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Capital Beat: How free are New Hampshire’s voting laws?


Monday, May 14, 2018

As debate rages over a pair of bills to change New Hampshire’s voting laws and add a residency requirement, a new argument has taken hold from supporters: uniformity.

“Forty-nine states equate residency with domicile,” said Sen. Regina Birdsell, R-Hampstead, in a debate on the Senate floor last month. The Granite State, she said, should be the 50th.

It’s a long-held belief for some: New Hampshire’s voting laws are too loose, inviting in potential fraud and abuse. But for Secretary of State Bill Gardner, New Hampshire’s system is a point of pride, one that has ensured stability and robust participation. “New Hampshire has the most open voting laws in the country,” he said this week.

Now, Gardner says he has the numbers to prove it. Over the past few weeks, attorneys for the Secretary of State’s office have carried out an exhaustive review of all 50 states’ Constitutions, compiling a state-by-state comparison of voting laws in a 76-page report shared with the Monitor.

Here’s how we stack up.

New Hampshire is one of 15 states with election day registration

In 1993, the National Voter Registration Act passed, and New Hampshire and other states faced a choice: agree to requiring Division of Motor Vehicle locations to register residents to vote upon application of driver’s licenses – so called “motor voter laws” – or adopt laws to allow registration on the day of elections. The idea was to broaden the potential base of voters by removing registration barriers and creating near-automatic registration.

Gardner, a skeptic of a measure that would take the registration process out of the hands of local town clerks, and be open to potential fraud, convinced the Legislature to reject the motor voter laws. And New Hampshire became one of the first six states to have election day registration.

It wasn’t initially popular. The motor voter law was widely seen as the best way to broaden voting participation; Gardner was lambasted at the time by the chairman of the state Democratic party, he said. But the idea has spread in recent years – 15 states now allow residents to register to vote on
election day, with 12 of them at the polling stations themselves.

On the list: Maine, Vermont, Connecticut, California and Hawaii, each with unique variations, according to Gardner’s office.

​​​​​​One of four states without provisional ballots

For those states that didn’t already have election day registration, the Help America Vote Act of 2002 imposed a new requirement: provisional ballot voting. Provisional voting allows those whose legitimacy is uncertain at the polling booths to cast a ballot anyway; that ballot may or may not be counted later on, pending further investigation.

For some, the measure provides an easy way to
give every resident an opportunity to vote, and allow further review to count those ballots later. Developed in the wake of the 2000 Florida presidential recount, the
system is meant to be especially useful during tight elections; in a recount, the ballots, if confirmed, could determine the difference in the end.

But others have criticized the system for giving the false illusion of voting to those whose ballots may not actually be counted on election night. Gardner, a strong opponent, pushed back; New Hampshire received another exemption due to its election day registration.

Legislative attempts to add provisional balloting in recent years have come up short.

One of 27 states without a durational residency requirement

Since the 1972 Supreme Court case of Dunn v. Blumstein, states have been prohibited from having excessive minimum residency requirement to vote. New Hampshire, up until that point, had had a six-month minimum. That decision prompted a change in state law, effectively bringing the requirement down to zero days.

Put another way: A voter in New Hampshire and 27 other states could register to vote the day they move in. In six of those states – including New Hampshire and Vermont – that person could move in and vote on election day itself.

Not all states are as free. In 23 states – including New York, Pennsylvania, and Ohio, residents must have lived in the state 30 days before voting, according to the secretary of state’s review.

On their own, each factor is a relatively minor indicator of voting laws in the Granite State. But New Hampshire is also the only state with all three, according to Gardner, and there, he says, lies our advantage.

And he’s pointed to New Hampshire’s high voter turnout as evidence that the system works; the state has been in the top five in the country for participation rate since 2004.

But not all are in agreement. Max Feldman, an attorney with the Brennan Center for Justice at New York University, said that the initiatives cited by Gardner are not the full picture of potential voting reform.

New Hampshire could allow automatic voter registration, allowing those who interact with any government agencies to register to vote on the spot, joining eight states who do so now, Feldman said. And it could still adopt motor voter laws and broaden its potential voting pool, he added.

“Picking a few key reforms and declaring victory on the basis of those reforms is a little bit short sighted,” Feldman said.

Colin Van Ostern, a Democratic challenger for Gardner’s office, praised New Hampshire’s system too, but argued that the state should explore automatic voting and other measures.

But to Gardner, the proof is in the turnout.

“Nothing is going to be perfect,” the secretary of state said. “No election law is going to be perfect. Because we’re not perfect.”

But the system now, he added, is pretty solid as is.