By GARRY RAYNO, InDepthNH.org
CONCORD — The US District Court Thursday found the state’s law requiring a birth certificate, passport or naturalization as the only proof of citizenship instead of an affidavit filed under oath, was unconstitutional.
The federal judge said the law which eliminated voter qualification and challenged voter affidavits to be able to register or to vote, places too high a burden on the right to vote, especially for young voters and women. The affidavits have been options for many years until 2024.
“New Hampshire’s interest in election integrity cannot justify the burden on New Hampshire voters based on the evidence in this case,” said US District Court Judge Samantha Elliott.
The plaintiffs in the case presented evidence of hundreds of voters being turned away from the polls in the 2024 elections for lack of documentary proof of citizenship or residency.
The Secretary of State’s Office and the Attorney General’s Office office did not track who was disenfranchised in the 2024 elections under the new law, although it was the first election that required documented proof with birth certificates or passports.
The new law, House Bill 1569 passed in 2024, created some of the strictest registration requirements in the nation requiring documentary proof of citizenship for voter registration.
Elliott issued an immediate statewide injunction blocking the state from enforcing the law and required the affidavits to be reinstated.
The Attorney General’s Office said it will appeal the 98-page ruling that sided with the plaintiffs on three counts, two on the affidavits and the other claiming eliminating the challenged voter affidavit violates the due process rights of the accused.
“New Hampshire’s elections have always been safe, secure, and accurate – and this law could have unconstitutionally and needlessly prevented thousands of eligible voters from casting a ballot,” said Henry Klementowicz, deputy legal director for the American Civil Liberties Union of New Hampshire, one of the plaintiffs in the suit. “Making it harder to vote is a clear attack on one of our most fundamental of rights, and this law is consigned to the dustbin of history where it belongs.”
The state argued the new restrictions were warranted for election integrity, for voter confidence and protecting the public fiscal administration.
But Elliott said the lack of evidence of fraudulent voting undercuts the state’s arguments. “Such miniscule numbers strongly undercut any legitimate concern about election integrity vis-à-vis noncitizen voting and, consequently, the state’s interest in addressing it,” Elliott wrote.
The plaintiffs’ expert witnesses told the court in the nine-day trial earlier this year, that evidence of voter fraud is extremely rare in New Hampshire elections, including local elections, from 1998 to 2024, only eight people identified as noncitizens may have cast a ballot during those 26 years, accounting for 26 ballots at most.
Defendant Secretary of State David Scanlan said in a statement, while the state will reinstate the qualified voter and challenged voter affidavits, the ruling does not impact other requirements in House Bill 1569 that “require registrants to provide documentary proof of identity, age, and domicile, and a voter cannot use an affidavit to prove identity, age, or domicile.”
He said the court’s order does not impact the requirement that every voter checking in on election day has to prove their identity with a photo ID.Those without an ID cannot use a challenged voter affidavit to prove their identity, he said.
Scanlan encourages voters to provide documentary proof of citizenship or ask election officials to verify citizenship using state inquiries of Vital Records and Division of Motor Vehicles information.
In her ruling, Elliott noted the VRDMC database was unreliable if voters were born or married out of state and not enough trained staff was available in many polling areas to use the secure system.
Elliott noted in her ruling that both the bill’s sponsor, Rep. Robert Lynn, R-Lynn, and the governor who signed it, Chris Sununu, had both said election fraud is not a problem in New Hampshire.
House leadership blasted the ruling claiming it originates from a far-left judge.
“I am not surprised that an unelected judge ‘appointed’ by the autopen in 2021 would push far-left Democratic policies on the people of New Hampshire. The vast majority of Granite Staters support common sense election integrity laws,” said House Election Law Chairman Ross Berry, R-Weare. “This isn’t the first time a progressive judge has ignored the law and precedent to push a political agenda. It’s a pattern.”
But Elliott noted in her ruling that the qualified voter affidavits were used extensively in the state’s election day registration system, with young people at higher percentages than other groups.
“Between April 29, 2024, and November 10, 2024—the day before HB 1569 took effect— 14,737 registrants relied on QVAs to prove their citizenship. That was more than 10 percent of all registrants in that period. In addition, approximately 16.8 percent of first-time registrants used QVAs to prove citizenship during that time frame. More than 10,000 of the 14,737 citizenship QVAs were signed as part of election day registration on the day of the November 2024 general election,” the judge wrote in her ruling.
“It may be tempting for some to describe the Qualified Voter Affidavit as an exception to the proof-of-citizenship requirement, but it is not,” Elliott wrote. “A sworn affidavit capable of exposing an affiant to criminal prosecution is a method of proving citizenship and not an exception to that requirement. Moreover, the evidence shows that it is the only method of proof available to a significant number of New Hampshire voters.”
The bill also eliminates Challenged Voter Affidavits which are also sworn and used if a person’s eligibility to vote is challenged.
The number of challenges have increased recently as political parties and campaigns send teams to polling places and submit large scale challenges to election officials prior to an election.
Challenges at the polls are determined by the moderators but if someone is denied the right to vote, the only option is going to superior court, which costs $325 to file and may not be possible late on election day, the plaintiffs argued.
“Eliminating those affidavits does little, if anything, to further the state’s interests,” the judge wrote. “Therefore, eliminating the affidavits constitutes an unjustifiable burden on the right to vote in violation of the First and Fourteenth Amendments.”
New Hampshire already had one of the strictest voting regimes in the country prior to enacting HB 1569 and one of the highest “costs of voting” in the country, she said.
New Hampshire is one of four states that does not offer early, in-person voting, and except in special circumstances, does not allow voters to register by mail or online, she said, which is available in 42 states and Washington D.C.
And Elliott wrote New Hampshire also does not permit provisional balloting, automatic voter registration, third-party registration or third-party voter registration drives, or voter registration at offices of the state’s Division of Motor Vehicles, she noted.
The state does not have a safety valve as other states do if a person does not have the needed documents or information in order to vote, which the affidavits would do, Elliott said.
“This decision sends a clear message that constitutional rights do not end when voting begins,” said Marcia Johnson, chief of activation and justice for the League of Women Voters. “Eligible voters should not be denied access to voting because of burdensome and unnecessary requirements. At a time when new barriers to voter registration are being enacted across the country, this ruling affirms that protecting elections and protecting voters’ rights are not competing goals.”
Along with the ACLU and League of Women Voters — NH, other plaintiffs are the Coalition for Open Democracy, the Forward Foundation and New Hampshire Youth Movement.
Garry Rayno may be reached at garry.rayno@yahoo.com.