After roughly two years in the courts, it appears as though SB3 will be implemented through “arbitrary enforcement”, with Judge Anderson both supporting and rejecting some of the state’s arguments. Officially, SB3 was signed into law of Sept 8, 2017 but has been in the courts since due to a lawsuit filed by the NH Democratic party, the League of Women Voters and several individual voters. Though it was not enforced for the Nov 5 municipal election, it will certainly play a role in the February 2020 Presidential Primary. A summary history of this case is below.
After over a year, Judge Brown ruled on a preliminary injunction preventing SB3 from taking effect before the mid-term elections, confirming the plaintiff’s argument that the new law places “a burden on the right to vote and disenfranchises low-income and minority populations” and many college students. Moreover, Judge Brown wrote “voter fraud is not widespread, or even remotely commonplace” in New Hampshire and the following:
“Most importantly, the SB3 law does nothing to actually prevent voter fraud …. instead of combating fraud, the law simply imposes additional burdens on legitimate voters.
The state immediately challenged the ruling to the NH Supreme Court, which unanimously agreed with the state having made the decision that Judge Brown’s ruling will create confusion and disruption on election day.
The full case is still working its way through the courts.
A summarized history and overview of the case is below.
On June 8, 2017, the Republican-sponsored New Hampshire Senate Bill 3, which may complicate same-day voter registration for New Hampshire college students, …… passed in the state Senate 14-9. It was signed into law in July. The bill changes what domicile means in the context of voting and stipulates that proof of residence is required for same-day voters, including a written statement that verifies voters’ home addresses. It also authorizes government agents to visit a voter’s home to make sure that it is the voter’s primary residence. A domicile exception is typically extended to college students. SB3 is designed to tighten this up by requiring that college students provide letters, or other paperwork, proving their domiciliaries when they register to vote.
The NH Democratic party, the League of Women Voters and three individual voters are suing the state over this law, under a single lawsuit, which they believe will keep people who are legally entitled to vote from voting.
In September, Hillsborough County Judge Charles Temple placed a temporary restraining order on the state to keep officials from imposing any of the criminal penalties part of the law. “The average voter seeking to register for the first time very well may decide that casting a vote is not worth a possible, $5,000 fine, a year in jail, or throwing himself/herself at the mercy of the prosecutor’s discretion. To the Court, these provisions of SB3 act as a very serious detriment on the right to vote, and if there is a “compelling” need for them, the Court has yet to see it.” Temple wrote.
In spite of this lawsuit, on Jan 3, the Senate passed HB372, which further tightens eligibility requirements for voters.
The state of NH has refused to comply with a request for a voter database, which the plaintiffs believe will prove that there is no issue to address. The state claimed that the information is not relevant to the case at hand and it contains privileged information that cannot be released.
In April, Judge Temple rejected these arguments and compelled the state to hand over the electronic voter database as well as make available communications about the law as it is being legislated. In addition, a protective order must be crafted to keep sensitive information private.
Three Republican legislators involved in crafting SB3 – Kathleen Hoelzel, Barbara Griffin & Regina Birdsell – filed motions to squash subpoenas seeking information that they had proving or disproving instances of voter fraud before last year’s vote. In July, Judge Brown ruled in their favor. However, the Judge granted the prosecution to right to depose attorneys Bud Fitch and Matthew Broadhead.
The parties are having difficulty agreed upon the content of the protective order. Asst Attorney General Anne Edwards wants the court to support keeping dates of birth, dates of naturalization and places of birth out of the public record when the database is handed over to the plaintiffs. The plaintiffs filed a motion in response.
A hearing on the protective order was held on May 8. At that hearing, Judge Temple suggested that he recuse himself as the judge in this case going forward due to a close friendship with Attorney Byron Gould, who was recently hired by the state Attorney General’s office. The litigants suggested instead that Attorney Gould be barred from the case.
In June, Judge Temple did recuse himself. Judge Brown has taken over the case, which has moved to Manchester. One of his first rulings will be to consider the state’s request that he prevent three college professors from testifying on behalf of the plaintiffs. Their testimony will cover:
The state now asserts that the issue is not voter fraud, but rather the opportunity for voter fraud.
With the move to Manchester, the trial, scheduled to begin on August 20, 2018, is being rescheduled.
In the meantime, in July, the Governor signed HB1264 into law after the NH Supreme Court ruled on its constitutionality. Heretofore, out-of-state students attending institutions such as Dartmouth College or UNH must have a NH driver’s license or NH non-drivers ID to vote in NH.
In January 2019, the NH Supreme Court overturned a lower court decision and denied the plaintiffs usage of the state’s voter database to argue that the law unfairly burdens those who are more likely to support their party.
And the saga continues …..
Is voter fraud really an issue in NH? The Interstate Voter Registration Crosscheck Program is aimed at preventing voter fraud by identifying duplicate voter registration records among those voluntarily provided by states. Though there are some concerns over security and results, 28 states participated after the 2016 general election. Out of 94, 610 voters, approximately 140 records were required further investigation – 51 of which were sent to the Attorney General’s office.
Per the NH Grassroots Newsletter of Jan 2:
“Why this matters: On November 28th, an amendment to HB 372, authored by Republican Senators Regina Birdsell and Jim Gray, passed the Senate Election Law Committee on a 3-2 party-line vote. The bill would redefine “domicile” status for voting purposes, effectively forcing registrants to declare residency upon registering to vote, chilling the right to vote for college students in New Hampshire. By forcing students to declare residency, this bill would act as a de facto poll tax, moving the goal posts on students who are legally allowed to vote in New Hampshire.”