The right to vote has been described as one of the most precious of our rights. But that right is meaningless if out-of-State voters are deciding New Hampshire elections. Yet that is exactly what happened in 2016 in -at a minimum- in the United States Senate race and the Presidential contest.
Earlier this year, the Governor signed Senate Bill 3 into law, which tightens up the definition of who is allowed to vote in New Hampshire. As I explained here, Senate Bill 3 did not go far enough. There is a new bill, House Bill 372, which will address one of the problems with Senate Bill 3. Yet it too does not go far enough. Fortunately, it can easily be improved, as I will discuss below.
To assist the reader, I will divide this post into various sections.
I. Without “Drive-By” Voters, Maggie Hassan and Hillary Clinton Would Not Have Won New Hampshire.
Hillary won by 2,736 votes, while Maggie Hassan won by only 1,017 votes:
But 1,094 votes appear to have been illegitimate. From an article by Kevin Landrigan:
A new report on the 2016 election found nearly 1,100 people who cast ballots here in New Hampshire were either under investigation for voting in more than one place or signed affidavits with addresses that may no longer be valid, House Speaker Shawn Jasper, R-Hudson disclosed Thursday.
Here is the breakdown of these 1,094 votes:
• Qualified affidavits: 440 voters. Nearly all of these 764 citizens signed an affidavit in order to vote on Election Day because they didn’t have or did not want to present a voter ID card prior to casting a ballot. Among this group, 377 did not return a postcard sent to verify their address and the post office reported another 63 postcards could not be delivered to the address given.
• Domicile affidavits: 458 voters. These were people who registered to vote and signed an affidavit attesting the address they gave was accurate. There were 6,033 domicile affidavits and of those, 458 were reported as undeliverable to the address that had been given.
It is reasonable to assume that the vast majority of these 1,094 phantom voters were out-of-Staters who voted Democrat because the New Hampshire Democrat Party has staunchly opposed all efforts to require photo-identification for voting and has staunchly opposed sharing voter information with other States in order to prevent voting in more than one State,
So without even counting the votes of out-of-State college students, we can say that it is likely Maggie Hassan was elected Senator by out-of-State voters.
Additionally, 5,313 voters used out-of-State driver’s licenses to vote in New Hampshire in 2016 and then did not subsequently obtain New Hampshire driver’s licenses or register their motor-vehicles in New Hampshire. It is reasonable to assume that these were out-of-State college students who voted Democrat because the New Hampshire Democrat Party has staunchly opposed all efforts to strengthen the definition of domicile to prevent out-of-State college students from voting in New Hampshire.
In sum, it is reasonable to assume that when these approximately 6,400 drive-by votes are backed out and only the votes of New Hampshire residents counted, Trump likely defeated Hillary by around 3,700 votes, while Ayotte bested Hassan by about 5,400 votes.
II. Some Quickie Background on New Hampshire Law and Drive-By Voting.
The New Hampshire Constitution recognizes a right to vote in Part I, Article 11 for every inhabitant in the municipality where he or she is “domiciled”:
[Art.] 11. [Elections and Elective Franchises.] 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. No person shall have the right to vote under the constitution of this state who has been convicted of treason, bribery or any willful violation of the election laws of this state or of the United States; but the supreme court may, on notice to the attorney general, restore the privilege to vote to any person who may have forfeited it by conviction of such offenses. The general court shall provide by law for voting by qualified voters who at the time of the biennial or state elections, or of the primary elections therefor, or of city elections, or of town elections by official ballot, are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice of any officer or officers to be elected or upon any question submitted at such election. Voting registration and polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote in the choice of any officer or officers to be elected or upon any question submitted at such election. The right to vote shall not be denied to any person because of the non-payment of any tax. Every inhabitant of the state, having the proper qualifications, has equal right to be elected into office.
June 2, 1784
Amended 1903 to provide that in order to vote or be eligible for office a person must be able to read the English language and to write.
Amended 19l2 to prohibit those convicted of treason, bribery or willfull violation of the election laws from voting or holding elective office.
Amended 1942 to provide for absentee voting in general elections.
Amended 1956 to provide for absentee voting in primary elections.
Amended 1968 to provide right to vote not denied because of nonpayment of taxes. Also amended in 1968 to delete an obsolete phrase.
Amended 1976 to reduce voting age to 18.
Amended 1984 to provide accessibility to all registration and polling places.
That someone domiciled in New Hampshire has the right to vote in New Hampshire raises the question what does it mean to be domiciled in New Hampshire.
The New Hampshire Supreme Court has used the statutory definition of domicile to review voting-laws. From the 2015 case, Guare v. State of New Hampshire (which I discuss in more detail here):
Although the State Constitution does not define “domicile,” the legislature has defined it as … The legislature has defined “residence” differently from “domicile.” … The basic difference between a “resident” and a person who merely has a New Hampshire “domicile,” is that a “resident” has manifested an intent to remain in New Hampshire for the indefinite future, while a person who merely has a New Hampshire “domicile” has not manifested that same intent.
This is not the proper way to analyze a constitutional challenge to a law. The United States constitution does not define, for example, due process of law or equal protection of the law. Yet the Supreme Court of the United States does not allow Congress or the States to say what these concepts mean. It determines the meaning
Case law from the 1800s suggests that the term domicile meant permanent residents of the State. More specifically, that to be domiciled in a municipality one was required to have an intention to remain permanently or indefinitely in that municipality.
Forty-five years ago, however, in a case called Newburger v. Peterson, the federal District Court in New Hampshire ruled that “the New Hampshire indefinite intention test offends the equal protection clause of the Fourteenth Amendment.”
This led us to the looking-glass situation, described in the Guare case, where voters who are not residents of New Hampshire, have a right to vote in New Hampshire. Here is how domicile was defined when Guare was decided:
An inhabitant’s domicile for voting purposes is that one place where a person, more than any other place, has established a physical presence and manifests an intent to maintain a single continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government. A person has the right to change domicile at any time, however a mere intention to change domicile in the future does not, of itself, terminate an established domicile before the person actually moves.
As the Deputy Secretary of State has explained, the “right to change domicile at any time” allows drive-by voting:
According to the Secretary of State’s Office, the law allows a pretty wide interpretation of who’s eligible to vote. Deputy Secretary of State Dave Scanlan said that in theory, a person could move into the state a day before an election, establish domicile in the state, vote and then leave the next day.
Another example of how the “right to change domicile at any time” can be abused is that it allows out-of-State college students on an election-by-election basis to decide whether to vote in New Hampshire or in the States they are residents of.
III. Recent Efforts to Curtail Drive-By Voting.
Earlier this year, Senate Bill 3 was signed into law by the Governor. It significantly tightened the definition of domicile by delineating various objective criteria to be used to determine whether a voter is domiciled in New Hampshire. From the Heritage Foundation:
Just what are those “verifiable actions?” The bill establishes a wide-ranging list, including renting or purchasing a home in the state, obtaining a driver’s license, enrolling a child in a public school, attending a college or university, or obtaining a state-issued hunting or fishing license. Residence at a homeless shelter would also be sufficient.
In other words, Senate Bill 3 is intended to allow only bona fide residents of New Hampshire to vote in New Hampshire elections. Among the problems with Senate Bill 3, however, is that it continues to allow drive-by voting by non-resident out-of-State college students. More specifically, it defines attending college in New Hampshire as an act of domicile.
House Bill 372, as originally passed by the House, appears to be intended to lay the groundwork for ending drive-by voting by out-of-State college students by removing the term “for the indefinite future” from the definition of residency. The legislative history indicates that the intent of this change is to comply with the forty-five year old Newburger v. State decision (discussed in the preceding section), but that the definitional change is not intended at this point to be used to curtail drive-by voting by eligible non-residents. In other words, the unstated plan appears to be to at some point in the future limiting voting in New Hampshire to bona fide residents of New Hampshire:The State Senate, or at least a committee of the State Senate, has decided that there is no time like the present. From DeWitt:
A late amendment to a bill that would limit voting to New Hampshire residents passed a Senate committee Tuesday, setting the stage for a new political battle in the Legislature next session over voting requirements.
The proposed change would require residency in the state, setting a higher bar for eligibility than present election law, which requires only that voters be “domiciled.” Democrats were quick to condemn the move, calling it an attempt to suppress voting that would effectively target college students. …
The amendment, added to House Bill 372, specified that “a person must be a resident of New Hampshire to vote or hold office in New Hampshire.” Introduced by Sens. Regina Birdsell, R-Hampstead, and James Gray, R-Rochester, the proposal came during an executive session of the Senate Election Law and Internal Affairs Committee.
IV. The Problem with House Bill 372.
The problem with House Bill 372 as amended is that it does not explicitly change the definition of domicile, and the State Constitution and statute establishes domicile as the lodestar for voting.
The solution is to change the definition of residency as contemplated by the version of House Bill 372 passed by the House and to change the domicile statutes to make it crystal clear that one cannot be a domiciled in New Hampshire without being a resident of New Hampshire. In addition the drafters need to go over the domicile statutes and eliminate any conceivable potential conflict with the new definition of domicile.
This will not prevent the Democrats, and their surrogates such as the ACLU, from instituting litigation. But it will increase the likelihood of prevailing when the inevitable lawsuit comes.