So, CACR 36, a constitutional amendment that would change the language in the New Hampshire Constitution defining who is eligible to vote (Part I, Article 11) has been a relatively hot topic recently.
At NH-NeverTrump Journal, you can find former NH House Speaker Bill O’Brien’s Eliminating Election Day Voting Tourists and, here at GraniteGrok, there is a post by Daniel Richard titled Who is Qualified to Vote in New Hampshire Under its Constitution.
O’Brien is enthusiastically in favor of the amendment while Richard is decidedly opposed. Let’s see which of them, if any, has it right.
As good a place as any to begin is the language of the amendment. It would change Part I, Article 11 from:
All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.
to:
All elections are to be free, and every person who is a citizen of the United States and a citizen of the state of New Hampshire, and 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered a citizen of the state of New Hampshire for the purposes of voting in town, ward, or unincorporated place where that person is domiciled and has primary residency.
So, under the existing language, anyone who is domiciled in New Hampshire can vote in New Hampshire, while the new language would add the requirement that you must be both domiciled in New Hampshire AND a permanent resident of New Hampshire. This is hugely ironic because the understanding of the term domicile (1974 amendment) was that in order to be domiciled in New Hampshire one had to be a permanent resident of New Hampshire.
O’Brien explains “the necessity” of the amendment as follows:
As to the necessity of CACR 36, state judges have so consistently and thoroughly misinterpreted the state constitution that in recent years, people claiming single day residency – people who are here for only election day and register that day claiming they have no plans to leave – come in, vote, and leave New Hampshire over the course of not much more than a few hours. Progressive judges have given legitimacy to this chicanery by ruling explicitly that “you don’t have to be a resident of New Hampshire to vote in New Hampshire’s elections.”
This is accurate but incomplete. The NH-DOJ has been complicit in this rewriting of the State Constitution, refusing to defend any legislative attempts to limit the franchise to permanent residents of New Hampshire, especially by excluding out-of-State college students.
So, would this amendment prevent out-of-State college students from voting in New Hampshire? The answer appears to be NO. There is nothing in O’Brien’s piece … which a court interpreting the amendment would consider as evidence of the understanding of the term “permanent resident” … that suggests that the intent of the amendment is to prevent out-of-State college students from voting in New Hampshire. In fact, O’Brien’s piece suggests just the opposite, that the scope is limited to “same-day” voters from Massachusetts, Vermont, etc.
The concept that out-of-State college students are eligible to vote in New Hampshire is entrenched in New Hampshire statutory law. For example, from the Attorney General’s website:
Because of this context, the amendment process would have to make it absolutely, crystal clear that the amendment was intended to exclude out-of-State college students. As just discussed, this amendment does NOT and, indeed, suggests just the opposite.
Richard has it exactly backward in claiming that the amendment:
would grant resident aliens the right to vote by amendment and by statute thereby allowing any American to arrive into this State and on the same day establish a residence, and therefore be allowed to vote.
The amendment would do just the opposite. However, the far bigger problem, as I see it, than the “drive-by” voters described above by O’Brien or even the transient campaign workers who come to New Hampshire in the months, weeks, and days before an election, vote here, and then leave the State … are the thousands of out-of-State college students who vote in our elections but are NOT (see above) required to obtain a New Hampshire driver’s license after voting here.
HB 1264 was intended to dissuade out-of-State college students from voting in New Hampshire by, in part, requiring them to obtain New Hampshire driver’s licenses once they voted in New Hampshire. The Attorney General, however, has created the proverbial “exception that swallows the rule” by willfully misinterpreting the following New Hampshire law (RSA 263:35 – see question #2 in screenshot above):
… , any nonresident driver of a motor vehicle who holds a valid driver’s license in another jurisdiction, upon the establishment of a bona fide residency in this state, shall have a maximum of 60 days from the date his residency was established to obtain a driver’s license issued by the state of New Hampshire.
The Attorney General’s position that one can be a New Hampshire resident yet continue to maintain an out-of-State driver’s license as long as the person does not physically drive in New Hampshire makes no sense (see question #2 in the screenshot above). A college student in New Hampshire who maintains an out-of-State driver’s license after voting in New Hampshire is demonstrating that New Hampshire was NOT really his domicile when he voted here … which means that he was NOT eligible to vote here.
If only we had a Republican Governor to appoint an Attorney General who would follow the law!
Richard is wrong about HB 1264. This bill did not give out-of-State college students the right to vote in New Hampshire. Activist judges and a politicized NH-DOJ had already done that.
HB 1264, as discussed above, was an attempt to dissuade out-of-State college students from voting in our elections. It has been inefficacious because, as discussed above, the Attorney General … and by extension Governor Sununu … is willfully misinterpreting the law and, to the best of my knowledge, doing nothing to enforce HB 1264.
So while the amendment is certainly not the disaster that Richard claims, it is important to understand what it does and does NOT do. And the most important thing to understand about the amendment is that it should be unnecessary.
Governor Sununu has made three appointments to the New Hampshire Supreme Court. Had our Dear Sun-King appointed constitutionalists, the court very likely would (when the appropriate case came before it) restore the original understanding of the term “domicile” in Part I, Article 11. More particularly, that being a permanent resident of New Hampshire is a necessary condition to being domiciled in New Hampshire.
