Secretary of State Shall Forward Absentee Voter Registrations Forms Directly to Applicants and Can No Longer Refer Voters to City or Town Clerks

American Federation of Teachers v. Gardner
Hillsborough County Superior – Northern District Case No. 216-2020-CV-0570, 10/02/2020
Friday, October 2, 2020

The American Federation of Teachers (AFT) sued to strike down or modify laws governing the absentee voting process seeking a court order enjoining certain election statutes.  Donald J. Trump for President, Inc. and the Republican National Committee intervened and joined the State of New Hampshire in moving to have any court action stayed until after the election is complete. 

AFT challenged six specific areas of the absentee voting process.  First, that the absentee voter registration forms should be made available directly by the Secretary of State’s Office.  Second, that the three-part voter registration verification process is unconstitutionally burdensome.  Third, that making absentee voters provide postage for mailing applications and ballots burdens the right to vote.  Fourth, that the deadline for delivery of absentee ballots by 5:00 p.m. on election day, except as provided in RSA 657:21-a and RSA 659:20-a, disenfranchises voters.  Fifth, mandating that drop boxes where voters can deposit absentee voting materials must be staffed by property trained election officials places a severe burden on the right to vote.  Sixth, that the absentee registration process, documentation process and election day receipt deadline violate the equal protection clause of the New Hampshire Constitution.   

The Superior Court declined to rule on or dismissed all of AFT’s requests for relief except for the question of the Secretary of State’s statutory obligation to provide an absentee voter registration form directly to an applicant.  Currently, if a person contacts the Secretary of State seeking the absentee voter registration form, the Secretary of State’s office will direct that person to apply to the city or town clerk.  The Superior Court found that this was not consistent with the statutory mandate found in RSA 654:16 and RSA 654:18.  Accordingly, the Court ordered the Secretary of State to promptly accommodate aspiring voters who contact his office for a registration form by developing a method to forward an absentee voter registration form directly to the applicant.


Additional Information: 

Practice Pointer:  The Superior Court has not disturbed the deadline for delivery of absentee ballots as 5:00 p.m. on election day, except for ballots submitted by emergency services workers under RSA 657:21-a, and allowing voters to submit a ballot after the 5:00 p.m. deadline without having to enter the guardrail due to fear of COVID-19. RSA 659:20-a.  The Court has also left undisturbed the voter registration verification process, and the necessity that an absentee ballot drop box be staffed by properly trained election officials.