May 19. 2018 9:36PM

Dave Solomon's State House Dome: Court is key in voting debate

By DAVE SOLOMON


The state Supreme Court is now Ground Zero in the political and ideological battle over election law in New Hampshire, as two voting-related bills are now before the five justices.

All stakeholders in the voting rights debate have acknowledged for the past two years that various bills under consideration would end up in court, just not so soon.

Gov. Chris Sununu wants an advisory opinion from the court as to the constitutionality of HB 1264, which passed the House and Senate and will land on his desk. The bill creates a common definition for residency and domicile, and sets the stage for a new residency requirement on transient voters like college students.

Sununu has said he would never sign a bill that suppresses the student vote, but now says he would be hard-pressed to veto the bill if the court considers its provisions constitutional.

The court last week acknowledged Sununu's request, and set a deadline of May 31 for public comment. Sununu's request for an opinion landed at the Supreme Court just weeks after his attorney general, Gordon MacDonald, asked the court to intervene in another election-related case working its way through the lower courts.

Senate Bill 3, signed into law last year, creates new requirements for Election Day registration, and was challenged in a lawsuit filed by the state Democratic Party and League of Women Voters.

The case has been working its way through Hillsborough County Superior Court in Nashua but bubbled up to the Supreme Court recently when attorneys for the state filed motions asking the high court to reverse some of the rulings by Superior Court Judge Charles Temple.

The key issue is an order by Temple for the state to release a redacted version of the very robust, digital voter database created in compliance with the Help America Vote Act enacted by Congress in 2002. It's searchable and contains far more information than the publicly available voter checklists, which show only name, party affiliation and voting status (voted or did not vote).

In addition to that information, the statewide database includes domicile address, mailing address, date of birth, driver's license number or last four digits of a Social Security number, place of birth or naturalization information, military status and gender.

The lawyers trying to overturn SB 3 argue that they need certain information from the database to prove their case - that the law disproportionately affects minority, student and low-income voters - by showing that those voters more frequently use Election Day registration.

The state maintains that release of the database is prohibited by state law, and is not germane to the case. To drive the point home, lawmakers in the House and Senate are about to pass a bill containing language that speaks directly to the SB 3 lawsuit and the discovery request for the database.

The law already states that "the voter database shall be private and confidential and shall not be subject to RSA 91:A (Right-to-Know requests)," but lawmakers have added the following language at the request of the Attorney General: "nor shall it or any of the information contained therein be disclosed pursuant to a subpoena or civil litigation discovery request."

Not only did the Attorney General's office request the new language, as Rep. Neal Kurk acknowledged from the House floor, it drafted the amendment aimed directly at a case in litigation.

Senate Minority Leader Jeff Woodburn, D-Whitefield, called that a conflict of interest but was unsuccessful on Thursday in an effort to block the amendment, which is likely to pass the House and Senate on Wednesday.

"The amendment I drafted would have ensured that politicians stay out of that court case," said Woodburn. "It's one thing to rig elections through voter suppression legislation, but it's even more outrageous to try to rig the court case challenging that very legislation."

How this will all play out in the Supreme Court is anyone's guess. The five justices could refuse to deal with either issue - allowing the lower court rulings to stand in the SB 3 case and declining to render an opinion on a matter not under litigation in the HB 1264 case.

They could take up one matter and not the other; or rule on both, which would illuminate the issues but certainly not resolve them. Whatever the Supreme Court decides to do, the courts are likely to continue to play a big role in New Hampshire election law, as they have for years.