue which is the evidence that the State isn't following the process, right? The absentee voting requires that the moderator of every town examine the absentee -- excuse me -- absentee envelope and make sure that the affidavit was properly executed. That's not happening. We have a big problem. That hasn't happened since 1979. And the reason it hasn't happened is that in '79 the state legislature decided it would give us religious liberty. And what they did is they created by statute -- they created a statutory right that authorized an exemption for a religious exemption. At the same time, that same legislature omitted the notary certificate that had been in effect since the law -- since 1941 when absentee voting became a constitutional right. The big difference is the constitution provides in Part 2, Article 32, that the moderator's supposed to sort and count the votes, not a machine. I don't know if I answered that question, Ma'am.

Justice Hantz Marconi: You did.

Justice Bassett: Mr. Richard, the State spends the first part of its brief raising the issue that the issues that you actually briefed were not in your notice of appeal. And you don't respond to that in your reply brief. Can you respond now, please?

Mr. Richard: Yes, absolutely. And all due respect, yes, I failed as a pro se litigant to understand the process and I thought that I would be given that opportunity during the legal process itself of actually having a hearing and preparing all my evidence for that hearing but that didn't happen.

Justice Bassett: And what is it that -- why is it inappropriate for the trial court to have analyzed and made a decision in regard to Question 8 of the 1976 amendments? It seems to me that it had all the information that it needed to make the decision it made.

Mr. Richard: With all due respect to the lower court, they were absolutely wrong on every fact and every position they took in that brief. Let's go over the 1976. There are five yes or no questions put to the voters in '76. The court has already struck down Question B, the domicile question, and Question D, which is the change in the time of who notifies the winner of the election and the month in which it happens. So these things have already been struck down by this Court. The Fischer v. Governor struck down the domicile question. So why it still remains, I don't know. But Question A, the voting age, was moot. It was already law. It had been passed in an affirmative manner two years earlier in 1974. Why is it the lead question when it's moot? If you look at the bottom of the voting guide, it tells the voters that Question A is already law. Well, how can the voters say yes or no when you have five substantive questions relating from age, domicile, voting in unincorporated places, changing who and how elections are notified, and E, absentee voting. Absentee voting had been law since 1942 and then in '56 when they amended the constitution a second time. So how that is not in -- and here's the killer. Gerber v. King was already settled law in 1967.

Article 100 of the State Constitution is clear. You cannot change the definition -- I'm sorry, I lost my train of thought. Please help.

Justice Bassett: Well, let me just ask. Is your argument in regard to Question 8 that it was premature, and the trial court should have had a trial on that or --

Mr. Richard: Well, article 100 --

Justice Bassett: -- or that the trial court --

Mr. Richard: Yeah.

Justice Bassett: -- was wrong?

Mr. Richard: Thank you, sir. My point was going to be that the Article 100 is clear. You have to ask a single yes or no question. You can't put five yes or no questions, give the voters one choice, and call it good. So that's exactly where that's at. And that's when Gerber v. King struck down. So, when the State cites Gerber v. King, they cherry picked one section of it that fit the narrative, but it doesn't address the underlying legal issue that five yes or no questions is inappropriate under Gerber v. King. Background. I'd like to get into the recent -- the recent late authorities that I brought into the case that I was unaware of when I filed my brief. Under that new standard -- I don't call it a new standard of review. I call it the corrected standard of review. In the Second Amendment cases at the federal level, we had a corrective decision in Bruen last year and that was that Heller -- the lower courts didn't get what the Supreme Court was trying to say in Heller.

What they did in that case is in Bruen they brought up the fact that -- that all the courts now must follow this process. And that is that when you look at the Bill of Rights, you must look at the plain text and analyze the plain text. And even New Hampshire's case law I think I cited -- I think I cited the most recent version of the same standard of review for this court and that was that when you look at the plain text under this new precedent, or this corrected precedent, you're now left with -- you're now left with the burden shifting to the state. So, it's no longer my burden to prove that the statutory scheme -- and that's Ratter -- that's --

Justice Bassett: But we aren't bound by Bruen, are we?

Mr. Richard: We are now because of the Moore v. Harper case and because under Article 1, Section 4 of the U.S. Constitution, Moore v. Harper which was the redistricting case, and that case outlined these issues. It outlined that now because as a federally protected right.

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