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What you need to know about New Hampshire’s new voter residency law



Monitor staff
Monday, July 16, 2018

Defying Democrats, heartening Republican legislators and energizing all sides in the three-month sprint to election day, Gov. Chris Sununu finally did it. He signed the voting bill.

Without fanfare, Sununu announced early Friday afternoon that he had signed House Bill 1264, a measure that would effectively make residency a requirement to vote in New Hampshire.

There’s been a lot of noise around this bill in recent months – with Democrats labeling it a “poll tax” and Republicans calling it a valued step toward voting integrity. But now that the fiercely-fought bill is law, what does it mean for New Hampshire voters?

Here’s what you need to know.

What does the bill do, exactly?

It deletes one simple phrase from New Hampshire’s definition of resident: “for the indefinite future.” Explaining the importance of that change requires a breakdown of the relationship between “domicile” and “resident” under present law.

Today, in order to establish the right to vote in New Hampshire, a person does not need to be a resident of the state. Rather, he or she must be “domiciled” here.

What does it take to be domiciled? Beyond being a U.S. citizen of legal age, the existing state statute, RSA 654:1, establishes three main criteria. The domiciled person must have a physical presence in the state. They must be living in the state “for domestic, social and civil purposes” that are “relevant” to participation in New Hampshire’s democracy. And the first two conditions must be true for the town they live in “more than any other place.”

A person could own a house in another state and visit it frequently, for example, yet still deem him or herself more connected physically – and politically – to the Granite State. That would let that person continue to vote here.

College students, meanwhile, have their own carve out: Anyone in an “institution of learning” is presumed to be domiciled for voting purposes provided that the other conditions apply. Campus “get out the vote” efforts have relied on that provision for decades.

The upshot: A broad category of people in New Hampshire may count as domiciled under present law. But that doesn’t necessarily make them residents.

To be residents in the state of New Hampshire, people must be domiciled and also meet a series of stricter requirements, according to RSA 21:6. They must have a home in the state. They must have demonstrated, through all their actions, an intent to designate that home as their principal place of physical residence in life.

And they must deem that place their principal home “for the indefinite future to the exclusion of all others.”

By removing the phrase “for the indefinite future,” HB 1264 makes a simple but significant adjustment that broadens the definition of resident. Where previously only those certain to be living in the state long-term could count, now anyone who has shown over a year that they are staying in the state more than any other state could be designated a resident.

Why is residency significant?

Residency is a higher step up than domicile, and one that confers more responsibility. Principally, residents are subjected to state motor vehicle registration law.

Under RSA 261:45, when a person has established “bona fide residency” in New Hampshire, they have 60 days to register their car and pay any outstanding resident taxes owed to the town. State driver’s licenses are also required.

So what does that have to do with voting?

Nowhere does HB 1264 reference voting or change any voting eligibility requirements specifically. In fact, RSA 654:1, the statutory provision laying out domicile for voting purposes remains entirely untouched by the bill.

Still, both supporters and opponents agree that by removing the requirement that residents intend to stay “for the indefinite future,” the bill effectively merges the definition of domiciled voter, under RSA 654:1, and resident, under RSA 21:6. And in an advisory ruling Thursday, the majority of the state Supreme Court agreed.

What does that mean? Effectively, the court and others agree, declaring domicile in order to vote under 654:1 will automatically qualify that voter as a resident, which will subject them to residency requirements.

That, according to Democrats, makes the requirement an effective poll tax on college students, a key constituency for them.

The argument is simple: Voting will now be a tacit declaration of residency, which will require car registrations for all who do it. For college students, the idea of becoming a resident and paying hundreds in car registration fees upon casting a ballot will become a monetary obstacle to voting – a “poll tax.”

Is the bill a poll tax?

Not really. That answer is, of course, open to interpretation. But most historical examples of poll taxes, most commonly associated with the pre-Civil Rights Movement South, involve mandatory payments as a prerequisite to voting. A required payment of motor vehicle fees that followed a de facto declaration of residency in New Hampshire, in contrast, is much more removed from the act of voting.

There are three spheres of state law at work: voting domicile law (RSA 654:1), residency law (RSA 21:6), and motor vehicle law (RSA 261:45). While HB 1264 may connect the three by default by standardizing definitions, there is no provision in the bill actively threading the three together. Under the newly broadened definition of resident, college students who own cars may already be subjected to registration fees whether they vote or not, depending on the interpretation by police. That reality weakens the claim of a specific “voting tax.”

It’s an interpretation the Supreme Court majority gave voice to this week. “HB 1264 does not affect the eligibility of persons to vote in New Hampshire elections,” the justices wrote broadly.

Moreover, they added later: “A person who considers his or her connection to New Hampshire to be over the strength and character necessary to satisfy RSA 654:1, I, may constitutionally be expected to demonstrate such commitment by registering his or her motor vehicle in this state if the person has one, or obtaining a New Hampshire license if the person drives a motor vehicle.

“Indeed, because driving is ubiquitous and because every state regulates this activity, obtaining an in-state driver’s license and registering one’s vehicle in the state are universally recognized as important indicators that a person does in fact have his or her domicile in that state.”

Nonetheless, opponents of the bill say that even if the requirement to get a driver’s license is not explicitly tied to the act of voting – but exists separately – the act of voting could be seen as the clearest sign of declaring residency. Clearer even than living a certain number of months per year or setting one’s roots in community activities and politics. And knowing that, college students may be unwilling to or intimidated away from voting, opponents say.

Exactly how that pans out remains to be seen.

How is this going to play out in practice?

That remains unclear. And the heads of New Hampshire’s departments have been less than forthcoming.

In order for this change to have real-term effects for college students, there will need to be coordination between the Secretary of State’s office, which collects and files voter checklists, and the Department of Safety, which oversees the Department of Motor Vehicles. Those “newly declared” residents who voted would need to be passed on to state and local police responsible for ticketing drivers without proper registration.

But so far, there doesn’t appear to be any of that coordination.

In comments to the Union Leader in April, a spokesman for the Department of Safety, Michael Todd, said that passage of the bill would have “no impact on DMV operations.” And Deputy Secretary of State Dave Scanlan said he was unaware “of any statute that requires cross-enforcement of motor vehicle and election laws,” but deferred further question to the Department of Safety.

Todd and Secretary of State Bill Gardner were unavailable for comment Friday after the signing of the bill.

Still, beyond what agencies do, lawsuits by Democrats and voting rights groups are all but a foregone conclusion. While the law doesn’t take effect until January 2019, and thus won’t impact November’s elections, groups will be clamoring to find examples of transient voters who feel intimidated away from voting due to the new law.

On Friday, Gilles Bissonnette, legal director for American Civil Liberties Union of New Hampshire, fired a warning shot.

“As we previously stated, there is nothing standing in the way of this law being successfully challenged in court with the benefit of a full record developed in litigation.”

One thing is abundantly clear: As with so many election-related bills these days, the real fight over HB 1264 will begin after the ink on the signature is dried.

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