Girard v. Governor, NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
STEPHEN D. GIRARD
v. Civil No. 24-cv-00369-JL-TSM
CHRISTOPHER SUNUNU, GOVERNOR
REPORT AND RECOMMENDATION
Self-represented Plaintiff, Stephen D. Girard, a prisoner at the New Hampshire State Prison
(“NHSP”), filed a Complaint under 42 U.S.C. § 1983, challenging the constitutionality of the New
Hampshire statute prohibiting sentenced felons from voting prior to the discharge of their felony
sentence, RSA 607-A:2. Doc. Nos. 1, 1-1. The Complaint is before the undersigned magistrate
judge for preliminary review. See 28 U.S.C. §§ 1915(e)(2), 1915A(a); LR 4.3(d)(1). For the
reasons that follow, the court recommends that the district judge dismiss this case.
PRELIMINARY REVIEW STANDARD
Federal district courts must conduct a preliminary review of a “complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” See 28 U.S.C. § 1915A; LR 4.3(d)(1). The court may dismiss such
complaints, sua sponte, if the court “lacks subject matter jurisdiction, or the action is frivolous or
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against
a defendant who is immune from such relief.” See LR 4.3(d)(1)(A); 28 U.S.C. §§ 1915(e)(2),
1915A(b)(1)-(2). “During preliminary review, the court determines whether the complaint
contains ‘sufficient factual matter, accepted as true, to “state a claim to relief.”’ Beaulieu v. N.H.
Dep’t of Corr., Comm’r, 561 F. Supp. 3d 16, 19 (D.N.H. 2021) (citing Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009)). To determine whether to dismiss claims, the court takes as true the factual
content in the complaint and inferences reasonably drawn from those facts, strips away legal
conclusions, and considers whether the plaintiff stated a claim upon which relief can be granted.
See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013). In conducting its
preliminary review, the court must construe a pro se plaintiff’s complaint liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
BACKGROUND
Mr. Girard’s Complaint challenges the constitutionality of a New Hampshire statute, RSA
607-A:2, which provides in pertinent part:
I(a) A person sentenced for a felony, from the time of his or her sentence until his
or her final discharge, may not:
(1) Vote in an election, but if execution of sentence is suspended with or
without the defendant being placed on probation or he or she is paroled
after commitment to imprisonment, the correctional facility shall
provide the offender written notice that he or she may vote during the
period of the suspension or parole; or
(2) Seek the nomination of a political party or become a candidate for or
hold public office.
RSA 607-A:2 I(a).
Mr. Girard asserts that the right to vote is “protected under the 14th Amendment – Equal
Protection of Law Clause, as well as under the NH Constitution Pt. FIRST, Art. 2 - Natural Rights”
and that this right is “violated or conflicted” by RSA 607-A:2. Doc. No. 1-1 at pg. 1. Mr. Girard
states that the “State of NH is attempting to supercede [sic] the US Constitution when it neither
has the right [n]or power to do so.” Id.
Mr. Girard asserts that RSA 607-A:2 violates the Equal Protection Clause of the Fourteenth
Amendment in that the statute precludes felons from holding political office. Id. He states that
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“Former President, Donald J. Trump, is a convicted felon,” and “according to RSA 607-A:2, he
should not be on the NH ballot for President of the United States.” Id. Mr. Girard also contends
that felon disenfranchisement violates the 15th Amendment, asserting that the state is denying
felons the right to vote based on a “condition of servitude.” Doc. No. 3 at pg. 4. Additionally, Mr.
Girard questions whether certain New Hampshire Department of Corrections’ mailroom practices
(e.g., providing him with a photocopy of a “voter registration form for an absentee ballot” the City
of Concord mailed to him, and denying him photocopies of identification documents from his
family) constitute an unconstitutional interference with his right to participate in federal elections.
Id. at pg. 1. As relief, Mr. Girard requests that this court deem RSA 607-A:2 unconstitutional and
hold a hearing to address these matters.1 Doc. No. 1-1 at pg. 4.
DISCUSSION
The court construes Mr. Girard’s Complaint as raising the following claims for relief: (1)
RSA 607-A:2 violates the Fourteenth Amendment’s Equal Protection Clause, (2) RSA 607-A:2
violates Article 2 of the New Hampshire Constitution; and (3) NHSP prison officials have violated
Mr. Girard’s state and federal constitutional right to vote by denying him paperwork necessary for
registering to vote.
I. Fourteenth Amendment’s Equal Protection Clause
Plaintiff argues that RSA 607-A:2 violates the Fourteenth Amendment’s Equal Protection
Clause by creating a “second-class” status for incarcerated citizens, disenfranchising them and
1 Mr. Girard initially sought an emergency injunction granting him the right to vote in the
November 2024 federal presidential election. The magistrate judge recommended that the district
judge deny the request as moot because the court received the Complaint and request for injunctive
relief after the election. See Endorsed Ord. 11/12/24. The district judge approved the magistrate
judge’s recommendation. Doc. No. 6.
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denying them political representation while they remain subject to taxation. Doc. No. 1-1 at pg.
2. Furthermore, he claims the statute is unconstitutional because it attempts to “supersede” the
federal constitution by imposing state-level restrictions on qualifications for federal offices, such
as the presidency. Id. at pg. 1.
The United States Supreme Court has declared that a citizen has a “constitutionally
protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”
Dunn v. Blumstein, 405 U.S. 330, 336 (1972). However, this equal right to vote is not absolute
because the States have “the power to impose voter qualifications, and to regulate access to the
franchise in other ways.” Id. To state a claim under the Equal Protection Clause of the Fourteenth
Amendment challenging a voter-disenfranchisement law, a plaintiff must allege that a state statute
“grants the right to vote to some citizens and denies the franchise to others,” and that the exclusions
are not “necessary to promote a compelling state interest.” Id. at 337.
In Richardson v. Ramirez, the Supreme Court recognized that § 2 of the Fourteenth
Amendment expressly contemplates disenfranchisement for “participation in rebellion, or other
crime,” and therefore state laws disenfranchising convicted felons, including those who completed
their sentences and paroles, have been upheld against Equal Protection challenges. See Richardson
v. Ramirez, 418 U.S. 24, 53-55 (1974) 2; see also Fischer v. Governor, 145 N.H. 28, 40 (2000)
(affirming that RSA 607-A:2 does not violate any federal rights).
Because the United States Supreme Court and the New Hampshire Supreme Court have
both decided that state laws like RSA 607-A:2 do not violate the Equal Protection Clause of the
2 California changed its own laws since the United States Supreme Court decided Richardson. As
the court in Miller v. Newsom explained, California now allows people to vote once they have
finished their time in prison. See Miller v. Newsom, No. 20-08021 BLF (PR), 2021 U.S. Dist.
LEXIS 53714, at *3 n.1, 2021 WL 1087462, at *2, n.1 (N.D. Cal. Mar. 19, 2021).
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Fourteenth Amendment, the court recommends that the district judge dismiss Plaintiff’s equal
protection claim for failure to state a claim upon which relief can be granted.
II. Article 2 of the New Hampshire Constitution
In his Complaint, Plaintiff alleges that the right to vote is protected under the “NH
Constitution Pt. FIRST, Art. 2 - Natural Rights.” Doc. No. 1-1 at pg. 1. The New Hampshire
Supreme Court has stated that the “language in Part I, Articles 1 and 2 of the State Constitution,
that ‘[a]ll men are born equally free and independent’ and ‘[a]ll men have certain natural, essential,
and inherent rights’. . . must be read consistently with Article 11, the specific voting provision
within [New Hampshire’s] constitution” which gives the New Hampshire state legislature the
authority to establish “proper qualifications” for voter eligibility, including denying the right to
vote for incarcerated felons. Fischer, 145 N.H. at 36-40. “[T]he legislature’s constitutional
authority to enumerate voter qualifications cannot be inhibited by the general language of Part I,
Articles 1 and 2.” Id. at 40. Accordingly, the district judge should dismiss Mr. Girard’s state
constitutional claim.
III. NHSP Mailroom
Mr. Girard claims that NHSP officers working in the prison mailroom violated his
constitutional right to vote by giving him photocopies of voter registration documents sent to him
by the City of Concord, and by refusing to give him the photocopies of identification documents
sent to him by his family. Doc. No. 8. Mr. Girard’s complaints about the mailroom depend on his
assertion that by denying him those documents, mailroom personnel interfered with his right to
vote. However, as fully explained above, the statute denying Mr. Girard the ability to vote prior
to the discharge of his sentence is constitutional. Accordingly, to the extent Mr. Girard seeks to
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assert any claims alleging a violation of his right to vote arising out of the conduct of the NHSP
mailroom staff, the district judge should dismiss those claims.
CONCLUSION
For the foregoing reasons, the court concludes that Mr. Girard failed to state any claim
upon which relief can be granted. Accordingly, the court recommends that the district judge
dismiss this case in its entirety. Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day
period may be extended upon motion. Any issues not preserved by such objection(s) are precluded
on appeal. See id. Failure to file any objections within the specified time waives the right to
appeal the district court’s order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
January 26, 2026
cc: Stephen Girard, pro se
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