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U.S. Voting Rights Act regulates N.H.

Last modified: 3/27/2012 12:00:00 AM
If the New Hampshire Legislature approves a bill requiring voters to show a photo ID before receiving a ballot, and if Gov. John Lynch signs off on it, you might assume the law would take effect shortly thereafter.

But you probably haven't heard the stories about the Canadians and the literacy test, two possible reasons why the U.S. Department of Justice has the final say on any election laws in New Hampshire.

"It's an artifact of now a nearly 50-year-old accident of history," said Grant Bosse, lead investigator for the Josiah Bartlett Center for Public Policy and a Monitor columnist.

For more than 40 years, New Hampshire has been in a class of states, including Mississippi, Louisiana and Alabama, that are supposed to submit some or all their election laws to the Justice Department for review before they take effect. While it's unclear if the state protested its initial inclusion, a 2004 request by the New Hampshire attorney general to be exempted failed. Since then, officials have been working to meet the exhaustive requirements to be "bailed out" of the law.

The power to veto local election laws was granted to the federal government by the 1965 Voting Rights Act and was invoked as recently as this month, when the Obama administration blocked a voter ID law in Texas.

Like Texas, New Hampshire is supposed to clear any laws it passes that will impact voting in certain communities with the Civil Rights Division of the Justice Department. Several laws that fall into that category are now making their way through the Legislature, but local officials have said they are confident the bills will face no challenges at the federal level.

One of the more controversial measures is House Bill 592, which redraws the districts for the state House of Representatives. Gov. John Lynch vetoed the plan last week, saying it didn't do enough to represent all the state's residents equally. But Rep. Paul Mirski, an Enfield Republican and chairman of the committee on redistricting, said he is confident his plan will eventually receive all the requisite approvals at the state and federal level.

Another, Senate Bill 289, was introduced by Republican Sen. Russell Prescott of Kingston and would require voters to show a photo ID or submit an affidavit that will be used to verify their identity. Like Mirski, Prescott is confident his proposal will pass muster at all levels.

"I feel as though I've done a really good job, done enough diligence, enough research," Prescott said.

Intent on stopping widespread disenfranchisement of black citizens after incidents including the murders of voting rights activists in Mississippi and the attack on peaceful protesters in Selma, Ala., Congress passed the Voting Rights Act in 1965. It enforces the 15th Amendment, which guarantees the right to vote regardless of race, color or "previous condition of servitude."

The law was supposed to expire after five years and applied only to particular states or political "subunits," such as cities and counties, that failed a two-pronged test.

If a state had a "test or device" that restricted the right to register or vote and if the director of the census determined that less than 50 percent of the people of voting age had registered to vote or voted in the 1964 presidential election, then the state or "subunit" needed federal approval for its election laws.

New Hampshire passed the test the first time, but when Congress renewed the law in 1970, officials examined turnout at the 1968 presidential election instead of 1964's.

And that's how Antrim, Benton, Boscawen, Millsfield, Newington, Pinkhams Grant, Rindge, Stewartstown, Stratford and Unity fell under the purview of the Voting Rights Act.

In 1968, New Hampshire still had a literacy test on its books, according to the state's attorney general's office.

And on Nov. 5, 1968, less than 50 percent of people age 21 or older voted in those 10 small towns.

Why so many people failed to vote remains a mystery.

Legend has it that there was a big snowstorm and low voter enthusiasm that year, but facts don't bear those stories out.

New Hampshire voters, like those across the nation, voted in droves in 1968, eager to sound off on the Vietnam War. In New Hampshire, voters were also eager to weigh in on a ballot question about taxation.

Nearly 300,000 people statewide voted, according to Monitor archives. In one city, so many ballots were cast that election workers stopped working about 5 a.m. to sleep and finished the count later in the morning.

Snowstorms would slam the state within the week, but Election Day itself was free of precipitation. Only traces of snow fell on Mount Washington and some communities reported temperatures in the 50s, according to records requested from the National Oceanic and Atmospheric Administration.

Some have wondered if Canadians, working in logging or agriculture, were erroneously counted in the census. If so, when officials reviewed the turnout numbers in those communities, they might have thought those of voting age were being discouraged from voting when, in fact, some of them weren't American citizens with a right to vote.

Others wonder if a similar error occurred in towns with large numbers of college students, migrant workers or military personnel, who would have voted by absentee ballot.

To this day, officials cannot pinpoint why voter turnout in those 10 towns was too low on a November day 44 years ago.

But since then, when the state has gone through the politically-fraught exercise of redistricting every 10 years, it has submitted its plans to the Department of Justice for "preclearance."

It was also supposed to "preclear" any election laws that would affect voting in those 10 towns, but didn't.

The laws that never got the proper approval vary widely. The law that said people who register to vote should also be considered for jury duty? That should have been sent to the Justice Department. And the law that eliminated the entirely separate election for vice president? That also should have been submitted.

"Basically the state just disregarded the whole thing like it never happened," said Secretary of State Bill Gardner.

"We just act like we don't have to preclear our election law changes with the Department of Justice," Bosse said.

The federal government also turned a blind eye. There are no records of the Civil Rights Division taking any action against New Hampshire for its failure to follow the law, according to the New Hampshire attorney general's office.

The situation stayed that way until the 2000 election, when the presidency hung in the balance and millions watched as attorneys argued before the U.S. Supreme Court, elections workers studied hanging chads and minorities said they'd been turned away from the polls.

In response, Congress passed the Help America Vote Act in 2002, which required states to bring their voting booths and polling practices up to speed and set aside more than $1 billion to help them to do it.

New Hampshire stood to receive $17 million, Gardner said. But it had to come into compliance with the Voting Rights Act by preclearing hundreds of laws, some that had been in effect for decades.

In 2004, then-Assistant Attorney General Bud Fitch wrote to the Justice Department and argued that "the intent of Congress was not carried out" when New Hampshire came under the purview of the Voting Rights Act.

Fitch noted that in 1960, 607,000 people lived in New Hampshire; 99.57 percent of them were white. In 1970, 738,000 lived in the state; 99.38 percent of them were white. It would be an imprudent use of resources, he argued, to retroactively preclear 36 years of law in a state that had nearly no minorities at the time of implementation.

"The goal of equal opportunity in voting for all is harmed, not advanced, by spending hundreds of hours and tens of thousands of dollars, State and Federal, on preclearace of the past 36 years of voting changes in New Hampshire," Fitch wrote.

Assistant Attorney General Richard Head said the Justice Department declined Fitch's request for relief. However, a deal was worked out that allowed New Hampshire to receive its $17 million while clearing up the backlog.

While Head declined to predict how much longer the process would take, he did say most of the paperwork is done. The state sent about 250 filings, noting more than 400 changes in state statutes, Head said.

All laws submitted for preclearance have been approved, he said.

Preclearance is just one of several time-consuming steps in the "bail out" process the state has to undergo. Others include proving that no "test or device" to bar voting has been used in the last 10 years and that no lawsuits alleging voter discrimination are pending. The process so far has lasted eight years.

Some elections officials don't even know that the state is under the purview of the Voting Rights Act. Boscawen Town Clerk Deb Harbour was dismayed when a reporter told her last week.

"I'm shocked," said Harbour, who's had the position since 2009. "It's a mischaracterization of us."

Gardner said New Hampshire's inclusion under the Voting Rights Act makes a "mockery" of the law's intent to combat vicious racism, and many look forward to the day the state is no longer lumped in with communities that had lynch mobs and burning crosses.

"It's not like there was a legitimate reason that any of New Hampshire was included," Gardner said.

(Molly A.K. Connors can be reached at 369-3319 or mconnors@cmonitor.com.)


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