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John DiStaso's Granite Status: NHGOP threatens court action to remove senator's 'house guests' from checklist

July 28. 2013 9:15PM

MONDAY, JULY 29: 'REMOVE FROM CHECKLIST.' The state Republican Party Monday told Democratic state Sen. Martha Fuller Clark it will go to court if she does not act to remove the names of four "out-of-state political operatives" from the Portsmouth voter checklist.

NHGOP Chair Jennifer Horn, in a letter to Fuller Clark, cites a little-known 1979 state law that says, "Any citizen of the state may, in term time or vacation, file a complaint with the superior court stating that his name is illegally kept from, or his name or that of some other citizen is illegally placed upon, the checklist of a town or ward, and the facts upon which the complaint is based."

Horn writes that if Clark does not contact the four "former temporary house guests and instruct them to contact the Portsmouth city clerk's office to strike their names from the voter rolls," the party is "prepared to take any appropriate action under the law including bringing it to the attention of the Superior Court."

Democrats called the move more evidence that the Republican Party “is becoming a sad joke.”

Fuller Clark, who is vice chairman of the state Democratic Party in addition to a state Senator, has eight people registered to vote from her home in Portsmouth.

Three of them are her, her husband and son. The other five raised questions last week, although Fuller Clark told the Portsmouth Herald that one of the five is her goddaughter, who, she said, has been renting an apartment at her home since 2011.

The other four no longer live in the state.

The Republicans said that Andrea Marie Riccio, who voted using Fuller Clark's address in 2008, is now on the staff of Maryland U.S. Rep. Chris Van Hollen.

Fuller Clark said Riccio was her former campaign manager and moved to Washington, D.C. in 2009.

Another, she said, voted from her home in 2008 after working on the Obama campaign and also "moved out of state.

The senator told the Portsmouth Herald that two others, who voted in 2012, worked for the Obama campaign and stayed at her home from last summer through December.

The fourth, she said, also "moved out of state"

Last week, the Republicans asked Attorney General Joseph Foster to investigate what it considers voter fraud related to the campaign workers who temporarily resided at Fuller Clark's home.

Democrats fired back that several Republican operatives voted in New Hampshire while working on campaigns and then also moved out. The Republicans countered that their operatives rented apartments and established residence in the state while they worked on those campaigns.

NHDP spokesman Harrell Kirstein asked, “Has Jennifer Horn’s political director (David Chesley) removed his own house guests from the voter rolls?  Has Kelly Ayotte demanded her campaign manager be removed as well?  How about Mitt Romney’s state director who is now working for Republican Iowa Governor (Terry) Branstad?

“The NHGOP is becoming a sad joke,” said Kirstein. “Even former elected officials from their own New Hampshire Republican Party have publicly criticized these misleading and bogus attacks.  The legal action Jennifer Horn should be most concerned with the federal lean against her house stemming from the more then $90,000 she owes in unpaid back taxes.”

Kirstein noted that former Republican state Rep. Jon Richardson of Allenstown last week posted on Twitter that the Republican strategy on the issue “backfired.”

“Did no one think, ‘Hey we should check to make sure we’re not guilty of same fraud?” Richardson posted.

The Democratic operatives, the NHGOP said in its letter to Fuller Clark, "improperly influenced New Hampshire elections and cancelled out the votes of actual Granite Staters. It is outrageous that as a state senator" and Democratic Party vice chairman, "you would allow your home address to be used to facilitate illegal drive-through voting.

"You need to act immediately so that these individuals do not use your home address to continue voting in New Hampshire and further undermine public confidence in our elections," Horn wrote.

(The full July 29 Granite Status follows.)

MONDAY, JULY 29: NOW WHAT? IF out-of-staters have been abusing voting privileges by working for candidates, voting, and then leaving, can New Hampshire stop it?

It may not be easy.

The state can't get inside someone's head and know whether, when they vote, they truly intend to stay here and make the state their "domicile" or whether we are just a waypoint for a multi-state campaign worker.

It's doubtful that Vice President Joe Biden's niece intended to make New Hampshire home when she voted from a Manchester address last November, swearing that address was her "domicile."

The same probably goes for campaign workers staying at state Sen. Martha Fuller Clark's Portsmouth home during recent elections. Ditto for some Republican operatives.

How about requiring a voter to actually reside in the state for a definite time before being eligible?

Nope. The state supreme court nixed that in 1972. It killed a minimum residency requirement that had existed for a century, saying it violated the Fourteenth Amendment's equal protection clause.

The law said, "No person shall be considered as dwelling or having his home in any town, for the purpose of voting or being voted for at any meeting, unless he shall have resided within such town six months next preceding the day of meeting."

Thirty-year-old William Chapman was denied the right to vote 20 days after moving to Concord. He challenged the law and, representing himself before the high court, he won. (That would be the same Bill Chapman who continues his distinguished law career with Orr and Reno today.)

Chief Justice Frank Rowe Kenison noted the law had been "assumed and accepted without question" for more than 100 years. But he wrote that courts had begun to question it, noting "The increasing mobility of the population has pointed up the deficiency of durational residency requirements."

In fact, Chapman recalls, the U.S. Supreme Court had invalidated a six-month residency requirement in Kentucky just six months before he filed his suit.


FAST FORWARD to 2012. After activists identifying themselves with the names of dead Granite Staters were offered ballots for the first-in-the-nation primary, the Republican-controlled Legislature acted.

The resulting registration law required new voters to fill out an affidavit declaring New Hampshire as "my domicile" and requiring them to register a motor vehicle and apply for a state driver's license within 60 days of becoming a resident.

The ACLU and League of Women's voters sued, contending the motive was to prevent college students from voting.

A superior court last September blocked the motor vehicle and drivers license requirements on the affidavit. The attorney general's request for an expedited appeal (in time for the November election) was denied by the supreme court. The full case remains with the lower court.

Secretary of State William Gardner had agreed with the requirements.

"It cannot be that non-residents can somehow claim domicile for voting purposes only and be able to change the foundation of New Hampshire and its government by voting for its lawmakers and proposed constitutional amendments on the ballot," he wrote in an affidavit.

He said there is no difference in other state laws between the terms "domicile" and "residence," and submitted to the court copies of laws passed in the early 1980s that made uniform terms such as "domicile," "residence," "resident" and "inhabitant."

"To suggest that there is a separate definition of 'domicile' for voting purposes is wrong," Gardner wrote.

With that court case still pending, this year's Legislature side-stepped the issue.

With Democrats now in control of the House, it killed a bill to include in the registration affidavit a statement that the voter recognizes that being "domiciled" means, "I am subject to the laws of the state of New Hampshire, including laws that may require a driver to register a motor vehicle and apply for a New Hampshire's driver's license within 60 days of becoming a resident."

Lawmakers also reversed the 2012 Legislature and re-established student IDs as valid.

That law was signed last week by Gov. Maggie Hassan. It continues a requirement that anyone not presenting one of the required ID forms must have a photo taken and fill out a "challenged voter" affidavit.

But the photo requirement is now delayed until 2015.


GOV. HASSAN wants the photo requirement removed.

She "believes we should fully repeal the misguided voter ID law passed by the last (2012) Legislature, which creates onerous roadblocks to voting that could disenfranchise many citizens, including the elderly and those who experience disabilities," spokesman Marc Goldberg told the Status.

That includes repeal of the requirement that "towns spend significant dollars on cameras at the polls."

Goldberg said, "Over the years, investigation after investigation has found little evidence of voter fraud in the State of New Hampshire."


FORMER HOUSE SPEAKER Bill O'Brien, R-Mont Vernon, led the 2012 efforts. He said last week the motive was common sense, not a wish to disenfranchise anyone.

"We have a constitutional provision that allows anyone with a domicile in New Hampshire to vote," he said, "and we said basically that a domicile would be the same thing as a residency.

"If you're going to be domiciled, you're going to be a resident and you're going to have to adopt all the rights and obligations of residency.

"And the judge vacated that," he said.

"So, whether it's the Vice President's niece making believe she's a resident here or five people living at Martha Fuller Clark's house and casting ballots, that takes away the rights of an equal number of New Hampshire citizens to choose who is going to represent them in government," O'Brien said. "There's something wrong about that. It challenges the fundamentals of our democracy."

Democrats Monday pointed out that O'Brien's son had dual registration in Maine and New Hampshire in 2010, just months before O'Brien spoke out against students from outside of New Hampshire but attend college in the state, being allowed to vote in New Hampshire college towns.

Brendan O'Brien was nominated by the Republican Party in June 2010 to run for a Maine state representative seat while he was attending Bates College. He withdrew his name from nomination the following month, and in November of that year returned to New Hampshire to vote in his hometown, Mont Vernon.

A Maine newspaper reported that the former speaker's son had dual registration in New Hampshire and Maine.

He ended up with dual registration when New Hampshire election officials did not notify Maine officials that he had voted in another state.

The Democratic Party filed a complaint but last summer the Attorney General's office said it found insufficient evidence to cite New Hampshire voting officials for any violations.


SULLIVAN: "NON-ISSUE." Like Hassan, Democratic National Committeewoman Kathy Sullivan says there is no problem.

"The heart of the issue is that people who are living in New Hampshire have a right to vote in New Hampshire. Period. And if someone moves to New Hampshire to work, they have the same right to vote as someone who moved here for school, to be with family or to be in the military."

She said that someone who knows he or she will leave the state a few weeks after an election has a right to vote here.

"The issue is: Where are you living on election day?" she said. "You have a right to vote where you are living.


TOM RATH, former Republican National Committeeman, said there is a problem. Since the adoption of same-day registration, "it exacerbates the potential for fraud because if you had to wait 10 days, for instance, to close the voter list out, it would potentially allow you to catch up on people.

"Without that option somebody can stand in front of a local voting official and say, 'I'll sign the affidavit. I intend to reside here.'"

Rath said it is possible for someone to vote elsewhere by absentee ballot 30 days before an election and then come to New Hampshire and vote here, and "there is no way of knowing that person cast a ballot in another state.

"The reason we ought to take a look at some of these issues is not to play 'gotcha' with the other party," Rath said.

He said a few fraudulent votes may not sway a presidential or other statewide election, but "can make a difference in local races. The idea that you should be part of a town and have a real stake in who your state representative is going to be, I think, is legitimate, but we haven't figured out how to address that."

John DiStaso is senior political reporter of the New Hampshire Union Leader and New Hampshire Sunday News. He can be reached at Follow him on Twitter: @jdistaso.

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