N.H. Voting Law SB3 is Back in Court This Week — Here's What You Need to Know

Aug 26, 2018

All this week in Hillsborough County Superior Court in Manchester, a judge will hear arguments over whether a controversial voting law known as Senate Bill 3 should be allowed to stay in place for this fall’s elections.

Here’s a refresher on what that law does and why this week’s hearing is important.

What exactly is Senate Bill 3, again?

Senate Bill 3 — or, as you may better know it, “SB3” — passed largely along partisan lines in 2017. Supporters argued that it would help shore up trust in the state’s elections by requiring people to prove they really lived where they were trying to vote. Critics warned that it was too confusing and would create unnecessary roadblocks that would prevent people from voting. Under the law, people registering within 30 days of an election have to show some kind of proof that they’re “domiciled” in the town where they’re trying to vote. If for some reason a voter doesn’t have a document to prove that, the law says they’re supposed to follow up with that documentation by a certain deadline or they could face penalties for voter fraud. (For now, the state can’t actually enforce those penalties, because of an earlier order issued as part of the SB3 lawsuit that’s in court this week.) 

Does this week’s lawsuit have anything to do with the other voter residency law we’ve been hearing about lately?

Nope. That’s a totally different piece of legislation. House Bill 1264 (or “HB1264”) doesn’t go into effect until next year, so put it out of your mind when you’re thinking about the rules for registering to vote in this fall’s elections and this week’s hearing.

So tell us about the case that’s in court this week. Who filed the lawsuit, and what are they trying to do?

It actually started out as a pair of separate lawsuits: one was filed by the New Hampshire Democratic Party; the other was filed by the local chapter of the League of Women Voters and five people who said they would have trouble registering to vote because of SB3. The two cases have since merged. Basically, these parties argue that SB3 is unconstitutional and should be thrown out. They say the new law creates extra work for voters and pollworkers alike, that it’s too confusing, and that it will ultimately deter people who should have a right to vote in New Hampshire from being able to participate in the state’s elections.

Who's on the other side?

The lawsuits were filed against the Attorney General and the Secretary of State, because of their role overseeing the enforcement of election laws. From the beginning, the state’s attorneys have argued that concerns over SB3 are overblown. They also argue that the plaintiffs in the lawsuit lack the proper legal standing to bring forward the case in the first place. Specifically, they say the New Hampshire Democratic party and the League of Women Voters haven’t really shown that they would be directly impacted by the law. The state’s attorneys also say they have evidence to show that each of the individuals who are identified in the lawsuit — those potential voters who would have trouble registering under SB3 — actually do have all the documents they need to follow the law. So, in other words, the state says SB3 wouldn’t actually be as burdensome as the opposing side's lawyers suggest.

What’s the big deal about this week’s hearing?

In essence, it will function kind of like a miniature trial. The judge presiding over the case is being asked to weigh in on an injunction — or an attempt to strike down the law — that was first filed almost a year ago. The court has blocked out more than a week of full-day hearings — Aug. 27 to Sept. 5 — to allow both sides to make their case to a judge about why SB3 should stand or fall. The lawyers challenging SB3 want the judge to stop the law from being enforced as soon as possible, ideally (in their view) in time for this fall’s upcoming elections. The state’s lawyers will be trying to convince the judge to let the SB3 stay in place. This lawsuit has already been playing out for almost a year, and a bench trial was originally scheduled to happen last week. But that trial was pushed off indefinitely because of a series of procedural disputes and delays — most significantly, perhaps, a change in venue that happened just a few months ago. In June, the judge that was originally presiding over the case in Hillsborough County Superior Court South in Nashua recused himself because he felt he was too close to one of the outside lawyers the state brought on to help with their side. As a result, the case transferred to a new judge in Manchester, who said it was unrealistic to proceed with an August 2018 trial as originally scheduled.

What kind of people will testify this week?

Both sides of the case have put together long lists of potential witnesses, including: state attorneys and election officials, local pollworkers, Democratic party activists and a number of outside experts. (Read the state's witness list here, the New Hampshire Democratic Party's witness list here and the League of Women Voters' witness list here.)

The state’s legal team plans to call on, among others, a University of Georgia professor who has appeared as an expert witness in a number of other voting lawsuits across the country. In 2016, for example, Wisconsin officials called on him to help defend against charges that a new voter ID law was discriminatory

Attorneys on the other side have queued up a Dartmouth political science professor to talk about how it might affect “political participation,” a professor of operations and supply chain management to talk about SB3’s impact on waiting times at polling places, and a professor who studies literacy to talk about the reading comprehension level one would need to understand the new language SB3 adds to voter registration forms. They also plan to call upon a Rutgers University professor who has written a book called The Myth of Voter Fraud to argue that “SB3 was justified by lawmakers as a means to address a problem with voter fraud that barely exists.”

When should we expect some kind of decision?

It’s tough to say — and it’s all up to the judge presiding over the case. But with the state primary election only about two weeks away, a decision between now and then could mean a lot of last-minute scrambling to adjust the rules used at the polls.

(You can browse most of the court filings in the SB3 lawsuit here.)

A previous version of this article incorrectly stated the title of the court where this week's hearings are taking place. It has been corrected.