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Dave Solomon's State House Dome: A big shift on election law

By DAVE SOLOMON
July 13. 2018 7:34PM



An advisory opinion issued by a divided state Supreme Court on Thursday did much more than provide legal cover for Gov. Chris Sununu to sign an election-related bill he once said he hated. It also offered some insight into how the justices might rule when the inevitable lawsuit over House Bill 1264 lands on their desk.

Opponents of a different election-related law, Senate Bill 3 passed in 2017, didn't even wait until the next election before challenging that law in court, in a case that is now expected to go to trial some time in 2019. Aspects of that case are already in front of the state Supreme Court.

Minutes after Sununu signed HB 1264 into law, ACLU-NH Legal Director, Gilles Bissonnette, gave a strong indication of where the case is headed: "As we previously stated, there is nothing standing in the way of this law being successfully challenged in court with the benefit of a full record developed in litigation."

It's possible but hard to imagine circumstances that will override the court's ringing endorsement of the law, in which three of the five justices wrote, "We conclude that HB 1264 is narrowly drawn to advance the compelling governmental interest in ensuring that voters are full members of the electoral community.

"The remedy effectuated by HB 1264 accomplishes this objective by equalizing the legal standard for domicile for voting purposes with the legal standard for residence for other purposes."

In language that echoes the voice of the bill's most ardent supporters, the justices stated, "the premise of the opponents' arguments is that New Hampshire is required to have a special rule of domicile solely for voting purposes, so that persons are allowed to vote here without assuming the other obligations of citizenship normally imposed.

"The opponents have not cited, nor are we aware of, any authority supporting such a requirement under the federal constitution or the constitution of any state."

In their advisory opinion, the three justices in the majority also provided a list of the types of people who are now able to vote in New Hampshire without incurring the obligations of residency, like a New Hampshire driver's license and vehicle registration.

These are some of the folks who will have to vote by absentee ballot if the law is upheld, according to the court:

. A college student candid enough to say he intends to move on after graduation;

. A newly arrived executive with a firm intention to retire to his Florida cottage at age 65;

. A hospital intern or resident with a career plan that gives him two or three years in New Hampshire;

. A construction worker on a long but time-limited job;

. An industrial or government trainee working up a precise career ladder;

. A research contractor on a project with a deadline;

. A city manager hired for a term;

. A military person on a term of duty; and,

. A hospital patient with a hoped-for goal of discharge.

In 2015, the court was asked to weigh in on legislative attempts to define residency for purposes of voting.

In March of 2015, the House passed a resolution seeking an opinion from the Supreme Court on House Bill 112, "an act relative to domicile for voting purposes."

HB 112, which was eventually tabled, stated that, "A person who declares an address in a New Hampshire town or ward as his or her domicile for voting purposes shall be deemed to have established his or her residence for motor vehicle law purposes at that address."

The state Supreme Court declined to comply with the request, and never rendered an opinion, stating that it lacked a factual background upon which to make a decision.

"Historically, we have declined to answer general inquiries on constitutional infirmity and, in keeping with that practice, we respectfully decline to answer," the court stated in its April 9, 2015, opinion - a unanimous ruling by then chief justice Linda Dalianis, along with justices Gary Hicks, Carol Ann Conboy, Robert Lynn and James Basset.

Conboy and Dalianis have since retired, to be replaced by two Sununu nominees - Anna Barbara Hantz Marconi and Patrick E. Donovan. Sununu bypassed Hicks, the ranking justice by seniority, to nominate Lynn as chief justice upon Dalianis' retirement.

In 2015, Lynn voted with his four colleagues to decline an advisory opinion on a law virtually identical to HB 1264. But on Thursday, he joined with the two Sununu nominees in a favorable advisory opinion, while Hicks and Bassett remained consistent their earlier position.

It's a turnaround that has not gone unnoticed in the state's legal community.

As they say, elections have consequences.


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