The voter registration laws in New Hampshire are, and have been, at best, illogical, and contradictory at worst.
Putting aside for the moment the idiocy of having same-day registration and “open” primaries in which voters not registered to a particular political party can obtain a ballot and vote in a primary of whatever political party they choose, the issue of college student voting has in recent years been very productive of confusion and litigation.
Thus, two Dartmouth College students, assisted by the ACLU, recently sued in federal court to have certain amendments to our voter registration laws adopted in 2018 declared unconstitutional. And because most of the critical issues in that case turned on interpretation of some New Hampshire statutes, the federal district court certified a series of 5 questions to the New Hampshire Supreme Court, which has now issued its answer in the case of Caroline Casey & a. v. New Hampshire Secretary of State & a., the opinion on which can be found at https://www.courts.state.nh.us/supreme/opinions/2020/2020029Casey.pdf
In a unanimous per curiam (i.e. unsigned) opinion, the Court [with 4 regular Justices along with a retired Superior Court judge sitting with them on assignment] addressed, or attempted to address, the definitions of resident, residence, and domicile in the context of registering to vote and requirements to obtain a New Hampshire drivers license and to register one’s car in New Hampshire.
In many states, there has been long recognized a common-law definition of domicile: To establish a domicile under the common law, two things are necessary — physical presence and intent to make the place one’s home. In order to acquire a domicile under the common law, a person must intend to reside in a place for a more or less definite time and make it his home. Further, under the common law, one cannot lose one’s domicile until a new one is clearly established. Thus, a temporary absence from a domicile, once acquired, does not result in a change of domicile.
A concomitant principle is that one may have more than one residence but only one domicile.
Thus, we, and the Court, must now wade into the confusion created by the imprecise terminology used in our voter registration and motor vehicle laws, which was the subject of attempts to clarify by amendments adopted in the 2018 General Court and signed into law.
Those amendments changed the definitions of “resident” and “residence” in RSA 21:6 and :6-a, respectively, so that they no longer applied only to individuals who intended to remain in New Hampshire “for the indefinite future.” Before the 2018 amendments, the statutory definitions of “resident” and “residence” in RSA 21:6 and :6-a, respectively, expressly required an intention to remain in New Hampshire indefinitely, while RSA 654:1, I (2016), which defines an eligible voter, did not contain the same language. Rather, RSA 654:1, I, requires the manifestation of a “single, continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government.”
Note that Chapter 21 of the RSA’s deals with general definitions, Chapters 259- 261 deal with motor vehicle licensing and registration, and Chapter 654 deals with eligibility to vote.
So, in this case, the New Hampshire Supreme Court attempts to reconcile somewhat ambiguous characterization of people living and wanting to vote in our state.
All of the Justices of the New Hampshire Supreme Court hearing this case, as well as this writer, being lawyers, are well versed in arguing how many angels can fit on the head of a pin. The decision in this case, mercifully, only takes 14 pages to describe the questions posed by the federal court and to answer most (4 out of 5) of them. So, rather than delve into the minutiae of the Court’s analysis and reasoning, the following are the detailed answers now sent back to the federal district court-
- A person with a New Hampshire “domicile” under RSA 654:1 is necessarily a “resident” under RSA 21:6;
- A person is a New Hampshire “resident” under RSA 21:6 and has a New Hampshire “residence” under RSA 21:6-a if they live in New Hampshire and have indicated through all of their actions that New Hampshire is their “most important” place of physical presence, to the exclusion of all other places in which they may live. The phrase “to the exclusion of all others” does not mean that, to have a New Hampshire “residence” under RSA 21:6-a, the person cannot also live elsewhere. Rather, it means only that there is no other place that the person, through all of their actions, has demonstrated is their “most important” place of physical presence. In other words, although a person may live in more than one place during any year, they can have only one “residence” within the meaning of RSA 21:6-a;
- Individuals satisfying the statutory definition of “domicile” in RSA 654:1, I, also satisfy the statutory definitions of “resident” and “residence” in RSA 21:6 and :6-a. See Laws 2018, ch. 370. The 2018 amendments to RSA 21:6 and :6-a, which eliminated the phrase “for the indefinite future” from both statutes, had their genesis in House Bill (HB) 1264. According to a majority of the New Hampshire House of Representatives Election Law Committee (on which this writer served), the purpose of HB 1264 was to ensure that a person who has a “domicile” under RSA 654:1, I, “will be considered a resident” under RSA 21:6.
- A student who claims a New Hampshire “domicile” pursuant to RSA 654:1, I, is necessarily a New Hampshire “resident” under RSA 21:6;
- The election laws do not establish motor vehicle or driving privileges and obligations, nor do the motor vehicle laws establish voting eligibility;
- Under RSA 263:35 the obligation of an individual who is a nonresident to obtain a New Hampshire driver’s license turns upon whether that individual has a “bona fide residency” here. Similarly, under RSA 261:45, the obligation of an individual who is a nonresident to register their motor vehicle here turns upon whether that individual has a “bona fide residency” in New Hampshire.
- The phrase “bona fide residency” as used in RSA 261:45 and RSA 263:35 incorporates the definition of “residency” contained in RSA 21:6-a. Also, a person with a “domicile” under RSA 654:1, I, or I-a, necessarily has a New Hampshire “residence” under RSA 21:6-a. Therefore, a person who has a New Hampshire “domicile” under RSA 654:1, I, or I-a, necessarily has a “bona fide residency” in New Hampshire for the purposes of RSA 261:45 and RSA 263:35.
- Any nonresident living in New Hampshire for more than six months in any year must register any of their motor vehicles that are principally used in connection with their New Hampshire abode. See RSA 259:67, I. Once a nonresident is no longer authorized to drive their vehicle in New Hampshire without a New Hampshire registration, they must obtain a New Hampshire driver’s license. See RSA 263;1, :35, :37. Thus, nonresident college students who wish to drive in New Hampshire, reside in New Hampshire for more than six months in any year, and whose vehicles are principally used in connection with their New Hampshire abode must (1) register those vehicles in New Hampshire and (2) obtain a New Hampshire driver’s license.
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There you have it- no doubt clear as mud to most people. But we will have to see what the US District Court does with this case now that it has been “definitely” advised on applicable New Hampshire law.
