NHCLU suit challenges election law

Last modified: 9/13/2012 12:00:00 AM
The League of Women Voters of New Hampshire and four college students, represented by the New Hampshire Civil Liberties Union, sued the state yesterday, alleging that newly implemented voter registration requirements effectively create a poll tax and prevent students from voting.

At issue is not a new requirement that voters present a photo ID or sign an affidavit at the polls, which the League and others say caused confusion and consternation across the state Tuesday.

Rather, the group is focusing on SB 318, which went into effect at the end of August after the Republican-dominated legislature overrode Gov. John Lynch's veto in June.

"There's been a number of attempts over the last few years to keep certain qualified citizens from voting in New Hampshire, and students have been the particular topics of most of those attempts," said Joan Ashwell, a voting law expert with the League.

The law requires those registering to vote to identify a "domicile" and not just name themselves as residents. It also requires those registering to vote to acknowledge they are subject to "laws requiring a driver to register a motor vehicle and apply for a New Hampshire's driver license within 60 days of becoming a resident."

The problem, opponents argue, is that New Hampshire treats people who have domiciles in the state differently than they do people who have residences.

A domicile, according to the suit, is "that one place where a person, more than a any other place, has established a physical presence" and "maintains a single continuous presence." In addition to students, workers on extended construction projects and patients in rehabilitation facilities often maintain domiciles.

A resident, on the other hand, is someone who intends to maintain a physical presence "for the indefinite future," according to the suit. Hundreds of laws apply to residents that don't necessarily apply to people with a domicile, opponents argue, and the new paragraph creates confusion and other legal problems.

The confusion and worry that they may face civil fines if they haven't met the hundreds of laws that apply to residents is "chilling" students enough that they aren't exercising their constitutional right to vote, the suit says.

The suit lists students from Nebraska, Massachusetts, Maine and Connecticut who study at UNH, Southern New Hampshire University and Keene State College. Ashwell is also a plaintiff because she argues the confusion surrounding the law hinders her ability to do her work educating and advocating for voters.

To make its case, the League cites a 1972 federal court decision, Newburger v. Peterson, which said students do not need to express a "permanent or indefinite intention" to stay in the state in order to register to vote here.

"The state has not shown that the indefinite intention requirement is necessary to serve a compelling interest," the three-person court said in the decision.

State Republicans have made clear the intention to make the definitions of domicile and residence more alike.

"They've put laws in place saying that, for example, voting can't be used to determine whether you're a resident for the purposes of paying taxes or getting your license or registering your car," House Speaker Bill O'Brien said to a Tea Party group last year, according to a widely disseminated YouTube video. "We're going to tighten up that definition," he said.

High student turnout in college towns has undermined local authorities efforts to govern, O'Brien said.

"I look at towns like Plymouth and Keene and Hanover and you know particularly Plymouth, they have lost the ability to govern themselves," O'Brien said.

Senate Majority Leader Jeb Bradley, a Wolfeboro Republican who co-sponsored the bill, said its goal is not to disenfranchise voters but to make sure each person's vote counts the same as everyone else's.

"We're not trying to make voting a problem," he said.

"If there's not the residency requirement, then what's to prevent somebody who may be on the rolls in another state from voting in another state by absentee?" Bradley asked.

Associate Attorney General Richard Head declined to comment, saying he hadn't yet had an opportunity to review the suit.

Secretary of State Bill Gardner, who is the sole defendant in the suit, defended the state's laws.

"When you register to vote, you're saying that this is your domicile," Gardner said. "If you're voting, you're not just voting for president, you're voting for those individuals who are going to make decisions on how you're going to live. . . . It means that you register your car here, you get your driver's license here."

And if you don't, it's like if you don't pay your taxes, he said. You may face a civil fine, but you won't lose your right to vote.

"The rights also have responsibilities, and the right to vote brings with it some responsibilities," Gardner said. "You should get your driver's license in New Hampshire if you're going to be picking the people who are deciding how old you have to be to get your driver's license, or how many years they can take it away if you do something that you're not supposed to do."

The NHCLU's suit says the new bill also violates the equal protection clauses in both the state and federal constitutions and that the cost of becoming an official New Hampshire driver becomes a barrier to voting.

"If you don't have the money to reregister, and you don't have the $50 to get a new driver's license, you are likely not eligible to vote," said Claire Ebel, Executive Director of the NHCLU.

"It leans toward a poll tax. If you have to pay an amount of money in order to be able to exercise your vote, that is unconstitutional," Ebel said.

The NHCLU's attorney of record in the case is Portsmouth-based Alan Cronheim.

The petition, filed in Strafford County Superior Court, asks the court to direct the state to temporarily block the law until the legal process has concluded.

A preliminary hearing is scheduled for Wednesday, Ebel said.

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

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