Joe Foster: Sununu’s instinct to veto ‘poll tax’ bill was correct

For the Monitor
Published: 7/12/2018 12:10:01 AM

Last month, Gov. Chris Sununu asked the New Hampshire Supreme Court to issue an advisory opinion on the constitutionality of House Bill 1264, a bill opponents argue would create a post-election poll tax and is designed to depress turnout of younger voters. It appears the governor is looking for the court to rule the bill is constitutional to give him cover should he choose to sign it after he now infamously declared that he “hated” a nearly identical bill.

His initial instincts were spot on and he should go with them. Whether the bill is constitutional or not, it should be vetoed.

Hundreds of bills are introduced in the Legislature each year. Most of them are constitutional but are still bad policy and are rejected by the Legislature. Some are passed and make their way to the governor’s desk, and some are vetoed. A bill need not be unconstitutional to warrant a veto. In fact, the governor has already vetoed several bills this year. Not one of his veto messages announced that he did so because he believed the bill was unconstitutional. He did so because he rejected the underlying policy of the bill or believed it was technically flawed.

So why do I say the governor should stick with his initial instincts and veto the bill? Simple. Young people are leaving the state at an alarming rate. We are an aging state and if this trend is not reversed, in the coming years the state’s economic well-being will decline. Already employers identify a ready work force as one of their biggest challenges.

HB 1264 is targeted to alienate, not welcome, the very people we need to become engaged and stay in New Hampshire. These potential voters have already taken the first step by choosing to attend one of our great universities or colleges. What better way to become committed to a place than to become informed, engaged and participate in its political process. Civic engagement can seal the deal. Telling young people that we don’t want them involved in political life in New Hampshire but do want them to stay here is a losing strategy. Simply put, the bill is bad policy.

The court is set to issue an advisory opinion on the constitutionality of the bill. It is unfortunate the governor made the request. Most challenges to the constitutionality of a bill involve mixed issues of fact and law. An advisory opinion is necessarily limited because facts by definition cannot be part of the court’s analysis. All the court has when it issues its ruling is the text of the bill and legal briefs. An advisory opinion that the bill is constitutional will not prevent a later challenge and that challenge could be successful when the facts are considered.

So why did the governor take this confusing path? It seems he is looking to please his base. If the court’s advisory opinion announces the bill is constitutional he can choose to sign it and point to the opinion as his reason. Doing so will undermine the state’s future. Regardless of how the New Hampshire Supreme Court rules in its advisory opinion, the governor has expressed legitimate reservations about the bill. He should stay true to his word, show some conviction and veto this harmful legislation.

(Joe Foster practices law in Manchester and served as New Hampshire attorney general from May 2013 to March 2017.)

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