In Arguments Over State Residency Law, Justices Look For Answers On Where The Line Is

Mar 10, 2020

The New Hampshire Supreme Court heard arguments Tuesday on a new state residency law that is the subject of a federal lawsuit.
Credit NHPR Staff

Questions about how New Hampshire’s new residency law works — how it affects everything from voting, to vehicle licensing requirements, to library cards and hunting licenses — were in front of the state’s highest court Tuesday.

The hearing wasn’t meant to decide whether the residency law should stay in place. Rather, it comes as part of an ongoing federal lawsuit filed by the American Civil Liberties Union of New Hampshire and the New Hampshire Democratic Party, seeking to overturn the new residency law as unconstitutional.

That federal case hit a stalemate last year, because the attorneys challenging the law and the state attorneys defending it have been unable to agree on the underlying facts of what it changes.

Judge Joseph Laplante, overseeing the case, said he needs the state court to clarify how the residency law works before he can make any larger decisions about whether it’s constitutional. Laplante asked for clarification on five key questions about the state’s new legal definition of what it means to be a New Hampshire resident — including what relationship, if any, exists between voting in New Hampshire and getting an in-state driver’s license or car registration.

Much of Tuesday’s hearing was spent debating a provision of New Hampshire’s motor vehicle code that says a person who claims residency in another state for any purpose doesn’t have to get an in-state license or car registration.

Assistant Attorney General Anthony Galdieri said the state has an interest in making sure its roads are safe — so anyone who drives here most of the year, even if they spend some time elsewhere, should get a license.

The alternative, he said, “is to nullify that” and to permit people “who live in New Hampshire 11 months out of the year, and for one month out of the year live in Florida, to claim residence in Florida to get a library card at the Palm Beach Library and to say, ‘Now I can register my vehicle in Florida.’ ”

Opposing attorneys argued the law is what it is — and that means people who still claim residency in other states, even if they vote here, shouldn't necessarily be subject to motor vehicle requirements. ACLU Attorney Henry Klementowicz told the court it’s reasonable to ask someone to claim one place as their home for voting purposes, but that might not be their sole place of residence.

“One can imagine that one keeps a home for filial purposes, or hasn't switched over their mail or is on health insurance or car insurance of their parents, or a variety of things that connect someone to a place outside of the sphere of democratic self government,” Klementowicz said.

On that note, the justices asked Galdieri and Klementowicz to weigh in on exactly where New Hampshire’s existing residency policies draw a line — and when someone’s actions in another state jeopardize their claim to residency in New Hampshire. They posed questions on whether out-of-state students in New Hampshire should pay interest and dividends taxes, whether a New Hampshire resident who applies for a hunting license in Florida would effectively declare residence in that state instead, and whether fulfilling the obligations of New Hampshire’s motor vehicle code qualifies as  “civil” purpose under the same residency definition that applies to voting.

The New Hampshire Supreme Court has been operating with only four justices, one shy of a full bench, due to an ongoing stalemate between Gov. Chris Sununu and the Executive Council over the judicial nominating process. For this case, however, the court invoked a provision that allows a randomly selected retired judge to temporarily fill that vacancy. In this case, the judge selected happened to be one who was already involved in a series of high-profile rulings in a separate ongoing court case over another state voting law.

State attorneys argued that Judge Kenneth Brown, who retired from the bench in 2018, should not preside over this case because of his involvement in the other voting lawsuit. That request was overruled, and Brown sat on the bench alongside the rest of the justices — but did not pose any questions — during Tuesday’s hearing.

After the hearing, Galdieri said the state’s legal team is no longer concerned about Brown’s role in the case but wanted to raise the issue in court filings prior to the hearing rather than leaving it unaddressed until the in-person arguments.

“I think we’re satisfied that he can do the job as any other judge would do,” Galdieri said on the steps of the courthouse after Tuesday’s hearing.

It’s unclear how soon the Supreme Court justices will issue their ruling. The federal judge who asked them for more clarity signaled that he was especially interested for them to provide some resolution on questions about whether the new residency law ties together voting and vehicle requirements.

“If a registered voter can both claim a New Hampshire domicile and claim residence for motor vehicle purposes in another state, the plaintiffs would not face the harms they fear,” Laplante wrote in the order that requested further review by the state court.