Saturday, October 27, 2018

Supreme Court (NH) sides with state, lets SB3 apply to upcoming election

Supreme Court sides with state, lets SB3 apply to upcoming election

New Hampshire Union Leader

October 26. 2018 8:02PM

CONCORD — Warning any changes now run the “substantial risk of confusion and disruption,” the New Hampshire Supreme Court allowed new voter registration restrictions to remain in place, setting aside a lower court injunction against the law until after the Nov. 6 election.

The unanimous ruling Friday marked an incremental but still major legal victory for Secretary of State Bill Gardner and Attorney General Gordon J. MacDonald’s office lawyers.

They both had argued Hillsborough County Judge Kenneth Brown’s recent injunction threatened to create chaos at polling places across the state.

“However, the court is persuaded that, regardless of the merits, the timing of the preliminary injunction, entered by the trial court a mere two weeks before the Nov. 6 election, creates both a substantial risk of confusion and disruption of the orderly conduct of the election, and the prospect that similarly situated voters may be subjected to differing voter registration and voting procedures in the same election cycle,” the justices wrote.

Passed by the Legislature last year and signed into law by Gov. Chris Sununu, SB3 established new procedures for voter registration within 30 days of an election or on Election Day.

It requires would-be voters to provide proof of residency, other than the voter affidavit they had to sign in past elections.

If people trying to register don’t have the right documents, they have up to 30 days to produce them or face penalties for voter fraud including a fine up to $5,000 and a year in jail.

The Democratic Party and League of Women Voters had sued the state maintaining these new requirements were onerous, unconstitutional and a particularly intimidating burden for seniors, low-income and disabled voters.

In Friday’s ruling, the judges argued it wasn’t fair that voters have had to comply with these new requirements since they were passed but this court injunction would remove them only for those who showed up on Election Day and registered to vote.

“These inconsistencies will impair the public interest,” the justices wrote.

Sununu praised the decision.

“This ruling is a major victory for election integrity in New Hampshire,” Sununu said in a statement.

The leader of a liberal voting rights group condemned the high court’s decision.

“We’re disappointed to see the New Hampshire Supreme Court restore the anti-voter provisions of Senate Bill 3, adding confusion to the process just days before a critically important election,” said Abe Rakov, who is chairman of the board for Let America Vote.

“This law already makes it harder for eligible Granite Staters to vote. Canceling an injunction and putting it back into effect at this late stage just injects more uncertainty into the voting process, harming voters and undermining our democracy.”

House Majority Whip and Rep. Kathleen Hoelzel, R-Raymond, said the decision was welcome but the entire controversy has created uncertainty.

“I’m glad the Supreme Court has resolved this matter for the time being, however, the lower court’s order and the publicity it has caused has now created questions in the minds of the public,” Hoelzel said.

“The bill is supposed to protect the integrity of the elections and now we have people questioning why the judges are involved in making the laws and creating confusion at the last minute.”

Former Executive Councilor Colin Van Ostern, a Concord Democrat, is challenging Gardner’s bid for another two-year term as the state’s top election official.

“The delay & complication our secretary of state helped sow has now forced the short-term legal ruling he wants, but at a real price of pre-election confusion by voters & local officials (just like last spring’s town meeting blizzard mess),” Van Ostern tweeted. “NH voters deserve better.”

The decision caps off a week of startling developments starting with Brown’s ruling against the state, a negotiated settlement between the parties about how the election law injunction would be dealt with and now this decision that at least for a few weeks returns the landscape to what existed before the lawsuit.

The justices make clear they are taking no position on the merits of the legal challenge to this law.

In addition, all of Judge Brown’s rulings setting aside provisions of the law will take effect after the election.

On Thursday, teams of lawyers on both sides of the lawsuit had met in the superior courthouse in Manchester to fashion a set of rules to govern voter registration in the wake of Brown’s injunction.

This decision now renders those talks moot.

Thursday’s hearing came after state election officials, the defendants in the case, had asked the high court to delay this injunction until after the midterm elections because they said it was causing confusion among local poll workers.

State election officials had pointed out that Gardner’s office had received more than 50 calls from local poll workers seeking clarification about Brown’s ruling.

But lawyers for the Democratic Party maintained that the injunction merely meant that the election was to be conducted the same way the 2016 case had.

“The only people saying they’re confused are the people who lost the case,” said Bill Christie, a lawyer representing the NH Democratic Party.

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