Secretary of State competition

Bill Gardner

N.H. Secretary of State

HANOVER — With a month to go until local elections and the New Hampshire primary fast approaching, Town Clerk Betsy McClain is reminding Dartmouth College students — and others across the state — they are allowed to register to vote without establishing residency in the state.

Many students are confused, McClain says, and struggling to understand a pair of voting laws passed in 2017 and 2018, and the court cases challenging their constitutionality.

“A smoke bomb has gone off over this issue,” she said. “There’s been more confusion introduced into the process, and that could potentially alienate folks.”

Secretary of State Bill Gardner — the official in charge of New Hampshire’s elections — said his office has no plans to issue any updated guidance on registering to vote. Nothing about registering to vote has changed, he explained.

“The forms don’t change, the procedures don’t change,” he said. “However you rule on this is not going to change any election law. There is nothing that’s going to change for the voters or for the election officials.”

McClain disagrees.

“I think something significant has changed,” she said. “It used to be very clear college students, transient workers and others could select New Hampshire to be their voting domicile.”

And students from outside New Hampshire have questions about what happens if they register to vote in an election here, McClain said. Will they have to get New Hampshire driver’s licenses? Will they have to register their cars here? If they do not have cars — and many students do not — how will they make the drive to a state Department of Motor Vehicles office to get a new license?

Now, no one is sure what will happen, she contends.

McClain asked the Secretary of State’s office for guidance on the new laws. In a letter, Gardner and the Attorney General’s office told her local election officials should not advise voters on other areas of law, like who is and is not required to get a driver’s license.

McClain said she will direct would-be voters to the closest Department of Motor Vehicles office to hear advice about driver’s licenses. And DMVs, unable to offer guidance on voting laws, might send them back to the town clerk.

“I can see this endless bureaucratic loop folks are going to be caught in,” she said.

Absent clear information, the Hanover town clerk worries students will stay away from the polls. “People might just perceive there is an issue and be soured from exercising what should be their right,” she said.

The two laws at issue are 2017’s Senate Bill 3, or SB3, and House Bill 1264, or HB1264, of 2018.

SB3 requires would-be voters to provide documents proving residency in New Hampshire. The bill’s supporters argued the measure promotes confidence in the state’s elections by assuring only people who live here vote here.

A legal challenge from the League of Women Voters echoes McClain’s concerns. The group says the laws are “highly confusing, unnecessary and intimidating hurdles to voting.”

In October 2018, a Hillsborough County Superior Court judge blocked the state from implementing SB3 as the legal challenge progressed. In the injunction, Judge Kenneth Brown wrote that there was little evidence of low confidence in the integrity of New Hampshire’s election system — and no evidence the new law would help.

“The state presented no evidence that the new domicile affidavit has had any impact on the public’s perception of the election process,” he wrote.

HB1264 struck the phrase “for the indefinite future” from the definition of residency or “principal place of physical presence.”

“It doesn’t change anything in the voting process or in the voter registration process,” Gardner said.

In a lawsuit filed last February, the ACLU of New Hampshire argued the new law could mean voters would have to follow residency requirements — like getting a New Hampshire driver’s license.

“It was meant to make it more difficult and more expensive for young voters,” asserted Henry Klementowicz, an ACLU attorney.

Gardner, a Democrat, said the law did not make it more difficult to vote and said he’s troubled to see the ACLU characterize it as a form of voter suppression. He’s proud of New Hampshire’s high rates of election participation and pointed out that the 2012 and 2016 presidential elections — the first since New Hampshire started requiring photo ID to vote — had the highest rate of participation since the 1960s.

The impact of HB1264 would be minimal, Gardner said. “All the bill did was take those four words.”

New Hampshire counts ballots from people who do not have documentation to prove they are residents, Gardner said. Other states give provisional ballots to people who cannot document residency, but in New Hampshire a voter who signs an affidavit swearing he or she lives in New Hampshire gets a regular ballot. “We have that trust that the person is being honest,” Gardner said.

McClain, as Hanover’s town clerk, said the confusion around the new laws could still keep out-of-state students from the polls in New Hampshire.

Reflecting on the new voting laws, Gardner believes they do change something important: that more voters will be subject to taxes, which he sees as a good thing.

“Current law allows some people to obtain representation without taxes or fees, to which other similarly situated persons are subjected,” he said, adding he thought the current system creates two different classes of voters: residents who pay state and local taxes and those who are only domiciled here, who do not.

“If you truly believe in the equal right to vote, then everyone should be doing the same things in order to be a voter,” he said.

The lawsuits from the League of Women Voters and the ACLU are both moving forward, but neither is likely to be resolved before the 2020 presidential primary.

Neither the Secretary of State nor the Department of Safety, which oversees the DMV, have plans to issue new guidance for voters and town clerks.

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Monday, December 09, 2019