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NH in middle of legal feud over voting law

New Hampshire Sunday News

February 10. 2013 12:15AM

An 11th-hour move by a Washington, D.C., group has ensnared New Hampshire in a battle over a civil-rights-era law that lands in the U.S. Supreme Court later this month.

First, some background: New Hampshire is poised to get a "bailout" from the federal oversight it's been under for more than four decades under the Voting Rights Act.

Section 5 of that law requires jurisdictions with a history of discrimination to get all changes to their election laws "pre-cleared" by the U.S. Department of Justice or a federal court in D.C.

New Hampshire came under the law in 1970 in part because the state had a literacy test on the books back then that a person had to pass in order to register to vote.

Meanwhile, 10 communities had low voter participation in 1968 - a time when federal election officials were concerned about voter suppression. And that, combined with the literacy test, put the 10 towns under the VRA.

Orville "Bud" Fitch remembers taking the literacy test when he registered to vote in Cornish in the 1970s. Thirty years later, Fitch was an assistant attorney general, assigned to bring the state up to date with the pre-clearance requirements of Section 5.

Fitch researched U.S. Census and voting records for the 10 communities: Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham's Grant, Rindge, Stewartstown, Stratford and Unity. He found that in 1960, six of those towns did not have a single minority resident.

Only Newington had a sizeable minority population, although Fitch found evidence those figures were inaccurate.

Fitch concluded the 10 towns never should have come under Section 5. "My overall sense was New Hampshire being under it did not advance the public policy purpose of the statute," he said.

In December, the U.S. DOJ and the state submitted a Consent Judgment and Decree to the federal court in D.C., asking approval to release the 10 towns from the VRA.

Meanwhile, however, the Center for Individual Rights in D.C. had been keeping a close eye on a pending U.S. Supreme Court case, Shelby County, Ala., v. Eric Holder, that challenges the constitutionality of Section 5.

The CIR filed a motion to intervene in the New Hampshire bailout case, putting it on hold.

Terence Pell, president of CIR, contends New Hampshire does not meet the requirements for a bailout from Section 5, and says U.S. Attorney General Eric Holder has a vested interest in showing that states can get out from under the provisions of the law.

"The attorney general has a big case pending before the Supreme Court in which he is likely to argue that the bailout provisions cure the constitutional problems with Section 5," Pell said. "We believe it's not in his interest to necessarily fully disclose to the court the ways in which New Hampshire does not comply with the bailout provisions."

With oral arguments in the Shelby case set for Feb. 27, Pell acknowledged his group has its own interest in keeping New Hampshire under Section 5.

"It's a terrible law and everybody should be let out," he said. "It's not appropriate to make the terribleness of the law appear to disappear by simply ignoring it in one particular case so that you can continue to enforce its arbitrariness in every other case."

So, does that mean New Hampshire is being used as a pawn by both sides?

"I think that is a good way of looking at it, and if I lived in New Hampshire, I might feel that way," Pell said. "We represent clients in other states, and they feel equally to be pawns under Section 5."

In order to intervene in the New Hampshire case, CIR needed to file its motion on behalf of a state resident. It found Peter Heilemann of Woodsville, who is Republican town chairman for Haverhill.

"I was made aware that some of the provisions of the Voting Rights Act are very old and probably no longer valid with the change in demographics, so I agreed to have my name put on there," Heilemann said.

Asked why he wants to keep the state under the restrictions of Section 5 if he opposes the Voting Rights Act, Heilemann said he did not want to be interviewed about the case. "The way it is submitted speaks for itself," he said.

"I filed a petition and it's in my name, and that's all I want to say about that."

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