Students’ Voting Rights – Keeping Madison’s Dream Alive?

New Hampshire’s House Speaker, William O’Brien (R-Hillsborough 4), made a name for himself in cyberspace and among voting rights advocates earlier this year when he openly voiced that students in New Hampshire should not be able to vote in-state unless they had established permanent residency in their college towns. O’Brien also vocally supported a recent bill to limit students’ franchise by prohibiting election-day voter registration, a device many students rely upon in New Hampshire to be able to participate in New Hampshire elections. While attempting to justify the proposed bills, H.B. 176 and H.B. 223  respectively, by citing the importance of eliminating voter fraud, his statements were significantly undermined when he also alleged (in a video posted on YouTube) that students in New Hampshire are foolish and merely “vote their feelings.” O’Brien further secured his poor reputation (and the Bills’ fates) by declaring that college students on Election Day cancel out the votes of other, more invested voters, relying on a “dearth of experience and a plethora of the easy self-confidence that only ignorance and inexperience can produce.”

Although the New Hampshire legislature rejected both H.B. 176 and H.B 223 as being unconstitutional and an infringement on the right to vote, commentators have suggested that the issue of student voting is not even close to being over, particularly with the upcoming Presidential election and the strong position of the Republican Party in the US. In fact, New Hampshire’s efforts to limit the student franchise and to establish more stringent domicile and identification requirements are far from outliers, as many states, including Maine, have taken steps in an effort to monitor and effectively limit who is qualified to vote. While these efforts are often suspiciously partisan in hue, voting restrictions on students and other short-term residents do raise an interesting question: what type of investment in the community, if any, should we require of those people who are qualified to vote in a particular jurisdiction?

The right to vote has long been hailed as a fundamental right in the United States, and the U.S. Supreme Court has viewed any impediments to that right with a scrutinizing eye. See, e.g., Harper v. Virginia State Board of Elections, 383 U.S. 663, 670 (1966); Reynolds v. Sims, 377 U.S. 533 (1964). Should a citizen’s right to vote in a certain area be limited simply because he or she only anticipates living there for a certain period of time? On the one hand, to require that voters be invested in the community in the long-term certainly appears to be an unfair expectation, particularly given the frequency with which people in the United States move throughout their lifetimes. Furthermore, it is clear that those people who only live in a community for a short period of time are still greatly affected by the laws of that community in that they are still subjected to criminal sanctions, taxes, and other legal constraints. As noted by one author, “If a Dartmouth College student is charged with a crime, it will be the laws of New Hampshire, not those [of] her ‘home’ state, that dictate her punishment.”

On the other hand, people constantly subject themselves to the laws of other jurisdictions when traveling without any expectation of enfranchisement in that region. For example, as a result of the states’ differing approaches to gay marriage, many homosexual couples travel to certain jurisdictions simply to take advantage of more favorable laws; yet none of those couples are suddenly given the vote in those jurisdictions because of their marriage license. Clearly, it is an oversimplification to claim that one should be able to vote in a jurisdiction simply because one is subject to that jurisdiction’s laws for a temporary period.

In light of these observations, is there some validity to Speaker O’Brien’s statements and New Hampshire’s failed efforts? Should a body of students be able to elect representatives that reflect their more left-leaning views, even at the expense of the more conservative populace that has planted lasting roots in the area?

Perhaps a more favorable explanation for laws that allow students to vote in those jurisdictions in which they attend college can be found in The Federalist Papers. After all, according to James Madison, one of the reasons for having a liberal approach to voting is to ensure that factions within society do not subject all members of society to their whims and desires. Under this line of reasoning, students’ votes play the crucial role of providing differing perspectives to the government of New Hampshire, thereby ensuring that a plurality of viewpoints and opinions are present in the government. In other words, a person’s long-term investment in a jurisdiction is less important than ensuring that a multitude of voices and opinions are exercised and heard in government.

Given the highly polarized state of US politics today, it is unlikely that this issue will be laid to rest anytime soon. But as long as legislators are mindful of the reasons for the right to vote in this country, efforts such as those made in New Hampshire are doomed to fail.

– Student Contributor, W&M Election Law Survey Course