ACLU requests freeze of controversial voter law amid confusion 

Monitor staff
Published: 10/23/2019 5:14:46 PM

The American Civil Liberties Union is asking a federal judge to put a controversial New Hampshire voting law on hold ahead of the 2020 presidential primary, arguing more time is needed for an effective court challenge to that law.

In a filing Monday, the New Hampshire ACLU asked the U.S. District Court in Concord pause the new law, HB 1264, in order to hear from state officials about how it would be carried out.

At the heart of the problem, the ACLU argues, is confusion. Representatives for the Division of Motor Vehicles and the Secretary of State’s office have given vague explanations of what the new law means for voters and how it will be enforced.

“These conflicting positions sow confusion among voters, election officials, and presidential campaigns, all of whom are in desperate need of clarity as the 2020 presidential primary approaches,” the ACLU said in its filing.

The organization, which is suing the state over the law, requested the law be put on hold to allow the state Supreme Court to weigh in on how the new law should be interpreted.

Lawyers for the state, meanwhile, have maintained that a Supreme Court hearing is not necessary to clarify the questions raised, arguing they “are not difficult or complex” and could be answered in federal court.

And they’ve said there is no justification to putting the law on hold through the presidential primary.

“The plaintiffs have not established, and cannot establish, the necessary elements to obtain preliminary injunctive relief,” the state argued in its own filing.

HB 1264, which passed in 2018 and has been in effect since June 2019, modifies New Hampshire’s election laws to effectively make casting a ballot in an election an act of residency.

The change means those voting in an election would be declaring their intention to be a resident of the state, requiring them to fulfill certain responsibilities such as obtaining driver’s licenses and paying motor vehicle registration fees.

Previously, college students, military personnel, and others who lived in New Hampshire but did not intend to stay indefinitely would not be considered residents if they voted and would not be subject to registration requirements.

Republicans and the state’s governor, Chris Sununu, say the new law is meant to put everyone who votes on the same playing field, arguing college students and others who don’t want to pay the fees can vote absentee in their original states.

But Democrats and voting rights groups have contended that the new law will scare away college students and other voters from the polls, calling the new registration fees a “poll tax” that could cost them hundreds of dollars a year.

In its lawsuit, Casey v. Gardner, the New Hampshire ACLU argues in part that the law violates the 26th Amendment, which lowered the voting age to 18.

The case has plodded through the federal district court level since February. But for months, officials with the Department of Safety and the Secretary of State’s office have declined to give clear answers on how the new law would work in practice.

Under existing state law, driving as a resident without a drivers license or car registration can incur fines and legal penalties up to a violation. But whether voters who failed to register their vehicles could face penalties – and how those penalties would be carried out – has not been answered by top officials in either department.

Now, lawyers for the ACLU are arguing that that confusion necessitates that a “certification” hearing be held in the state’s Supreme Court to clear up how officials plan to carry out the law in order to allow the federal court case to continue.

“Simply put, either the law imposes these motor vehicle obligations on registrants or it does not,” the ACLU motion reads. “The public is entitled to know the state’s specific position as to what HB 1264 does. But because the state is apparently unable or unwilling to make its position clear to the public, certification of these questions may be critical for the public to gain clarity as to what HB 1264 textually does in practice.”

Obtaining that certification will likely delay any final decision on the law until after the February presidential primary. In its filing Monday, the ACLU argued that the court should issue an order putting any penalties imposed by the law on hold through the primary until it gets fully resolved by the court.

The question of whether to require a certification hearing to get more information was first posed by the federal court itself, which on Oct. 9 ordered that the parties submit arguments as to whether or not that proceeding was necessary.

The rarely-invoked procedure would require the law to go to the state Supreme Court, even though the case was filed at the federal district court level. That court would then rule on how the law would be interpreted, and that ruling would be taken into account in the federal lawsuit.

In its own filing, the state’s Department of Justice, which is defending the law, objected to the argument that the questions about the law are too difficult for the federal court to sift through on its own.

Rather, it said, the answers to the proposed questions for the Supreme Court are already obvious based on how the law is written. The law establishes a clear connection between casting a ballot determining residency, and being subject to motor vehicle laws, and the New Hampshire Supreme Court would affirm that if asked, the state argued.

It’s up to the federal court to decide whether a certification proceeding is ordered – but if it is, it could have the effect of adding months to the length of the lawsuit against HB 1264. It is unclear when the federal court might decide whether to require that Supreme Court proceeding.

Either way, because the state opposes the scheduling of a separate proceeding before the state Supreme Court – which is not involved in the federal case – the ACL U requested “an immediate hearing” before the federal court in Concord that would include representatives of the Department of Justice, Secretary of State’s office, and the Division of Motor Vehicles “to address how they believe HB 1264 is to be interpreted.”

The organization is also asking that the order require the state to tell election officials and voters that the law has been put on hold.

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

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