By NANCY WEST, InDepthNH.org
CONCORD – Associate Attorney General Anne Edwards notified Rep. Rebecca McWilliams Sunday afternoon that Deputy Secretary of State David Scanlan can legally be sworn in as Acting Secretary of State after McWilliams sought a legal opinion Friday.
McWilliams raised the question after Secretary of State William Gardner announced his retirement last week and said Deputy Scanlan would be taking the reins.
“Attorney General Formella issued an opinion on Thursday, January 6, 2022, to Secretary of State Bill Gardner confirming, as past Attorney Generals have confirmed, that Dave Scanlan will be assuming the role of Acting Secretary of State in accordance with Part II, Article 69 of the New Hampshire Constitution,” Edwards said in the email to McWilliams.
“Because of Secretary Gardner’s resignation, he is unable to serve because he has removed himself from office. The Constitution requires that the Deputy Secretary of State then exercises all of the duties of the Secretary,” Edwards said.
Edwards attached letters dealing with the issue from Formella to Gardner, and former Attorney General Louis Wyman and former Deputy Attorney General Tom Rath on behalf of former Attorney General David Souter.
McWilliams, D-Concord, also had raised the question on Twitter of whether the deputy can be sworn-in where she said:
“SoS Gardner doesn’t appear to have the authority to nominate his successor – that’s the legislature’s job.” And she linked to the memorandum she sent to Formella. See memo here: https://www.dropbox.com/s/bjjogyf5fpnp7i3/MEMORANDUM%20RE%20NH%20SOS%20SUCCESSION.pdf?dl=0
After receiving the email from Edwards Sunday, McWilliams tweeted: “I received an opinion from the NH AG re: SoS succession. Based on past AG opinions in 1976 & 1960, when the SoS role is vacant, the Acting Deputy SoS becomes the de facto SoS and swearing-in is just semantics. Therefore, Scanlon will be an independent SoS.”
The legislature votes for Secretary of State every two years and Gardner is midway through this term.
In a Jan. 6 letter to Gardner, Formella answered Gardner’s questions regarding the legal status of the deputy Secretary of State who assumes the office.
“In short, the deputy becomes acting Secretary, assumes all powers and duties of the office of Secretary of State and as such operates in a manner indistinguishable from a secretary appointed/elected by the legislature or the election of a new secretary,” Formella wrote.
Formella quoted Article 69 in the New Hampshire Constitution that “mandates that the Secretary of State shall at all times have an appointed deputy Secretary of State, whom the Secretary of State appoints and that in the case of death, removal or inability of the Secretary of State the deputy shall exercise all duties of the office of the Secretary of State, until another be appointed.”
On Jan. 5, Gardner explained why Scanlan could be sworn in.
Gardner, 73, said he is not naming the next Secretary of State.
“It’s not me. I’m not naming him,” Gardner said when reached by phone.
The New Hampshire Constitution does that, he said.
“Part 2 article 69 of the New Hampshire Constitution says in the case of the death, removal or inability of the Secretary of State, the deputy shall exercise all the duties of the office of the Secretary,” Gardner said. “I’m removed. I’m removing. I’m stepping down. I’m not going to be Secretary of State. It says removal,” Gardner said.