CONCORD, N.H. (CN) – A divided New Hampshire Supreme Court cleared the way Thursday for a controversial voter residency requirement to move forward, declaring the bill constitutional in an advisory opinion.
In a 3-2 ruling, the state's highest court found that House Bill 1264 "serves the compelling interest of insuring that those allowed to vote in this state share a community of interest with the population generally."
The bill removes the phrase "for the indefinite future" from New Hampshire's voter residency statute. The change would mean that anyone registering to vote would be declaring his or her residency in the state. Currently, a person only needs to claim New Hampshire as their domicile in order to vote.
Under current state law, a new resident must register their car or obtain a state driver’s license within 60 days. The newly passed bill makes failure to pay motor vehicle fees within 60 days of declaring residency through voter registration a misdemeanor punishable by up to one year in jail.
Republican Governor Chris Sununu asked the state's highest court to review HB 1264 in May after publicly expressing concerns about the bill's constitutionality.
The questions submitted to the court specifically focused on the bill's impact on college students in New Hampshire and relate to the equal-protection clauses of both the state and federal constitutions.
Chief Justice Robert Lynn, joined by Justices Anna Hantz Marconi and Patrick Donovan, ruled that the bill fairly requires that people seeking to vote in New Hampshire become bona fide residents.
"There is nothing unfair or unconstitutional about state laws that require persons to make this choice," Chief Justice Lynn wrote in the majority’s 18-page opinion.
While opponents of HB 1264 argue that the bill constitutes a poll tax, discriminates against young voters, and restricts the right to vote without a compelling interest, Lynn described these arguments as misconstruing the "purpose and effect" of the measure.
"HB 1264 does not affect the eligibility of persons to vote in New Hampshire elections," he wrote.
Instead, the court’s majority, made up entirely of Republican appointees, found that the bill clarifies the terms "resident" and "residence" so that their definitions match the state law definition of domicile.
"Viewed from this perspective," Lynn wrote, "it is apparent that the premise of the opponents' argument is that New Hampshire is required to have a special rule of domicile solely for voting purposes, so that persons are allowed to vote here without assuming the other obligations of citizenship normally imposed.”
“The opponents of the bill have not cited, nor are we aware of, any authority supporting such a requirement under the federal constitution or the constitution of any state,” he added.
Lynn was appointed by former Democratic Governor John Lynch, while Marconi and Donovan were both appointed by Sununu.
In their dissent, Justices Gary Hicks and James Bassett – both appointed by Lynch – argued that the court should excuse itself from answering the questions because of a lack of a developed factual record.
"However, for the purposes of this opinion, given the lack of a factual record…we assume that HB 1264 severely burdens the fundamental right to vote," Hicks wrote.
The American Civil Liberties Union of New Hampshire, one of 10 groups who provided input on the court's review of the bill, agreed that the court "inappropriately weighed in" without a fully developed record.
"As the dissent correctly noted, to opine on such a question without a developed record ‘undermines our credibility,’” ACLU-NH Legal Director Gilles Bissonnette said in a statement.
"Simply put, the court’s advisory decision is wrong, a setback for voting rights, and will only embolden future efforts to make voting more difficult in New Hampshire," Bissonnette added.
The bill is currently on the desk of New Hampshire Senate President Chuck Morse and will then head to Governor Sununu's office to be signed into law.
However, the measure could face legal challenges.
"The court’s majority failed today. This means that the public is needed now more than ever," ACLU-NH Executive Director Devon Chaffee said. "We must make it crystal clear to our elected representatives that, if they enact restrictive voting laws, they weaken our democracy by undermining one of this country’s most basic democratic principles.”
Governor Sununu and Secretary of State William Gardner's offices did not immediately respond Thursday a request for comment.
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