Attorneys Call DMV Policy Unconstitutional

Four years ago, the Department of Motor Vehicles began requiring all non-US citizens to come to Concord to obtain drivers licenses and state ids.

Immigrants advocates have long argued traveling to the state capitol places a significant financial burden on people, particularly in a state lacking public transportation.

But DMV director Virginia Beecher told the Joint Legislative Committee on Rules that dealing with non US citizens was becoming an administrative nightmare.

7:41 you go in to get your drivers license, somebody in front of you really, speaks English, they had a difficulty understanding, lines of people backed up. We were receiving comment cards, from US citizens, complaing that they were waiting for hours, or they would come back another day.
And Beecher added, she couldn't hire any personnel to take care of the problem.

2:16 unless this legislative body can produce an additional 15 employees there is no way I can accommodate these people other places.

New Hampshire Legal Assistance Attorney Chris Wellington says the state can't just decide to pick out some category of people that gets drivers licenses and treat them differently.

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:40 For a state to impose different or unequal treatment on persons based on their non-citizens status, they have to state a compelling state reason. We do not think the department of motor vehicles has done that at all.

Wellington says neither complaints about long lines, nor a lack of resources meets the strict scrutiny standard required to justifiably treat people differently.

So Wellington has submitted testimony to the legislative committee that the practice violates both the New Hampshire and United States Constitutions.

The committee's own attorney, Michael Morrell, has also told lawmakers he believes the rule is unconstitutional.

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:19 in this case you have people who wish to become drivers, or wish to renew their license, and they are being treated differently in the sense that some have to go to Concord, and some can go to sub-stations, maybe that is not a huge burden but they are being treated differently. Where strict scrutiny applies, when you are dealing with a class such as alienage, than you have to use the least restrictive option available in the situation.

Morrell cites the 1971 Supreme Court case Graham v. Richardson.

That decision tossed out Arizona's requirement that all aliens had to live in the state 15 years before being eligible for welfare assistance.

Opponents argue New Hampshire, like Arizona, is requiring a certain class of people to do something, others don't have to do.

But with a lawyer's eye for nuance, Northeastern Law School Associate Dean Jim Rowan says the Richardson case is different.

17:45 what was said in Richardson was you can't in Arizona have a 15 year requirement before you get welfare. Now, part of it, that made that case a little easier, 15 years is a long time for any kind of a grant, or government benefit. The imposition in NH is considerably less dramatic than that.

DMV attorney Sherri Kelloway fervently disagrees the practice is in anyway unconstitutional.

1:59 ... if we had in our rules that non-US citizens could not obtain a drivers license....that's not what's happening here. The requirement is that they come to Concord, but the fact of the matter is, once they produce the documentation...that everybody else has to produce, they are getting a NH drivers liecnse. It looks the same, it is identical as if somebody were a resident and US citizens.

Still Legal Assistance Attorney Chris Wellington doesn't think it would be too hard to find alternatives.

She suggests the state simply look beyond its borders.

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1:24 including the two other northern New England states are going to face the same challenges...as New Hampshire, and they've been able to service people throughout their DMV locations...the southern NE states have much higher proportionately immigrant populations, and they've been able to handle it, so it's troubling that this state hasn't risen to occasion of trying to come to some solution.

Whether concerns over constitutionality influence lawmakers at the hearing remains to be seen.

If the rules do go through, however, New Hampshire Legal Assistance has pledged to pursue the case.

For NHPR News, I'm DG.