In its lawsuit, the ACLU notes that the number of prosecutions of voter fraud in New Hampshire is low, and it contends that HB 1569 will disenfranchise a disproportionate number of voters to achieve its goals. (Kate Brindley | New Hampshire Bulletin)
The American Civil Liberties Union of New Hampshire and three other organizations are suing in federal court to block a new state voter registration law – the second lawsuit against the law in two weeks.
In the lawsuit, filed Monday in the U.S. District Court of New Hampshire, the ACLU argues that House Bill 1569 is unconstitutional under the First Amendment and 14th Amendment because it will create hurdles that could stop lawful residents and citizens from registering to vote.
“HB 1569’s limitation on the availability of voter registration to only voters who can immediately produce documentary proof of citizenship would make this law among the most restrictive in the United States,” the lawsuit states.
Plaintiffs include advocacy groups Coalition for Open Democracy, League of Women Voters of New Hampshire, and the Forward Foundation, as well as five individual plaintiffs.
The voting bill, signed by Gov. Chris Sununu in September, removes the ability for people to vote with an affidavit if they don’t have identification with them at the polls – and it requires first-time voters to provide hard proof of citizenship. It will not take effect until Nov. 11 and will not affect the Nov. 5 presidential election.
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Republicans have argued the law closes gaps in the state’s election laws that allow people without sufficient documentation to vote. They say even though the affidavits are a legally binding document and voters who falsely fill them out can be investigated and prosecuted later, those prosecutions cannot erase the vote itself, which they say could improperly sway an election.
But in its lawsuit, the ACLU notes that the number of prosecutions of voter fraud in New Hampshire is low, and it contends that HB 1569 will disenfranchise a disproportionate number of voters to achieve its goals.
“A person attempting to register to vote on election day – as a substantial proportion of the New Hampshire electorate does – who did not already possess or could not immediately locate documentary proof of citizenship would find it nearly impossible to obtain the documents in time to vote …,” the lawsuit states.
“… As a result, HB 1569 would effectively eliminate same-day voter registration for these eligible voters.”
The lawsuit follows a Sept. 15 lawsuit – also filed in the U.S. District Court of New Hampshire – brought by the New Hampshire Youth Movement with the help of the Elias Group, a firm helmed by election law attorney Marc Elias.
The two lawsuits make similar arguments that the law is unconstitutional and that the hard copy documentation requirements are overly burdensome.
But the ACLU filing includes a handful of voters among its plaintiffs in addition to the voting organizations. And it raises some concerns over the new law not addressed by the New Hampshire Youth Movement’s filing.
One concern is that the law could affect people who are removed from the New Hampshire voting rolls due to a lapse in voting activity. In New Hampshire, town supervisors of the checklist are required to review their voter checklists every 10 years – the last review happened in 2021. During those reviews, anyone who has not voted in the prior four years, and has not re-registered with their town, is automatically taken off the list and must re-register.
The ACLU’s lawsuit warns that when HB 1569 takes effect, people could arrive at the polls on election day without knowing they had been removed from their town’s voting checklist due to a lapse in voting. If those residents did not bring proof of citizenship that day, they could be turned away.
A second concern raised in Monday’s filing is centered around the voter challenge process. Under New Hampshire law, a person who votes on election day may be challenged by an authorized election observer at the polls if that observer believes they are not old enough, are not domiciled in that town, or are not a citizen.
Under current law, that voter may still cast a ballot, but must fill out a “challenged voter affidavit” reaffirming they are who they say they are. Under the new law, the moderator would make a determination of whether they believe the challenged voter is eligible, and if the moderator does not believe that they are, the person would not be able to vote. To overturn that decision, the voter would then need to go to a New Hampshire superior court on election day and seek an appeal of the moderator’s decision, a process that costs $280.
The ACLU argues that that appeal process is not realistic for most voters because it is too expensive and inconvenient, meaning that a voter who was registered to vote could lose that ability if they forget to bring citizenship documents to the polls.
“As a result, HB 1569 would effectively grant supervisors of the checklist or moderators with unchecked and arbitrary discretion to disenfranchise a voter without meaningful recourse provided to that voter,” the lawsuit states.
Finally, while HB 1569 is only intended to require citizenship documents for those registering to vote in New Hampshire for the first time – and not those moving from one area of the state to another and registering in a different polling place – the ACLU argues that that might not happen in practice. They say some towns may require a voter to produce all documents – including citizenship documents – in order to register once moving there. The new law could make it difficult to vote if those new residents did not have a birth certificate or passport with them, the ACLU contends.
Both lawsuits are now pending in federal court. The state’s Attorney General’s Office, a defendant in the lawsuits, has not yet filed legal briefs to respond to the challenges.