Battle over voting law change far from over

Voting is an American citizen’s most powerful right. When we vote, we tell the government how we believe we should be governed. All other rights are undermined when the right to vote is suppressed.

It is therefore not surprising that HB 1264, a bill that redefines who can vote in New Hampshire and the financial responsibilities voters assume when becoming a resident for voting purposes, has evoked strong emotional responses from both supporters and opponents.

Gov. Chris Sununu responded with emotion in 2017 when asked informally by a student about a bill the student said would suppress his right to vote.

“I hate it,” Sununu was recorded as saying, on a now famous video. He later added: “I will never do anything that suppresses the student vote.”

So when the Legislature passed a bill many students and legal experts say will suppress the student vote, a bill overwhelmingly supported by state Republicans, Sununu found himself in a bind.

To get out of that bind he asked the justices of the New Hampshire Supreme Court for an advisory opinion on whether HB 1264 violated the state and federal constitutions. The question asked was not whether the bill would suppress the student vote, but simply whether the bill is constitutional.

Three justices, a majority, chose to offer the opinion that, based on the information available, the law would not violate citizens’ constitutional rights, and they also touched on the impact it might have on voting by students and others affected by the bill.

“HB 1264 has no effect on eligibility to vote, and even if we assume that its collateral consequences will discourage from voting in New Hampshire some or all of those affected by the change in the law of residence for other purposes, the bill serves the compelling state interest of insuring that those allowed to vote in this state share a community of interest with the population generally,” the majority wrote.

Some people may not vote as a result of the law, the majority justices argue, but that will be their choice, not a violation of their constitutional rights. The law does not prevent them from voting if they assume the responsibilities of a New Hampshire resident, including paying for a New Hampshire vehicle registration and driver’s license. If they choose not to, they can vote in their home state by absentee ballot.

A two-justice minority declined to offer the governor an opinion because, they argued, there is not a factual record upon which to base their opinion.

The two minority justices noted that voting laws are susceptible to abuse and can be used to block some people from voting because of the way they may vote. The two justices write that a law may be constitutional in many of its applications but not under the particular circumstances of a specific case. Finally, the dissenting justices argue the intent and purpose of the legislators who passed the bill could have a bearing on its constitutionality if its intent and purpose were impermissible.

The governor signed HB 1264, which is scheduled to go into effect July 1, 2019, meaning it does not apply to the November 2018 mid-term elections.

Before the law goes into effect there is no doubt it will be challenged in court, where a factual record will be developed, upon which the justices can then issue a binding decision.

We encourage you to read the justice’s opinion, https://bit.ly/2LAcEm3, because the law also seems to have unintended consequences.

For example, the justices note, it could have tax implications for people who are currently able to avoid paying New Hampshire taxes on “interest and dividends income (including that derived from out-of-state sources) based on a claim of nonresidency.”

While most of the focus has been on the student vote, there are other people currently eligible to vote, often people here for a year or two on business or military duty, who are in the same boat with students.

The one thing the justices’ opinion (and withholding of opinion) makes clear: the issue over voter eligibility is far more complicated and nuanced than the bill’s supporters and opponents would have you believe. The devil is in the details.