By NANCY WEST, InDepthNH.org

CONCORD – When Secretary of State Bill Gardner announced last week that he is retiring, he said his deputy David Scanlan will finish the one year left in his term.

But state Rep. Rebecca McWilliams, D-Concord, wants to know if that is legal under the New Hampshire Constitution and state law.

McWilliams, an attorney, asked Attorney General John Formella for a prompt response to an email she sent him Friday raising the question before any swearing-in can take place, which she said is planned for Monday.

“It has come to my attention that there is a swearing-in ceremony scheduled for Monday, January 10, 2022, for a new Secretary of State that may not conform to the requirements of NH law and the NH Constitution,” McWilliams said in the email to Formella. “I look forward to your prompt response, prior to any swearing-in taking place.”

On Twitter, 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

Reached by phone, McWilliams said: “The Secretary of State has to be independent so the attorney general’s opinion is necessary.”

The Secretary of State is elected every two years by the state legislature, which has kept Gardner in office for 45 years so the question hasn’t come up in the recent past.

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.

When asked Jan. 5 if it is legal for Deputy Secretary of State Scanlan to take the reins, Associate Attorney General Anne Edwards told InDepthNH.org: “We are reviewing historical documents regarding this provision of the Constitution and having discussions with State officials.  We will not be issuing a public opinion at this time.” 

Part II, Articles 68 and 69 of the New Hampshire Constitution explain the Secretary of State’s role and the Deputy Secretary of State’s role. 

The Secretary of State does appoint his deputy and is responsible for their conduct in office, the Constitution says.
And goes on to say, “And, in case of the death, removal, or inability of the Secretary, his Deputy shall exercise all the duties of the office of Secretary of this State, until another shall be appointed.”

Scanlan didn’t return phone messages Sunday.

Gardner is known nationally and in New Hampshire as an ardent defender of the state’s first-in-the-nation Presidential primary.

A Democrat, Gardner has refused to accept campaign finance money and faced only one serious challenge over the years by Colin Van Ostern in 2018. Gardner was re-elected that year by a few votes.

Gardner came under fire from his own party for serving on President Trump’s commission to investigate voter fraud and his position on voting reform legislation.

At a press conference announcing his retirement Jan. 3, Gardner said the job “is all about people and it is changing now because of changing communication and lesser interaction and that makes it more difficult for people to come together,” and get consensus or solutions.

“I don’t have a solution, but at least I can be a vessel to talk about things that I have seen and what I hope for,” Gardner said.

He also praised Scanlan and said he will be leaving the office in good hands.