N.H. Supreme Court Could Weigh In On Impacts Of New State Residency Law

Nov 21, 2019

The implications of New Hampshire’s new residency law for voting and vehicle licensing are still not fully clear, several months after it went into effect and several months before the state’s presidential primary election.

So much about the new residency law remains subject to interpretation, in fact, that a federal judge wants the New Hampshire Supreme Court to certify — or clarify — several questions about how the law works before he tries to assess its constitutionality.

Judge Joseph Laplante said Thursday he intends to ask the New Hampshire Supreme Court to review the new residency law soon. At the end of a daylong hearing at the U.S. District Court in Concord, Laplante said he plans to issue an order in the next week addressing whether certain aspects of the new residency law or its enforcement should be put on hold during the ongoing court case.

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

If the state court takes up Laplante’s certification request, it would be the second time it has been asked to consider the effects of the new residency law in recent years. The first time, after the law passed the Legislature in 2018, Gov. Chris Sununu asked the state court to assess whether the law violated New Hampshire’s Constitution; the court determined that it did not, and Sununu signed the changes into law.

Laplante hasn’t finalized what, exactly, he will ask the state court to clarify; an official order is expected soon. But based on the judge’s statements in court Thursday and previous filings in the federal court case, his questions are likely to focus at least in part on how the residency law affects a person’s obligations regarding car registration and licensing — and whether certain licensing exemptions that existed before the law went into effect still apply under the new residency rules.

Lawyers for the ACLU and the New Hampshire Democratic Party spent the better part of Thursday’s hearing arguing that Laplante should stop the state from enforcing any connection between voter registration and vehicle licensing, at least while the federal case is ongoing.

They argue that state officials have provided insufficient, and in some cases inaccurate, guidance about what the new residency law does, and that the lack of clarity could in itself deter eligible people from voting in New Hampshire.

Specifically, they argue that the state has failed to answer questions about whether the new law would require someone who votes in New Hampshire to then get an in-state drivers license or car registration.

They noted that, while the law passed in 2018 and took effect in July 2019, the state only started issuing public guidance to local election officials about its impact in recent months.

The state’s attorneys claim otherwise. They say the new law would not affect anyone’s right to vote, and any motor vehicle requirements that are being invoked now would have been in effect even before the law was passed.

Moreover, the state’s lawyers argue that any confusion about the law’s impact has been manufactured by the opposing legal team, the residency law’s critics and media reports.

Laplante seemed receptive to the state’s argument that confusion over the law is not as widespread as the ACLU and New Hampshire Democratic Party have suggested.

The judge also expressed skepticism about whether it was within his authority to stop the state from enforcing certain parts of its motor vehicle code — as the ACLU and the New Hampshire Democratic Party have requested — and whether doing so would just add to the confusion they allege has already colored the rollout of the new residency law.

At the same time, Laplante didn’t exactly let state officials off the hook. Toward the end of Thursday’s nearly six-hour long hearing, the judge pressed a state attorney to explain why the state has only just started issuing guidance to local election officials about the residency law.

“Why the drip, drip, drip of information to the clerk in Hanover?” Laplante asked, referencing testimony from Hanover Clerk Betsy McClain, who told the court (and, previously, NHPR) that she has struggled to get state election officials to clarify what she should tell voters about the residency rules.

“Why the drip, drip, drip to me in this lawsuit?” the judge continued. “Why aren’t these things clearly represented?”

Laplante said it seemed like McClain had to “pull teeth out of the Secretary of State’s office and get snarky letters” in response to her questions.

“Yeah, I’m saying they’re snarky,” the judge added. “They’re snarky.”

Earlier in the hearing, Laplante also said he found it “a little troubling” that state officials published a letter with additional guidance on the residency law shortly after McClain indicated in a deposition that the state had not been forthcoming about how election clerks should handle questions about the new residency rules. The state’s letter, dated Nov. 7, was disseminated to local election officials statewide but addressed only to McClain and was framed as a response to her being “confused about the effect of HB1264.”

Assistant Attorney General Anthony Galdieri, in response to Laplante’s questioning, said it’s not easy for state officials to give answers that cover every possible angle of the new residency law — and election officials, in particular, don’t want to misspeak about how the residency law affects other policy areas that fall outside of their jurisdiction.

Galdieri said state officials are developing additional guidance, in question-and-answer format, about the new residency law — but they weren’t certain when that would be published, and they could not say whether it would address all of the questions that were raised in Thursday’s hearing about the intersection of voting and motor vehicle rules.