Annemarie Guare v. State of New Hampshire

Domicile v. Residence: New Law Violates Right to Vote
New Hampshire Supreme Court, No. 2014-55
Friday, May 15, 2015

In this case, the New Hampshire Supreme Court was tasked with determining whether the following language on the standard voter registration form violated the New Hampshire Constitution:

In declaring New Hampshire as my domicile, I am subject to the laws of the state of New Hampshire which apply to all residents, including laws requiring a driver to register a motor vehicle and apply for a New Hampshire[ ] driver’s license within 60 days of becoming a resident. Laws 2012, 285:2.

In 2012, the legislature enacted a new law requiring the above language to be inserted on the standard voter registration form. Thereafter, the petitioners filed this lawsuit, alleging that the language violated a citizen’s constitutional right to vote by confusing the distinct statutory terms, “domicile” and “residence.” The trial court employed strict scrutiny—the highest standard for reviewing alleged constitutional violations—and agreed with the petitioners, finding that the language violated Part I, Article 11 of the State Constitution, which states that “Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has domicile.”

The statutory definitions of “domicile” and “residence” are different: a “resident” has manifested an intent to remain in New Hampshire for the indefinite future (See RSA 21:6 & :6-a), while a person who merely has “domicile” has not manifested the same intent (See RSA 645:1 & 1-a).

First, the New Hampshire Supreme Court agreed with the petitioners that the language is confusing and inaccurate. It inaccurately states New Hampshire law by confusing the terms “domicile” and “residence.” Contrary to the language, a person who is merely domiciled in New Hampshire, but is not a resident, is not subject to the driver’s license requirement or other laws that apply to residents. Therefore, the language is likely to confuse voters about the law and could cause a qualified voter not to register to vote in New Hampshire.

As a consequence, the Court determined that the law did impose a burden on the fundamental right to vote. However, the Court found it unnecessary to employ the strict scrutiny test because the law failed the less severe intermediate scrutiny test, which required the state to articulate specific interests furthered by the law and explain how the law actually addresses those interests. The state presented only one governmental interest: the goal of complying with HAVA (the federal Help America Vote Act). However, legislative history revealed that this interest was not among the reasons the legislature advanced for enacting the 2012 law. And, even if compliance with HAVA had been a motivating factor, no evidence was presented that the challenged language was necessary to comply with HAVA or actually addressed HAVA compliance.

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