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Judge allows SB3 to go forward but blocks penalties

BY DAVE SOLOMON
New Hampshire Union Leader

September 12. 2017 11:56AM
Hillsborough County Superior Court Judge Charles Temple listens to arguments on voting laws in Hillsbourouth County Superior Court South in Nashua Monday. (DAVID LANE/UNION LEADER)

NASHUA — A Superior Court judge Tuesday blocked the state from subjecting some first-time voters to a $5,000 fine or jail time for failing to return paperwork within 10 days of registering to vote, calling these penalties a "very serious deterrent."

Hillsborough County Judge Charles Temple let stand all the non-penalty provisions of the new domicile law (SB 3) and his 13-page ruling came just before the opening of the polls for a New Hampshire House of Representatives special election Tuesday in Laconia and Belmont.

"The average voter seeking to register for the first time very well may decide that casting a vote is not worth a possible, $5,000 fine, a year in jail, or throwing himself/herself at the mercy of the prosecutor's discretion," Temple wrote.

"To the Court, these provisions of SB 3 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."

The remainder of the law should stand, though Temple stressed there needs to be a full hearing before he makes a permanent finding.

"While the Court has serious concerns regarding other parts of SB 3, the Court recognizes that the law is entitled a presumption of constitutionality," Temple wrote. "The Court therefore will not enter any additional temporary relief at this time."

Both sides declared victory after Tuesday morning's decision.

Gov. Chris Sununu, in a statement, said, "The judge took a cautious approach, but we're pleased the major provisions of the law are being allowed to go into effect. This is just one step of this legal process some folks have started. We will abide by the law, whatever the courts decide."

House Speaker Shawn Jasper, R-Hudson, said on balance the state achieved its initial goal.

"This is an important first ruling in what will be an ongoing adjudication that we believe will lead to the law being upheld," said Jasper. "Although the penalties in the law cannot be enforced at this time, the Court found no reason to delay the implementation of the other provisions of the law that provide for a more transparent and honest voter registration process."

The Democratic Party and League of Women Voters had sought a temporary injunction to bar the law from being applied while lawyers for Attorney General Gordon MacDonald wanted the case dismissed and said the opposing parties had no standing to sue.

"This order is a victory for voting rights in New Hampshire," said Democratic Party Chairman Raymond Buckley.

"The court's decision to strip the law of its penalties shows exactly how burdensome and intimidating they are. It proves the state cannot threaten people with criminal prosecution for merely registering to vote."

But Sen. Regina Birdsell, R-Hampstead, chairman of the Senate Election Law and Internal Affairs Committee, said she's optimistic the state ultimately will win in court.

"I continue to believe this law will be upheld and will serve to protect the integrity of New Hampshire's elections now and in the future," Birdsell said.

The penalties Temple ruled can't be enforced concern same-day registration or registering to vote within 30 days of an election.

Those who fail at that time to produce documents showing New Hampshire to be their voting domicile must bring that proof to a local clerk within 10 days. Anyone with those documents who fails to show them faces the potential of jail and a $5,000 fine.

Election officials are charged under this new law with verifying as eligible those who vote but have no documents such as a driver's license or a passport.

The Republican-led Legislature and Sununu pursued this law because under current law, voters without proper papers sign affidavits swearing to the fact they do live in New Hampshire.

Then after every election, hundreds of them do not respond to postcards that state election officials send them trying to verify their eligibility.

Temple said he was pleased Deputy Secretary of State David Scanlan and state prosecutors vowed to make sure all voters today understood the impact of his ruling.

dsolomon@unionleader.com

READ THE RULING: Judge Temple's decision can be viewed below:



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