Judge Blocks "SB3" Voter Registration Law From Use In Upcoming Midterms

Oct 22, 2018

Credit Dan Tuohy/NHPR

With just over two weeks to go until voters head to the polls, a judge has blocked the state from using new voter registration regulations that require voters to prove they live where they're trying to vote. Instead, the judge says the state needs to switch back to the registration forms used in 2016.

Hillsborough County Superior Court Judge Kenneth Brown issued his ruling on the voter law — commonly referred to as "Senate Bill 3" or "SB3" — on Monday afternoon. You can read his full order here

Brown's ruling drew heavily on testimony from experts about the burdens SB3 could place on individual voters and on New Hampshire's voting system as a whole. That testimony came during a two-week hearing held earlier this fall to decide the law's fate. (You can catch up on NHPR's full coverage of that hearing here.) 

The judge pointed to testimony from a literacy expert that the language SB3 adds to new voter registration documents "would be incredibly difficult for the average adult to read and understand." Brown also cited testimony about the potential impact SB3 might have on delays at the polls. Based on that analysis, the judge concluded that "SB3 will result in potentially significant increases in waiting times at polling places throughout the state, particularly those with large turnout." 

Additionally, the judge wrote that the legal team challenging the new voting law "presented credible testimony that the negative impact of SB3 will be greater for certain groups of people," including young adults, people from lower socioeconomic backgrounds and people experiencing homelessness.

Among other arguments presented during the earlier SB3 hearing, the state attorneys defending the law argued that it had been in effect since 2017 without incident. But the judge said the elections for which the law has been in place — many of them at the local level — are not comparable to the turnout expected in November.

Brown also addressed the argument, presented both in court and among broader supporters of SB3, that the law is needed to improve the "integrity" of the state's elections. 

"All remarks regarding improving confidence in and the integrity of the State's elections were made in the context of closing 'loopholes' and tightening up the 'lax' system that supposedly enables ineligible voters to cast ballots throughout the State," the judge wrote. "However, as documented throughout the preliminary injuction hearing and as acknowledged by the legislature, voter fraud is not widespread or even remotely commonplace." 

Even if the issue were more serious, Brown said SB3 doesn't seem to do anything to prevent it.

"Therefore, instead of combating fraud, the law simply imposes additional burdens on legitimate voters," the judge wrote.

Reaction to the ruling on Monday broke down along partisan lines. Democrats cheered it as a victory for voting rights, while Republicans signaled disappointment. The New Hampshire Republican Party, in a statement issued shortly after the order was made public, suggested that Brown's ruling itself was a partisan maneuver. 

"When a Superior Court Justice appointed by a Democrat Governor decides to uproot our voter registration laws with just over two weeks to go until the election, our system and institutions are thrown into disarray," NHGOP Chairman Wayne MacDonald said. (Brown was appointed by then-Democratic Gov. John Lynch in 2007. The law at the center of his ruling passed in 2017.)

From here, it's unclear whether the state will appeal the judge's order. Associate Attorney General Anne Edwards, who was part of the team defending SB3 in court, issued a statement Monday night saying the office was "reviewing the Court’s order and will be communicating about next steps as soon as possible."

The Secretary of State's office did not respond to an email seeking comment on the ruling but did post a statement on its website later Monday evening.

"We will have this election regardless of any obstacle," the statement from Secretary of State Bill Gardner read. "What is more troublesome, however, is rhetoric painting this order as evidence of active voter suppression when it is a fact that New Hampshire is the easiest state in the country to vote in since we are the only state with election day registration, no durational residency requirement, and no provisional ballots.  This order does not change that."