NH Supreme Court Throws Out Voter Registration Law

CONCORD, NH — A voter registration law approved four years ago which attempted to close a loophole that allows non-residents the ability to vote in New Hampshire has been deemed unconstitutional.

Unanimously, the justices stated in a 19-page decision that SB 3, the 2017 law, violates Part 1, Article 11, of the state constitution’s Elections and Elective Franchises clause. The clause partially states, “Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.” This, often called “the domicile loophole,” can be used by anyone to declare they are domiciled in the state for voting purposes even if they do not actually reside in or have any connection to New Hampshire. The loophole has been used by non-residents, college students, and “visiting professionals,” such as political activists working on campaigns, to vote in the state’s elections instead of filing an absentee ballot from their homes. New Hampshire is one of the only states in the United States that does not require residency to vote due to wording in the clause, written in 1784, when the word domiciled was considered to be a person's permanent residence. Since the state has same-day voter registration, dozens of incidents have been reported, even witnessed by Secretary of State Bill Gardner himself, of people who do not live in New Hampshire voting here.

In an effort to close the loophole, Republicans in the Legislature approved SB 3, which modified the definition of “domicile” to clarify not just a statement but an act or intent to live or move to New Hampshire for more than just temporary work or college.

The provision required anyone registering to vote in the state to provide documentation that they intend to claim domicile — such as renting or buying a home, obtaining a driver’s license or motor vehicle registration, or enrolling a child in a public school, or some other government form or ID or a utility bill, showing residency. The law also declared non-residents in New Hampshire for “temporary purposes,” being domiciled for less than 30 days, would not be allowed to vote. A person who did not have qualifying documents though would be allowed to vote if they provided documents within 30 days to local town clerk’s offices after the election. After registering to vote and voting, citizens could prove their intent by getting a New Hampshire driver’s license and vehicle registration showing an “intent to maintain a domicile” after voting.

The decision is the latest in about a half a dozen court rulings, dating back to the mid-1990s, attempting to address the domicile loophole in the state constitution after lawsuits brought by an out-of-state college student who wanted to vote in New Hampshire but was not allowed since she was not a resident. The state later approved both same-day voter registration as well as voter identification laws which led to towns like Durham, as an example, to have more registered voters than residents, according to Census data, due to voter registrations at UNH.

The ease of voting has changed New Hampshire from a solid red Republican state that would sometimes elect moderate or conservative Democrats, to a toss-up state, purple or light blue, politically, based on the candidate, which is why both sides of the political aisle are constantly fighting about the issue. Democrats, statistically, have benefitted electorally from out-of-state college students, often from more liberal states like Massachusetts, voting in statewide and federal races (but not necessarily in down-ballot races). Republicans know, without the domicile loophole, their candidates would be more competitive in federal and statewide races while not disenfranchising college voters, who can file absentee ballots.

One motivation of the law was to stem drive-by voting by encouraging people who vote here to become residents. New Hampshire State Police data showed in September 2017, that 6,500 people were allowed to vote in November 2016 with out-of-state driver’s licenses as their form of identification. However, 5,300 people never obtain driver’s licenses. Only 213 people registered their vehicles. Thousands of voters, who are not residents, can influence elections in New Hampshire: The U.S. Senate seat in 2016, a race between then-Gov. Maggie Hassan and incumbent U.S. Sen. Kelly Ayotte, as well as a former liberty Republican Aaron Day and Libertarian Brian Chabot, was decided by about 1,000 votes, as an example. Many other races were decided by dozens and even single-digit vote totals. Tracking or finding voter fraud cases was another reason — since people who never got a license but voted here could be tracked down. But those efforts, too, have also been thwarted by lawsuits. While dozens of voter fraud cases have been found, the amount of work it has taken to track voter affidavits has beleaguered the New Hampshire Attorney General’s Office.

The New Hampshire Democratic Party, however, balked at SB 3, and joined with the League of Women Voters and a number of voters to sue. The law was found unconstitutional in superior court but allowed to be used, with affidavit provisions, until a supreme court ruling could be made. After sending the decision to the supreme court, the justices sided with the lower court ruling.

Chief Justice Gordon MacDonald, who was attorney general at the time and defended the bill, did not participate in the case.

Democrats, including the state party, praised the ruling.

“The decision by the New Hampshire Supreme Court represents a major victory for New Hampshire voters and sends a clear message to Chris Sununu and NH Republicans that their insidious voter suppression schemes will not stand in New Hampshire,” Ray Buckley, the chairman of the party, said. “For years, Chris Sununu and the NH GOP have tried to make it harder for people to vote, and we're pleased that the New Hampshire Supreme Court found that SB 3 was an unconstitutional, overly burdensome, and discriminatory bill meant to discourage eligible New Hampshire voters from casting their ballots. Today, we celebrate this incredible victory for voting rights. Tomorrow, we will continue to work to protect voting rights in the Granite State.”

Senate Democratic Leader Donna Soucy (D-Manchester), another opponent of the bill, cheered the decision, saying it protected the right to vote.

“As voting rights are being challenged across the nation and anti-voter bills continue to be worked on in our legislature, we must do everything we can to ensure safe, modern, and accessible elections for every Granite Stater regardless of their age, zip code, or color,” she said. “We are grateful for the reasoned, thoughtful decision of the New Hampshire Supreme Court that led to today’s protection of our democracy.”

Deputy House Democratic Leader David E. Cote (D-Nashua), the ranking member of the House Election Law Committee, said members of his party opposed the bill in the first place due to constitutionality, saying it did not really provide security but, instead, created a separate class of voters.

“The Supreme Court’s strong, unanimous ruling today, which concluded the state failed to ‘demonstrate that SB 3 is substantially related to an important governmental objective,’ confirms what Democrats said all along — there is no reasonable justification for enacting these unnecessary, confusing obstacles to the voter registration process,” he said. “It should be the duty of the legislature to assure that qualified voters may freely exercise their Constitutional right to vote. Despite two centuries of successful elections in New Hampshire, the goal of New Hampshire Republicans in recent years has been to enact as many roadblocks to voting as possible. I thank the New Hampshire Supreme Court for its clear, unanimous ruling today, striking down a law that never should have been enacted.”

Republicans, however, said the ruling showed there was more work to be done on the issue.

“It’s disappointing that these commonsense reforms were not supported by our Supreme Court, but we have to respect their decision and I encourage the legislature to take the court’s opinion into account and continue working to make commonsense reforms to ensure the integrity of New Hampshire’s elections,” Gov. Chris Sununu said.

House Speaker Sherman Packard (R-Londonderry) added, “While this outcome is not ideal, it does give the Legislature a renewed sense of purpose as we work together to ensure New Hampshire’s elections remain fair with open transparency. We will continue working on legislation reforms to strengthen and uphold the integrity of our elections.”

State Rep. Barbara Griffin (R-Goffstown), who leads the Election Law Committee, said the decision was “disappointing” in light of the contrary finding from the Supreme Court of the United States in Brnovich v. DNC that the mere requirement of proving an individual has the constitutional standing to vote in an election is not unduly burdensome.

“We will analyze the details of this case as we chart our path to ensuring our elections are fair, transparent, and honest,” she said.

Majority Leader Jason Osborne (R-Auburn) also called the ruling “extremely disappointed,” and pointed to the state’s high voter turnout which showed that SB 3 would not suppress voters.

“Every election we have several races that are decided by just a handful of votes, so it is imperative that we ensure every ballot cast is by an eligible voter,” he stated. “SB3 was an important piece of legislation seeking to protect our elections and ensure that the right to vote is guaranteed to all eligible voters. Although this decision was not in our favor, we will continue to lead in the fight to ensure the integrity and accessibility of New Hampshire’s elections are protected.”

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