Pair of Lawsuits, One Backed by Priorities USA, Challenge Constitutionality of SB3

Aug 23, 2017

A pair of lawsuits were filed Wednesday challenging a controversial new voting law, SB3, just weeks before the law is set to take effect.

One legal challenge comes from the New Hampshire Democratic Party. The other is filed on behalf of the League of Women Voters of New Hampshire and three individual would-be voters.

The individual plaintiffs in the second case include a 21-year-old University of New Hampshire student from Stratham, a 19-year-old Dartmouth College student from California, and a 29-year-old Massachusetts resident who plans to move to Nashua later this week. Each claim they would have trouble satisfying the requirements of SB3 in order to register to vote in upcoming elections.

New York-based law firm Perkins Coie, which has filed legal challenges to voting restrictions in other states, is backing the second lawsuit. Priorities USA Action, a Democratic super PAC that backed both Hillary Clinton and Barack Obama’s presidential campaigns, is funding the case.

Liz Tentarelli, the president of the local chapter of the League of Women Voters, said Perkins Coie approached her organization about participating in the lawsuit. While the lawsuit is affiliated with a Democratic super PAC, she said, “I don’t feel that the challenge to the law is politically motivated at all.”

“We were not equipped to pay for a lawsuit on our own,” Tentarelli said, “so we are happy an organization stepped in to do that.”

Tentarelli, who emphasized that her group’s work is meant to be nonpartisan, was among crowds of opponents who spoke out against SB3 before it passed. Now that it’s taking effect, she said it adds onerous and confusing language to the state’s voting rules and complicates the League’s efforts to educate voters.

“If we’re trying to explain to people how to go and register to vote, we cannot do it in the short simple language that is necessary to make people feel, OK, I can do that,” Tentarelli said. “We feel we can’t do our work with this law in place.”

SB3 was passed largely along party lines this spring and, at this point, is slated to take effect Sept. 8. Among other things, it places added scrutiny on voters to provide proof they live where they’re voting.

Voters registering within 30 days of an election are required to provide documents that “demonstrate an intent to make a place [their] domicile.” If they don’t have the right kind of documents when registering to vote, they have the option of following up with the documents after the election — but if they don’t do that within a required timeframe, they would be subject to additional investigation and penalties for wrongful voting. 

The New Hampshire Democratic Party’s  lawsuit reiterates many of the arguments made against the bill as it was making its way through the legislature earlier this year: That it’s unnecessary, confusing and places an added burden on voters who are less likely to have required paperwork, like college students or people experiencing homelessness. (More details on what the law could mean, in practice, for students can be found here.)

A large chunk of the state Democrats’ lawsuit is spent recounting testimony from both supporters and opponents of the bill, as well as legislative history around other recent changes in state voter eligibility requirements.

In the complaint, the party argues SB3 was passed based on unfounded suspicions that voter fraud is a widespread issue in New Hampshire, and that it's not needed to advance any legitimate state interest.

“Even if there is a perception that voter fraud exists such that it decreases voter confidence (a scenario that does not hold true given the lack of evidence showing as much), SB3 will not increase voter confidence,” the lawsuit states. “It will instead inhibit, deter, discourage, and prevent qualified potential voters from participating in New Hampshire elections, as demonstrated by the overwhelming testimony against it.”

Secretary of State Bill Gardner, one of the targets of the lawsuits, was a supporter of SB3 from the time it was introduced. He and other proponents argued the law is needed to bolster confidence in the state's elections and counter perceptions about wrongful voting. Attorney General Gordon MacDonald is the other named defendant in the lawsuits, given his official role overseeing election laws and procedures.

The attorney general’s office did not return NHPR’s call seeking comment but acknowledged the lawsuits in a statement issued Wednesday afternoon.

“Senate Bill 3, like any statute, is presumed to be constitutional. The Department of Justice will defend it vigorously and we are confident it will be sustained,” the statement read. “At this juncture, there will be no further statements regarding this pending litigation.”

Gov. Chris Sununu, asked about the New Hampshire Democratic Party's lawsuit after Wednesday's executive council meeting, dismissed it as "just more political theatrics." 

"SB3 is a good law. It's something supported by the vast majority of the people in this state," Sununu said. "It provides integrity into our voter system. And, again, having that responsibility of the first-in-the-nation primary is something we take very seriously here, and we have no doubt it will be upheld."

By the end of the afternoon, the New Hampshire Democratic Party's lawsuit served as fodder for its own fundraising emails: "Legal battles are expensive and time-consuming, but we know this is the right thing to do," the party wrote to supporters, "Can you help us defend the most precious right we have by contributing to our legal fund?"

Both lawsuits are filed with the Hillsborough County Court in Nashua.

The New Hampshire Democratic Party said that venue is appropriate because it’s an area where they do a lot of voter outreach leading up to elections and where there is a high rate of same-day voters. The League of Women Voters' lawsuit similarly points to their voter outreach efforts in the area as cause for filing the lawsuit there.

Statewide, about 83,000 people (or 8 percent of the electorate) registered to vote on Election Day in November 2016. The communities with the highest overall rates of same-day registrants were Durham, Plymouth and Keene — all home to college campuses, and all traditionally Democratic strongholds. Nashua had a citywide same-day registration rate of 9.7 percent, slightly above the statewide average.