STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS SUPERIOR COURT NORTHERN DISTRICT

Docket No. 216-2020-CV-00570

AMERICAN FEDERATION OF TEACHERS; and MARY WILKE,

Plaintiffs,

v.

WILLIAM GARDNER, in his official capacity as the New Hampshire Secretary of State; and

GORDON MACDONALD, in his official capacity

as the New Hampshire Attorney General, Defendants.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ OBJECTIONS TO PLAINTIFFS’ OFFER OF PROOF

Less than an hour and a half before the Court’s hearing on Plaintiffs’ Motion for

Preliminary Injunction, Defendants filed an objection to Plaintiffs’ offer of proof supporting their

motion (the “Objection”). The thrust of Defendants’ Objection evinces a fundamental

misunderstanding of how courts apply the rules of evidence and civil procedure in the context of

deciding an emergency motion for preliminary injunctive relief. Defendants’ hearsay objections

fall flat when considered against a veritable mountain of cases making clear that hearsay,

particularly in the form of a sworn affidavit, is typically the evidence upon which such motions

for emergency equitable relief are decided. Defendants’ remaining objections are equally

unavailing, and this Court should overrule them.

BACKGROUND

Beginning on September 17, counsel for Plaintiffs began communicating with counsel for

Defendants regarding their respective offers of proof on which they intended to rely at the

FiledFile Date: 9/28/2020 6:22 PM

Hillsborough Superior Court Northern DistrictE-Filed Document

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September 24, 2020 hearing on Plaintiffs’ Motion for Preliminary Injunction. On September 18,

Plaintiffs’ counsel clarified that, “[g]iven the Judge’s recent scheduling order for the argument,

there does not appear to be time for live witnesses, and he appears to be contemplating argument

on the papers,” noting that Plaintiffs “intend to rely on the declarations and exhibits that we put

into the record with our motion and any attached to our response,” and offering that, “[a]lthough

we do not think the Judge’s order contemplates it, let us know if you intend to cross-examine any

of our declarant witnesses so that we can plan accordingly.” As a courtesy, Plaintiffs’ counsel

provided advance copies of the supplemental affidavits they intended to file supporting their reply

as soon as those affidavits were executed, and Defendants did the same. It was only on the eve of

the hearing⸺less than an hour and a half before it began⸺that Defendants indicated to Plaintiffs

that they would be objecting to any of Plaintiffs’ offers of proof, filing their Objection. Defendants

make much of the fact that Plaintiffs filed their reply and supporting exhibits the night before the

hearing and imply this is why they failed to raise their objections until moments before the hearing

began. However, Defendants made no argument with regard to the exhibits filed by Plaintiffs in

support of their reply brief (i.e., Exhibits 48-53), except in a catchall argument that these six

exhibits should be struck as untimely, see Obj. at 20, so Defendants’ delay in articulating their

objections could not possibly have been predicated on the time at which Plaintiffs’ filed their

timely reply brief. As Plaintiffs’ Motion for Preliminary Injunction is still under advisement,

Plaintiffs briefly respond to Defendants’ Objection as follows, and further offer their own chart in

response to that filed by Defendants, which is attached hereto as Exhibit A.

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ARGUMENT

New Hampshire courts, like other state and federal courts around the country, “customarily

grant[]” motions for a “preliminary injunction . . . on the basis of procedures that are less formal

and evidence that is less complete than in a trial on the merits.” Spengler v. Porter, 144 N.H. 163,

168 (1999) (quoting University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)); see also N.H.

Dep't of Envtl. Servs. v. Mottolo, 155 N.H. 57, 61 (2007) (quotations omitted) (observing that

“preliminary injunctions serve only to preserve the status quo until a trial on the merits,” and that

preliminary injunction proceedings “are less formal and [based upon] evidence that is less

complete than in a trial on the merits.”); Stack v. Merriewoode Vill., Inc., No. 2018-0389, 2019

WL 1450306, at *6 (N.H. Mar. 14, 2019) (same). This is because the purpose of the preliminary

injunction is universal in American jurisprudence—preliminary injunctions provide equitable

relief designed to preserve the status quo until a trial on the merits can be held, subject to more

fulsome procedures and evidentiary rules, to prevent the irreparable harm of the requestor.

Courts generally agree that inadmissible evidence can (and often must, based on urgency)

be considered at the preliminary injunction stage, and that the inadmissible nature of evidence

merely decreases the weight of that evidence. See Asseo v. Pan Am. Grain Co., Inc., 805 F.2d 23,

26 (1st Cir. 1986); Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010); Kos Pharm., Inc.

v. Andrx Corp., 369 F.3d 700, 718 (3d Cir. 2004); G. G. v. Gloucester County School Board, 822

F.3d 709, (4th Cir. 2016), vacated on other grounds, 137 S. Ct. 1239 (2017); Sierra Club, Lone

Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir.1993) (“[A]t the preliminary injunction stage,

the procedures in the district court are less formal, and the district court may rely on otherwise

inadmissible evidence, including hearsay evidence.”); Ty, Inc. v. GMA Accessories, Inc., 132 F.3d

1167, 1171 (7th Cir. 1997); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984);

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Levi Strauss & Co. v. Sunrise Int'l Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995) (“At the

preliminary injunction stage, a district court may rely on affidavits and hearsay materials which

would not be admissible evidence for a permanent injunction, if the evidence is appropriate given

the character and objectives of the injunctive proceeding.” (citation and internal quotations

omitted)); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (reasoning that “[t]he

urgency of obtaining a preliminary injunction necessitates a prompt determination and makes it

difficult to obtain affidavits from persons who would be competent to testify at trial. The trial court

may give even inadmissible evidence some weight, when to do so serves the purpose of preventing

irreparable harm before trial.”) (citing 11 C. Wright and A. Miller, Federal Practice and Procedure,

Civil, § 2949 at 471 (1973)). Indeed, the Fourth Circuit has even held that refusing to consider

inadmissible evidence at the preliminary injunction stage may constitute an abuse of discretion.

See G. G. v. Gloucester County School Board, 822 F.3d 709, 724-25 (4th Cir. 2016), vacated on

other grounds, 137 S. Ct. 1239 (2017).

Because Plaintiffs’ offer of proof is in support of a motion for preliminary injunctive relief

in order to avoid irreparable harm to the fundamental rights of Plaintiffs and the New Hampshire

electorate more broadly, all of Defendants’ objections should be denied.

Hearsay: Defendants object to Plaintiffs’ Exhibits 1, 4-14, 18-24, 27-31, 33, and 38-47,

as well as to portions of the affidavits of Mary Wilke, Rhonda Weingarten, Kyri Claflin, Victoria

Turner, Jeanne Cusson, Karen Halliday, Mary Evilsizer, Suzanne Delaney, the supplemental

affidavit of Kyri Claflin, and the declaration of Louise Pajak on the basis of hearsay, but hearsay

does not serve as a basis for excluding evidence at the preliminary injunction stage. To the

contrary, courts routinely consider testimony presented in an affidavit or declaration at the

preliminary injunction stage. See The Hawksbill Sea Turtle v. Federal Emergency Mgmt. Agency,

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939 F. Supp. 1195, 1201 (D.V.I) (denying the parties’ motions to strike affidavits and their exhibits

because “[he]earsay materials and evidence other than live testimony may be properly considered

by the court in preliminary injunction proceedings.”); Levi Strauss & Co. v. Sunrise Int’l Trading,

51 F.3d 982, 985 (11th Cir. 1995) (affirming preliminary injunction granted based on sworn

statements and explaining, “[a]t the preliminary injunction state, a district court may rely on

affidavits and hearsay materials which would not be admissible evidence for a permanent

injunction . . . .”); Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190, 198

(9th Cir. 1953) (noting that a preliminary injunction may be granted on affidavits); Elrod v. Burns,

427 U.S. 347, 350 n. 1, (1976) (taking as true the “well-pleaded allegations of respondents’

complaint and uncontroverted affidavits filed in support of the motion for a preliminary

injunction”). This is true even when such sworn statements contain multiple levels of hearsay or

are not based exclusively on the personal knowledge of the affiant. Compare Fed. R. Civ. P. 56

(requiring affidavits supporting summary judgment to be “made on personal knowledge, [and to]

set out facts that would be admissible in evidence”), with Fed. R. Civ. P. 65 (providing no such

requirement in the preliminary injunction context); see also N.H. Rule Civ. P. 48(a) (explaining

that ex parte temporary restraining orders may be granted based on affidavits or a verified petition);

N.H. Rule Civ. P. 48(g) (noting that even an ex parte preliminary injunction may be proper and

granted, though ex parte relief typically requires the requesting party to pay a bond). Defendants’

objections based on hearsay are therefore misplaced and should be denied.

Relevance: Defendants also make several baseless objections based on relevance. For

example, Defendants assert that the entire affidavit of Maribeth Witzel-Behl, the City Clerk for

Madison, Wisconsin, is “irrelevant” and that the affiant’s “experiences bear no relation to the

experiences of the local election officials in New Hampshire.” Obj. at 7, ¶ 17. But the affiant’s

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experience that making registration forms available for download online “greatly increases the

efficiency of the elections process,” obviates the need for election officials to pay outgoing postage

when providing registration documents, decreases the burdens on election officials, and has not

resulted in any of the dangers threatened by Defendants is relevant rebuttal evidence to the issues

before the Court. See Affidavit of Maribeth Witzel-Behl, ¶¶ 6, 10, 13-14. And this evidence is

particularly relevant when coupled with the fact that New Hampshire is the only state in the country

that does not offer online voter registration, or, at the very least, make registration forms available

for download online.

Defendants also assert that official letters and reports by the United States Postal Service

(“USPS”) on past and predicted inabilities of the USPS to timely deliver election mail, including

specifically under New Hampshire’s particular absentee voting regime, are not relevant. See, e.g.,

Obj. at 16 (arguing that Plaintiffs’ Exhibit 21, a letter from the General Counsel of the United

States Postal Service to Defendant Secretary of State Gardner indicating that “certain [New

Hampshire] state-law requirements and deadlines appear to be incompatible with the Postal

Service’s delivery standards” and recommending timeframes related to voting by mail, is not a

relevant); id. (arguing that Plaintiffs’ Exhibit 23, a letter from the General Counsel of the United

States Postal Service to United States Senate Minority Leader Chuck Schumer forewarning of

issues arising because of “the interplay between deadlines set by state law and the Postal Service's

delivery standards,” Ex. 23 at 2, is not relevant proof). But these documents are plainly relevant.

A significant portion of Plaintiffs’ argument alleges that the confluence of the anticipated increase

in absentee ballots and the anticipated mail delays, ensures that the Election Day Receipt Deadline

will severely burden thousands of voters because their ballots will arrive late. Accordingly, the

state of the mail in New Hampshire (and an understanding of how the mail operates more

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generally) are directly relevant to Plaintiffs’ proof in this case. For these same reasons, objected to

Exhibits 9-13, 22 are relevant as well.

Authentication: Defendants also challenge the authenticity of Exhibits 1, 13, 16, 19, 27,

28, 30, 38-41, and 43-45, but this too is no basis to exclude evidence at the preliminary injunction

stage, particularly here where Defendants do not (and cannot) claim that these offers of proof are

inaccurate or unreliable. For example, Defendants assert that recommendations and reports by

members of the Select Committee on 2020 Emergency Election Support (the “Select Committee”)

that Defendants themselves have published on the Secretary of State’s website are not authentic.

See Obj. at 9 (alleging that Plaintiffs’ Exhibit 1, the Final Absentee Voting Process Plan by Select

Committee Member Kate Hanna, which the Secretary has admittedly published on his official

website, is not authentic); id. at 14 (alleging that Plaintiffs’ Exhibit 19, the Final Absentee

Registration Plan by Select Committee Member Tom Sherman, which the Secretary has admittedly

published on his official website, is not authentic). But such objections cannot hold water here. In

particular, New Hampshire Rule of Evidence 901(a) provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent claims.” And the

New Hampshire Supreme Court has made clear that “[t]he bar for authentication of evidence is

not particularly high.” State v. Stangle, 166 N.H. 407, 409 (2014) (quotation omitted). Indeed,

“[t]he proof necessary to connect an evidentiary exhibit to a defendant may be made by

circumstantial evidence.” Id. (quotation omitted). “The proponent need not rule out all possibilities

inconsistent with authenticity, or prove beyond any doubt that the evidence is what it purports to

be.” Id. (quotation and ellipsis omitted); see also State v. Palermo, 168 N.H. 387, 392 (2015)

(same). Here, Defendants have offered nothing to rebut the authenticity of any of the evidence

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Defendants purport to challenge under Rule 901(a), which Plaintiffs have shown to have been

published on the websites of New Hampshire municipalities and on the Secretary of State’s own

website. In any event, should the Court need to assure itself of the exhibits’ authenticity, they are

available at the following Secretary of State’s own website:

https://sos.nh.gov/media/ctupyqjx/absentee-voting-process-plansubmitted-by-kate-hanna.pdf and

https://sos.nh.gov/media/3kjikzxt/absentee-registration-proposed-bytom-sherman-1.pdf. And

links establishing the authenticity of other online materials relied upon by Plaintiffs are readily in

Plaintiffs’ offer of proof. See generally Affidavit of Bruce V. Spiva. Thus, the Court should reject

Defendants’ authenticity objections to Exhibits 1, 13, 16, 19, 27, 28, 30, 38-41, and 43-45.

Daubert-style Objections: Courts should also reject Defendants’ Daubert-style objections

to Dr. Herron’s Expert Affidavit. As an initial matter, Defendants have not moved to exclude

Plaintiffs’ expert submissions under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),

as adopted by New Hampshire courts in Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148

N.H. 609, 614 (2002), let alone have Defendants met their burden to warrant exclusion. But, even

had Defendants moved under New Hampshire Rule of Evidence 702 and Baker/Daubert to exclude

Plaintiffs’ expert affidavits, such a challenge would be fruitless. The analyses offered by Professor

Michael C. Herron satisfy the Daubert standard, under which courts consider such factors as (1)

whether the theory or technique in question can be and has been tested; (2) whether it has been

subjected to peer review and publication; (3) its known or potential error rate; (4) the existence

and maintenance of standards controlling its operation; and (5) whether it has attracted widespread

acceptance within a relevant scientific community. See Daubert, 509 U.S. at 579. Indeed, Dr.

Herron is a recognized expert in his field of political science, election administration, and statistical

analysis. See Expert Affidavit of Michael C. Herron (“Herron Expert Aff.”) at 112-21. He has been

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qualified as an expert by other judges in this Court, see e.g., League of Women Voters of New

Hampshire v. Gardner (“LWVNH II”), No. 226-2017-CV-00433, 2020 WL 4343486 (N.H. Super.

Apr. 08, 2020); League of Women Voters of New Hampshire v. Gardner (“LWVNH I”), No. 226-

2017-CV-00433, 2018 WL 5929043 (N.H. Super. Oct. 22, 2018), and his analysis has been found

to be credible and useful to the court. See LWVNH II, 2020 WL 4343486 at *8, 9-11 (relying

heavily on Professor Herron’s analysis regarding the calculus of voting and noting that the only

rebuttal evidence offered by the State, namely the report of M.V. Hood, III, Ph.D, was “not

credible.”); LWVNH I, 2018 WL 5929043 at *6-10 (crediting and relying on Professor Herron’s

expert analysis, inter alia, with regard to the absence of voter fraud in New Hampshire, voter

turnout, and perceptions of “election integrity”). More importantly, Dr. Herron used the same

methods that he regularly uses in his field⸺and, in fact, which he has used in other cases in this

Court⸺to analyze the data before him regarding absentee registration and voting and to draw

conclusions. See Herron Expert Aff at ¶¶ 23-24 (listing matters in which Professor Herron has

been offered as an expert and found credible by courts); id. at ¶¶ 27-28 (explaining that he has

employed the methodological framework regularly employed when analyzing the “calculus of

voting” in his report here); see also LWVNH II, 2020 WL 4343486 at *9-11 (crediting Professor

Herron’s analysis on the calculus of voting, in particular); id. at *6, n.3 (“The Court found Dr.

Herron to be a well-qualified expert witness and finds the conclusions referred to herein to be

reliable and adequately supported in the record”). Defendants’ have provided no analysis or

competing expert to assert otherwise.

Defendants further assert that Professor Herron—and potentially former Deputy

Postmaster General Stroman (this is not clear in Defendants’ pleading or chart)—cannot qualify

as an except as to quantitative analysis, but this claim has no basis. Instead, New Hampshire Rule

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of Evidence 702, which mirrors Federal Rule of Evidence 702, makes clear that “[a] witness who

is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the

form of an opinion or otherwise if . . . the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

(emphasis added). As is true of the federal rule, “[t]his language makes no relevant distinction

between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge.” Kumho Tire Co.

v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Fed. R. Civ. P. 702). To the contrary, both the

New Hampshire and federal Rule “make[] clear that any such knowledge might become the subject

of expert testimony.” Id. Accordingly, Defendants’ claim that Professor Herron’s expertise, or that

of former Deputy Postmaster General Stroman’s expertise, must be limited only to quantitative

analyses is baseless.1

Finally, courts have routinely held, in any event, that any Daubert analysis at the

preliminary injunction stage should only go towards a court’s “assessment of the evidence’s

weight.” See A.A. v. Raymond, No. 2:13-cv-01167, 2013 WL 3816565, *4 (E.D. Cal. July 22,

2013) (collecting cases). Thus, even if this Court were to take these arguments into account, they

would not result in the exclusion of Dr. Herron’s expert affidavit, but rather the weight that this

Court gives to it.

CONCLUSION

1 See also LWVNH II, 2020 WL 4343486, at *23 (finding that Professor Herron’s conclusions were well supported by relevant political science literature); Herron Expert Aff at ¶¶ 23-24 (listing matters in which Professor Herron has been offered as an expert and found credible by courts); id.at ¶¶ 27-28 (explaining that he has employed the methodological framework regularly employed when analyzing the “calculus of voting” in his report here and citing to the well-settled bases for this framework in the literature).

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For the foregoing reasons, Defendants’ objections to Plaintiffs’ offer of proof supporting

their Motion for Preliminary Injunction should be denied.

Respectfully submitted,

AMERICAN FEDERATION OF TEACHERS

By Their Attorneys,

Dated: September 28, 2020 /s/ Steven J. Dutton____________________

Steven J. Dutton, NH Bar No. 17101 steven.dutton@mclane.com McLANE MIDDLETON, PROFESSIONAL ASSOCIATION 900 Elm Street Manchester, NH 03101 Telephone (603) 628-1377

Marc Erik Elias, pro hac vice melias@perkinscoie.com Bruce Spiva, pro hac vice bspiva@perkinscoie.coM Amanda Callais, pro hac vice acallais@perkinscoie.com Tre A. Holloway, pro hac vice tholloway@perkinscoie.com Alexi M. Velez, pro hac vice avelez@perkinscoie.com PERKINS COIE LLP 700 Thirteenth Street, NW, Suite 800 Washington, DC 20005-3960 Telephone (202) 654-6200

Will M. Conley, pro hac vice wconley@perkinscoie.com PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, WI 53703-3095 Telephone: 608.663.7460 Facsimile: 608.663.7499

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Certificate of Service

I certify that on September 28, 2020, I served the foregoing pleading on all counsel of

record through the Court’s electronic filing system.

/s/ Steven J. DuttonSteven J. Dutton