Constitutional Law Prof Blog

New Hampshire High Court Strikes State Voter Registration Proof-of-Residency Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The New Hampshire Supreme Court ruled yesterday that the state's proof-of-residency requirement for voting violated the state constitutional right to vote. The ruling strikes the requirement, SB3, on its face.

The ruling comes just one day after the Supreme Court upheld Arizona's out-of-precinct rule and ballot-collection ban against challenges under Section 2 of the Voting Rights Act. The New Hampshire Court's approach stands in stark contrast to the Supreme Court's approach, in that the New Hampshire Court much more closely scrutinized the state interests behind the voting restrictions (like reducing voting fraud, e.g.)--and concludes that SB3 doesn't serve them. (The plaintiffs in the Arizona case alleged race discrimination in violation of Section 2, whereas the plaintiffs in the New Hampshire case alleged a denial of the right to vote in violation of the state constitution. Still, the difference in approaches is notable, even glaring.)

In this way, the ruling illustrates how state constitutional law could protect against some voting restrictions that the Voting Rights Act (in light of the Supreme Court's ruling) might not.

The case, New Hampshire Democratic Party v. Secretary of State, challenges the state's requirement that voters submit documentation proving their residence (if registering more than 30 days from an election) or select one of two complex and confusing verification options on the voter registration form (if registering less than 30 days from an election). The state adopted the requirements in July 2017; before that, voters simply had to sign an affidavit that they met the identity, citizenship, age, and domicile requirements to vote.

Plaintiffs sued to halt the 2017 requirement, arguing that they violated the state constitutional right to vote. That provision says,

All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.

In particular, the plaintiffs said that "[t]he procedural requirements, associated penalties, and incomprehensibility of SB3 severely and unreasonably burden[] the fundamental right to vote" and that "[t]here is no government interest . . . that justifies requiring New Hampshire voters to endure these burdens."

The court agreed with the plaintiffs. The court applied intermediate scrutiny (the state constitutional standard for voting restrictions that fall between "severe," on the one hand, and "reasonable" and "nondiscriminatory," on the other). It said that the trial court sufficiently found that the requirement unreasonably burdened the plaintiffs (because it's very confusing, and would lead to increased registration times and longer lines at the polls, among other problems), and that the requirements simply did not advance the state's interests in "safeguarding voter confidence, protecting public confidence in the integrity of the State's elections, . . . helping to prevent and protect against voter fraud," and "reducing the administrative cost of post-election investigations." In short, the court deferred to the trial court findings that the state's proof-of-residency requirement simply didn't advance these interests.

 

Court Strikes California's Tax-Exempt Disclosure Requirement

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled yesterday that California's requirement that tax-exempt organizations operating in the state disclose the names and addresses of their major donors violated the First Amendment.

The ruling strikes California's requirement from the books. It puts similar reporting and disclosure requirements on the chopping block, and it could even lay the groundwork for striking campaign finance disclosure requirements.

The case, Americans for Prosperity Foundation v. Bonta, involved California's requirement that tax-exempt organizations in the state provide to the state attorney general their IRS Form 990, along with Schedule B, which includes the names and addresses of major donors. The state says that it needs the information in order to police misconduct by charities.

Organizations sued, arguing that the requirement violated their First Amendment rights. A sharply divided Court--6-3, along conventional ideological lines--agreed.

The six-justice majority ruled that California's requirement did not sufficiently serve its interest in policing misconduct:

There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. . . .

Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts. It does not. To the contrary, the record amply supports the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."

The Court ruled the requirement overbroad and facially unconstitutional, which means that it is unconstitutional not just in this case, but in every conceivable application.

The six-justice majority split on the level of scrutiny to apply to such requirements. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, argued that "exacting scrutiny" is the right standard for all disclosure requirements, with no least-restrictive-means requirement. Justice Thomas argued that the more stringent strict scrutiny applied. (Justice Thomas also argued that the Court shouldn't rule the requirement facially unconstitutional, just unconstitutional in this case.) Justice Alito, joined by Justice Gorsuch, wrote that he was "not prepared at this time to hold that a single standard applies to all disclosure requirements."

Still, all six agreed that the requirement failed either level of scrutiny in this case, and five (minus Justice Thomas) agreed that it was therefore facially unconstitutional.

Justice Sotomayor wrote the dissent, joined by Justices Breyer and Kagan. Justice Sotomayor argued that the Court wrongly heightened the standard for disclosure requirements, failed to demand that the plaintiffs show a real harm or actual burden, and wrongly held the requirement facially invalid.

In so holding, the Court discards its decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals. It also departs from the traditional, nuanced approach to First Amendment challenges, whereby the degree of means-end tailoring required is commensurate to the actual burdens on associational rights. Finally, it recklessly holds a state regulation facially invalid despite petitioners' failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.

She noted that "[t]oday's analysis marks reporting and disclosure requirements with a bull's-eye."

Court Upholds Arizona Voting Restrictions, Limits Voting Rights Act

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that two Arizona voting restrictions--the out-of-precinct ban and the ballot-collection ban--did not violate Section 2 of the Voting Rights Act. Along the way, the Court interpreted Section 2 in a way that'll likely make it harder, even much harder, for plaintiffs to successfully challenge the myriad new and proposed state voting restrictions.

The ruling means that Arizona's restrictions stay on the books, and that new and proposed voting restrictions are likely also to pass muster. Under the Court's approach, a plaintiff could, in theory, still succeed in a claim that a facially neutral voting law violates Section 2 because of its disparate impact by race. But it'll be a lot, lot harder. The ruling may make it harder to prove a discriminatory intent claim, too, given the the way the Court analyzed the question, and given the Court's rejection of the "cat's paw" approach in the lower court.

The case, Brnovich v. DNC, tested two Arizona voting restrictions, the out-of-precinct ban and the ballot-collection ban. Under the out-of-precinct ban, election officials discard any ballot cast by a voter on election day in the wrong precinct. Under the ballot-collection ban, it's a crime for any person (except a postal worker, an elections official, or a voter's caregiver, family member, or household member) to collect another person's early ballot.

Plaintiffs argued that the provisions had a disparate impact on the state's Native American, Latinx, and Black voters, and that the ballot-collection provision was enacted with discriminatory intent, all in violation of Section 2 of the Voting Rights Act.

In a sharply divided, 6-3 ruling, along conventional ideological lines, he Court rejected the challenge.

Justice Alito wrote for the majority. He wrote that Section 2(a) bans voting practices that "result in a denial or abridgement of the right to vote on account of race or color," and that Section 2(b) says that this applies only where "the political processes" are not "equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." He acknowledged that subsection (b) requires a "totality of the circumstances approach." Putting the statutory language together, he wrote that

the core of Section 2(b) is the requirement that voting be "equally open." The statute's reference to equal "opportunity" may stretch that concept to some degree to include consideration of a person's ability to use the means that are equally open. But equal openness remains the touchstone.

The Court then identified a nonexhaustive list of circumstances that go to "equal openness" and "equal opportunity." First, it said "the size of the burden imposed by a challenged voting rule is highly relevant." Next, "the degree to which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration." Third, "[t]he size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider." Fourth, "courts must consider the opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision." And finally, "the strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account."

Considering these principles, the Court held that Arizona's restrictions didn't violate Section 2's "equal openness" and "equal opportunity" commands. The Court said that the rules don't pose an unusual burden on voting, and that Arizona acted to mitigate any burdens. The Court said that the plaintiffs failed to show a significant racially disparate outcome for the out-of-precinct policy, and no actual disparity for the ballot-collection ban. And the Court said that the state had valid justifications for the policies, and that the state didn't need to adopt the least restrictive means to achieve those justifications.

The Court went on to hold that the ballot-collection ban was not enacted with a discriminatory purpose in violation of Section 2. It said that any evidence of discriminatory purpose was outweighed by the later "serious legislative debate" that "led to the passage" of the policy. The Court held that the lower court's "cat's paw" theory (which a plaintiff can use in employment-discrimination cases to hold an employer liable for "the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision") had no place in the Section 2 analysis.

Justice Gorsuch concurred, joined by Justice Thomas. He argued that it's not obvious that Section 2 provides an individual cause of action. But he declined to say more, because the parties hadn't raised the point.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She started with a comprehensive history of voting rights, discrimination, and the Voting Rights Act, right up to the present day--"a perilous moment for the Nation's commitment to equal citizenship . . . when too many States and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot." She argued that Section 2's "essential import is plain:"

Courts are to strike down voting rules that contribute to a racial disparity in the opportunity to vote, taking all the relevant circumstances into account.

She argued that by this standard, both of Arizona's restrictions fail. "Considering the 'totality of circumstances,' both 'result in' members of some races having 'less opportunity than other members of the electorate to participate in the political process and to elect a representative of their choice.'"