N.H. Democratic Party v. Sec'y of State

174 N.H. 312

262 A.3d 366

NEW HAMPSHIRE DEMOCRATIC PARTY

v.SECRETARY OF STATE & a.

League of Women Voters of New Hampshire & a.

v.Secretary of State & a.

No. 2020-0252

Supreme Court of New Hampshire.

Argued: April 28, 2021

Opinion Issued: July 2, 2021

Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy Spencer on the joint brief), for plaintiff New Hampshire Democratic Party.

McLane Middleton, Professional Association, of Manchester (Steven J. Dutton on the joint brief), Twomey Law Office, of Epsom (Paul Twomey on the joint brief), Perkins Coie LLP, 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 LLP, 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.

DONOVAN, J.

The defendants, the Secretary of State (Secretary) and the Attorney General (collectively, the State), appeal an order of the Superior Court (Anderson, J.) ruling that Laws 2017, chapter 205, also known as Senate Bill 3 (SB 3), is unconstitutional because it unreasonably burdens the right to vote in violation of Part I, Article 11 of the New Hampshire Constitution and violates the equal protection guarantees of the New Hampshire Constitution. We affirm the trial court's ruling that SB 3 violates Part I, Article 11 of the State Constitution. Because we determine that SB 3 must be stricken in its entirety, we need not address the State's assertion that the trial court erred in determining that SB 3 also violates the equal protection guarantees of the State Constitution.

I. Factual and Procedural Background

A. SB 3

Enacted in July 2017, SB 3 amends New Hampshire's voter registration laws to impose certain requirements for proving an individual's domicile. See Laws 2017, ch. 205. Before SB 3 was enacted, an individual could register to vote without presenting any proof of his or her domicile. See RSA 654:7, IV (2016) (amended 2017). Rather, the individual was required to submit a form listing his or her domicile address and sign an affidavit that the information provided was true and accurate. See id. That affidavit read:

If this form is used in place of proof of identity, age, citizenship, or domicile, I hereby swear that such information is true and accurate to the best of my knowledge.

This form was executed for purposes of proving (applicant shall circle yes or no and initial each item):

Identity	yes/no ________ (initials)
Citizenship	yes/no ________ (initials)
Age	yes/no ________ (initials)
Domicile	yes/no ________ (initials)

Id.

SB 3 changed the voter registration process by: (1) creating a distinction between registrations occurring more than 30 days before an election and those occurring within 30 days of and on election day; and (2) adding a new "Voter Registration Form" (Form B). See Laws 2017, ch. 205. Under SB 3, persons seeking to register to vote more than 30 days before an election must present documentation proving that they are domiciled in the town or ward or they will not be permitted to register. See Laws 2017, 205:1. Persons seeking to register within 30 days of an election or on election day are not required to have documentation with them proving their place of domicile in order to vote; however, they must fill out Form B and elect one of two verification options. See Laws 2017, 205:2. The first option (Option 1) states:

I understand that to make the address I have entered above my domicile for voting I must have an intent to make this the one place from which I participate in democratic self-government and must have acted to carry out that intent.

I understand that if I have documentary evidence of my intent to be domiciled at this address when registering to vote, I must either present it at the time of registration or I must place my initials next to the following paragraph and mail a copy or present the document at the town or city clerk's office within 10 days following the election (30 days in towns where the clerk's office is open fewer than 20 hours weekly).

_____ By placing my initials next to this paragraph, I am acknowledging that I have not presented evidence of actions carrying out my intent to be domiciled at this address, that I understand that I must mail or personally present to the clerk's office evidence of actions carrying out my intent within 10 days following the election (or 30 days in towns where the clerk's office is open fewer than 20 hours weekly), and that [I] have received the document produced by the secretary of state that describes the items that may be used as evidence of a verifiable action that establishes domicile.

Failing to report and provide evidence of a verifiable action will prompt official mail to be sent to your domicile address by the secretary of state to verify the validity of your claim to a voting domicile at this address.

Id. The second option (Option 2) states:

_____ By placing my initials next to this paragraph, I am acknowledging that I am aware of no documentary evidence of actions carrying out my intent to be domiciled at this address, that I will not be mailing or delivering evidence to the clerk's office, and that I understand that officials will be sending mail to the address on this form or taking other actions to verify my domicile at this address.

Id.

Voters who select Option 1 on Form B are provided a separate form titled Verifiable Action of Domicile (VAD). See id. The VAD states, "The following checklist shall be used as a guide for what you may use as evidence and shall be submitted to the town or city clerk along with documentation that you are required to provide." Id. The VAD requires that a person provide evidence that he or she has done at least one of the following: (1) established residency at an institution of learning; (2) "rented or leased an abode, for a period of more than 30 days to include time directly prior to an election day at the address listed on the voter registration form"; (3) purchased an abode at the address listed on the registration form; (4) obtained a New Hampshire motor vehicle registration, driver's license, or identification card; or (5) enrolled a dependent minor child in a publicly funded elementary or secondary school serving the town or ward where the applicant is claiming to be domiciled. Id. One such document must be submitted to the town or city clerk's office in the allotted time period specified on Form B. See id.

In addition, SB 3 creates new categories of conduct subject to the statutory penalties for wrongful voting set forth in RSA 659:34 (Supp. 2020). These include: (1) presenting falsified proof of domicile or verifiable action of domicile; (2) failing to provide follow-up documentation if choosing Option 1 on Form B; and (3) providing false information in a written statement to prove that another is domiciled at a particular address. Laws 2017, 205:13. The penalties include a civil fine of up to $5,000 and criminal liability for a class A misdemeanor. See RSA 659:34, I, II.

B. The Plaintiffs’ Lawsuit

The plaintiffs¹ sued, contending, among other things, that SB 3 is unconstitutional under the New Hampshire Constitution because it burdens the right to vote in violation of Part I, Article 11. The plaintiffs claimed that "[t]he procedural requirements, associated penalties, and incomprehensibility of SB 3 severely and unreasonably burden[ ] the fundamental right to vote" and that "[t]here is no governmental interest ... that justifies requiring New Hampshire voters to endure these burdens."

In September 2017, following a hearing, the Trial Court (Temple, J.) preliminarily enjoined enforcement of the penalties associated with SB 3, finding that the new civil and criminal penalties established by SB 3 imposed severe restrictions on the right to vote. The court observed that under SB 3, "if a same-day voter has the required documents at home, swears he/she will provide them, but the voter then cannot get them to the clerk's office in time for one reason or another," it appears that "such a voter will be subject to a $5,000 fine or even a year in jail simply for failing to return paperwork." According to the trial court, SB 3's penalties "act as a very serious deterrent on the right to vote, and if there is indeed a ‘compelling’ need for them, the Court has yet to see it."

In October 2018, following a hearing that lasted over a week, the Trial Court (Brown, J.) granted the plaintiffs’ motion for a preliminary injunction to enjoin enforcement of SB 3 for the November 2018 midterm elections. In assessing the burdens imposed by SB 3, the trial court found that "[i]n stark contrast to the simplicity of the domicile affidavit successfully used in the 2016 general election, Form B contains hundreds of words spread over six paragraphs" and that the plaintiffs demonstrated that SB 3's forms are "confusing, hard to navigate and comply with, and difficult to complete in a timely manner." Given the "increased complexity and confusion surrounding the new forms," the court found that "the average registration time is expected to increase, resulting in longer lines and delays at polling places." In addition, the court found that "the negative impact of SB 3 will be greater for certain groups of people," including young people between the ages of 18-24, highly mobile individuals, people of low socioeconomic status, undecided voters, and the homeless.

The court rejected the State's argument that any burden imposed was justified by the State's interest in preventing and...