Editorial: A mistake by the state’s high court

Published: 8/5/2018 12:04:55 AM

The nation’s eyes are on Brett Kavanaugh, the federal appeals court judge who is President Donald Trump’s second nominee to the U.S. Supreme Court. His confirmation would cement conservative control of a court likely to rule on crucial issues like affirmative action, gerrymandering and reproductive rights.

As that battle begins, New Hampshire should direct its attention to the development of our own Supreme Court, which over the next few years will likely face its own highly contentious issues, among them education funding and reproductive rights, if the conservative majority in Washington sends Roe v. Wade back to the states, as many experts believe will happen. One hard-fought issue involving a fundamental right just recently came before our Supreme Court: Who gets to vote in the Granite State?

The court was closely divided in a 3-2 vote on whether to reply to Gov. Chris Sununu’s request for advice on the constitutionality of a controversial bill, charged with partisan politics, that opponents say could discourage voting by college students. The three justices who agreed to take up the question – and then gave Sununu the okay to sign the bill – were Chief Justice Robert Lynn and Justices Anna Barbara Hantz Marconi and Patrick Donovan. The three were either appointed by Sununu or, in Lynn’s case, elevated by him to chief justice. The two dissenting justices declined to offer the governor any advice because they had no factual record to go on – Senior Associate Justice Gary E. Hicks and Justice James Bassett, both appointed by Gov. John Lynch.

The most curious thing about the advisory opinion is that the court issued it at all. The N.H. Constitution allows for advisory opinions “upon solemn occasions” and our Supreme Court itself has said more than once that that action be taken only in narrow circumstances. When asked to issue an advisory on the essentially identical question in 2015 the court, including Justice Lynn, unanimously declined to do so. With a serious split among the justices about whether to even answer the questions, why move ahead now? Since the law doesn’t even go into effect until July 2019, why not wait until there is an actual case, and a factual record, before the court. Why the rush?

Voting by college students who were domiciled in the state but not residents required to register vehicles in the state or procure a New Hampshire driver’s license has long irked Republicans, who believe students tend to vote for Democrats. Attempts to disenfranchise students are made every few years.

For all we know, Hicks and Bassett might ultimately side with the three other justices on the new law’s constitutionality. But for now, they argue that without a factual record, they cannot decide whether the law meets the test for protecting a fundamental constitutional right. They were correct in deciding not to get involved, at this point with no facts to go on, especially in a dispute so laden with partisan overtones.

The justices in the majority, in their opinion, said that because the governor questioned the constitutionality of a bill it was their “duty to answer the questions submitted.” No it wasn’t. The court is a separate and independent branch of government, one that should be excruciatingly sensitive to even the appearance of partisanship. It is the duty of the state’s attorney general, the governor’s counsel and the Executive Council to advise governors. Until there was an actual case to decide, the court should have left Sununu on his own.

If the court had declined to give him advice, Sununu would have had to either sign the Republican-backed bill, let it go into effect without his signature or veto it, which was unlikely. Just by taking up the question, the court gave Sununu political cover.

The advisory opinion does not settle the dispute. We expect a lawsuit will be filed and a factual record developed. Until that happens, the justices should have stayed out of it.

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