N.H. Supreme Court Says SB3 Can Stay In Place, Reversing Lower Court Order

Oct 26, 2018

The voter registration law known as Senate Bill 3 will stay in place through the upcoming midterms, after the New Hampshire Supreme Court on Friday overruled a lower court's order that would have put the law on hold.

The decision from the high court capped off a rollercoaster week for election officials in New Hampshire. On Monday, Hillsborough County Superior Court Judge Kenneth Brown ordered them to stop using Senate Bill 3 (or “SB3”) in the upcoming midterms.

By Wednesday, the state said, essentially, “Not so fast.” Arguing that it was too late to make any substantial changes to the registration process and that Brown's instructions would burden pollworkers, state election officials asked both Brown and the New Hampshire Supreme Court for permission to keep the law in place. (The opposing attorneys challenging SB3, meanwhile, called this "a thinly-veiled attempt to create a record of difficulty and confusion where there really is none" so the state could avoid compliance with Brown's order.)

In a hearing on Thursday, Brown shot down that request and attempted to address any lingering questions the state had about his initial order, but — in a unanimous ruling issued at 5 p.m. Friday — the New Hampshire Supreme Court took the state's side.

The justices took no position on the merits of the underlying voter registration law at the center of the ongoing court case, but they said the state made a convincing argument that it's too close to the election to switch out the registration rules.

The timing of Brown’s order, the justices wrote, “entered by the trial court a mere two weeks before the November 6 election, creates both a substantial risk of confusion and disruption of the orderly conduct of the election, and the prospect that similarly situated voters may be subjected to differing voter registration and voting procedures in the same election cycle.”

The justices also expressed concern over Brown’s proposal to keep SB3 in place leading up to Nov. 6 but then revert to the  process used in 2016 starting on Election Day, saying that would subject voters to inconsistent registration processes depending on when they register.

After all of that, things are now back where they started a week ago: SB3 remains in effect, but the state — per a year-old court order that the high court left untouched — can't punish anyone who lacks the right paperwork.

A docket of the latest filings in the ongoing lawsuit challenging SB3 can be found here