By Stephen C. Buckley
Senate Bill 3 has introduced significant voter registration changes that must be implemented by local election officials. The law became effective on September 17, 2017 and provides additional procedures for voter registration. Through SB 3 the legislature has changed the definition of domicile by requiring that everyone seeking to register to vote must present documentary evidence of "a verifiable act or acts carrying out" their intent to be domiciled in New Hampshire.
Voter Registration Before SB 3
Under the New Hampshire Constitution every inhabitant of the state of who has reached the age of 18 years may vote in any election provided they have domicile in the town, ward, or unincorporated place where they wish to vote. RSA 654:1 defines domicile as "that one place where a person, more than any other place, has established a physical presence and manifests an intent to maintain a single continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government."
Before SB 3 those seeking to register to vote were required to fill out a voter registration form and provide reasonable documentation of identity, citizenship, and age. RSA 654:7 and 654:12, I(a), (b). If they did not have acceptable documentation in their possession when registering, they could attest to their identity, citizenship, and age, by filling out a "Qualified Voter Affidavit" (if they were registering before Election Day) or by executing a "sworn statement" on the voter registration form (if they were registering on Election Day). Reasonable documentation of domicile included any documentation "which indicates that the applicant has a domicile and intends to maintain a domicile" in New Hampshire. Certain forms of documentation bearing the registrant's address, such as a New Hampshire driver's license, resident vehicle registration, or federal photo ID, were presumptive evidence of domicile. RSA 654:12, II(a).
SB 3 Requires a “Verifiable Act” to Establish Domicile
Through SB 3 the legislature has modified the definition of “domicile” to provide that domicile is not just a question of fact and intention but it must also be demonstrated through a verifiable act or acts to carry out that intent. All persons seeking to register to vote must provide documentation that will verify their intent to claim domicile. A list of nine non-exhaustive acts is provided in SB 3 including: 1) "residency" at an institution of higher learning; (2) renting or leasing an abode; (3) purchasing an abode; (4) obtaining a New Hampshire motor vehicle registration, driver's license, or ID; (5) enrolling a child in a public school; (6) identifying the domicile address on a tax form or other government-issued ID or form; (7) providing the street address to the U.S. Post Office as their permanent address; (8) obtaining public utility service at the address; or (9) arranging for a homeless shelter or similar service provider to receive mail.
Presence in New Hampshire for “temporary purposes”
SB 3 adds a new term to the voter registration laws: "temporary purposes." RSA 654:2, II (a) (b) & (c). Under this provision, those who are present in New Hampshire for temporary purposes do not gain domicile for voting purposes and therefore cannot vote. In addition, it is further provided that those who have been residing in a town or ward for 30 or fewer days are "presumed to be present for temporary purposes," unless they prove they are domiciled. Temporary purposes include, but are not limited to, being present in New Hampshire for 30 or fewer days for the purposes of tourism, visiting family and friends, performing short term work, or volunteering or working to influence voters in an upcoming election.
Voter Registration Divided into Two Categories, more than 30 days before an Election and within 30 days of an Election.
Under SB 3, the processing of voter registration applications is handled differently, with different forms and verification procedures, depending on when the voter registration applicant applies.
Registering more than 30 days in advance of an election:
Person who has Qualified Documents: When registering to vote more than 30 days before an election, a person who possesses one of the following Qualified Documents must present that document: a New Hampshire driver’s license, New Hampshire resident vehicle registration, a picture ID issued by the United States government that contains a current address or a government issued check, benefit statement. If the person has such a document, but does not bring it with them when they sought to register, they will not be permitted to register until they return with the required qualified document. RSA 654:12, I (c)(1)(A).
Person who does not have Qualified Documents: Persons who attest they do not have any of the Qualified Documents may “present any reasonable documentation of having established a physical presence at the place claimed as domicile, having an intent to make that place his or her domicile, and having taken a verifiable act to carry out that intent.” Presumably, but this is not clear in the statute, if the person must provide other reasonable documentation that person is not permitted to register until they return with the required reasonable documentation. RSA 654:12, (c) (1) (B).
Official Voter Registration Forms: For persons registering to vote 30 days in advance of an election the NH Secretary of State has prepared a New Hampshire Voter Registration Form A that must be used. In addition, where the voter must return with reasonable documentation of presence in New Hampshire, the Secretary of State has provided a Verifiable Action of Domicile Form A.
Registering within 30 days before an Election and on Election Day:
Person who does not have Qualified Documents: Persons who seek to register within 30 days of an election, or on election day, who do not have Qualified Documents or other reasonable documentation of domicile in their possession may execute a sworn statement on the voter registration form where they acknowledge their duty to provide the missing documentation within a prescribed period of time. That sworn statement, which is page 2 of the new Voter Registration Form B provided by the Secretary of State provides as follows. The voter affirms under oath that they will return the missing domicile documentation within 10 days, or within 30 days if the town clerk’s office is open fewer than 20 hours per week. The missing documentation can be either mailed or hand delivered to the town clerk. The voter should also be provided the Verifiable Action of Domicile Form B which has also been provided by the Secretary of State.
Effect of Executing Voter Registration Form B for those who did not present Qualified Documents: Where the voter executed Voter Registration Form B, including page 2, that person is deemed registered to vote. However, if the voter does not provide the required Qualified Documents, or, other reasonable documentation of domicile, as they agreed to do, their name is subject to potential removal from the voter checklist by the Supervisors of the Checklist as provided in RSA 654:44.
Person without Qualified Documents who does not have other reasonable documentation of domicile: A person who does not possess reasonable documentation of establishing domicile at the address claimed on the voter registration application may nonetheless register to vote by initialing the paragraph on the registration form acknowledging that domicile may be verified. The supervisors of the checklist shall attempt to verify that the person was domiciled at the address claimed on election day by of the following means:
(i) Examining public records held by the town or city clerk, municipal assessing and planning offices, tax collector, or other municipal office that may house public records containing domicile confirmation; or
(ii) Requesting 2 or more municipal officers or their agents or state election officers or their agents to visit the address and verify that the individual was domiciled there on election day. In unincorporated places that have not organized for the purposes of conducting elections, county officers may be asked to perform this function; or
(iii) Referring the registrant's information to the secretary of state, who shall cause such further investigation as is warranted.
Pending litigation seeking to have SB 3 be declared unconstitutional under the New Hampshire Constitution:
The League of Women Voters along with six voters have brought suit against the Secretary of State and the Attorney General seeking to have SB 3 declared to be contrary to the New Hampshire Constitution and enjoining the implementation of these election law changes. That case is pending in the Hillsborough County Superior Court – Southern District, Docket No. 226-2017-CV-0043. On September 12, 2017 the Court issued an order that left SB 3 intact except for the new voter fraud penalties. SB 3 imposes penalties of up to $5,000 and a year in jail for a voter who fails to provide Qualified Documentation or other reasonable documentation of domicile. The Court has enjoined the Secretary of State and the Attorney General from seeking civil or criminal penalties as required by RSA 654:12, I (c)(2)(A).
The Court will not issue a final ruling on the constitutionality of SB 3 until after a full trial on the merits. That trial is presently scheduled to take place in April.
Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be reached at 603.224.7447 or at firstname.lastname@example.org.
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