Saturday, July 3, 2021
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.