Supreme Court At-a-Glance Contributor Scott A. Wanner, Obtained his J.D. from the University of Illinois. Practices in Portsmouth, New Hampshire.

No. 2020-0252

July 2, 2021

Affirmed.

 

  • Whether Senate Bill 3’s requirements for voter registration render it unconstitutional on its face as an unreasonable burden on the fundamental right to vote without advancing a legitimate government interest in violation of Part I, Article 11 of the New Hampshire Constitution.
  • Whether Senate Bill 3 violates the equal protection guarantees of the New Hampshire Constitution. (Having found the law unconstitutional, the Court declined to address whether Plaintiffs’ equal protection arguments were also meritorious.)

 

New Hampshire’s Supreme Court affirmed a Superior Court ruling that struck down Senate Bill 3 (SB 3) in its entirety as unconstitutional on its face where the law placed unreasonable burdens on the right to vote without any showing by the State that the law advanced a legitimate government interest. Enacted in 2017, SB 3 amended New Hampshire’s voter registration laws to impose requirements for proving an individual’s domicile. See Laws 2017, ch. 205. Prior to SB 3, signing an affidavit attesting to one’s domicile in the state was sufficient for registering to vote. SB 3 required providing proof of domicile, set forth an elaborate process using two prescribed forms for that purpose and attached statutory penalties for wrongful voting.  In addition to penalizing those who falsify proof or provide false information, SB3 also punished those who merely fail to provide follow-up documentation, including a civil fine of up to $5,000 and criminal liability for a class A misdemeanor, i.e. up to a year in prison. See RSA 659:34, I, II (Supp. 2020).

Plaintiffs argued SB 3 unreasonably burdened the right to vote, whose fundamental significance within our constitutional structure is protected by New Hampshire’s Constitution:

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. N.H. CONST. pt. I, art. 11.

At the hearing on the merits, Plaintiffs produced several experts who opined:

1) SB 3’s prescribed “Voter Registration Form” (Form B) was needlessly complex and wordy, written at a readability level equivalent to the Harvard Law Review;

2) Complying with SB 3 would substantially increase delays and lengthy lines during registration times; and,

3) SB 3 disproportionately burdened disadvantaged groups, notably potential voters who are young, mobile, homeless or of low economic status.

Given that the severe burdens and penalties placed by SB 3 presented a very serious deterrent to voting, the Court applied an intermediate level of scrutiny.  The Court noted that plaintiffs’ experts’ opinions went unrebutted by the State and that the trial court had found these experts both credible and persuasive.  Additional evidence before the trial court showed that the application of SB 3 in the 2018 election resulted in the vast preponderance of newly registered voters potentially facing civil and criminal penalties, even without having cast a fraudulent vote.

The State asserted SB 3 served legitimate governmental interests such as reducing voter fraud and strengthening confidence in the election process.  The Court, however, noted that in passing SB 3 the State legislature acknowledged that “voter fraud is not widespread or even remotely commonplace.” Most importantly, the Court also noted the trial court’s finding that SB 3 as written does nothing to actually prevent voter fraud.  The proffered justification was found to be “illusory” as nothing about SB 3’s new registration process prevented ballots from being counted regardless of whether they were products of the wrongful voting the law penalized.

The State also challenged the sufficiency of the evidence supporting the trial court’s ruling.  Yet the Court applied deference to the trial court’s assessments as to the credibility of witnesses and assigning various weights to evidence in the record before it.  Although the State argued that the doctrine of severability allowed the Secretary of State (SOS) to revise the forms to be less confusing and complex, the Court found that the SOS lacked authority for such a re-write where the plain language of SB 3 prescribed the language used on the forms.  The severe restrictions on voting registration and consequent suppression of voting found by the trial court were integral to the general structure of SB 3 and required the Court to affirm invalidating the entire law over the State’s appeal.

 

Shaheen & Gordon (William E. Christie and S. Amy Spencer on the joint brief), for plaintiff New Hampshire Democratic Party. McLane Middleton (Steven J. Dutton on the joint brief), Twomey Law Office (Paul Twomey on the joint brief), Perkins Coie of Washington, D.C. (Marc E. Elias, John M. Devaney, Bruce V. Spiva, Amanda R. Callais, and Alexander G. Tischenko on the joint brief, and Ms. Callais orally), and Perkins Coie of Seattle, Washington (Stephanie R. Holstein on the joint brief), for plaintiffs League of Women Voters of New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Lopera, Phillip Dragone, Spencer Anderson, and Seysha Mehta. Gordon J. MacDonald, attorney general (Anthony J. Galdieri, senior assistant attorney general, Daniel E. Will, solicitor general, Anne E. Edwards, associate attorney general, and Samuel R.V. Garland, assistant attorney general on the brief, and Mr. Galdieri orally), for the defendants.