ACLU Sues New Hampshire Over New Voting Law, Saying It's A 'Poll Tax'

A new state law would require anyone who wants to vote in the state to also register their car there -- if they have one -- and get a New Hampshire driver's license.

The American Civil Liberties Union filed a federal lawsuit Wednesday on behalf of two New Hampshire college students seeking to block a controversial new requirement for voters in the state, saying it imposes an unconstitutional “poll tax” on voters and makes it disproportionately harder for students to cast a ballot.

In order to vote in New Hampshire, one needs to be “domiciled” there ― meaning they have a continued physical presence in the state that they intend to maintain. Being “domiciled” is legally different from being a “resident.” The state legally defines a resident as someone who intends to remain in the state “for the indefinite future.”

The new measure, HB 1264, which is set to take effect on July 1, removes the phrase “for the indefinite future” from the definition of resident and makes it identical to the definition of domiciled. Thus, anyone claiming to be “domiciled” in order to be eligible to vote is also saying they are a resident and is then obligated to required to get a driver’s license and register their car within 60 days.

The ACLU says the change is unconstitutional because it imposes a needless and unnecessary burden on college students and others who don’t plan to stay in the state permanently but want to vote there. The civil liberties group says the measure violates the First and 14th amendments because the state hasn’t “narrowly tailored” the law to advance a “compelling state interest.”

They also say it violates the 24th Amendment, which prohibits poll taxes, as well as the 26th Amendment, which grants the right to vote to anyone 18 or older.

Julie Ebenstein, a senior staff attorney at the ACLU Voting Rights Project, noted New Hampshire lawmakers had been trying for decades to impose similar restrictions on college students’ ability to vote. In 1972, a three-judge panel said a law that barred people who planned to leave a New Hampshire town at some point in the future from voting was unconstitutional. In 2014, a state court struck down a law that explicitly required anyone who registered to vote in New Hampshire to get a state driver’s license and to get their vehicle registered there. That decision was upheld by the New Hampshire Supreme Court.

New Hampshire Republicans passed HB 1264 shortly after Democrat Maggie Hassan defeated Republican Kelly Ayotte by 1,017 votes for one of the state’s U.S. Senate seats in 2016. In the same year, Democratic presidential candidate Hillary Clinton narrowly defeated Republican Donald Trump in the state. Ebenstein noted the bill passed along party lines in the legislature and that lawmakers appeared to be targeting young voters and college students based on a perception that they supported Democrats.

“College students are perceived by legislators as being more liberal or being more left and we know that because the legislators said so. ... Given legislators’ perception that young people are going to vote and are going to continue to vote a certain way, I think that’s why they’re being targeted,” she said in an interview. “The 2016 election was very close in New Hampshire.” She added that because of the state’s small population the 13,000 undergraduate students at the University of New Hampshire can make a difference in a close election.

“Given legislators' perception that young people are going to vote and are going to continue to vote a certain way, I think that’s why they’re being targeted.”

- Julie Ebenstein, senior staff attorney, ACLU Voting Rights Project

The plaintiffs in the case, which was filed in the U.S. District Court for the District of New Hampshire, are Caroline Casey and Maggie Flaherty, two sophomores at Dartmouth College who are registered to vote in New Hampshire despite growing up outside the state. Both voted in the 2018 midterm elections there. Neither woman has a New Hampshire driver’s license and both intend to leave the state after graduating from college. Neither has a car and said in the complaint filed Wednesday that traveling to the nearest Division of Motor Vehicles would be a burden to them.

In a July op-ed justifying the law, Gov. Chris Sununu (R) wrote that people can vote in New Hampshire without satisfying the obligations of residents. The new law, he said, would put everyone on “equal footing.”

In an advisory opinion last year, the New Hampshire Supreme Court found 3-2 that the new measure did not violate either the New Hampshire Constitution or the First or 14th amendments of the U.S. Constitution. The court said the law did not amount to a poll tax nor did it target young voters.

“Simply put, the State may legitimately establish procedures by which persons who may be tempted to insincerely claim domicile for voting purposes are discouraged from doing so by the prospect that such a claim can result in their incurring the full panoply of obligations imposed on all other state residents,” the majority wrote.

“There is no question that states may not condition the right to vote on the payment of a tax or fee,” they continued. “However, the opponents of HB 1264 are mistaken when they claim that the bill conditions voting on the payment of motor vehicle fees or taxes. Rather, if a person becomes obligated to pay such fees or taxes, it will not be because the person votes, but because the person owns or drives a motor vehicle and is a resident of this state. Thus, a person who claims domicile in New Hampshire for voting purposes but who does not drive or own a motor vehicle will have no obligation to pay motor vehicle related fees.”

The ACLU is suing New Hampshire over a change in the legal definition of "resident." The change is set to go into effect later this year.
The ACLU is suing New Hampshire over a change in the legal definition of "resident." The change is set to go into effect later this year.
The Washington Post via Getty Images

But Ebenstein said the two students in the case had already shown they were legitimate New Hampshire voters. The state, she said, was essentially adding an additional hurdle for the students to prove they were bona fide residents.

“Our clients, who moved to New Hampshire, been active on campus, been active in their communities, who have already participated in the political process in New Hampshire are fully committed to their state and their role in the local community and certainly do to New Hampshire play a large role in the political conversation and process. That’s most likely why they’re being targeted,” she said.

“There’s nothing wrong with ensuring someone’s eligibility. It’s just once they are eligible, the state can’t put barriers in the way of letting them exercise that right,” she added. “They shouldn’t have to prove their devotion to New Hampshire by paying fees.”

In a statement, Sununu expressed confidence the law would be upheld:

This lawsuit is nothing more than a desperate attempt to dredge up arguments that our State Supreme Court already rejected last summer. The Supreme Court addressed each of the legal arguments made by opponents of House Bill 1264 and found that the law ensures that every voter is treated the same. I fully expect our federal court to reach the same conclusion.

Given that House Bill 1264 does nothing more than align New Hampshire with virtually every other state in requiring residency in order to vote, the plaintiffs in this suit should be asked whether they plan to file identical lawsuits in every other state.

This story has been updated with a statement from Sununu.

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