Sununu Wants Court Review of Voter Bills; State Rep. Says Judges Unlikely to Weigh In

May 11, 2018

New Hampshire Supreme Court in Concord, N.H.
Credit Todd Bookman / NHPR

Governor Chris Sununu wants the New Hampshire Supreme Court to review whether proposed voting residency bills are constitutional.

But Representative David Bates, a Republican from Windham who sponsored one of the bills, contends the court is unlikely to intervene. He says the court declined last session to review a different voting bill, citing pending litigation.

"If the past experience is any indicator, I would be more surprised if they actually issue an opinion about this particular bill because, again, we have ongoing lawsuits right now - the whole thing on SB 3," Bates said.

Senate Bill 3 would affect people who register to vote within 30 days of an election. That trial begins in a few months. 

Sununu has expressed opposition to the residency bill currently awaiting his signature - that and an almost identical bill would align the definition of domicile and residency for voters.

Democrats say the legislation is unconstitutional. House Minority Leader Steve Shurtleff, D-Concord, say the proposed change would turn away young people who are otherwise legal voters. Bates argues that the language changes make sense in that a voter voting in New Hampshire should be a resident.

Attorney Chuck Douglas, a former congressman and former justice of the N.H. Supreme Court, says it's not uncommon for a governor and Executive Council, or for legislative leaders, to request a court review of a bill or examine a legal question.

“It’s smart to, at this stage, given that we have elections coming up in less than half a year, to be ready to send it over to the court because if there’s a legal infirmity, we wouldn’t want to screw up an election," Douglas said.

In general, the court accepts most questions, then sets a briefing schedule, asks for memorandum of law, according to Douglas. There is typically no oral argument. The court may then issue an opinion of the justices.

It's a process in place since 1784, and spelled out in the N.H. Constitution. Douglas says it happens once or twice a legislative session.

One of the more recent ones came in 2015, in the above-mentioned inquiry raised by Bates. In that case, Douglas was then counsel for the state House of Representatives.

As Sununu drafts any legal question to submit to the Supreme Court, a key matter to look for is what exactly he is asking the judges to review. Even Bates admits, the request for judicial review may balance on the governor's fundamental misgivings of the proposed law.