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N.H.'s new voter affidavit law is already facing a court challenge

A voter stands at a check-in station at the polling place in Amherst Street School in Nashua, N.H.
Sarah Gibson
Some election officials have raised concerns that the new law will diminish voter secrecy because it requires election officials to mark ballots in a way that could identify voters and reveal who they voted for.

This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NHPR and other news outlets to republish its reporting. It was updated on June 20 with additional information about a legal challenge to the new law, and to clarify that the state primary is 56 days before the November general election.

Gov. Chris Sununu signed a bill into law on Friday that would create affidavit ballots for the first time in New Hampshire, a process that could delay final election results up to two weeks.

Senate Bill 418 will require voters who are registering to vote in New Hampshire for the first time on election day to mail in proof of their identity if they do not have that documentation with them at the polling place. Under the new law, failure to do so within seven days will result in their vote being voided.

The new law will not affect the 2022 primary or general election – it will take effect Jan. 1, 2023. But the law is already being challenged in court. Hours after Sununu signed the bill, a number of progressive organizations and individuals led by the Washington-based Elias Law Group filed a lawsuit in Hillsborough District Court against the bill, arguing the bill will hamper the right to vote and that it violates state constitutional requirement that town election officials report election results within five days of the election.

Plaintiffs in the lawsuit, who include 603 Forward, Open Democracy Action, Louise Spencer, Edward R. Friedrich and Jordan Thompson, are requesting that the court permanently enjoin the law to prevent it from taking effect.

Currently, voters who lack an ID can sign an affidavit affirming their identity and asserting that they are a U.S. citizen, of legal age to vote, and are domiciled in the town and state of that polling place. Lying about that information is punishable by a $5,000 fine, and it could result in a class A misdemeanor or a class B felony, according to RSA 659:34.

Republicans proposed SB 418 because they believe signing an affidavit is insufficient to prevent voters from lying about their identity and that unqualified voters are able to cast votes in New Hampshire elections. Democrats have criticized the bill, calling it harmful and unnecessary and pointing to a lack of evidence of widespread voter fraud.

Election officials have also raised concerns that the law will diminish voter secrecy because it requires election officials to mark ballots in a way that could identify voters and reveal who they voted for.

The American Civil Liberties Union of New Hampshire echoed those concerns. “We are deeply disappointed in and concerned by Governor Sununu’s signing today of SB 418, a clearly unconstitutional bill that would diminish ballot secrecy and create an avenue to tie names to ballots,” said senior staff attorney Henry Klementowicz in a statement Friday. Klementowicz said the ACLU plans to challenge the law in court.

The bill has also garnered criticism from members of the military over concerns that it will disenfranchise people voting abroad. New Hampshire is required by the federal Uniformed And Overseas Citizens Absentee Voting Act to mail ballots to members of the military serving abroad 45 days before an election. Given New Hampshire’s late primary date, the primary election falls 56 days before the general election. But this bill allows an additional 14-day period for the state to finalize ballots, which could put the state over the federal deadline by three days.

Sununu released a statement along with the signing of SB 418 in which he said the Secretary of State assured him that the new law will not pose a problem to military voters overseas.

“The New Hampshire Secretary of State is the foremost authority on our state’s elections, and he has given me his full assurances that this bill does not affect the state’s ability to get military ballots out on time, and that our processes will work without delay or impediments with its passage,” said Sununu.

But in an interview with the Bulletin in June, Scanlan said the 14-day deadline in the bill could create scheduling problems. That deadline could make it harder for the Secretary of State to certify election results and print general election ballots within 10 days – the typical deadline required to meet the 45-day deadline for overseas voters.

Scanlan called for a future Legislature to tweak the bill later.

“Fourteen days would be too long if it stretches out because of the 10-day window that we’re working with,” Scanlan said. He added later: “That would have to be adjusted.”

New Hampshire Bulletin is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: Follow New Hampshire Bulletin on Facebook and Twitter.

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