Judge Says N.H. Residency Law Can Stay For Now, Sends Questions to State Court

Nov 27, 2019

A federal judge has denied a request from the American Civil Liberties Union and the state Democratic Party to block enforcement of a new New Hampshire residency law, but has asked the state Supreme Court to clear up several questions about how the law works.

Judge Joseph Laplante issued a pair of rulings Wednesday, following a recent hearing in an ongoing court case over the constitutionality of House Bill 1264, a 2018 law that redefined New Hampshire’s definition of what it means to be a state resident.

(Read Wednesday's two judicial rulings here and here.)

In one ruling, Laplante said the plaintiffs in the case failed to prove that the law was confusing enough to warrant putting it on hold while the lawsuit is still pending. The ACLU and the New Hampshire Democratic Party argued that state officials had not adequately explained the implications of the new residency law — and that, in turn, could discourage otherwise eligible voters from participating in New Hampshire elections. But Laplante said the evidence didn’t back up that argument.

“Notably, the plaintiffs produced no witnesses stating that confusion regarding HB 1264 has led them to decide not to register to vote,” Laplante wrote. “Indeed, all of the witnesses who testified that they currently have out-of-state licenses also testified that they are registered to vote in New Hampshire.”

While Laplante acknowledged that “state officials have been slow to provide detailed guidance,” he gave the state credit for issuing a recent letter that “clarifies the State’s interpretation of New Hampshire law after the statutory changes.”

“A reasonable potential voter can now discern that, in the eyes of the state, someone who registers to vote in New Hampshire is a New Hampshire resident and, if he or she wishes to drive in New Hampshire, is required to obtain a New Hampshire driver’s license and register any cars owned in New Hampshire,” Laplante continued.

While Laplante questioned the timing of the state’s advisories regarding HB1264 and said he found it “concerning that outdated and inaccurate information (at least in the defendants’ view)

about the relationship between domicile and residency remained on the Secretary of State’s

website until mid-November,” that wasn’t enough in his mind to justify blocking the law altogether at this time.

The judge ultimately concluded that the state’s attorneys “reasonably explained that guidance has only emerged at this time because of the multiplicity of issues connected to residency and the need for careful coordination between different state agencies.”

While the ACLU and the New Hampshire Democratic Party argued that the law should be put on hold, Laplante said he would have favored another approach.

“The best remedy for ongoing confusion is clarification, and to the extent that this court would order any temporary injunctive relief under these circumstances, it would be limited to that cure: providing clarity to eliminate or reduce the confusion that the plaintiffs allege, and not to enjoining enforcement of state motor vehicle laws in the manner the plaintiffs’ demand,” Laplante wrote.

In a separate order also issued Wednesday, Laplante followed through on his previously stated intent to ask the New Hampshire Supreme Court to review certain aspects of the residency law’s implementation. In essence, Laplante said that because the ongoing lawsuit centers on a state statute, he needs the state court to clarify how it works before he attempts to decide whether it violates the U.S. Constitution.

Laplante’s questions for the state court center on a series of potential interactions between the new residency law, the state’s election rules and its motor vehicle code.

Among other things, the judge said he needs more information about whether casting a ballot would count as establishing a “bona fide residency” under the state motor vehicle code, therefore triggering requirements to register a car or obtain a driver’s license. On the other hand, the judge also asked whether an exemption in the state’s motor vehicle code would exempt those people from local licensing requirements, if they still claim residency in another state.

“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.