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Battle over voter residency law returns to the state Supreme Court 

  • New Ipswich held its town voting on Tuesday, March 10, 2020. Staff photo by Ben Conant

  • An election worker holds a roll of "I Voted" stickers during the New Hampshire primary at Parker-Varney Elementary School in Manchester on Feb. 11. AP

Monitor staff
Published: 3/10/2020 7:52:32 PM

Whether New Hampshire’s new voter residency law is constitutional is a question now in federal court, with an answer months into the future.

But on Tuesday, the state Supreme Court faced a more elemental question: How does the law actually work?

A five-justice panel heard two competing interpretations of House Bill 1264 from the New Hampshire Attorney General’s office and the American Civil Liberties Union of New Hampshire.

The first: that the law, passed in 2018, creates a straightforward cause and effect. If a person is domiciled in New Hampshire, they are a resident for voting and motor vehicle purposes, the state argued.

The second: that the law is confusing and incomplete. Without specific language linking the statutes in question, it doesn’t do what its backers say it does and needs further revision, the ACLU contended.

“What this court is tasked to do is interpret the statutes as they were passed, and not to try to fix loopholes that the proponents of (HB) 1264 may not have envisioned,” said Henry Klementowicz, staff attorney at the ACLU.

Whichever reality the court agrees with could help determine the law’s ultimate fate.

“We believe that the statutes are unambiguous,” said Assistant Attorney General Anthony Galdieri. “We believe that there are legislative directives that tell you how to interpret these statutes. They’re in harmony with one another.”

The hearing Tuesday stemmed from a lawsuit filed in federal court last year in which two out-of-state college students argued that the new law impinged on their right to vote by imposing motor vehicle registration requirements that didn’t exist before.

Republican lawmakers have said that the law – which effectively makes voting an act of declaring residency and makes new voters responsible for registering their cars – eliminates out-of-staters from voting in New Hampshire. 

For decades, out-of-state college students and other people who live outside of New Hampshire for part the year could vote without needing to register their cars in New Hampshire, an option Republicans said created an unfair imbalance.

Democrats counter that taking away that exception amounts to imposing a “poll tax” on college students interested in voting here, in the form of hundreds of dollars in car registrations.

These arguments have been batted around in the U.S. District Court in Concord for a year now, but last year, federal district court Judge Joseph Laplante said that certain questions needed to be answered by the state Supreme Court before his case could proceed.

Laplante sent over five questions to clarify the interpretation of the law; on Tuesday, the Supreme Court heard arguments on all five.

Klementowicz – who was representing the ACLU and the New Hampshire Democratic Party before the bench – made the case that the law left a fragmented system with gaps and loopholes.

There are three areas of New Hampshire statute in which domicile and residency are defined, Klementowicz said. One area, RSA 21:6, pertains to residency in general; that was the area changed by the voting law. 

But the residency definition that relates to motor vehicle law is found elsewhere: RSA 259:88. That statute defines resident for motor vehicle purposes as the same in RSA 21:6 “except that no person shall be deemed to be a resident who claims residence in any other state for any purpose” – a key exception for college students, Klementowicz argued. 

Because the new law doesn’t directly address motor vehicle law, the definitions remain disjointed, Klementowicz said. As a result, there are still separate categories of people: those who are domiciled, those who are domiciled and are residents and those who are domiciled residents and are subject to motor vehicle requirements. 

Galdieri dismissed that argument. The law, House Bill 1264 was passed with the direct intention of equalizing all those areas of statute, even if the language wasn’t explicit, he said.

Tuesday’s hearing came after the Democratic Party and ACLU attempted unsuccessfully to get the law frozen by the federal court ahead of the Feb. 11 presidential primary. 

But Laplante held in November that the law was not confusing enough to warrant an injunction and declined to do so. Many college students who spoke to the Monitor on Primary day said that they were unaware of the new law when they voted.

Lawyers on both sides are now re-aligning their arguments with an eye to the general election day on Nov. 3. 

Tuesday is not the first time HB 1264 has come before the New Hampshire Supreme Court. In 2018, at the request of Gov. Chris Sununu, the court took the unusual decision to weigh in on the constitutionality bill before it became law. 

At that time, three of the five justices at the time determined the bill constitutionally sound, which Sununu said provided a green light to sign it. Two justices declined to give an opinion, arguing that not enough evidence existed for them to be able to weigh in.

That 2018 decision was a non-binding opinion of the court. 

Tuesday’s hearing could lead to a much weightier decision from the court –  one with legal precedence, both sides agreed. 

“Whatever they decide in this case is going to be the binding and final interpretation of New Hampshire law,” said Klementowicz. 

The court appeared to appreciate that significance. While most recent cases have been decided with a four-justice bench due to a vacancy caused by a nominating deadlock between Sununu and the Executive Council, the Court decided to exercise its authority to appoint a substitute fifth justice Tuesday. 

Judge Kenneth Brown, a retired Hillsborough Superior Court judge appointed at random per Supreme Court protocol, sat in the middle and asked no questions. 

(Ethan DeWitt can be reached at edewitt@cmonitor.com, at (603) 369-3307, or on Twitter at @edewittNH.)




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