Sununu to seek state Supreme Court opinion on N.H. voting bill

Monitor staff
Published: 5/15/2018 6:58:45 PM

Gov. Chris Sununu says he still has deep concerns over a bill to make voting an effective declaration of residency. But resolving them could come down to the state Supreme Court.

In a late agenda item submitted ahead of Wednesday’s Executive Council meeting, Sununu requested that the court weigh in on the constitutionality of House Bill 1264, a proposal to merge the definitions of “domicile” and “residency” for the purposes of voting.

The move, anticipated last week, would ask that the court weigh in on whether the controversial bill would violate the state or federal constitutions. But it will need Executive Council approval to move ahead to the Supreme Court clerk’s desk.

Under present New Hampshire law, those who are “domiciled” may vote, a status defined as one who has “established a physical presence” in the state “more than any other place.” By merging the definition of domicile with residency, HB 1264 would make voting an effective declaration of residency, which carries additional responsibilities.

While supporters say the bill is meant to clear confusion, critics have pointed to college students and transient workers who rely on the “domicile” status to vote. Making them de facto residents would put them on the hook for vehicle registration and driver’s license fees, amounting to an effective “poll tax,” opponents say.

Sununu has had a murky relationship with the Republican proposal, expressing “serious concerns” over the proposal in recent months, and telling an activist that he “hated” the bill and thought it might not withstand scrutiny in the courts, in an exchange secretly caught on video and released in December.

But he has yet to publicly commit to a veto and has signified openness to allowing the legislation to move ahead if changes were made.

In his request to the Supreme Court, the governor asks that the justices wade into two areas: Whether the overall bill is, on its face, constitutional and whether its specific application to college students would also be constitutional.

The request centers on three areas of law: the Equal Protection Clauses of both the state and federal constitutions, and Article 11 of the state Bill of Rights, which centers on election law. That part states that “every inhabitant of the state 18 years of age and upwards shall have an equal right to vote in any election” – defining “inhabitant” as a person with a domicile in a New Hampshire city or town.

The article also states that “the right to vote shall not be denied to any person because of the non-payment of any tax.” Whether that applies to driver’s licenses required as a result of declaring residency will be a key question facing the court.

The move to seek a judicial opinion, Sununu says, came out of public pressure. In a preamble, the governor’s proposed resolution cites the “heightened public interest in House Bill 1264 and the constitutional questions flowing from the meaning and effect of the language,” and mentions “multiple individuals and organizations” that have communicated their concern to the governor.

In a statement Tuesday, Sununu reiterated his hesitation. “My position has not changed,” he said. “I remain concerned about the bill’s constitutionality, and as such, I am asking the Supreme Court to weigh in on this issue to put this matter to rest once and for all.”

Democrats on the Executive Council take issue with that. In an interview Tuesday, Councilor Andru Volinsky, D-Concord, said that he would be voting against the proposal, in part because he thinks the move is improper. The governor and council should request court advisory opinions only on legislation that affects them directly; general requests on legislation should come from the House or Senate, Volinsky argued.

But some of Volinsky’s concerns come down to the merits of the bill itself.

“I’m expecting a lively discussion (Wednesday) about a bill that should never have been passed by the Legislature, that shows a disregard for the role of students in our state and for the importance of our voting rights, and I think rather than passing this off to the court, the governor should exercise his veto and show us that the buck stops with him,” Volinsky said.

Councilors Volinsky and Chris Pappas of Manchester – the two Democrats on the council – penned a letter in Wednesday’s Monitor laying out their opposition.

The Executive Council request comes as a mirror bill – House Bill 372 – moves through the final negotiation process between the House and Senate. On Tuesday, lawmakers pushed off debate on that legislation, a near carbon-copy of HB 1264, to Thursday, pending the Executive Council’s decision on the court request.

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