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Live Free or Die (Unless You’re a College Student): HB 1264 Strengthens Voting Requirements in New Hampshire

Out-of-state students residing in New Hampshire will no longer be allowed to vote in the state without obtaining a New Hampshire driver’s license. The recently-promulgated HB 1264 will require college students, military personnel, medical residents, and other “temporary” residents to choose between becoming a New Hampshire resident or voting as an absentee in another state. Before Republican Governor Sununu signed the bill into law, the legislature asked the state Supreme Court to issue an advisory opinion on the constitutionality of HB 1264. In a 3-2 split decision, the New Hampshire Supreme Court found the bill constitutional. The bill will go into effect in 2019.

In 2017, Sununu expressed concerns about HB 1264’s potential to suppress the student vote. However, the advisory opinion issued by the court on July 12th paved the way for Sununu to sign the bill into law. Only one day after the court issued its opinion, Sununu signed the bill into law. After singing the bill, Sununu stated that he believes HB 1264 “restores equality and fairness to [New Hampshire’s] elections.”

HB 1264 amends the definitions of “resident” and “residence” to mean “domicile,” as defined in RSA 654:1. “Domicile” and “residence” are often used synonymously, but they have different meanings. The practical implication of changing the definition is that people who register to vote in New Hampshire now must obtain a New Hampshire driver’s license and register their vehicle in New Hampshire in order to be considered a “resident.” If a voter fails to do so within sixty days, he or she will have committed a misdemeanor punishable by up to one year in jail. Prior to HB 1264, a voter could prove residency by simply showing that he or she resided in New Hampshire more than any other place. The bill, therefore, has its biggest impact on out-of-state college students. Students who are entrenched and engaged in the New Hampshire communities where they attend college will now have to decide whether to purchase new licenses and car registrations or vote in their native states instead.

Opponents of the bill argue that HB 1264 places an unjustifiable burden on students’ right to vote. In a brief, the ACLU-NH asserts that the bill arbitrarily targets college students who are domiciled in the state but are non-residents, depriving them of their constitutional right to vote in New Hampshire. The ACLU argues that HB 1264 does not pass strict or intermediate scrutiny, because it does not serve any government interest at all. They counter the state’s argument that the bill reduces voter fraud by stating that “[t]here is no justification to impose these fees to deter fraud because these voters are, by definition, constitutionally entitled to vote here and are not fraudulent.”

In Symm v. United States, which was decided in 1979, the Supreme Court held that college students have a right to vote where they attend college. Moreover, the U.S. District Court of New Hampshire upheld this right in Newburger v. Peterson when it found that legislation requiring students to declare an intention to stay in New Hampshire indefinitely in order to vote was unconstitutional. Opponents of the bill, such as Senator Dan Feltes, argue that HB 1264 is inconsistent with cases such as Symm and Newburger. The New Hampshire Supreme Court did not directly address the implications of Symm on HB 1264. The court did, however, state that HB 1264 does not discriminate against college students, because it is their choice to either change their identification documents or not. The court also explained that the bill is consistent with Newburger, because while the U.S. District Court of New Hampshire held that students should be able to vote when they are members of the political community, it did not hold that there are no consequences to being considered a member of that community.

Supporters of the bill have argued that the change in definition protects New Hampshire against voter fraud, and the state Supreme Court agreed. The three justices in the majority, who were each nominated by Sununu, found that HB 1264 withstands strict scrutiny. The court stated that it has “repeatedly emphasized that insuring that those who are permitted to vote are bona fide residents who share a community of interest with other citizens of the jurisdiction is a legitimate concern of the highest order.” The court also opined that HB 1264 is “narrowly drawn to advance the compelling governmental interest in insuring that voters are full members of the electoral community.” Moreover, the court emphasized that the bill does not prevent anyone from voting. Although it may disproportionately affect college students, the court noted that students who do not vote in New Hampshire because of the bill will be choosing not to.

The state Supreme Court’s advisory opinion is non-binding. The two dissenting justices dissented not on constitutional grounds, but because they felt it was improper to issue an opinion without a factual record. Given that the bill does not take effect until July 1, 2019, it is likely that litigation over the bill will ensue. The non-binding nature of the advisory opinion leaves the door open, and begs the question – how will the court rule when presented with a factual record to base its opinion upon?

Do State Legislators have Standing to Appeal a District Court Racial Gerrymandering Ruling?

By Jakob Stalnaker

In June 2018, in a case called Bethune-Hill v. Virginia State Board of Elections, a federal district court in Richmond struck 11 districts as unconstitutional racial gerrymanders. Because the remedial map will likely impact the balance of power in the state legislature, its majority members would like to appeal the district court ruling.

The original defendant in this case was the Virginia State Board of Elections. The Virginia House of Delegates and the Speaker of the House of Delegates were permitted as Defendant-Intervenors in the original litigation. The trouble is, Virginia Attorney General Mark Herring declined to appeal the ruling on behalf of the Virginia State Board of Elections. The Virginia House of Delegates and Speaker Kirk Cox, appealed the ruling as Defendant-Intervenors.

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The Story of Texas SB 14: A Legal Lazarus

By: Shawn Syed

“Lazarus” is a name associated with a simple story. A subject dies. The Subject is then restored and is suddenly alive. Lazarus has been explored in songs, movies, and other forms of narrative. The 82nd Texas Legislature’s Senate Bill 14 (SB 14) is the legal world’s example of Lazarus.

Our Lazarus, SB 14, allowed the following to be accepted as voter identification: Texas Driver License, Texas Election Identification Certificate, Texas Personal Identification Card, Texas Concealed Handgun License, United States Military Identification Card, United States Citizenship Certificate, or United States Passport. The most notable form of identification that was not included was a student ID. The first four could only be issued by the Texas Department of Public Safety. The Texas Department of Public Safety has been in the news for other reasons recently. The Texas Department of Public Safety proposed closing 87 driver’s license offices as a solution to cut down wait times. In effect, this would hinder the ability of people trying to get certain forms of acceptable identification under SB 14.

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In Alabama, an Ease on Restrictions for Felon Voting—From an Unlikely Source

By: Zach McDonnell

In May 2017, the Alabama Legislature did something unusual, especially for a state in many respects still steeped in the vestiges of the Jim Crow era: it made it easier for people with felony convictions to vote. On May 17, 2017, the Alabama Legislature passed the Definition of Moral Turpitude Act (DMTA); eight days later, Governor Kay Ivey signed the bill into law, which took effect on August 1, 2017. In contrast to Republican politicians such as Governors Terry Branstad of Iowa and Rick Scott of Florida, Alabama Republicans led the re-enfranchisement effort: Representative Mike Jones, a Republican from deeply white district in southern Alabama, introduced the bill, which passed 102-1 in the Alabama House and 29-6 in the Alabama Senate—in both of which Republicans have a supermajority.

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Massachusetts Upholds Corporate Campaign Contribution Limits in ‘Union Loophole’ Case

By: Jared Mullen

Earlier this month, Massachusetts’s highest court rejected a challenge to the Commonwealth’s longtime ban on corporate campaign contributions. First enacted in 1907, G. L. c. 55, § 8 prohibits corporations, partnerships, and LLCs from contributing directly to political campaigns or political action committees. At the same time, unions, non-profit organizations, and trade associations may directly contribute up to $15,000 to political campaigns in the commonwealth, while individuals may contribute up to $1,000. Corporations may still contribute to Super PAC’s, which do not coordinate with political campaigns, as well as make independent political expenditures of their own.

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Political Attire Bans: What Can You Wear When You Vote?

By: Samantha Becker

On June 14, 2018, the Supreme Court invalidated a Minnesota law that prohibited wearing any “political badge, political button, or other political insignia” inside a polling place on Election Day.” The ban was interpreted to cover a variety of attire, such as t-shirts, buttons, and hats, and versions of the law had been in place for over a century. In a 7-2 decision, with Chief Justice John Roberts writing for the majority, the Court ruled that the Minnesota political attire ban was unconstitutional.

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Proposition E(xclusion): Contentious Term Limits in Arlington, Texas

By: Kendall Quirk

Arlington, Texas is probably best known as the home of the Dallas Cowboys or Texas Rangers, but it may soon be home to some of the strictest city council term limits in the country. On November 6, 2018, Arlington voters will see Proposition E on the ballot, a citizen-written proposition restricting the mayor and council members to three two-year council terms to be applied retroactively and banning current members from running again. The proposition, written solely by Arlington resident Zack Maxwell, was brought to the council by petition with more than 11,000 signatures, with some people stating they were misled when approached to sign.

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The White Rabbit of Pennsylvania: Absentee Ballots [Are] Late For a Very Important Date

By Allie Amado

So you want to use an absentee ballot in a Pennsylvania election? Here are a few tips to make it worth your trouble:

  1. Mail your absentee ballot request at least one week before the election. But I suggest much earlier.
  2. Once you receive your ballot, take care to mark it according to the instructions.
  3. Place your ballot in the mail as soon as possible.
  4. Cross your fingers and hope your ballot reached the county election office before 5 p.m. on the Friday before the election.

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150 Unfortunate Voters

By: Matthew Catron

Again…all eyes are on Florida, this time after the 2018 Midterm Election. While Broward County and the statewide recount seem to be caught in the spotlight, another controversy is brewing in the Florida Panhandle. In this case, the chief election official of Bay County allowed approximately 150 voters to cast their ballots via fax or email.

Hurricane Michael hit the Florida Panhandle in mid-October and had a lasting effect on the infrastructure and residents of several coastal counties. As a result of the devastation, Gov. Rick Scott issued an executive order extending the deadline for early voting and increasing the number of early voting locations in eight hurricane-hit counties. Gov. Scott issued this executive order pursuant to the governor’s power under the Florida Elections Emergency Act. However, Bay County Supervisor of Elections Mark Andersen went beyond the governor’s executive order and accepted roughly 150 ballots via fax or email. These electronically transmitted ballots were cast by voters who were displaced by Hurricane Michael.

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Declassifying “the Bunker”

By: Emmalyn McCarthy

Congressional district boundaries are the latest dispute in a string of voting-related cases in the state of Ohio. In May, a lawsuit was filed in federal district court by the Ohio League of Women Voters, Ohio’s chapter of the A. Philip Randolph Initiative, and one democratic voter from each of Ohio’s sixteen congressional districts. The suit pertains to congressional district lines drawn by a Republican-controlled process in 2011 which took place in a closed off hotel room called “the bunker.” Map drawers created a twelve to four, Republican-favored districting scheme, splitting up many counties to create a twelve district Republican voting majority.

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