Along with candidates for the usual bevy of federal, state and local offices on the ballot Nov. 6, voters will also find two proposed amendments to the state constitution.
One is quite short and vague, which its co-authors say was deliberate.
That proposal — on the ballot as Question 2 — seeks to extend privacy rights by giving Granite Staters a way to challenge the state’s collection of personal information. The amendment would not, however, deal with private collection of data from third parties, such as Google, Amazon and Facebook.
The other proposed amendment, Question 1, would give taxpayers standing to sue the government over the spending of public money.
The last time New Hampshire voters approved a constitutional amendment, which requires a two-thirds majority, was in 2006, even though the Legislature frequently passes amendment proposals to the ballot. Doing so requires a three-fifths majority in the N.H. House and Senate. Question 2 made it onto the ballot when both chambers passed CACR 16 earlier this year.
Despite the routine nature of amendment proposals in the Granite State, they are by no means turnout machines, according to a prominent political scientist.
“Amendments are not going to drive people to the polls,” said Andrew E. Smith, a professor of political science at the University of New Hampshire in Durham. “The last time that we had successful constitutional amendments was 2006. ... These sorts of amendments to the constitution are the sort that fly way under the radar in every instance.”
Beyond the low profile of most amendments on the ballot, Question 2’s vague wording has led to confusion among voters, Smith among them. Co-authored by state Reps. Neal Kurk, R-Weare, and Robert “Renny” Cushing, D-Hampton, the proposed amendment states, “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”
Smith said the wording of an amendment is meant to be broadly appealing and open to interpretation for it to have the best chance of passing.
“They’re not going to write them in a way that makes them less likely that they will pass,” Smith said of the authors.
According to Kurk and Cushing, the amendment is indeed intentionally written to be open to judicial interpretation.
“A constitutional amendment in my view should be a statement of principle,” Kurk said. “It’s not a specific solution that deals with a specific problem.”
Smith said amendments are also often deliberately worded to withstand legal scrutiny, which sometimes involves authors not explicitly defining their terms.
“Frankly, the lawyers would have pretty long debates as to what the implications of the amendments are as well,” Smith said. “One of the problems you get into with constitutional amendments is that the vagueness of the language or the way that they are worded has to fit into the constitutional guidelines of the state. ... You have to word them so that they are legal documents.”
When asked how he defined living “free from governmental intrusion in private or personal information,” Kurk unflinchingly said he had no need to provide a definition.
“Obviously it’s not defined in the amendment, just like the freedom of the press isn’t defined (in the First Amendment to the U.S. Constitution),” Kurk said. “It’s up to the courts.”
Cushing, similarly, said there’s no need to define terms at this point.
“It’s the constitution,” Cushing said. “When we define freedom of the press or the right to assemble, we don’t need specific concepts.”
The amendment’s real purpose, Kurk said, is to provide Granite Staters a way to protect themselves against unforeseen privacy issues in “25 or 50 years.”
“Under this amendment, the state would only be able to get this (electronic) information if they were able to show an overwhelming public purpose, such as a warrant,” Kurk said.
Cushing said voters in 2018 are in a similar position to the late-18th-century framers of the state constitution, who could not have foreseen the technological innovations that would end up colliding with the fundamental rights they were outlining.
“(Question 2) is an update to a concept of privacy that’s been in our constitution since 1784,” Cushing said. “We’ve always had an affinity for privacy in this state, even though it’s not mentioned explicitly in our constitution.”
Cushing pointed to the state and federal framers’ explicit protection of physical property from unlawful search and seizure and contrasted it with the kind of personal information we consider private today, which couldn’t possibly have been envisioned in the 1700s.
DNA — “literally who you are,” as Cushing put it — was a point of emphasis for both co-authors. Kurk drew a distinction between popular services like 23andMe, which offers customers a breakdown of their ethnic heritage along with other genetic testing, such as predisposition for health conditions, and the kind of databases the state government can compile from compulsory DNA tests and crime scene evidence.
“But the kind of information that the Legislature was talking about, and it’s only examples, (was) not a comprehensive list,” he said.
During debate on the potential amendment in the Legislature, Rep. Kurt Wuelper, R-Strafford, pointed to the lack of specificity in the state constitution on civil liberties beyond physical property.
“We’ve long protected our privacy in our ‘person, houses, papers and effects,’ but this omits the modern ability to collect and analyze personal information, things like health data, information about our DNA. ... This resolution will provide the same protection to our personal data that we have for our physical things.”
For Kurk, mandatory DNA tests and the compilation of genetic information from everyday items like coffee cups are examples of seemingly innocuous activity by the government that could become a threat to civil liberties down the line with further technological advancements.
If passed, Kurk said the amendment would not be retroactive.
For example, government records on opioid prescriptions would not be purged, since Kurk and Cushing say there is a “compelling state interest” in keeping tabs on otherwise private information that affects public safety.
Rather, Kurk said, voters would be able to challenge any government collection of their personal information through lawsuits, bill proposals and the ballot box.
When asked how he thinks voters will react to Question 2 on Election Day if they’ve never seen or heard of it before, Kurk said it should be an intuitive experience.
“When someone reads this, I would think they would say, ‘Boy, I’m glad somebody did this, because I don’t want the government snooping in my DNA and my information when they have no public purpose in doing so.’ “
Cushing hopes the amendment will draw support from across the political spectrum because of the “Live Free or Die” ethos of Granite Staters.
“I’m hopeful. It’s bipartisan because it speaks to the core of who we are in the state of New Hampshire. The right to liberty is the right to be left alone.”