By: David Maley

Democrats in New Hampshire are fearful of the ramifications of newly implemented House Bill 1264. The bill went into effect July 1, 2019 and has stoked the ire of Democrats over the removal of four simple words (“for the indefinite future”) from the definition of resident. In essence, Democrats are perturbed by the textual edit as it alters the meaning of residence which could, in turn, have dramatic implications for out-of-state college students who would like to participate in New Hampshire elections.

To vote in New Hampshire, a person must establish that they are “domiciled” in New Hampshire. Prior to the passage of HB 1264, college students were able to vote thanks to an exception that took into consideration the great likelihood that out-of-state students are interested in the politics of the state in which they go to school. While nothing has changed in terms of the requirements to vote, removing the phrase, “for the indefinite future,” from the definition of “resident,” may impact more college students by roping them into the category of “resident.”

Democrats argue this is problematic because residency comes with added responsibility and obligation to the state of New Hampshire. Namely, residents of New Hampshire have 60 days to register their vehicle and acquire a New Hampshire Driver’s License, or they are subject to fines. Republican lawmakers and Governor Chris Sununu have held fast that the new definition of “resident” has done nothing to affect the ability of out-of-state college students to vote. Deputy Secretary of State David Scanlan addressed the concern about the new definition arguably creating an indirect poll tax by stating, “Failure to follow a motor vehicle law . . . does not affect a person’s right to vote.” The New Hampshire Supreme Court Justices weighed in at the request of Governor Sununu and agreed, indicating the belief that a person paying such taxes does not originate in the individual’s ability to vote (although two justices abstained from the vote, wishing the Court would have taken more time to evaluate HB1264 and its effects.)

The new law has drawn the attention of more than just Democrats. In fact, two Dartmouth students have taken up the fight, supported by lawyers from the American Civil Liberties Union (ACLU). They claim HB 1264 infringes upon their Constitutional rights by placing a significant burden on an individual’s right to vote without a compelling state interest. ACLU representatives point out New Hampshire’s history of voting laws impacting college students, particularly with respect to classifications based on individuals’ duration of stay. While the New Hampshire attorney general has declined to comment on the lawsuit, the pending litigation is sure to stir the pot and is likely to trace arguments similar to what the Democrats presented in the House.

While the lawsuit has not reached a conclusion, one can find various instances that mirror what is unfolding in New Hampshire relating to college students’ ability to vote. For instance, in Symm v. United States, the Supreme Court wrestled with similar questions of residency when a small town near Houston implemented a questionnaire for college students as a pre-requisite to vote if they did not fall into certain approved conditions. Ultimately, the Court held that students have a right to vote in the state where they attend school. As youth voters represent a significant group of voters and have trended largely in favor of Democrats under the current administration, the attempt by Republicans to “clean up” their complicated voting process may be viewed as a subtle attempt to minimize the influence of active out-of-state Democratic leaning voters and truncate their ability to vote. Some voting rights advocates have made the argument that college students should be able to vote simply by using their student IDs rather than jumping through various hoops to receive a Government-issued ID or proof of residency. For example, Tracey Carter, a law professor at Belmont College of Law, asserts that while Symm was helpful in protecting students’ rights to vote, other state election laws have made it more difficult for college students to vote. Her argument rests largely on the principle that “states cannot make it more difficult for students than for others to vote.” It doesn’t strain the imagination to view HB 1264 as one such state law that, in effect, makes it more difficult for students to vote.

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