Not a comprehensive examination of all memoranda filed with Supreme Court regarding House Bill 1264. Just some notes I took while reading through them, cleaned up somewhat for public consumption.
SECRETARY OF STATE
The Secretary of State takes no express position on House Bill 1264. But he appears to agree with the position of the Governor —as I see it— that nonresident college students somehow have a right to vote in New Hampshire and remain nonresidents. I say this because of the Secretary of State’s characterization of the second question submitted by the Governor:
If the Secretary of State is taking the position I have attributed to the Governor, it represents a remarkable about-face. For years Secretary of State Gardner’s position had been that nonresident college students should vote in the States they choose to declare their residency.
I would love to know if and how Gardner decided to be agnostic on House Bill 1264.
The purpose of the memorandum appears to be to advise that the Secretary of State’s office has no current plans to take any action to effectuate House Bill 1264, such as providing the names of nonresident students who voted to the DMV.
ATTORNEY GENERAL
The Attorney General also took no express position on House Bill 1264. Instead, his memorandum argued only that the Supreme Court should return answers to the questions submitted by the Governor. It appears to be a counter to the arguments of the opponents of House Bill 1264 that the court should not return answers.
To assess MacDonald’s memorandum, we first need to synopsize the do-not-return-answers arguments.
ACLU — the ACLU argues that the Supreme Court cannot return answers without a factual record because House Bill 1264 burdens the right to vote and the legal test for whether the burden is unconstitutional is fact-based. MacDonald’s memorandum does not take on this argument head-on, but it does note -correctly- that House Bill 1264 does not have anything to do with voter eligibility or voting procedures. And, because it does not, it cannot be a burden on the right to vote.
Volinsky and Pappas — The two Democrat Executive Councilors argue that the court cannot return answers because the Governor and Executive Council can ask for an advisory opinion only regarding matters that involve both the Governor and the Executive Council, and the power to veto House Bill 1264 is exclusive to the Governor. More specifically, they argue that the language “governor and council” in Part II, Article 74 does not mean merely that the Governor and Executive Council must agree to request an advisory opinion, but that the advisory opinion must involve a power or responsibility shared by the Governor and Executive Council.
MacDonald’s memorandum points out that the language of Part II, Article 74 provides no reason to prefer the latter construction to the former construction. And he argues that there is a reason to prefer the former to the latter based on a prior advisory opinion issued by the court after a veto. In my words, it is not reasonable to interpret the constitution to require the court to provide an advisory opinion to the legislature after the issuance of a veto but to forbid the issuance of an opinion to the Governor before the veto is issued.
Woodburn, Soucy and Feltes — These Democrat Senators add the argument that stare decisis prevents the court from returning answers. MacDonald’s memorandum does not address this argument, perhaps because it is frivolous. Unlike the request for an advisory opinion in 2015 that was declined because there was a case involving similar issues pending before the court, the lawsuit involving Senate Bill 3 in the superior court involves a completely different issue – the requirements for demonstrating a domicile in New Hampshire— and has no bearing on this case or vice versa.
ACLU
After arguing that the court should not return answers, the ACLU beings its assault on House Bill 1264 as follows:
And here is how the ACLU claims House Bill 1264 “unjustifiably” burdens the right to vote:
To cut to the chase, the ACLU is arguing that a nonresident who qualifies as a domiciliary has a right under Part I, Article 11 not just to vote in New Hampshire but to vote in New Hampshire and remain a nonresident.
There is no such right in Part I, Article 11. A domiciliary has only the right to vote in New Hampshire elections. There is no language in Part I, Article 11 that creates two classes of domiciliary —resident and nonresident— and requires the Legislature to maintain a statutory distinction between the two.
In other words, House Bill 1264 does not burden the right to vote. It burdens the make-believe, fictitious right to vote and remain a nonresident. Because Part I, Article 11 does not burden the right to vote, it is not necessary to address the remainder of the ACLU’s “unjustifiable burden” argument.
The poll tax argument is just as fallacious. As I pointed out in my memorandum:
The obvious problem with arguing that House Bill 1264 is a poll tax is that House Bill 1264 does not require the payment of any tax or fee or fine to vote. More specifically, House Bill 1264 does not require a voter to prove that he or she has obtained a New Hampshire’s driver’s license or registered his or her car in New Hampshire in order to vote.
Characterizing House Bill 1264 as a post-election poll tax does not solve the problem. House Bill 1264 does not negate the votes of voters who after voting fail to comply with RSA 263:35 or RSA 261:45.
The poll tax argument really is the argument that this State —unlike Maine, unlike, Massachusetts, unlike Vermont, to name just a few examples— cannot define the act of registering to vote as a declaration of residency. Because this argument is totally ludicrous, the opponents of House Bill 1264 feel the need to disguise it. Hence the heavy application of poll tax lipstick.
The age discrimination argument is simply a variation on the fallacious “unjustifiable burden” argument, that is that the right to vote in Part I, Article 11 is not just the right to vote in New Hampshire elections but —if you are a nonresident college student— the right to vote in New Hampshire and remain a nonresident.
The ACLU’s final argument is totally nonsensical and cannot pass even the most minimal laugh test:
In other words, the ACLU is arguing that House Bill 1264 violates equal protection because it treats nonresident college students who choose to remain nonresidents and vote in their home States as nonresidents. To state the argument is to demolish it; that is how nonsensical it is.
Originally posted at the Ed Mosca Blog
