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.”
Out-of-state students residing in New Hampshire will no longer be allowed to vote in the state without obtaining a New Hampshire driver’s license. The recently-promulgated HB 1264 will require college students, military personnel, medical residents, and other “temporary” residents to choose between becoming a New Hampshire resident or voting as an absentee in another state. Before Republican Governor Sununu signed the bill into law, the legislature asked the state Supreme Court to issue an advisory opinion on the constitutionality of HB 1264. In a 3-2 split decision, the New Hampshire Supreme Court found the bill constitutional. The bill will go into effect in 2019.
In 2017, Sununu expressed concerns about HB 1264’s potential to suppress the student vote. However, the advisory opinion issued by the court on July 12th paved the way for Sununu to sign the bill into law. Only one day after the court issued its opinion, Sununu signed the bill into law. After singing the bill, Sununu stated that he believes HB 1264 “restores equality and fairness to [New Hampshire’s] elections.”
HB 1264 amends the definitions of “resident” and “residence” to mean “domicile,” as defined in RSA 654:1. “Domicile” and “residence” are often used synonymously, but they have different meanings. The practical implication of changing the definition is that people who register to vote in New Hampshire now must obtain a New Hampshire driver’s license and register their vehicle in New Hampshire in order to be considered a “resident.” If a voter fails to do so within sixty days, he or she will have committed a misdemeanor punishable by up to one year in jail. Prior to HB 1264, a voter could prove residency by simply showing that he or she resided in New Hampshire more than any other place. The bill, therefore, has its biggest impact on out-of-state college students. Students who are entrenched and engaged in the New Hampshire communities where they attend college will now have to decide whether to purchase new licenses and car registrations or vote in their native states instead.
Opponents of the bill argue that HB 1264 places an unjustifiable burden on students’ right to vote. In a brief, the ACLU-NH asserts that the bill arbitrarily targets college students who are domiciled in the state but are non-residents, depriving them of their constitutional right to vote in New Hampshire. The ACLU argues that HB 1264 does not pass strict or intermediate scrutiny, because it does not serve any government interest at all. They counter the state’s argument that the bill reduces voter fraud by stating that “[t]here is no justification to impose these fees to deter fraud because these voters are, by definition, constitutionally entitled to vote here and are not fraudulent.”
In Symm v. United States, which was decided in 1979, the Supreme Court held that college students have a right to vote where they attend college. Moreover, the U.S. District Court of New Hampshire upheld this right in Newburger v. Peterson when it found that legislation requiring students to declare an intention to stay in New Hampshire indefinitely in order to vote was unconstitutional. Opponents of the bill, such as Senator Dan Feltes, argue that HB 1264 is inconsistent with cases such as Symm and Newburger. The New Hampshire Supreme Court did not directly address the implications of Symm on HB 1264. The court did, however, state that HB 1264 does not discriminate against college students, because it is their choice to either change their identification documents or not. The court also explained that the bill is consistent with Newburger, because while the U.S. District Court of New Hampshire held that students should be able to vote when they are members of the political community, it did not hold that there are no consequences to being considered a member of that community.
Supporters of the bill have argued that the change in definition protects New Hampshire against voter fraud, and the state Supreme Court agreed. The three justices in the majority, who were each nominated by Sununu, found that HB 1264 withstands strict scrutiny. The court stated that it has “repeatedly emphasized that insuring that those who are permitted to vote are bona fide residents who share a community of interest with other citizens of the jurisdiction is a legitimate concern of the highest order.” The court also opined that HB 1264 is “narrowly drawn to advance the compelling governmental interest in insuring that voters are full members of the electoral community.” Moreover, the court emphasized that the bill does not prevent anyone from voting. Although it may disproportionately affect college students, the court noted that students who do not vote in New Hampshire because of the bill will be choosing not to.
The state Supreme Court’s advisory opinion is non-binding. The two dissenting justices dissented not on constitutional grounds, but because they felt it was improper to issue an opinion without a factual record. Given that the bill does not take effect until July 1, 2019, it is likely that litigation over the bill will ensue. The non-binding nature of the advisory opinion leaves the door open, and begs the question – how will the court rule when presented with a factual record to base its opinion upon?