Judge to rule on election law change in advance of Tuesday’s special election

  • Judge Charles Temple Ethan Dewitt / Monitor staff

Monitor staff
Monday, September 11, 2017

A Hillsborough Superior Court judge will determine whether a new voter registration law will come into effect during a Laconia special election Tuesday, with a decision that could come down to the wire.

At a hearing Monday, Judge Charles Temple said he would decide whether to grant an injunction – which would prevent election officials from carrying out the new law – by 7 a.m. Tuesday morning. That deadline was chosen, Temple said, to ensure that the decision will take effect before the polls open.

“Obviously I have the daunting task of evaluating all of this,” Temple said, speaking after a nearly three-hour hearing. “We will do that tonight and issue a decision tomorrow morning.”

The remarks were made at a hearing in Nashua brought by a pair of lawsuits made by the New Hampshire Democratic Party and the League of Women Voters, both of whom argue the law, Senate Bill 3 carries unconstitutional burdens that will discourage voters.

Signed into law by Gov. Chris Sununu in July, SB 3 took formal effect Sept. 8. It requires all voters who live in New Hampshire to produce evidence that’s the case. For people without a driver’s license or vehicle registration on them when voting, that means providing proof after-the-fact. Those who register within 30 days of the election are required to either send in documents after the election, or volunteer to be investigated by the state.

Tuesday’s municipal elections in Laconia and Belmont are the first time the law is to be implemented. An injunction order by Temple would temporarily halt the law’s implementation, allowing voters to register at the polls without the added requirements.

The New Hampshire Democratic Party and League of Women Voters sued the secretary of state and attorney general, saying the burdens imposed by SB 3 would infringe on voting rights. Plaintiffs, which included two college students and a 30-year-old nurse moving from Massachusetts, argued the law was passed on unfounded concerns with fraud, and that the new requirements were confusingly written and would deter voting.

The law adds legal penalties to those who violate the documentation rules for demonstrating residency. If voters are found to have released wrongful information on their domicile or to have “purposefully and knowingly” failed to produce evidence by the deadline after the election, they can be charged with felony or misdemeanor fraud and subject to $5,000 fine, according to the new law.

Attorneys for the plaintiffs said that those new requirements would deter many from arriving at the polls, and that the potential criminal sanctions could prevent thousands from voting. Among those that would be affected are homeless residents, low income residents, those with low education, frequent movers and students, argued attorney John Devaney.

“It’s an extraordinary remedy and an extraordinary burden on the right to vote,” Devaney said of the sanctions. “You can imagine voters reading that and questioning whether they should vote.”

Joining the political organizations were three citizen plaintiffs: Garrett Muscatel, 19 of Hanover, a Dartmouth College sophomore; Douglas Marino, 21 of Stratham, a senior at University of New Hampshire; and Adriana Lopera, 29, a Nashua resident who works in Boston and had not yet registered her domicile.

In affidavits submitted in advance, the plaintiffs claimed that the variability of their living situations created uncertainty over whether they could get required documentation in time to register to vote. Muscatel and Marino added that their schools’ fall examinations and Thanksgiving would make producing the documents after the election difficult. Lopera said that she found the new law “very confusing,” and wasn’t sure whether she would have time to register given her work schedule.

But attorneys for the secretary of state and attorney general’s office said that the plaintiffs lacked standing to bring the case forward, arguing that the New Hampshire Supreme Court has held that an organization cannot bring forward a lawsuits unless it has suffered a direct violation of its rights. They moved to dismiss the case on the basis of standing.

Attorney Anne Edwards, associate attorney general, rejected arguments that the law would create undue burdens, referring to the new requirements as “minimal changes” to the pre-existing process. Brandishing poster exhibits comparing the forms required before and after the passage of the law, Edwards argued that neither the requirement to be domiciled nor the threat of criminal penalty for wrongful information predated the law, even if the paperwork requirements have now increased.

And the post-election investigation process employed by the attorney general’s office also remains the same, she said: The state sends the individuals postcards and letters to their listed domiciles, requesting the recipients return them.

“That’s the process now,” she said. “It’s not a different process.”

Anthony Galdieri, also representing the state, argued that testimony from the citizen plaintiffs should be dismissed, calling it speculative and irrelevant.

“Indeed, no young voter who’s a plaintiff in this case can even allege a fact showing that they’re incapable of meeting SB3’s requirements,” he said. “Rather, the evidence reveals in this case there are many ways for young voters to meet SB3’s requirements.”

In particular focus was Tuesday’s municipal election in Laconia. Speaking for the plaintiffs, attorney William Christie said he had visited the city’s website during the proceedings and found that the elections page still contained outdated forms made irrelevant by SB3, and did not include updated instructions for the law coming into place.

Edwards said she hadn’t reviewed the website herself, but she said that election officials in Laconia had received training from the Secretary of State’s office. She added that training has been offered to all towns and municipalities set to hold elections after Sept. 8.

As proceedings concluded, exactly what would happen during the special election to fill a vacant House seat between Democrat Charlie St. Clair and Republican Steven Whalley on Tuesday remained unclear, with polls set to open at 7 a.m.