What Does N.H.'s New Voter Residency Law Actually Change? For Now, State Officials Aren't Saying

Sep 20, 2019

New Hampshire is heading into a busy election season, with municipal contests in November, and the first-in-the-nation presidential primary not far behind. This is the first election season since a new law went into effect that redefined the state’s residency standards.

Supporters have said that the law would bring clarity to New Hampshire’s voting rules, but it’s facing a court challenge from the ACLU and the New Hampshire Democratic Party, who say it will discourage otherwise qualified people from voting.

In the meantime, lots of people — including reporters — have struggled to get clear information about what the law actually does. 

State officials across multiple agencies have declined to provide specific details on what practical changes the law makes to residency rules around voter registration, drivers licensing and more.

Just this week, more than a year after the law was signed and two months after it took effect, the attorney general’s office issued its first public notice on the matter, advising local election officials who get questions about specific aspects of the law — like vehicle licensing — to direct questions to the agency that deals with the relevant policy area.

(Click here to read the attorney general's memo to election officials on HB1264.)

They also distributed a four-paragraph memo titled “Information on the legal definition of ‘resident’ for the purposes of determining rights, privileges, and responsibilities associated with being a New Hampshire ‘resident.’” The memo largely reiterates existing laws on the books and makes no mention of specific requirements around vehicle licensing in relation to voting.

“Except for those convicted of certain crimes, the right to register to vote and to vote is a fundamental right that is not conditioned on the voter complying with other laws,” the memo reads. “The decision to vote here may implicate other obligations and benefits under the law unrelated to voting.”

The state does not offer examples of what those obligations might be. And now, this law that was presented as a way to get rid of confusion — to make it easier for people to understand what you have to do to vote in New Hampshire — has actually provoked a great deal of confusion as voters, election officials and other political groups prepare for upcoming elections.

A way to 'eliminate confusion'

When the proposal to change the state’s residency standards was winding its way through the State House in 2018, the Secretary of State’s office was out in front, acting as one of its biggest proponents.

According to Secretary of State Bill Gardner and his deputy, Dave Scanlan, this law would make it easier for the average person to understand the state’s voting rules. To their office, the idea that someone could claim New Hampshire as their domicile, or their home for voting purposes, but could also claim residency in another state, that was too confusing.

“We are the only state in the country where you do not have to be a resident to vote — the only state,” Gardner said at a hearing of the Senate Election Law committee in April 2018, adding that his office had done its own research to compare New Hampshire’s standards to its peers. “That is confusing to people. What is the difference between domicile and residence? If you ask a person, they have no idea what the difference is. They don’t understand, how can you not be a resident of a place and still be able to vote?”

At the same hearing, Scanlan echoed a similar argument.

“Our interest in this bill is simply to bring the definition of the terms into alignment so that they mean the same thing, to eliminate confusion,” Scanlan said.

The law passed in 2018, thanks to support from the Republican legislative majorities in power at the time, and took effect this July. And on paper, it could seem like just a minor change. It removed just four words — “for the indefinite future” — from the definition of what it means to be a New Hampshire resident. 

The idea, according to its supporters, was to get rid of a distinction the state used to make between people who live in New Hampshire full time, and people who are here part-time — including college students. 

Under the change, if you want to claim residency for one purpose, like voting in New Hampshire, you have to claim it for all purposes — and follow all of the rules that come with that. But this new residency definition doesn’t just apply to voting. It could also determine who needs to get a New Hampshire ID, who needs to register a car here, who can get hunting licenses and more. So, depending on how the state enforces the new law, it could have wide-reaching consequences.

Given the Secretary of State’s office was so involved in the effort to pass the law, it’s no stretch to think they would be in the best position to explain those consequences. But instead, the Secretary of State’s office has backed away from answering questions about the new law.

And more than that, they’ve now taken a position that seems at odds with their previous testimony, which focused on the law's impact on voting: “HB 1264 does not change any election laws,” Scanlan told NHPR in June.

A voting law or not a voting law?

It’s not just the Secretary of State’s office that’s claiming HB1264 doesn’t affect New Hampshire election laws. The attorney general’s office has taken the same position — in response to questions from the media, but also in its efforts to defend the law in court.

In an ongoing lawsuit challenging HB1264’s constitutionality, state attorneys have claimed that “HB 1264 is not a voting restriction, does not burden the right to vote, does not change any election law, and does not affect any person’s eligibility or ability to vote in this State.”

When pressed by a judge at one recent hearing to explain what the law changes, a state attorney responded, “From an election point of view, nothing.”

When the judge followed up to ask what it would change for motor vehicle enforcement, the same attorney wasn’t quite as definitive, saying, “I think that's a difficult question to answer in the abstract without a concrete case in front of us.”

The New Hampshire Division of Motor Vehicles, meanwhile, has not provided any answers to NHPR’s repeated questions seeking more information on how it plans to enforce the law, and whether voting in New Hampshire will now affect whether someone is considered a resident for motor vehicle purposes.

But the notion that HB1264 doesn’t affect New Hampshire elections contradicts not just previous testimony on the issue by the Secretary of State’s office, delivered to “Election Law” committees in the Legislature. It also contradicts most of the public debate that has played out about the law since it was first proposed.

Republican lawmakers who supported HB1264 have posted on Facebook about how it would “stop drive-by voting" and have written columns saying it would bring “more integrity and accountability to the voting booth.” Democrats and other opponents said it would restrict voting rights and amounted to a "poll tax."

Gov. Chris Sununu’s original message about why he signed HB1264 and an accompanying op-ed column specifically referred to its impact on voting. And when Sununu vetoed a bill that sought to roll back HB1264, he wrote that the law “restored equality and fairness to our elections.” The governor’s spokesman did not return NHPR’s request for comment on whether he still believes the new law would affect voting in New Hampshire and what changes have been made to enforce it.

A puzzle for local election officials

It’s not just reporters who have been asking state officials for more clarity on HB1264. The local election officials responsible for disseminating accurate information about residency and voting rules have also been left in the dark. And that’s especially problematic in places with large clusters of people who split their time between New Hampshire and another state — like college towns.

Betsy McClain, Hanover's town clerk and director of administrative services, says she's getting questions about what the law means for voting and vehicle licensing. The state hasn't given a clear answer.

As students at Dartmouth College settle back in on campus, Hanover Town Clerk Betsy McClain says she’s been fielding persistent questions about what the law means for voting and vehicle licensing.

“The very obvious question that we have been getting for many weeks, actually, is a very pointed, students will ask, ‘Do I have to get a New Hampshire driver's license?’” she said.

McClain asked the Secretary of State’s office for advice on what to say, but they sent her to the attorney general’s office. It took the attorney general’s office two weeks to follow up — and then, they just said to refer any questions about drivers licenses to the DMV.

While McClain says this still isn’t ideal — she didn’t like the idea of shuffling people from one bureaucratic office to another just to get an answer to such basic questions — it was a relief to at least have some official instructions from the state.

“We cannot give bad information with something as important as registering to vote, and of course we know we’re being watched by both parties in terms of how we react to people asking that question,” McClain. “Without definitive guidance from the people that write the laws and the people that are going to be patrolling them, we're sort of stuck.”

Outside groups sharing their own, unverified advice

While the state has been slow to publicize any information about the new law, others have stepped in with their own advice — not all of it consistent or necessarily reliable.

NextGen organizers relocate their table to the center of the Dartmouth Green during freshman orientation. They wanted to talk to students about voting in New Hampshire.
Credit Casey McDermott, NHPR

On one recent afternoon at Dartmouth, Ed Taylor and his colleagues fanned out across the quad, carrying clipboards and looking for students to talk to about voting in New Hampshire.

While Taylor introduced himself as someone with “a club on campus” asking students to “fill out a quick survey,” he did not mention that he was with a group called NextGen, which is in fact not a student club, but rather a super PAC that has spent millions on student voter turnout efforts in New Hampshire and other key swing states in recent election cycles.

And while the town clerk just down the street was really careful not to draw too many of her own conclusions about the new law, the NextGen organizers had no such qualms.

As Taylor asked students to fill out NextGen’s “survey,” he drew a direct connection between the state’s new residency law, voter registration and vehicle licensing. To one student, he said, “New Hampshire just passed a law that would limit you from voting if you did have a car.” To another, he said, “you have to register your car and get a New Hampshire drivers license if you want to have access to voting in the state.”

“Oh, that’s kind of lame,” that student responded.

“Yeah, it’s incredibly lame,” Taylor replied.

To be clear, however: There’s nothing in the new law to suggest that someone would need to have a New Hampshire drivers license or a New Hampshire car registration before they vote. State law allows someone to present an out-of-state license as a form of voter ID at the polls, and officials have been adamant that no one will be prevented from casting a ballot if they don’t have an in-state license or in-state car, registration. At the same time, officials have not provided clear guidance on what obligations might be triggered once someone registers to vote, under the new law.

During their canvassing on local campuses, NextGen organizers have also been handing out cards titled “How to register to vote in New Hampshire,” which are presented as a guides to help students figure out whether they would need to get an in-state license or car registration based on whether they drive in New Hampshire and whether their car belongs to their parents. The cards do not say where this registration advice is coming from, or who paid to print this material.

When asked where NextGen was getting this information, State Director Brian Rogers said the cards were printed by America Votes, a liberal advocacy group that lobbies on election issues in New Hampshire, and screened by the ACLU, which is one of the groups suing the state to get HB1264 overturned. Otherwise, Rogers said NextGen’s been relying on information from other groups that are active on voting advocacy in New Hampshire because the state hasn’t given them anything else to go on.

But since NextGen isn’t getting its information directly from the state, is Rogers worried that the group could be spreading misleading information about voting requirements?

“No,” he said. “Because to my understanding there is no official information from the state other than the bill text, which is not easily digestible for students. So this is the best option for what we have at our disposal.”