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Court could decline Gov. Sununu's request to give advisory opinion on new election law

State House Bureau

May 15. 2018 8:55PM

CONCORD — Gov. Chris Sununu is preparing to ask the state Supreme Court for an advisory opinion on a controversial new election law, but the court has dodged such questions in the recent past.

The governor announced on Tuesday that he plans to bring a late item to the Executive Council today asking the council to adopt a resolution regarding HB 1264, the bill defining residency as a condition for voting.

Supporters say the bill will help ensure that only New Hampshire residents vote in state elections, while opponents say it will suppress the vote of college students and others living in the state on a temporary basis, but still entitled to vote here.

The bill has cleared the House and Senate, and is awaiting Sununu’s signature.

“My position has not changed,” said Sununu on Tuesday. “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.”

Sununu will present the five-member council with a resolution outlining the issues and seeking an opinion from the court on certain constitutional questions surrounding the right to vote.

“Since it’s a late item, it is not on the formal agenda. It will be on a late item agenda released Wednesday morning, and will likely be taken up at the very end of the council meeting,” according to Sununu spokesman Ben Vihstadt

It won't be the first time the court has been asked to weigh in on legislative attempts to define residency for purposes of voting.

Been here before

The Legislature considered a similar bill and sought a similar opinion in 2015, but the court declined as it was considering a voting law case at the time.

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.

The questions asked by the House back then are nearly identical to the questions Sununu wants posed today.

The first question was whether HB 112 would violate specific parts of the New Hampshire Constitution (Part I, Article II); the second was whether it would violate any other provision of the United States or New Hampshire constitutions.

The court rejected the second request because it was too broad.

“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, which can be viewed below:

The first request was more specific, but was rejected because the legal issues raised were too similar to an election-related case that was before the court at the time, Annemarie Guare v. State of New Hampshire.

“To answer your first question now would place us in the position of giving advice on issues … in advance of a decision on a matter currently before the court that involves similar issues,” the court stated.

Briefs were filed

Attorney Chuck Douglas, then general counsel for the House, had filed a lengthy brief defending HB 112, while William E. Christie with Shaheen and Gordon filed in opposition to the law on behalf of the ACLU-NH, the League of Women Voters and the Fair Elections Legal Network.

The arguments made in those briefs are very similar to arguments voiced in the debate over HB 1264 and its companion bill, HB 372, as they worked their way through the Legislature.

The outcome at the Supreme Court could be similar as well.

The court has already been asked by the attorney general to rule on certain aspects of a lawsuit surrounding an election-related law passed last year, Senate Bill 3, which establishes new rules for Election Day registration.

If the Supreme Court decides to take up the SB 3 issues as requested by the state, it may be unable to comply with Sununu’s request for an opinion on HB 1264, the bill defining residency.

Objections to both bills are based on an allegation of disproportionate impact on young, low-income and minority voters.

In any case, as the justices noted in their 2015 ruling, “an advisory opinion of the justices is not the same as an opinion of the court in a litigated case and does not constitute binding precedent.”

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Thank you, Sununu