Two controversial New Hampshire election laws, HB 1264 and SB 3, have found their way into the New Hampshire state courts over the past several months. HB 1264, which was discussed in a previous article, will not take effect until 2019. The League of Women Voters of New Hampshire, however, sought a preliminary injunction to enjoin SB 3 from being used in New Hampshire’s midterm election. The New Hampshire Superior Court granted the injunction, finding that the bill placed an undue burden on voters. The New Hampshire Supreme Court, however, overruled the lower court’s order. While the court did not opine on the underlying merits of SB 3, the justices found that the order would create “a substantial risk of confusion and disruption of the orderly conduct of the [midterm] election.”
I interviewed Liz Tentarelli, president of the League of Women Voters of New Hampshire, to learn more about the issues surrounding the bills and the implications of both SB 3 and HB 1264. The interview took place after the Superior Court enjoined SB 3 but before the NH Supreme Court overturned the lower court’s order.
How do SB 3 and HB 1264 relate to each other?
SB 3 specifically refers to domicile and proof of domicile, which is different in New Hampshire from residence. A lot of people are confused about what the difference is, because we have well over 600 statutes in New Hampshire that use the terms ‘residence’ or ‘domicile.’ In some places they seem interchangeable, but in places the difference is very specific. Even though League feels like we’ve won round two of SB 3, when HB 1264 goes into effect next July, we have to fight all over again. What will voters now have to prove in terms of residence rather than domicile? That’s the dilemma for us.
Do you think we will see litigation over HB 1264?
I think there will be, but I don’t think the League will take the lead on this. Unfortunately, both SB 3 and HB 1264 passed along pretty strict party lines, with the Republicans being in the dominant party. It may be that the Democratic Party or the ACLU will bring suit. Our point was more about “How do you have to prove the eligibility to vote?” We felt that SB 3 put an undue burden on voters, but if the law is that only residents can vote, and we can keep the provision that you can prove that by affidavit, then I don’t think the League would bring suit. Under SB 3 the burden of proof was documentation and investigation, and it was messy. The language was messy. If that process is thrown out, and we can go back to people simply signing an affidavit swearing that “I am a resident,” the League would not object. The dilemma, of course, will be college students who are domiciled in the state and under the definition of “residents.” They may or may not be residents of New Hampshire. That confusion is at the heart of the issue – can they vote in New Hampshire?
It’s my understanding that the practical implication of HB 1264 is that college students would need to obtain a New Hampshire driver’s license and registration. Is that your understanding?
That was the discussion that went on in the committee. Because having a car registration in New Hampshire requires proof of residence, if they have that it can be proof of residence. The problem will be, how can a college student, even if he or she has a registered car in New Hampshire, be able to list a dorm as an address to prove residence? College dorms are assigned annually and some are assigned by semester. The question will become, what do you need for proof of residence? Is a car registration enough? Must you also have your driver’s license with the same address? And how do you deal with students who might be moving from one dorm or apartment to another each semester or school year? League feels the intent of the bill was clear. It was to restrict the influence of the student vote on our elections. But that was never voiced; the opponents of the bill insisted the bill is simply to ensure that only residents of our state vote in the state.
My interview with Ms. Tentarelli makes one thing clear: New Hampshire still has many questions to answer. Although SB 3 was upheld during the midterms to avoid confusion and chaos, the New Hampshire Supreme Court has not spoken on the merits of the law. Despite the potentially disparate effects on young voters, New Hampshire saw an increase in voter turnout around college campuses. Voter turnout in New Hampshire overall increased by about 17 percent. In Durham and Keene, which are home to the University of New Hampshire and Keene State College, over 50 percent more ballots were cast than in the 2014 midterm election. New Hampshire Public Radio reported that some students felt independently motivated to vote by the recent changes in New Hampshire voting laws.