As New Residency Law Heads Back to Court, Debate Plays Out In N.H. Primary Campaign

Nov 20, 2019

A lawsuit over a controversial new residency law is back in court Thursday morning, this time to decide whether the state could be blocked from enforcing any link between voter registration and vehicle licensing through the 2020 presidential primary election.

The new law doesn’t affect what someone has to do before they register to vote in New Hampshire, but the more significant question — central to the ongoing lawsuit — is whether it changes what someone has to do after they vote. Specifically, the lawsuit centers on whether registering to vote or casting a ballot in New Hampshire now counts as a declaration of residency — therefore potentially triggering other requirements, and expenses, like in-state driver licensing or car registration.

While the fate of the law is pending in court, it’s also becoming a flashpoint on the presidential campaign trail — and Democratic candidates have invoked the new residency law as an example of the kind of voting restrictions they’d fight against if elected president.

At Thursday’s hearing, the residency law’s opponents, including the ACLU of New Hampshire and New Hampshire Democratic Party, will ask a judge to block the state from using a person’s voter registration status to enforce the motor vehicle code. They also want state officials to publicize that stance widely in the months leading up to New Hampshire’s presidential primary.

The residency law took effect in July, but state officials have issued conflicting messages on its implications for voting and vehicle licensing.

When the law was making its way through the Legislature, its supporters — including top officials with the Secretary of State’s office — argued that it would bring greater clarity and fairness to the New Hampshire’s voting requirements. But after the law went into effect, state officials — in court filings and in response to reporters’ questions — denied that it had any impact on the voting process.

In the past two months, the state has started to issue additional guidance on the subject to local election officials.

One recent letter to local election officials reiterated the state’s position that the new residency law “made no changes to New Hampshire’s election laws.” But the same letter also spelled out some connections between a person’s status as a New Hampshire resident, their ability to vote and the requirements that they might incur under the motor vehicle code.

“Anyone seeking to register to vote in New Hampshire is indicating that he or she has already established a domicile here. The obligation to comply with the motor vehicle code requirements begins at the time an individual establishes his or her domicile in New Hampshire,” the letter reads. “No one can be denied the right to register to vote or vote for failing to meet the requirements of the motor vehicle code.”

Questions over clarity

The lawsuit seeking to block the new residency law was filed by the ACLU of New Hampshire, on behalf of two out-of-state college students, and the state Democratic Party. The targets of the lawsuit are New Hampshire Secretary of State Bill Gardner, who lobbied for the bill’s passage and whose office oversees election administration, and Attorney General Gordon MacDonald, whose office enforces state election law.

At first, the ACLU and the New Hampshire Democratic Party argued that the law was burdensome because it could require people who vote in New Hampshire to incur other expenses as a condition of voting. Later, they amended their lawsuit to allege that the law is burdensome because the state has not adequately communicated its implications around voting and vehicle licensing.

On the other side, the state’s attorneys argue that they have been perfectly clear about the new residency law’s implications, and that there are no new implications on either voting or vehicle licensing as a result of that law. As evidence of the fact that the law does not infringe on voting rights, the state’s lawyers have noted that the two college students at the center of the case have been able to successfully register to vote in New Hampshire.

“HB 1264 makes people have to weigh the costs and benefits associated with choosing to become or remain a New Hampshire citizen,” the state’s lawyers wrote in one recent court filing.

An issue on the campaign trail

As the battle over the new residency law continues in court, it’s also attracting the attention of Democratic presidential candidates.

In October, Massachusetts Sen. Elizabeth Warren’s top New Hampshire campaign staffer filed an affidavit in support of those challenging the new residency law. In that filing, Warren’s New Hampshire State Director Liz Wester said the campaign has struggled to provide accurate information about voter registration because of a lack of clear guidance from the state.

When asked about the decision to intervene in the ongoing lawsuit, Warren told NHPR that her campaign has received multiple inquiries from college students seeking more information on New Hampshire’s voting rules, but the campaign is limited in its ability to give those students accurate advice.

“We’re here to say, two things: principle, everybody ought to be able to vote, but the second part is to say we have evidence that it’s causing a great deal of confusion,” Warren said. “And when you’ve got confusion, you suppress voting.”

Other Democratic presidential candidates have also criticized the new residency law in tweets, stump speeches, online petitions and more. However, none of the candidates who have openly railed against the new residency requirement on the campaign trail raised the issue directly with one of its most vocal supporters — Secretary of State Bill Gardner — when they visited his office in recent weeks to file for the New Hampshire primary ballot.

Several of those candidates stood by their criticism of the law when asked about it during post-filing press conferences in Gardner’s office. But none of them drew a connection between the law they were criticizing and the office in which they were speaking at the time.

“Any time you set up barriers for, let’s say, college kids who might be here from another state and say, ‘Hey, we’re going to make it tougher for you to vote,’ that’s the wrong direction,” Andrew Yang told reporters during his press availability in the Secretary of State’s office.

When the candidates cast blame for the policy, they pointed not at Gardner — who was standing just feet away — but instead at Republican state lawmakers and Republican Gov. Chris Sununu.

“I want more people to vote. Apparently your governor thinks differently, and he’s going to make it harder for young people to vote, with what I would call a poll tax,” Vermont Sen. Bernie Sanders told reporters during his press conference at the Secretary of State’s office.

New Jersey Sen. Cory Booker took perhaps the strongest stance on the law, suggesting New Hampshire’s new residency rules could require federal intervention.

“If I’m president, my Justice Department will come after states that are violating voting rights, and I’m going to say that to this governor here,” Booker said, prompting an almost immediate rebuke from Sununu and other local Republicans.

Gardner, for his part, said he did not use the opportunity to share his perspective on the residency law with presidential candidates, either.

“It’s never come up,” he said.