DemocRATS May Very Well Succeed in Negating New Hampshire’s Voter-Residency Requirement

There is a lawsuit in the Federal District Court of New Hampshire called Caroline Casey et al. vs. New Hampshire Secretary of State et al. The real plaintiffs (party bringing the lawsuit) are the New Hampshire Democrat Party and its litigation-arm, the New Hampshire ACLU (hereinafter DemocRATS).

The subject of the lawsuit is a clean-election law, HB 1264, passed under the prior State legislature, which essentially made the act of voting in New Hampshire (declaring domicile in New Hampshire) a declaration of residency in New Hampshire. This law brought New Hampshire into line with every other State, which either requires you to be a resident in order to vote or takes the position that voting is a declaration of residency.

Governor Sununu refused to sign HB 1264 without an “advisory opinion” from the New Hampshire Supreme Court advising that HB 1264 was NOT unconstitutional as claimed by the DemocRATS. He received such an opinion in Opinion of the Justices, 171 N.H. 128 (2018).

The parties agreed in Opinion of the Justices, 171 N.H. 128 (2018) that HB 1264 changed the law so that the act of voting in New Hampshire (declaring domicile in New Hampshire) was a declaration of residency in New Hampshire. The DemocRATS argued that HB 1264 was an unconstitutional “post-election poll-tax” and suffered from other constitutional infirmities that we do not need to get into here. A majority of the New Hampshire Supreme Court … Chief Justice Lynn (since retired) and the two Sununu-appointees … gave HB 1264 a clean constitutional bill of health.

Once HB 1264 became effective (July, 2019), the DemocRATS sued in federal court. Initially, they made the same arguments they made before the New Hampshire Supreme Court … that HB 1264 was an unconstitutional “poll tax,” discriminated against college students, blah, blah, blah. These are obviously bullish*t arguments. How can it be constitutional for every other State to require residency to vote or say that the act of voting is a declaration of residency, but not for New Hampshire? To ask the question is to answer it.

So the DemocRATS totally reversed themselves in federal court and introduced the new argument that HB 1264 did not change the law with respect to college students and other drive-by voters:

In their original complaints, the plaintiffs’ arguments assumed that HB 1264 achieved its alleged intended effect. In their amended complaints, the plaintiffs instead contended that the bill failed to accomplish its goal, because it left in place the exception of RSA § 259:88 that “no person shall be deemed to be a resident” for the purposes of the Motor Vehicle Code “who claims residence in any other state for any purpose.” They argue that registered voters with an out-of-state driver’s license or vehicle registration claim residence in another state for some purpose, and so are not residents for the purposes of the Motor Vehicle Code.

Rather than rule on the DemocRATS’ new argument itself, the federal court instead punted the issue to the New Hampshire Supreme Court:

For the reasons set forth in this order, the court certifies the following questions to the New Hampshire Supreme Court:

• Are the definitions of “resident” and “residence” in RSA § 21:6 and :6-a, as recently amended, effectively the same as the definition of “domicile” as used in RSA § 654:1, such that one with a New Hampshire “domicile” is necessarily a New Hampshire “resident”?
• Is a student who claims a New Hampshire “domicile” pursuant to RSA § 654:1-a necessarily a New Hampshire resident under RSA § 21:6, as recently amended?
• Can an individual with a New Hampshire “domicile” pursuant to RSA § 654:1 ever be an individual “who claims residence in any other state for any purpose” and thus is not a “resident” for the purposes of RSA § 259:88?
• Relatedly, does an individual who claims a New Hampshire “domicile” pursuant to RSA § 654:1, I or I-a necessarily establish “a bona fide residency” for the purposes of RSA §§ 261:45 and 263:35?
• Given the definition of non-resident in RSA § 259:67, I for the Motor Vehicle Code, are college students who reside in New Hampshire for more than six months in any year required to obtain New Hampshire drivers’ licenses by RSA § 263:1 if they wish to drive in the state and required by RSA § 261:40 to register in New Hampshire any vehicles they keep in the state?

Here is the problem: Chief Justice Lynn has since retired and the two Sununu-appointees are not, to put it charitably, exactly what you would call legal scholars … while the other two Justices are hard-Left activists who will want to reach a result favorable to the DemocRATS. The hard-Lefties may be able to snooker the Sununu-justices or the Sununu-justices maybe just “go-along-to-get-along.”

The questions punted by the federal court should all be answered to NOT create a carve-out so that nonresident college students and drive-by voters can vote in New Hampshire and remain nonresidents:

• Are the definitions of “resident” and “residence” in RSA § 21:6 and :6-a, as recently amended, effectively the same as the definition of “domicile” as used in RSA § 654:1, such that one with a New Hampshire “domicile” is necessarily a New Hampshire “resident”? Yup. There is nothing in RSA 21:6 or 21:6-a suggesting that the term “domicile” there means something different than the term “domicile” in RSA 654:1. Moreover, as the New Hampshire Supreme Court opined in Opinion of the Justices, the purpose of HB 1264 was to eliminate the anomaly between the statutes: “The result — counterintuitive as it may be — is that, notwithstanding the “resident” and “residence” labels used in their titles, to satisfy the current definitions of RSA 21:6 and :6-a requires a degree of connection to a place that is greater than that required to be domiciled in this state for voting purposes pursuant to RSA 654:1, I (2016).  To correct this problem, HB 1264 removes the words “for the indefinite future” from the text of RSA 21:6 and :6-a.”

• Is a student who claims a New Hampshire “domicile” pursuant to RSA § 654:1-a necessarily a New Hampshire resident under RSA § 21:6, as recently amended?Yup. RSA 654:1-a says the student must still meet the requirements of domicile under RSA 654:1 and … see the prior question … there is no basis to say that the term “domicile” in RSA 654:1 and the term “domicile” in RSA 21:6 have different meanings.

• Can an individual with a New Hampshire “domicile” pursuant to RSA § 654:1 ever be an individual “who claims residence in any other state for any purpose” and thus is not a “resident” for the purposes of RSA § 259:88? Nope. Once you have claimed domicile in New Hampshire, you have necessarily abandoned domicile in the other State. Stated somewhat differently, you could only claim to be a resident of another State under RSA 259:88 if you were claiming to be domiciled there and NOT domiciled in New Hampshire.

• Relatedly, does an individual who claims a New Hampshire “domicile” pursuant to RSA § 654:1, I or I-a necessarily establish “a bona fide residency” for the purposes of RSA §§ 261:45 and 263:35? Yup. These laws obviously are intended to prevent someone who is not a resident of New Hampshire from fraudulently obtaining a New Hampshire driver’s license or registering a motor vehicle in New Hampshire … not to carve out an exception for nonresident college students to claim domicile in New Hampshire in order to not have the same civic responsibilities as other domiciliaries.

• Given the definition of non-resident in RSA § 259:67, I for the Motor Vehicle Code, are college students who reside in New Hampshire for more than six months in any year required to obtain New Hampshire drivers’ licenses by RSA § 263:1 if they wish to drive in the state and required by RSA § 261:40 to register in New Hampshire any vehicles they keep in the state? Not necessary to reach because none of the questions above can be answered to create the carve out for nonresident college students claimed by the DemocRATS.