WE REPRESENT the plaintiffs in a lawsuit brought by the New Hampshire Civil Liberties Union challenging a controversial 2012 law which added language to the state’s voter registration form. The added language states that, in order to vote in New Hampshire, a person needs to establish “residency” here.
Last month, the Strafford County Superior Court issued an order striking down this law as unconstitutional. In its decision, the court correctly called the added language “a confusing and unreasonable description of the law” that imposed a chilling effect on the right to vote of those domiciled here.
In Tuesday’s editorial, the New Hampshire Union Leader questioned this decision. It commented that “[v]oting in New Hampshire elections should be reserved for New Hampshire residents” because allowing those who are only domiciled here to vote “is an outrageous manipulation of our elections and should be changed.” Respectfully, the Union Leader’s view, if adopted by the Legislature, would be unconstitutional. It also would wrongly deprive the right to vote to thousands of citizens who live in New Hampshire and call this state home. Here’s why.
To be a “resident,” one has to both live in New Hampshire and have an intention to stay in the state “for the indefinite future.” Put another way, “residency” is premised, in part, on one’s mental state to remain here indefinitely. But if “residency” was the criteria to vote, thousands of people who live in New Hampshire would be disenfranchised simply because they may have plans — perhaps years in the future — to leave the state.
These disenfranchised groups would include not only some college students who live in New Hampshire year-round, but also: a 55-year-old executive who has lived in New Hampshire his whole life but has a firm intention to retire to his Florida cottage at age 65; a Navy officer who lives in Portsmouth but knows that he will be transferred elsewhere in four years; a hospital resident with a career plan requiring her to spend three years in Lebanon to complete her medical training; a construction worker on a long but time-limited job; and a city manager or school superintendent hired for a specific term. These individuals have nowhere else to vote. They also possess no less knowledge, intelligence, or commitment to New Hampshire than those who meet the legal definition of “residency.”
This is precisely why a New Hampshire federal court first ruled back in 1972 that imposing “residency” as the criteria to vote is unconstitutional. There, the Court concluded that “we cannot see that a requirement of permanent or indefinite intention to stay in one place [under the ’residency’ definition] is relevant to responsible citizenship.”
To vote in New Hampshire, one needs to be “domiciled” here. To be “domiciled,” a voter must have “established a physical presence” in New Hampshire more than any other place, and manifest “an intent to maintain a single continuous presence” here “for domestic, social, and civil purposes relevant to participating in democratic self-government.” This rigorous standard does not mean that anyone can vote in New Hampshire simply if they want to or if they are in this state, as the Union Leader suggested, “momentarily.” Rather, to vote, a person is required to live continuously in New Hampshire and to act as if this state is his or her home.
To sum up, under the constitution, you have the right to vote where you live and call home. Period. This right is not further tethered to something so tentative and fluctuating as one’s mental state concerning future plans.
The Strafford County Superior Court, in striking down the 2012 voter registration form, confirmed yet again these long-standing constitutional principles. The evidence in our case even showed that the Legislature was well aware of these constitutional principles when the voter registration form was adopted over Gov. John Lynch’s veto. After failing to change the definitions of “domicile” and “resident” for voting purposes, the Legislature adopted a voter registration form that deliberately misstated these legal principles by falsely informing citizens domiciled in New Hampshire that, if they registered to vote, they were subject to the state’s residency laws. This had one purpose — to confuse and discourage potential voters in an effort to suppress the vote of citizens constitutionally eligible to vote in this state. This is wrong.
Rather than trying to discourage potential voters, our Legislature should encourage greater participation in our democratic process. The right to vote protects us from arbitrary government, and we must sternly guard against all efforts to take it away.
Gilles Bissonnette is staff attorney at the New Hampshire Civil Liberties Union. William Christie, Alan Cronheim and Benjamin Siracusa Hillman are private lawyers who work with the NHCLU.