Capital Beat: Defining ‘residency’ is a touchy subject for lawmakers

Monitor staff
Sunday, December 10, 2017

No sooner had the bill passed the Senate Election Law Committee than the uproar began.

“This bill is very concerning, as it acts as a post-election poll tax,” said New Hampshire American Civil Liberties Union Legal Director Gilles Bissonnette.

“It would effectively disenfranchise thousands,” state Democratic chairman Ray Buckley charged.

Perhaps the critique from the left was to be expected, but some people may be wondering what the fuss is all about.

House Bill 372, described as a “(modification of) the general statutory definitions of ‘resident or inhabitant’,” is the latest Republican effort to reform New Hampshire election law. A late amendment to the bill added a “purpose clause” that spelled out what, for many Democrats, is a red line: “A person must be a resident of New Hampshire to vote or hold office in New Hampshire.”

To many, that may sound perfectly reasonable: People who don’t live here aren’t supposed to vote here. But the reality is a touch more complicated.

Democrats have claimed the bill was an attempt to prevent young, typically liberal college students from voting in local elections. Republicans countered with charges of overreaction. But days after the amended bill left the Senate committee with a 3-2 party-line recommendation – it goes to the Senate floor next after already clearing the House – opinions wildly diverge over not just whether the bill should pass, but what it actually does.

“I really don’t think there’s anything in this bill that people need to be afraid of,” said Rep. David Bates, R-Windham, who sponsored the original legislation. “Anything having to do with voting gets so highly charged politically that people very quickly start dealing with hyperbole and not reality.”

Here’s what the text says. House Bill 372 would change the definition of “resident,” as presently laid out in RSA 21:6, to render it effectively the same as someone who is “domiciled.” It would also change that definition to omit a key four-word requirement to be a resident: that the person plans to stay in New Hampshire “for the indefinite future.”

That, to Bissonnette, is the crux of his opposition. To be a New Hampshire resident carries stronger obligations than to be domiciled: mandatory acquisition of a driver’s license within 60 days of moving, to start. Presently, college students don’t count as residents based on those four words – those not planning to live in the state beyond their four-year stays don’t fit into the “indefinite” category and can keep their home state driver’s licenses, Bissonnette says. Removing the clause means broadening the definition of resident, which in turn means making many out-of-state college students pay license and registration charges.

At the ballot box, he argues, it could mean those same students have to choose between voting – and effectively declaring residency – and not voting to avoid the attendant vehicle fees; a post-election poll tax, he summarizes.

Republicans dismiss the analysis.

“This isn’t a huge change in the law,” said Sen. Andy Sanborn, R-Bedford, one of the three senators to recommend the bill in committee. HB 372, he pointed out, is one of a number of piecemeal voting laws proposed by Bates last year that were ultimately subsumed by Senate Bill 3, legislation that increased requirements at the voting booth but fell short of a residency requirement. Taken together, Bates’s bills would have had the effect of requiring residency, but many of them were struck down by the House Election Law Committee under the premise that SB3 had done the work for them.

HB 372, on its own, doesn’t achieve that, Sanborn continued.

“Realistically they would all have to pass for them to make any real change,” he said.

Sanborn and other Republicans say the legislation is meant to clarify statutory language around residency. There is legal history: In 2015, the New Hampshire Supreme Court rejected a 2012 law that required New Hampshire residency to vote. That decision case, Guare v New Hampshire, revolved around the same four words, “for the indefinite future,” and the court held that as long as those words were part of the definition of resident, residency could not be made a requirement to vote as it would unlawfully exclude those not planning to live in the state forever.

By eliminating that language, Bates’s bill would allow future legislation to proceed while heading off future court challenges, according to Sanborn and others. So far, that isn’t what the political narrative has told.

Bates, meanwhile, has his own qualms with the Senate’s amended version of his bill. That proposed clause declaring that residency is now a requirement isn’t carried in the text of the bill, which means it might not have legal backing, he says. Including that the language has only made the bill an easier target for Democrat, Bates fears.

“If this passes and is signed, it will become law, but there will be nothing in our state statutes that actually requires someone to be a resident,” he said.

It may ultimately come down to the full Senate to decide the real meaning of HB 372 – or, if it passes, the courts. But in this post-Senate Bill 3 legislative landscape, what HB 372 does – and how its present form plays out politically – is so far a matter of perspective.

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