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NH Supreme Court clears way for Sununu to sign controversial election law

New Hampshire Union Leader

July 12. 2018 10:26PM

CONCORD — A controversial bill that would govern who gets to vote in New Hampshire is one step closer to being signed into law.

The state Supreme Court issued an advisory opinion Thursday that House Bill 1264, defining residency and domicile for purposes of voting, is constitutional, setting the stage for Gov. Chris Sununu to sign the bill into law despite his previously stated concern that it would constrain voting among college students.

In May, Sununu called on the Executive Council to formally request an opinion from the court and was supported in a 3-2 vote along party lines, with Democratic Councilors Chris Pappas and Andru Volinsky opposed.

“My position has not changed,” he said at the time. “I remain concerned about the bill’s constitutionality, and as such, I am asking the Supreme Court to weigh in on this issue to put this matter to rest once and for all.”

In the opinion, Chief Justice Robert Lynn was joined by Associate Justices Barbara Hantz Marconi and Patrick E. Donovan in ruling the law might disproportionately affect students or other constituencies, but that alone does not make it unconstitutional.

Justices Gary Hicks and James Bassett issued a separate opinion, alluding to issues of fact that are in dispute and the lack of a factual record upon which to base an opinion.

“The constitutional duty of the justices of the Supreme Court to give advisory opinions does not include answering legal questions that require resolving questions of fact,” they wrote.

Specific conclusion

The other three justices reached a very specific conclusion, however, that the bill as written is constitutional, although they could rule differently if a specific case is ever brought for litigation.

“If HB 1264 becomes law, out-of-state students who come to New Hampshire to attend a postsecondary institution will have a choice,” according to the court majority. “If while here such persons come to regard New Hampshire as ’home’ and establish sufficient attachment to the state to satisfy the requirements of domicile, then they will be entitled to vote here.”

“On the other hand,” the decision states, “if such persons regard some other place as home and choose to maintain their domicile there, then that place, rather than New Hampshire is where they must vote, but they also may not then be obligated to obtain a New Hampshire license in order to drive, or to register their motor vehicle in this state. There is nothing unfair or unconstitutional about state laws that require persons to make this choice.”

The opinions can be viewed below:

State Rep. Dave Bates, R-Windham, who has tried for the past two sessions to get bills passed requiring New Hampshire residency for voting privileges, was delighted by the ruling.

“I’m thrilled. I believed all along it was constitutional, or I wouldn’t have filed the legislation,” he said.

Bates pointed out that Sununu nominated Lynn as chief justice and nominated both Hantz Marconi and Donovan to the court. Hicks and Bassett were nominated by Democratic Gov. John Lynch.

“It is to his credit that this decision came out the way it did,” Bates said of Sununu, “because without those appointments, this would have been a different decision, guaranteed.”

Sununu urged to sign

State Sen. Regina Birdsell, R-Hampstead, who led election law initiatives in the Senate for the past two years, urged Sununu to sign the bill now that the court has issued its opinion.

“I think it’s the right decision and I strongly urge the governor to sign HB 1264,” she said. “My understanding is that if they ruled in favor he would consider doing so.”

Sununu declined to say whether he would now sign the legislation, although it is likely he will. “We appreciate the time and consideration given to this matter by the New Hampshire Supreme Court and are reviewing their decision,” he said.

Liz Wester, with the New Hampshire Campaign for Voting Rights, said the Supreme Court has cleared the way for what she called “a poll tax” without a factual record to rule on.

“Gov. Sununu said he would ’never support anything that suppresses the student vote,’ said Wester. “The legislative history makes clear that the intent of this bill is specifically to deter college students from voting. The court’s advisory opinion does not change the bill’s discriminatory intent or the fact that it is bad policy. We encourage Gov. Sununu to veto HB 1264 and reject this effort at voter disenfranchisement.”

State Sen. Dan Feltes, D-Concord, pointed out that the court in 2015, with different justices, declined to issue an opinion on an election-related law.

“The New Hampshire Supreme Court has a long tradition of staying above the political fray, unlike the often polarized United State Supreme Court,” he said. “Without a factual record to base a decision, it could have done what it did in 2015 when reviewing very similar legislation — stayed out of the political fray. That would have been the New Hampshire way.”

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