By John DiStaso
July 2, 2021
(WMUR – Concord, NH) – The New Hampshire Supreme Court has struck down in its entirety the 2017 Republican-authored voter registration law known as Senate Bill 3, finding it imposes burdens on voters that are in violation of their rights under the state constitution.
The law created a new process for people to prove that they are residents of New Hampshire if they registered to vote within 30 days of an election or on Election Day without a photo ID.
The state’s highest court agreed with a 2020 Superior Court ruling that the new requirements and forms involved in the process are confusing, could deter people from registering and voting and “imposes unreasonable burdens on the right to vote.”
“We affirm the trial court’s ruling that SB3 violates Part I, Article 11 of the New Hampshire Constitution,” Associate Justice Patrick Donovan wrote in a unanimous, 4-0 opinion. The constitutional article cited guarantees each “inhabitant” of the state 18 years of age and older an “equal right to vote.”
The court concluded that, given the burdens, Senate Bill 3 “must be stricken in its entirety”
Chief Justice Gordon MacDonald, who was attorney general at the time the suit was brought, did not sit on the case. Two of the justices, Donovan and Barbara Hantz-Marconi, are appointees of Gov. Chris Sununu, who signed Republican-authored and Republican-backed bill into law in 2017.
Also concurring were Associate Justices Gary Hicks and James Bassett.
Sununu said in a statement shortly after the ruling was issued:
“It’s disappointing that these commonsense reforms were not supported by our Supreme Court, but we have to respect their decision and I encourage the Legislature to take the court’s opinion into account and continue working to make commonsense reforms to ensure the integrity of New Hampshire’s elections.”
One of the lead attorneys for the plaintiffs in the case, New Hampshire Democratic Party legal counsel William Christie, said: “Today is a great day for voting rights. A unanimous New Hampshire Supreme Court affirmed that the Republican voter suppression law, SB 3, is unconstitutional.
“This is one of the strongest opinions in the country protecting the right to vote,” Christie said. “We will continue to fight against any effort to suppress the right to vote in New Hampshire.”
Constitutional attorneys on both sides of the issue told WMUR that the ruling cannot be appealed to the U.S. Supreme Court because it was decided solely on the basis of state law and the state constitution. The only recourse for the state officials, if they choose to pursue it, would be to seek reconsideration from the New Hampshire court.
But Associate Attorney General Anne Edwards told WMUR Friday afternoon: “We have received the order, are reviewing it and we will comply with it.”
State Democratic Party Chair Raymond Buckley said the ruling “sends a clear message to Chris Sununu and New Hampshire Republicans that their insidious voter suppression schemes will not stand in New Hampshire.”
But Republican New Hampshire House Speaker Sherman Packard expressed optimism that the case will not deter what he views as efforts to continue to bring “integrity” to the voting process.
“While this outcome is not ideal, it does give the Legislature a renewed sense of purpose as we work together to ensure New Hampshire’s elections remain fair with open transparency. We will continue working on legislation reforms to strengthen and uphold the integrity of our elections,” Packard said.
House Election Law Chair Barbara Griffin, R-Goffstown, compared the ruling to the decision issued Thursday by the U.S. Supreme Court upholding certain restrictions of an Arizona voting law.
“This decision is disappointing in light of the contrary finding from the Supreme Court of the United States in Brnovich v. DNC that the mere requirement of proving an individual has the constitutional standing to vote in an election is not unduly burdensome,” Griffin said. “We will analyze the details of this case as we chart our path to ensuring our elections are fair, transparent and honest.”
(Additional reaction can be read at the end of this report.)
In April 2020, a Superior Court judge struck down the law in finding that it violates the state constitution by “burdening the fundamental right to vote” and because it has an “unequal impact” on certain voters in the state, primarily young people, college students and people who frequently relocate to different communities.
>>READ that lower court ruling here.
The law was challenged by the League of Women Voters, New Hampshire Democratic Party and several individual college students on the basis that it violated their equal protection rights.
At issue was the law’s creation of a new set of forms required to be filled out by those who register to vote within 30 days of an election or on the day of an election but do not present a photo ID or other documentation – such as a utility bill or property tax form or a long list of other types of identifiable documents – proving that are resident of the state and the community in which they are voting.
Under the law, they were required to choose from among several options on how they will present the documentation and were required to present that documentation to their local elected officials within 10 days if their city or town office is open full-time or within 30 days if the local office operates only a few days a week.
But the law did not stop them from voting even if they did not have the documentation immediately available if they registered on Election Day.
However, if the documentation was not presented within the deadline, they could have faced wrongful voting penalties.
Supporters of Senate Bill 3, including Republican lawmakers and Sununu, said the documentation was intended to ensure the integrity of the election and prevent voter fraud – even while they acknowledged that voter fraud is not a widespread problem in New Hampshire.
An attorney with the state attorney general’s office also acknowledged in oral arguments before the Supreme Court in April that voter fraud is rare in the state. But the attorney, Anthony Galdieri, said the lack of widespread fraud should not prevent the Legislature from enacting measures to ensure that fraud remains a rare occurrence.
But the Supreme Court ruled that Senate Bill 3 actually did noting to deter voter fraud, since it did not prevent anyone from voting who failed to show an ID and simply created additional, confusing steps for voters without IDs to follow to prove residency.
“Consequently, having found that SB 3 does not impede fraudulent voters, the trial court rejected the State’s voter-fraud justification, and, likewise, found that the State’s perceived need to protect the integrity of New Hampshire’s elections was ‘illusory,’” the Supreme Court wrote.
“We are persuaded by the trial court’s analysis and determine that its findings are supported by the record before us,” the ruling continued.
Then, in a key passage, the court wrote: “Accordingly, we conclude that SB 3 is unconstitutional, as the State has failed to demonstrate that SB 3 is substantially related to the precise governmental interests it set forth as justifications necessitating the burdens the law imposes on the right to vote.”
Superior Court Judge David Anderson ruled last year that the confusion created by the forms created an unconstitutional burden on voters who try to use them, and by creating long lines at polling places as some voters tried to figure out the forms, it unduly burdened all voters.
Anderson wrote that the law imposed “subtle roadblocks,” adding, “SB 3 does not stop someone at the polls from casting a ballot; it discourages them from showing up in the first place … SB 3 in its entirety is facially unconstitutional.”
In its notice of appeal, the state asked the Supreme Court to answer eight questions, essentially focusing on whether the lower court erred by finding the law violated several constitutional provisions, including the equal protection doctrine.
The state also asked the court to decide if the plaintiffs, during the trial, presented “sufficient evidence of widespread voter confusion caused by Senate Bill 3 to sustain a facial challenge to the constitutionality of Senate Bill 3.”
A “facial” challenge is one in which the challenger, the plaintiffs, charge that the law is unconstitutional in all circumstances and essentially cannot be adjusted to become constitutional.
The plaintiffs in this case had argued – and it turned out to be a successful argument – that the law could not be repaired in any way sufficiently enough to make it constitutional and that it was in in fact “facially” unconstitutional in all circumstances.
The state had argued that the standard for a “facial” challenged had been miscast by the plaintiffs and misapplied by the Superior Court judge.
But the Supreme Court said Friday: “We reject the State’s argument that the trial court ‘misapplied the facial-challenge standard’ and should have ruled instead that ‘the plaintiffs failed to meet their heavy burden of showing that SB3 was unconstitutional in every set of circumstances.”
“We also reject the State’s related argument that SB 3 cannot be facially unconstitutional because only some, but not all, voters are burdened by its requirements and ‘a purported burden on some voters is insufficient to invalidate a law of general applicability.’”
The court had several options. It chose to uphold the Superior Court and strike down the law in its entirety. It could have upheld the law in its entirety and reinstated the penalties, which were enjoined in an earlier lower court ruling.
Or it could have remanded the case to the lower court for further consideration of whether the law could have been, in effect, fixed by simplifying the contested language on the forms.
Senate Bill 3 was passed in the aftermath of President Donald Trump’s unfounded allegations that there was widespread voter fraud nationally in the 2016 election and that he lost New Hampshire’s four electoral votes narrowly because thousands of people were “brought in on buses” from Massachusetts to “illegally” vote in the state.
It was the first of a series of bills put forward by New Hampshire Republicans to, in their view, ensure election integrity.
In 2018, the Legislature passed and Sununu signed into law House Bill 1264, which requires people who vote in New Hampshire to take action to become residents of New Hampshire.
A federal lawsuit brought by the American Civil Liberties Union, the state Democratic Party and two college students was withdrawn in May 2020, after the New Hampshire Supreme Court, answering questions posed to it by the federal court, essentially dissolved any distinction between domicile and residency as defined by state law.
Republicans have sponsored additional bills to tighten voting regulations in recent years, although some introduced earlier this year were put on hold until next year.
REACTION POURS IN ON RULING
Meanwhile, reaction to the Friday ruling poured in from both sides, but mostly from opponents of Senate Bill 3.
U.S. Sen. Maggie Hassan, a Democrat, wrote on Twitter: “This ruling is a major victory against voter suppression in New Hampshire. But attacks like these will continue in NH and across the country — and they won’t stop without federal voting rights legislation. We must continue working to protect the right to vote.”
State Senate Democratic Leader Donna Soucy of Manchester said: “The right to vote is sacred, and must be protected. Particularly now, as voting rights are being challenged across the nation and anti-voter bills continue to be worked on in our Legislature, we must do everything we can to ensure safe, modern, and accessible elections for every Granite Stater regardless of their age, zip code, or color. We are grateful for the reasoned, thoughtful decision of the New Hampshire Supreme Court that led to today’s protection of our democracy.”
State Sen. Regina Birdsell, R-Hampstead, the sponsor of Senate Bill 3, said: “It is unfortunate our state’s highest court ruled against this common sense, anti-voter fraud provision. Using the court’s decision as a guide, I look forward to filing new legislation in the fall that will continue to support voting integrity in New Hampshire, make it easy to access a ballot and also difficult to commit fraud.”
Deputy House Democratic Leader David Cote of Nashua said: “SB 3 added no security to our elections and unconstitutionally created a separate class of voters with different qualifications. The Supreme Court’s strong, unanimous ruling today, which concluded the state failed to ‘demonstrate that SB 3 is substantially related to an important governmental objective,’ confirms what Democrats said all along — there is no reasonable justification for enacting these unnecessary, confusing obstacles to the voter registration process.”
House Majority Leader Jason Osborne, R-Auburn, said: “I am extremely disappointed in this ruling on our efforts to ensure integrity and fairness in our elections. New Hampshire consistently has one of the highest voter participation rates in the country and I am fully confident that SB3 would not have changed that.
“Every election we have several races that are decided by just a handful of votes, so it is imperative that we ensure every ballot cast is by an eligible voter. SB3 was an important piece of legislation seeking to protect our elections and ensure that the right to vote is guaranteed to all eligible voters.
“Although this decision was not in our favor, we will continue to lead in the fight to ensure the integrity and accessibility of New Hampshire’s elections are protected.”
Lucas Meyer, chairman of the progressive grassroots group 603 Forward and a plaintiff in the case, said: “It doesn’t matter how old you are, our color, background or zip code, in America we value our freedom to vote without discrimination and without intimidation. Despite a constant onslaught on our democracy from Republicans in Concord, the Supreme Court protected our freedom to vote at this crossroads in our history.
“We know that the fight to protect the freedom to vote rages on in New Hampshire with a slew of bills still being worked on in the Legislature. That is why we must come together to pass the John Lewis Voting Rights Advancement Act and the For the People Act to enact democracy saving standards to prevent future attacks on our freedoms.”
The New Hampshire Young Democrats said: “This ruling confirms that SB3 does nothing more than create barriers for Granite Stater’s right to vote. The New Hampshire Young Democrats will continue to ensure all NH voters, including young people, have the right to vote in our state.”
The Campaign for Voting Rights said: “Today’s decision is a win for our democracy and for every Granite Stater who participates in New Hampshire’s elections. From the beginning the New Hampshire Campaign for Voting rights stood firm in opposition to this bill. We are grateful today the court understood, as we do, that this bill would severely limit people’s freedom to vote.
“As this legislative session continues it is important to remember that SB3 was passed under the guise of instilling voter confidence in our elections. Politicians in Concord who use this excuse to try to restrict our freedom to vote should think twice about their tactics and instead focus on finding secure ways to modernize our elections that makes our systems safe, secure, and inclusive for all eligible Granite Staters.”
End Citizens United/Let America Vote, a progressive voting rights and campaign finance reform group, said: “After yesterday’s disastrous Supreme Court case in Brnovich v. DNC and the trend of dangerous GOP anti-voting bills in state legislatures across the country, today’s decision in New Hampshire is a breath of fresh air and a much-needed win for voting rights.
“Thanks to the New Hampshire Supreme Court’s decision and voting rights advocates, the people of New Hampshire, particularly young people in the state, are able to more freely exercise their right to vote. But we know self-serving politicians won’t stop attacking the freedom to vote, which is why it’s imperative that Congress pass the For the People Act.”
(Follow John DiStaso on Twitter: @jdistaso.)