Opinion of the Justices (Definition of Resident and Residence) , 191 A.3d 1245 ( 2018 )

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THE SUPREME COURT OF` NEW HAMPSHIRE
Request of the Governor and Council
No. 2018-0267
OPINION OF THE JUSTICES
[Definition of Resident and Residence]
Submitted: May 31, 2018
Opinion Issued: July 12, 2018
On May 16, 2018, the Secretary of State transmitted to the chief justice
and the associate justices of the supreme court a certified copy of a resolution
of the Governor and Executive Council dated the same date requesting an
opinion of the justices regarding House Bill (l-IB] 1264, an act amending the
definition of “resident” and “residence” in RSA 21:6 and RSA 2l:6-a. The act
has been approved by the New Hampshire House of Representatives and the
New Hampshire Senate, and is currently pending in the enrolled bills process,
upon completion of which the bill will be placed before the Governor for his
action. The Governor and Executive Council have requested that the justices
give their opinion on the following questions of law:
“I. By subjecting those who are domiciled in New Hampshire for voting
purposes to the same legal requirements as those who are residents of New
I-Iampshire, including but not limited to the requirements to take actions
required by RSAs 261:45 and 263:35 and to pay any fees or taxes associated
therewith, would House Bill 1264, on its face, violate any of the following
provisions of the New Hampshire or United States Constitutions?
(a) 'I` he Equal Protection Clause of Part l, Article 2 of the New I-lampshire
Constitution_
(b) Part l, Article 11 of the New Hampshire Constitution.
[c) The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.
II, By subjecting those who are domiciled in New I-Iampshire for voting
purposes to the same legal requirements as those who are residents of New
Harnpshire, including but not limited to the requirements to take actions
required by RSAS 261:45 and 263:35 and to pay any fees or taxes associated
therewith, would House Bill 1264, as applied to students attending a
postsecondary institution within the State of New I-Iampshire who currently
claim New l-Iampshire as their domicile for voting purposes but who do not
claim New Hampshire as their residence, violate any of the following provisions
of the New Hampshire or United States Constitutions?
(a) The Equal Protection Clause of Part I, Article 2 of the New Harnpshire
Constitution.
(b) Part I, Article ll of the New Hampshire Constitution.
(c) The Equal Protection Clause of the F`ourteenth Amendment to the
United States Constitution.”
To the Honorable Govemor and Council.'
Upon receipt of the request, we invited interested parties to submit
memoranda addressing the above questions The undersigned justices of the
Supreme Court return the following separate replies to the questions presented
in your resolution
OPINION OF CHIEF JUSTICE LYNN AND JUSTICES HANTZ
MARCONI AND DONOVAN
l-laving reviewed these submissions and fully considered the issues, We
conclude that the request constitutes a proper circumstance for us to issue an
advisory opinion. Accordingly, we respectfully return our response that all of
the certified questions must be answered in the negative
l. Proprietv of an Advisorv Opinion
Part II, Article 74 of the New Hampshire Constitution provides: “Each
branch of the legislature as well as the governor and council shall have
authority to require the opinions of the justices of the supreme court upon
important questions of law and upon solemn occasions.” As we have often
noted, this provision of the constitution empowers the justices of this court to
render advisory opinions “only in carefully circumscribed situations.” Duncan
v. State, 166 N.I-l. 630, 640 (2014). Several interested parties urge us to
decline to issue an advisory opinion. Two arguments are advanced in support
of this position. First, it is argued that, because the Governor alone, rather
than the Governor and Council, has the exclusive authority to take action with
respect to HB 1264, by signing it, vetoing it, or allowing it to become law
without his signature § N.l-l. CONS’I`. pt. lI, art. 44, the Governor B
Council, as a body, has no interest that will be advanced by any advice given
by the justices in an advisory opinion. We find this argument unpersuasive
We acknowledge that we have not previously been asked for an advisory
opinion in a situation the same as that presented here I-Iowever, we have
previously answered questions in analogous circumstances In Opinion of the
Justices, 96 N.I-I. 513 (1949), the majority of the justices provided their
opinion, at the behest of the Governor and Council, concerning the
constitutionality of measures proposing the reorganization of agencies of the
executive branch of state government. Opinion of the Justices, 96 N.H. at 513-
14. The legislation authorizing the reorganization called for the Governor _
with the assistance of advice from a special commission, but without the
concurrence of the Council _ to adopt the measures, which would then
become law unless disapproved by concurrent resolution of both houses of the
legislature l_d. In providing our response, we observed that “the questions
submitted in the resolution of the Governor and Council pertain to their
executive duty.” _l_c_i. at 514. That being the case, we submitted our answers
“upon the assumption that our opinion may be of use to you in the
performance of the duties legally imposed upon you.” E. (quotation omitted).
We made a similar assumption as to the usefulness of our answers to the
functioning of the executive branch in Opinion of the Justices, 113 N.I-l. 87
(1973), where the questions submitted by the Governor and Council pertained
to the constitutionality of a footnote that the Governor, without Council
involvement, proposed to include in the budget he submitted to the legislature
See Opinion of the Justices, 113 N.H. at 88-89; see also Opinion of the
Justices, 79 N.H. 535 (1919).
Although we remain sensitive to the importance of confining our advisory
opinions to solemn occasions, we are satisfied that the request here comports
with the requirements of Part lI, Article 74. The Governor has the
constitutional responsibility to approve or veto HB 1264 or allow it to become
law without his signature He has expressed concerns as to its
constitutionality and, with the concurrence of the Council, whose role, M
B, is to serve as advisor to the Governor, has sought our guidance to aid him
in making his decision. Under these circumstances, we believe it is our duty to
answer the questions submitted
The other argument advanced in support of our declining to answer the
questions is that we have insufficient information to do so because providing
answers regarding voting rights issues requires factual development that can
only occur in the context of a fully litigated case ln support of this position,
the opponents of l-IB 1264 rely primarily on our decision in Opinion of the
Justices (Domicile for Voting Purposes}. fn that case, we asked to be excused
from answering a request for an advisory opinion from the New Hampshire
House of Representatives on a bill proposing to amend the definition of
domicile for voting purposes Opinion of the Justices (Domicile for Voti£g
Purposes}, 167 N.I-l. 539, 541 (2015]. As grounds, we observed that deciding
what level of scrutiny to apply to the proposed legislation would require us to
determine the extent of the burden which the measure imposed on the right to
vote E Q. at 542. Because that determination was a factual question, we
concluded that it could not be resolved in the context of an advisory opinion.
ld. We also noted that there was then pending before this court a litigated
case, Guare v. State of New Hampshire, “with a factual record developed over
two years” that raised similar legal issues to those raised by the House in its
request. ld. at 542-43.
Significantly, however, in subsequently addressing the merits of the
appeal in Guare, we did not find it necessary to rely upon any factual findings
made by the trial court in that case See Guare v. State of N.l-I., 167 N.H. 658
(2015). To the contrary, the appeal was based upon the trial court’s summary
judgment ruling _ in which the trial court was not permitted to resolve factual
disputes _ in favor of the parties who Challenged the legality of the voter
registration form at issue E. at 659-60. As we specifically observed, “the trial
court’s ruling was not based upon applying the challenged language to the
particular facts and circumstances of this case.” E. at 661. Accordingly, we
treated the court’s decision as “a determination that the language is facially
unconstitutional,” and thus Subject to § w review by this court. Q. We
then explained that the language used in the form was confusing, in that, on
its face, it was “susceptible of different interpretations.” E. at 664.1
More importantly, we found it unnecessary to determine, based on any
particular facts developed in the trial court, either the extent of the burden the
form’s language imposed on voting or the level of scrutiny to which it was
subject. w §. at 665. Rather, we assumed that the burden on voting was
not severe and therefore that the strict scrutiny test did not apply. Q.
Applying intermediate scrutiny, we held that, because the language on the form
was “confusing and inaccurate,” and therefore “could cause an otherwise
qualified voter not to register to vote in New I-lampshire,” it imposed an
unreasonable burden on the right to vote as a matter of law and therefore
violated Part I, Article 11 of the State Constitution. _lg`l_. at 665, 669.
1 We did point to testimony of several of the petitioners in Guare that they were confused by the
language of the form. But because we did not indicate that the trial court had made any findings
of fact regarding such testimony, that testimony could not have formed the basis for our review of
the court’s ruling on summaly judgment.
Consistent with the above discussion, we conclude here that we are able
to answer the questions submitted despite the absence of a factual record. As
we explain below, HB 1264 has no effect on eligibility to vote, and even if we
assume that its collateral consequences will discourage from voting in New
Hampshire some or all of those affected by the change in the law of residence
for other purposes, the bill serves the compelling state interest of insuring that
those allowed to vote in this state share a community of interest with the
population generally. Therefore, the bill satisfies Constitutional standards even
if, as we also assume without deciding, it is subject to the most exacting
standard of review.
ln their separate opinion, our colleagues decline to answer the submitted
questions on two grounds F`irst, with respect to questions l(a] through (c),
while willing to assume that HB 1264 serves the compelling state interest in
insuring that those allowed to vote in this state share a community of interest
with the population generally, they assert that, without a factual record, they
are unable to assess whether HB 1264 is “‘narrowly drawn’ to serve that
interest.” Yet they fail to explain what facts could require the legislature to
more narrowly tailor HB 1264 than to make the legal standard for domicile for
voting purposes equal to the legal standard for residence for other purposes ~
unless the State or Federal Constitution requires New Hampshire to maintain a
special, more relaxed legal standard for domicile for voting purposes only, a
proposition that, as explained below, fails as a matter of law.
Second, our colleagues assert an inability to answer questions ll(a]
through (c) because they claim, there is a factual dispute as to the purpose of
the legislation and one such purpose could be improper. I-Iowever, even if an
improper legislative purpose could be grounds for invalidating HB 1264 _
which, as we explain below, it is not _ we presume legislative enactments to be
constitutional See Opinion of the Justices (Reciuiring Att’v Gen. to Join
Lawsuitl, 162 N.l-l. 160, 164 (2011). Accordingly, to decline to give the
Governor and Council our opinion on the constitutionality of HB 1264 based
on the mere possibility that such a motive might exist is fundamentally at odds
with our precedents establishing the applicable standard of review. D M.
F`urthermore, our colleagues assume that questions Il(a) through (c)
should be treated as though they seek our opinion regarding a specific
individual’s special circumstancesl But, unlike a typical as-applied challenge
these questions do not ask about any circumstances more specific than the
general application of HB 1264 to the at-large population of students attending
postsecondary educational institutions in New Hampshire who currently claim
New Hampshire as their “domicile” for voting purposes but not as their
“residence” for other purposes The questions do not ask for our opinion as to
how the statute might apply to the circumstances of any particular student or
students, nor could we opine about the same without a factual record. §_ee
Opinion of the Justices, 129 N.H. at 290, 295 [1987]. Rather, fairly
understood, questions ll(a] through (c) ask us to opine only as to whether there
is anything about the status of being a “student” that would render application
of HB 1264 to such persons unconstitutional To provide answers to these
questions, we need to know nothing more than the facts postulated in the
questions themselves. Qf. Newburger v. Peterson, 344 F. Supp. 559, 560
(D.N.I-l. 1972] (observing that, although the plaintiff class comprised of all
students subject to New Hampshire’s then-existing statute for voting was
properly certified, it was “not the most comprehensive” class because it did not
include “a_ll [persons] who would be permitted to register [to vote] but for their
firm intention to leave at a fixed time” (emphasis added)).
For the above reasons, we respectfully disagree with our colleagues and
conclude that we are duty bound to answer the questions propounded by the
Governor and Council.
II. The Merits
A. Background
The distinction between the concepts of “residence” and “domicile” is
deeply engrained in American law. A person’s residence is generally
understood to be the place where he or she is currently living, even if only for
relatively short duration, whereas a person’s domicile is the place with which
the person “identifies himself and all his interests” and there “exercises the
rights and performs the duties of a citizen.” Bergmann v. Board of Regents,
892 A.2d 604, 626 (Md. Ct. Spec. App. 2006) (quotations omitted). Domicile is
thus universally understood to connote a more significant and lasting
connection with a locality than is encompassed by mere residence supporting
the conclusion that “one . . . may have more than one residence at the same
time, but only one domicile.” 28 C.J.S. Domicile § 5 (2008]; §_e_e Restatement
(Second) of Conflict of Laws § 11(2) [1988) (explaining that “[e]very person has a
domicile at all times and, at least for the same purpose, no person has more
than one domicile at a time”). To the same effect, we have described domicile
as consisting of actual residence coupled with an intention to remain. Felker v.
Henderson, 78 N.H. 509, 512 (1917}.
Despite the difference in meaning, the terms “domicile” and “residence”
are frequently used synonymously. 28 C.J.S. Domicile § 5. Prime examples of
this are RSA 21:6 and :6-a, entitled, respectively, “Resident; Inhabitant” and
“Residence,” which provide:
Resident; Inhabitant. A resident or inhabitant or both of
this state and of any city, town or other political subdivision of this
state shall be a person who is domiciled or has a place of abode or
both in this state and in any city, town or other political
subdivision of this state, and who has, through all of his actions,
6
demonstrated a current intent to designate that place of abode as
his principal place of physical presence for the indefinite future to
the exclusion of all others.
RSA 21:6 [2012].
Residence. Residence or residency shall mean a person’s
place of abode or domicile The place of abode or domicile is that
designated by a person as his principal place of physical presence
for the indefinite future to the exclusion of all others. Such
residence or residency shall not be interrupted or lost by a
temporary absence from it, if there is an intent to return to such
residence or residency as the principal place of physical presence
RSA 21:6-a (2012). Notwithstanding the use of the words “resident” and
“residence” in the titles of these sections, the language of the definitions makes
clear that they are intended to describe the intensity of connection to a place
that, at a minimum, satisfies the traditional test of domicile T he problem that
gives rise to the proposed change in the law of residency set forth in HB 1264
is that the above definitions have been interpreted to impose requirements that
go beyond the traditional definition of domicile The result _ counterintuitive
as it may be -- is that, notwithstanding the “resident” and “residence” labels
used in their titles, to satisfy the current definitions of RSA 21:6 and :6-a
requires a degree of connection to a place that is greater than that required to
be domiciled in this state for voting purposes pursuant to RSA 654:1, I [2016).2
To correct this problem, l-IB 1264 removes the words “for the indefinite future”
from the text of RSA 21:6 and :6-a.
The genesis of the problem described above first came to light many
years ago as the result of the decision in Newburger. Newburger was a class
action suit brought by a Dartmouth College student on behalf of “all voting age
students who wish to register in the communities where they reside while
attending school but who intend to leave those communities upon graduation.”
Newburger, 344 F. Supp. at 560. When the student attempted to register to
vote, he was denied “solely because he stated to voter registration officials that
he intended to leave Hanover upon his graduation.” l_d. Although the statute
then in effect granted the right to vote to an inhabitant “in the town in which
he dwells and has his home,” the voting authorities interpreted it to incorporate
the common law of domicile, as embodied in State v. Daniels, 44 N.H. 383
(1862), which, like the terms of Current RSA 21:6 and :6-a, required that the
2 The connection to place defined by RSA 21:6 and :6-a, either with or without the amendments
that would be effectuated if HB 1264 becomes law, satisfies the traditional test of domicile rather
than mere residency However, because the legislature labels the relationship thus defined as
“resident” or “residence,” to avoid confusion we also use those terms when describing persons
subject to RSA 21:6 and :6»a.
person have an intention to remain permanently or indefinitely in a particular
place in order to qualify as a domiciliary §§ Newburger, 344 F. Supp. at 560.
The district court ruled that “the indefinite intention requirement is [not]
necessary to serve a compelling [state] interest,” and therefore that its
application to the class “offends the equal protection clause of the Fourteenth
Amendment.” Q. at 563. ln reaching this decision, the court observed that
“the challenged New Hampshire law forces persons who are in every
meaningful sense members of New Hampshire political communities to vote in
communities elsewhere which they have long departed and with whose affairs
they are no longer concerned, if indeed the former community still recognizes
the right.” §§
Subsequent to the Newburger decision, New Hampshire amended its law
regarding domicile for voting purposes Currently, that law is codified in RSA
654:1, I, and I-a (2016), which provide:
I. Every inhabitant of the state, having a single established
domicile for voting purposes, being a citizen of the United States, of
the age provided for in Article 11 of Part First of the Constitution of
New Hampshire, shall have a right at any meeting or election, to
vote in the town, ward, or unincorporated place in which he or she
is domiciled An inhabitant’s domicile for voting purposes is that
one place where a person, more than any other place, has
established a physical presence and manifests an intent to
maintain a single continuous presence for domestic, social, and
civil purposes relevant to participating in democratic self-
government. A person has the right to change domicile at any
time, however a mere intention to change domicile in the future
does not, of itself, terminate an established domicile before the
person actually moves
l-a. A student of any institution of learning may lawfully claim
domicile for voting purposes in the New Hampshire town or city in
which he or she lives while attending such institution of learning if
such student’s claim of domicile otherwise meets the requirements
of RSA 654:1,1.
Until now, however, the legislature has never enacted legislation that removes
the “for the indefinite future” language from RSA 21:6 and :6-a.
The difference between the definition of domicile under RSA 654:1, I, and
l-a for voting purposes and, under RSA 2 116 and :6-a for most other purposes,
3 Significantly, the Newburger court had no occasion to address what other consequences flow
from persons being “in every meaningful sense members of New Hampshire political communities”
so as to be entitled to vote
is the issue underlying our decision in Guare. The plaintiffs in Guare were a
group of mostly college students who desired to vote in New Hampshire but
who did not believe that doing so required them thereafter to comply with other
laws that apply to persons meeting the definitions of RSA 21:6 and :6-a.
Guare, 167 N.l-I. at 659-60. They challenged language in the voter registration
form which stated that they were required to do so. E. As discussed above, we
agreed with the plaintiffs that the form was confusing because it could be
interpreted to mean that the definitions of “resident” and “residence” in RSA
21:6 and :6-a were the same as the definition of “domicile” in RSA 654:1, l. E.
at 664-65. The State conceded that such an interpretation was not accurate,
§. at 663, and thus it was undisputed that even though the plaintiffs were not
New Hampshire residents, they were entitled to vote in New Hampshire
because they were domiciled here E. Accordingly, we concluded that the
form could erroneously lead a prospective voter to believe that, by registering to
vote, the person would be required to register his or her car in New Hampshire
or to obtain a New Hampshire driver’s license Q. at 664-65.
HB 1264 redresses the confusion we identified in Guare. By removing
the words “for the indefinite future” from RSA 21:6 and :6-a, HB 1264 makes
the definitions of “resident” and “residence” as used in those statutes effectively
the same as the definition of “domicile” as used in RSA 654:1, l,
notwithstanding that the text of the amended version of RSA 21:6 and :6-a, on
the one hand, and RSA 654:1, l, on the other, is not identical.4
B. Analysis
The submitted questions ask our opinion as to whether HB 1264 violates
the equal protection clauses of the State or Federal Constitutions, §§ N.H.
CONST. pt. l, art. 2; U.S. CONST. amend. XIV, or the right to vote guaranteed
by the State Constitution, _s__e§ N.H. CONST. pt. l, art. 11, either facially or as
applied to students attending postsecondary educational institutions in New
Hampshire
When we interpret statutes already in effect, they are construed to avoid
conflict with constitutional rights whenever reasonably possible Opinion of
the Justices (Rec|uiring Att’v Gen. to Join Lawsuit], 162 N.H. at 164. The same
standard applies when we review proposed legislation, for it is understood that
the legislation if enacted will be construed harmoniously with an individual’s
constitutional rights in any given case E. Thus, in reviewing proposed
legislation, as when we review an existing statute we presume it to be
constitutional and will not declare it invalid except upon inescapable grounds
l_d_. This means that we will not hold the act to be unconstitutional unless a
4 None of the parties who have submitted memoranda in support of or in opposition to HB 1264
disputes that the bill makes the definitions of “resident” and “residence” in RSA 21 :6 and :6-a
equivalent to the definition of “domicile” in RSA 654:1, l.
clear and substantial conflict exists between it and the Constitution. M. lt also
means that when doubts exist as to the constitutionality of a legislative act,
those doubts must be resolved in favor of its constitutionality _I_d_.
Before we proceed to address specific arguments advanced in support of
or in opposition to HB 1264, we observe that the fundamental issue posed by
the questions submitted is whether the State or Federal Constitution requires
the State of New Hampshire to permit persons to vote in this state who seek to
claim residency here only for voting purposes while eschewing this status for
other purposes We have no hesitancy in opining that not only does New
Hampshire have no such constitutional obligation but, quite the contraiy, it
has a compelling state interest not to do so.5
Although the submitted questions are directed to the equal protection
clauses of both the State and Federal Constitutions, we have previously held
that the F`ourteenth Amendment provides no greater level of protection than
does Part l, Article 2 of the New Hampshire Constitution, se_e In re Sandra H.,
150 N.H. 634, 637 (2004), and we have applied an analysis identical to that
used by the federal courts in considering claims raised under either
constitution, §_e_§ id at 637-40. ln addition, when considering claims raised
under Part l, Article 11 of the State Constitution, we have used the same level
of scrutiny analysis used in considering equal protection claims involving
voting rights under the State and Federal Constitutions Y Akins v. Sec’y of
State, 154 N.H. 67, 71-73 (2006). For these reasons, we conclude that the
analysis required to address all of the submitted questions is the same, and
that we therefore need not repeat the analysis separately for each question
Furthermore, with respect to questions II(a) through (c], we answer these
questions making the assumptions that the opponents of I-IB 1264 urge in
challenging its constitutionality: that students who come to New Hampshire
from other states to attend institutions of postsecondary education will
comprise a substantial portion of those impacted by HB 1264 and that, if the
bill becomes law, a significant number of this group who would have voted in
New Hampshire in the absence of HB 1264 will not do so.
Part l, Article 11 of the New Hampshire Constitution provides in
pertinent part:
All elections are to be free, and every inhabitant of the state
of 18 years of age and upwards shall have an equal right to vote in
any election. Every person shall be considered an inhabitant for
5 Thus, we disagree with the intimation iri our colleagues’ opinion that there is a viable claim of
“first impression” under either the State or Federal Constitution that a state must have a special,
relaxed legal standard for domicile for voting purposes only.
10
the purposes of voting in the town, ward, or unincorporated place
where he has his domicile
The right to vote is a fundamental right. Akins, 154 N.H. at 71. Challenges to
legislation affecting the right to vote are reviewed under differing standards
depending upon the extent of the burden imposed on the right. §§ E. at 72.
When a measure subjects voting rights to “severe” restrictions it must be
“narrowly drawn to advance a state interest of compelling importance.” Guare,
167 N.l-l. at 663 (quotation omitted]. “But when a state election law provision
imposes only reasonable nondiscriminatory restrictions upon the rights of
voters, the State’s important regulatory interests are generally sufficient to
justify the restrictions” E. (quotations omitted).
ln urging affirmative answers to the submitted questions, those who
oppose l-lB 1264 argue that it violates the State and F`ederal Constitutions
because the bill imposes severe, or at least significant, restrictions on the right
to vote that are not justified by either compelling, or even important, state
interests, constitutes a prohibited “poll tax,” and improperly discriminates
against young voters These arguments, however, misconstrue the purpose
and effect of HB 1264.
HB 1264 does not affect the eligibility of persons to vote in New
Hampshire elections “The domicile test for determining where citizens may
vote dominates the election laws of most states.” Wit v. Berman, 306 F.3d
1256, 1261 (2d Cir. 2002) (citing Annotation, Residence of Students for Voting
Purposes, 44 A.L.R.Sd 797 § 2, at 801 (1972), for the proposition that “[i]t is a
matter of virtually uniform recognition that, where state constitutional and
statutory provisions limit the right to vote to the residents of a given
geographical area, the term residence should be equated with the concept of
domicile” (quotations omitted)). As discussed above, our state’s definition of
domicile for voting purposes is set forth in RSA 654:1, l, and nothing in I-IB
1264 purports to change the terms of that statute Accordingly, all persons
who qualify as domiciliaries of this state at the present time will remain
qualified as domiciliaries if l-IB 1264 is enacted into law.
Instead, HB 1264 amends the definitions of “resident” and “residence” in
RSA 21:6 and :6-a for purposes of the application of other provisions of New
Hampshire law so that those definitions are equivalent to the definition of
“domicile” found in RSA 654:1, I. Thus, for example, if l-IB 1264 becomes law,
persons who are domiciled in New Hampshire for voting purposes also will be
residents for purposes of the requirement that, if they own a motor vehicle
they must register their motor vehicle in New Hampshire, B RSA 261:45, l
{Supp. 2017), and, if they drive, they must obtain a New Hampshire driver’s
license, L RSA 263:35 (2014). Viewed from this perspective it is apparent
that the premise of the opponents’ arguments is that New Hampshire is
required to have a special rule of domicile solely for voting purposes, so that
11
persons are allowed to vote here without assuming the other obligations of
citizenship normally imposed The opponents of the bill have not cited, nor are
we aware of, any authority supporting such a requirement under the F`ederal
Constitution or the constitution of any state
Moreover, even assuming that the elimination of RSA 654:1, I’s “special”
domicile rule for voting purposes that would result from the enactment of HB
1264 could be viewed as imposing a “burden” on those voters who now are able
to take advantage of that special rule but Who will no longer be able to do So
once the definitions of “domicile” and “residence” are made equivalent, the
State has a compelling justification for making that change ’l`he Supreme
Court and other courts have repeatedly emphasized that insuring that those
who are permitted to vote are bona fide residents who share a community of
interest with other citizens of the jurisdiction is a legitimate concern of the
highest order.6 See, eg., Dunn v. Blumstein, 405 U.S. 330, 343-44 (1972}
6 Our colleagues express concern that the State’s interest in insuring that voters share a
“community of interest” is “susceptible of abuse” and may serve as a pretext for “fencing out
from the franchise a sector of the population because of the way they may vote,” citing Dunn v.
Blumstein and Evans v. Cornman in support. Those cases are however, readily
distinguishable and, in fact, support our conclusion that the State may constitutionally require
that persons who desire to vote in New Hampshire be residents of the state. In Dunn, the
Supreme Court reviewed a challenge to Tennessee’s durational residence requirement under
which, in addition to being a resident, a would-be voter was required to have been a resident
for one year in the state and three months in the county in which he or she sought to register
to vote Dunn v. Blumstein, 405 U.S. 330, 334 (1972}. As the Court expressly noted, the case
did not present a challenge to Tennessee’s “power to restrict the vote to bona fide Tennessee
residents,” but, rather, challenged the “additional durational residence requirement.” E. ln
determining whether Tennessee had shown that durational requirements were needed to
further a sufficiently substantial state interest, the Court emphasized “the difference between
bona fide residence requirements and durational residence requirements,” reiterating that it
had on several occasions “noted approvingly that the States have the power to require that
voters be bona fide residents of the relevant political subdivision.” E. at 343. As the Court
stated, “[a]n appropriately defined and uniformly applied requirement of bona fide residence
may be necessary to preserve the basic conception of a political community, and therefore
could withstand close constitutional scrutiny, But durational residence requirements
representing a separate voting qualification imposed on bona fide residents, must be separately
tested by the stringent standard.” Q. at 343-44. In rejecting the State’s proffered justification
for the durational requirement as a means of determining whether certain persons in the
community were bona fide residents, g Q. at 351, the Court reasoned that it was “not very
difficult for Tennessee to determine on an individualized basis whether one recently arrived in
the community is in fact a resident,” Q., and that it was “unlikely that would-be fraudulent
voters . . . would collect such objective indicia of bona fide residence as a dwelling, car
registration, or driver’s license.” E. at 352. ln Evans, the Court noted that the State of
Marylarid’s proffered reason for denying the vote to residents of a federal enclave within the
state to “insure that only those citizens who are primarily or substantially interested in or
affected by electoral decisions have a voice in making them” was “assumed . . . [to] be
sufficiently compelling to justify limitations on the suffrage at least with regard to some
elections.” Evans v. Cornman, 398 U.S. 419, 422 (1970]. However, given that the residents of
the enclave paid state income gasoline sales, and use taxes, and were required to register
their automobiles in Maryland and obtain drivers’ permits and license plates from the state
12
(recognizing that “[a]n appropriately defined and uniformly applied requirement
of bona fide residence may be necessary to preserve the basic conception of a
political community, and therefore could withstand close constitutional
scrutiny”); Carrington v. Rash, 380 U.S. 89, 91 (1965) (stating that “Texas has
unquestioned power to impose reasonable residence restrictions on the
availability of the ballot”); Auerbach v. Rettaliata, 765 F.2d 350, 354-55 [2d Cir.
1985) [assuming that strict scrutiny standard applied, court upheld a state
voter registration law that “distinguishes students by subjecting them, along
with other groups likely to include transients, to the risk of a more searching
inquiry than is applicable to prospective registrants generally” because “[b]y
identifying classes of persons whose residence for voting purposes and whose
physical residence may not coincide” the statute “permissibly aids the State in
ferreting out those whose claimed residence is not bona fide” (quotation
omitted)).
lnsuring a community of interest among voters and residents promotes
confidence in political outcomes and guards against a distortion of the political
community. ln Dunn, Justice Marshall aptly described one of the harms
against which residency requirements are designed to protect:
The impurities feared . . . all involve voting by nonresidents, either
singly or in groups The main concern is that nonresidents will
temporarily invade the State or county, falsely swear that they are
residents to become eligible to vote and, by voting, allow a
candidate to win by fraud. Surelv the prevention of such fraud is a
legitimate and compelling government goal
Dunn, 405 U.S. at 345 (emphasis added); § M W_it, 306 F.3d at 1263
(noting, in a related context, that “some political organizations might well find
it in their interests to attempt to register large numbers of persons with only
marginal connections to the electoral district”). ’I"hese potential aberrations in
voting behaviors severely undermine notions of representative government
Under RSA 654:1, l, persons entitled to vote in New Hampshire are those
who not only are present in the state but who also regard New Hampshire as
“that one place where [they], more than any other place [have] established a
physical presence and manifest[ ] an intent to maintain a single continuous
presence for domestic, social, and Civil purposes relevant to participating in
democratic self-government.” RSA 654:1, l. Domicile is sometimes presumed in
the state in which a person is registered to vote; at the very least, where a
person votes is regarded as a “weighty factor” in the determination of one’s
domicile see Bank One, Texas, N.A. v. Montle 964 F`.2d 48, 50 (1st Cir. 1992);
such residents were effectively treated as state residents to such an extent that it was
unconstitutional to deny them the right to vote E. at 424-25.
13
§ M Mass. Gen. Laws ch. 90, § 31/2 (a)(l l) (2012) (providing that a person
claiming to be a nonresident and therefore exempt from registering his or her
motor vehicle in Massachusetts “shall be deemed to be a resident of the
commonwealth during any period in which such person . . . is registered to vote
in the commonwealth”]. Thus, a person who considers his or her connection to
New Hampshire to be of the strength and character necessary to satisfy RSA
654:1, l, may constitutionally be expected to demonstrate such commitment by
registering his or her motor vehicle in this state if the person has one, or
obtaining a New Hampshire license if the person drives a motor vehicle §§§_
Evans v. Cornman, 398 U.S. 419, 424 (1970) (noting, as a factor supporting its
decision that Maryland could not constitutionally deny the right to vote to
individuals living on a federal enclave within the state that such persons “are
required to register their automobiles in Maryland and obtain drivers’ permits
and license plates from the State”]. lndeed, because driving is ubiquitous and
because every state regulates this activity, obtaining an in-state driver’s license
and registering one’s vehicle in the state are universally recognized as important
indicators that a person does in fact have his or her domicile in that state S£z
Q._g;, Vlandis v. Kline, 412 U.S. 441, 448, 454 (1973)', Washington v. Hovensa
LL_,Q, 652 F.3d 340, 344 (3d Cir. 2011); Bank One, 964 F.2d at 50; Brown v.
l\/lutual of New York Life lns. Co., 213 F. Supp. 2d 667, 669 (S.D. Miss. 2002].
The current incongruity between RSA 654:1, l, and RSA 21 :6 and :6-a,
permits all of the following persons, allegedly “nonresidents,” as described in
Newburger, to vote in New Hampshire without incurring responsibility for these
and other obligations of state citizenship:
[A] student candid enough to say that he intends to move on after
graduation, a newly-arrived executive with a firm intention to retire
to his Florida cottage at age 65, a hospital intern or resident with a
career plan that gives him two or three years in New Hampshire a
construction worker on a long but time-limited job, an industrial or
government trainee working up a precise career ladder, a research
contractor on a project with a deadline a city manager hired for a
term, a military person on a term of duty, a hospital patient with a
hoped-for goal of discharge
Newburger, 344 F. Supp. at 563. As demonstrated by the references to its
legislative history and to public remarks made by its legislative supporters as
catalogued in memoranda submitted to us, correcting this imbalance of rights
and responsibilities was precisely the purpose of HB 1264.
Because we determine that l-lB 1264 is justified by a compelling state
interest, we next consider whether it is narrowly drawn to advance that
interest _S_e_e Guare, 167 N.H. at 663; § M Akins, 154 N.H. at 73
(explaining that to satisfy strict scrutiny, the challenged law “must be
necessary to the accomplishment of its legitimate purpose” [quotation
14
omitted}}. We conclude that HB 1264 is narrowly drawn to advance the
compelling governmental interest in insuring that voters are full members of
the electoral community. T he remedy effectuated by HB 1264 accomplishes
this objective by equalizing the legal standard for domicile for voting purposes
with the legal standard for residence for other purposes ln order to place
voters and residents on equal footing as New Hampshire citizens, the
legislation necessarily removes the distinction between the two. HB 1264 could
be drawn more narrowly only if it left in place to some degree the dichotomy
between the definitions so that some persons would be permitted to claim their
domicile in New Hampshire for voting purposes yet avoid incurring other
obligations of state citizenship that apply to all residents of the state That
would defeat the purpose of the legislation, and, as noted previously, we are
aware of no authority supporting the proposition that there are M
circumstances under which a state has a constitutional obligation to maintain
a more relaxed legal standard for domicile for voting purposes than for other
purposes ln short, unlike our colleagues, we discern no factual development
that could have a bearing on whether the State can make the legal standard for
domicile for voting purposes and the legal standard for residents for other
purposes the same other than enacting legislation to do just that.
The opponents of I-IB 1264 contend that the bill discriminates against
voters because its effect is to require a person who registers to vote to declare
his or her residency in New Hampshire while a person who does not vote need
not do so. This argument misses the mark for three reasons First, the criteria
for residency established under HB 1264, which is equivalent to that applied to
voting under RSA 654:1, l, will apply to a_ll persons subject to its terms,
whether or not they seek to vote
Second, to the extent the opponents suggest that the act of registering to
vote is the event that will alert authorities to question a person’s status as a
bona fide resident, this may sometimes be true But it is also true that similar
scrutiny could result from many other kinds of interactions between the person
and a governmental official of one kind or another. Such interactions might
include for example applying for a local library card, dump permit, or some
kind of government benefit. A person who does those things claiming to be a
resident of New Hampshire but produces an out-of-state driver’s license as a
form of identification, could well be subjected to official scrutiny as to the bona
fides of his or her residency in a manner similar to that which would attend
registering to vote
Third, and most importantly, even if the act of registering to vote were
assumed to be the most likely cause of an official inquiry designed to enforce
compliance with the other responsibilities of residency, the State’s compelling
interest in insuring bona fide residency for voting purposes provides adequate
justification for doing so. S_ee Auerbach, 765 F`.2d at 354-55. Simply put, the
State may legitimately establish procedures by which persons who may be
15
tempted to insincerely claim domicile for voting purposes are discouraged from
doing so by the prospect that such a claim can result in their incurring the full
panoply of obligations imposed on all other state residents7
The opponents of HB 1264 also claim that it constitutes an
unconstitutional poll tax because it requires a person desiring to vote in New
Hampshire to incur the expense of registering his or her motor vehicle in the
state and obtaining a New Hampshire driver’s license There is no question
that states may not condition the right to vote on the payment of a tax or fee
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966). However, the
opponents of l-IB 1264 are mistaken when they claim that the bill conditions
voting on the payment of motor vehicle fees or taxes Rather, if a person
becomes obligated to pay such fees or taxes, it will not be because the person
votes, but because the person owns or drives a motor vehicle and is a resident
of this state Thus, a person who claims domicile in New Hampshire for voting
purposes but who does not drive or own a motor vehicle will have no obligation
to pay motor vehicle related fees By the same token, a person who qualifies as
a resident under the law proposed by l-IB 1264 and who does drive or own a
motor vehicle will be subject to New Hampshire motor vehicle laws regardless
of whether he or she votes8
The opponents of l-lB 1264 suggest that, under the bill, persons who
qualify as residents of the state but who drive without a New Hampshire
license or own vehicles that are not registered in New Hampshire will be more
likely to remain “under the radar screen,” and thus avoid detection if they do
not register to vote This circumstance the opponents claim, means that
voting is the act that, as a practical matter, will trigger the obligation for such
persons to incur motor vehicle taxes and fees, thus demonstrating that HB
1264 will effectively operate as a poll tax. The short answer to this argument is
that, even if we were to assume the posited scenario to be accurate we are
aware of no constitutional principle that requires a state to forego its
compelling interest in insuring that voters are bona fide residents in order to
lessen the prospects of detection for those inclined to evade unrelated, yet
entirely proper, requirements of state law.
7 lndeed, not to correct this problem could be viewed as fundamentally inconsistent with a
founding principle of our country _ instead of “no taxation without representation” - current
law effectively allows some to obtain representation without the payment of taxes or fees to
which other similarly situated persons are subjected
3 The removal of the “for the indefinite future” language from RSA 2 116 and :6-a presumably will
have consequences beyond the context of motor vehicle fees and taxes lt also may mean, for
example that if HB 1264 becomes law, some persons who currently may be able to avoid paying
New Hampshire taxes on all their interest and dividends income (including that derived from out-
of-state sources) based on a claim of nonresidency may no longer be able to do so. §§ RSA 77:3,
l(a) (Supp. 2017) (requiring residents to pay tax on gross interest and dividends income “from a_ll
sources” that exceeds $2,400 per year (emphasis added)).
16
Finally, the opponents of l-IB 1264 assert that it unconstitutionally
discriminates on the basis of age The thesis appears to be that the legislation
is aimed to discourage voting by college students who as a group are likely to
be younger than the voting population generally. However, HB 1264 is facially
neutral and applies to all persons without regard to their age or student status,
and the opponents do not claim that either age or student status is a suspect
or protected class for constitutional purposes in this context. Further, as
discussed previously, we have never interpreted our State Constitution’s equal
protection guarantee to provide greater protection than its Fourteenth
Amendment counterpart, In re Sandra H., 150 N.l-l. at 637, and it is settled law
that the latter affords protection only against intentional discrimination,
Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 264-65 (1977].
lndeed, to the extent the opponents of HB 1264 allege a nefarious legislative
purpose such a purpose “is not a recognized basis for declaring a statute
unconstitutional,” Libertarian Partv N.H. v. State 154 N.H. 376, 387 (2006), at
least where as here the legislation does not, on its face have the inevitable
effect of disqualifying otherwise qualified voters, see United States v. O’Brien,
391 U.S. 367, 383-84 (1968].9 Moreover, what opponents of HB 1264
characterize as the legislatures discriminatory intent to “disenfranchise voters”
is based on circular reasoning, in that it assumes the point at issue. That is,
the claim is premised entirely upon the assumption that the targeted persons
have a constitutional right to vote in New Hampshire when the very purpose of
the legislation is to establish a more reliable system by which that question is
determined T hat those likely affected by the remedy thus fashioned may not
be dispersed evenly by age among the population does not violate the
constitutional rights of students or any other group who may be disparately
impacted.
To summarize if l-IB 1264 becomes law, out-of-state students who come
to New Hampshire to attend a postsecondary institution, or others, as
described in Newburger, who are similarly situated, will have a choice If, while
here such persons come to regard New Hampshire as “home” and establish
9 Our colleagues’ opinion appears to be predicated in part on the view that if the purpose of HB
1264 were “found” (presumably by a trial judge) to be to disenfranchise students because of the
way they may vote the legislation would be invalid, thus meaning that New Hampshire would be
required to continue to maintain a special, for-voting-purposes-only domicile rule The
unarticulated though necessary premise of this view is that such a finding would trump the
State’s compelling interest in ensuring that people who vote in New Hampshire actually do live
here But that is not how the law operates On the contrary, a law that is narrowly tailored to
further a compelling State interest is valid even when, for example it specifically classifies persons
on the basis of an otherwise forbidden distinction, such as race or ethnicity. §ee Miller v.
Johnson, 515 U.S. 900, 920 (1995} (reasoning that because race was “the predominant, overriding
factor” explaining the Georgia legislatures redistricting plan, that plan “cannot be upheld unless it
satisfies strict scrutinv\ our most rigorous standard of constitutional review“” (emphasis added));
§§ gng Grutter v. Bollinger, 539 U.S. 306, 343-44 (2003) (upholding narrowly tailored use of race
as a factor in law school admissions decisions because it furthered the school’s compelling
interest in obtaining benefits of diversity).
17
sufficient attachment to the state to satisfy the requirements of domicile then
they will be entitled to vote here But if New Hampshire does become their
domicile they also will incur the same obligations of state citizenship as are
imposed on all other residents of the state On the other hand, if such persons
regard some other place as home and choose to maintain their domicile there
then that place rather than New Hampshire is where they must vote but they
also may not then be obligated to obtain a New Hampshire license in order to
drive or to register their motor vehicle in this state There is nothing unfair or
unconstitutional about state laws that require persons to make this choice
Ill. Conclusion
F`or the reasons stated above we answer “no” to each of the six questions
submitted to us by the l-lonorable Governor and Executive Council.
Respectfully submitted,
/a:/Jd£a
Robert J Ly%
Chief Justice
Anna Barbara I-lantz Mar
Associate Justice
y
Patrick E. Donovan
Associate Justice
18
OPlNlON OF` JUSTICES HICKS AND BASSETT
House Bill (HB) 1264 proposes to amend the statutory definitions of
“resident” and “residence” as set forth in RSA 21:6 (2012) and RSA 21:6-a
(2012). Both the proponents and opponents of I-lB 1264 posit that the
proposed amendments will render the statutory definitions of “resident” and
“residence” equivalent to the statutory definition of “domicile.” E RSA 654:1,
l (2016). Assuming this to be the case for purposes of this advisory opinion,
I-IB 1264, if it were to become law, would subject those who are “domiciled” in
New Hampshire for voting purposes to the same legal requirements as those
who are “residents” of the State _ eg, HB 1264 would require them to register
their vehicles here g RSA 261:45 (Supp. 2017), and to obtain a New
Hampshire driver’s license § RSA 263:35 (2014).
The Governor and Council have asked us to opine upon two questions
regarding the constitutionality of l-lB 1264. ln the first question, we are asked
whether, on its face HB 1264 would violate either: (a) the equal protection
clauses of the State or Federal Constitutions; or (b) Part I, Article 11 of the
State Constitution. In the second question, we are asked whether I-lB 1264
would violate the foregoing constitutional provisions as applied to certain
students attending a postsecondary institution in New Hampshire We
respectfully request to be excused from answering both questions
Part ll, Article 74 of the State Constitution “empowers the justices of the
supreme court to render advisory opinions, outside the context of concrete
fully-developed factual situations and without the benefit of adversary legal
presentations only in carefully circumscribed situations.” Duncan v.
State 166 N.H. 630, 640 (2014) (quotation omitted). When we issue such
opinions “we act not as a court, but as individual constitutional advisors to
the legislative or executive branches” Opinion of the Justices (Appointment of
Chief Justice), 150 N.H. 355, 356 (2003). “Because an opinion of the justices is
an advisory opinion issued to a branch of the legislature Governor, or
Executive Council, and is not an opinion of the court in a litigated case an
opinion of the justices does not constitute binding precedent.” Opinion of the
Justices (Domicile for Voting Purposes), 167 N.H. 539, 542 (2015]. The
constitutional duty of the justices of the supreme court to give advisory
opinions does not include answering legal questions that require resolving
questions of fact. E.
l
The first question concerns the facial constitutional validity of HB 1264.
“A facial challenge is a head-on attack of a legislative judgment, an assertion
that the challenged [law] violates the Constitution in all, or virtually all, of its
applications.” State v. Hollenbeck, 164 N.H. 154, 158 (2012) (quotation
omitted). For l-IB 1264 to be facially unconstitutional, there must be “no set of
19
circumstances” under which it would be valid. E. (quotation omitted); g
United States v. Salerno, 481 U.S. 739, 745 [1987). In making such a
determination, a court “must be careful not to go beyond [a law’s] facial
requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”
Washing_ton State Grange v. Washington State Republican Partv, 552 U.S. 442,
450(2008l
When we interpret statutes already in effect, we construe them to avoid
conflict with constitutional rights wherever reasonably possible Opinion of the
Justices [Certain Evidence in Sexual Assault Cases), 140 N.H. 22, 26 {1995].
This principle also applies when the justices review the constitutionality of
proposed legislation in an opinion of the justices “for it is understood that the
statute if enacted will be construed harmoniously with an individual’s
Constitutional rights in any given case.” E. at 26-27. Although HB 1264 has
not yet been enacted, we must presume that it is constitutional and will not
declare it to be invalid except upon inescapable grounds w Opinion of the
Justices (Requiring Att’v Gen. to Join Lawsuit], 162 N.H. 160, 164 (2011).
l-Iowever, the presumption of constitutionality does not apply to disputed facts
that are critical to our constitutional analysis
The first question asks whether HB 1264 is facially constitutional under
Part I, Article 11 of the New Hampshire Constitution, the Equal Protection
Clause of the New Hampshire Constitution, and /or the Federal Equal
Protection Clause E N.H. CONST. pt. l, arts 2, 11; U.S. CONST. amend.
XIV. Part I, Article 1 1 of the State Constitution provides in relevant part: “All
elections are to be free and every inhabitant of the state of 18 years of age and
upwards shall have an equal right to vote in any election.” The court has
previously held that the equal right to vote as set forth in Part l, Article 11, is
fundamental Akins v. Sec’v of State 154 N.l-l. 67, 71 (2006).
“Although the right to vote is fundamental, we do not necessarily subject
g_ny impingement upon that right to strict scrutiny.” Guare v. State of N.H_,
167 N.I-I. 658, 663 (2015). “Instead, we apply a balancing test to determine the
level of scrutiny that we must apply.” l_c_i. We agree with our colleagues that
the same balancing test applies under all three constitutional provisions
implicated by the first question. See Libertarian Partv N.H. v. State 154 N.l-I,
376, 383-84 (2006); see also Crawford v. Marion Countv Election Bd., 553 U.S.
181, 190 (2008) (plurality opinion of Stevens, J.) (when evaluating an equal
protection challenge involving the fundamental right to vote the court applies a
“balancing approach” under which it “identiflies] and evaluate[s] the interests
put forward by the State as justifications for the burden imposed by its rule”];
Crawford, 553 U.S. at 204-05 (Scalia, J., concurring) (referring to the same
“flexible” balancing approach as a rigid rule].
Pursuant to that balancing test, determining whether I-IB 1264
unconstitutionally infringes upon a complaining party’s equal right to vote
20
requires weighing “the character and magnitude of the asserted injury to the
rights that [a complaining party] seeks to vindicate against the precise interests
put forward by the State as justifications for the burden imposed by its rule
taking into consideration the extent to which those interests make it necessary
to burden the [complaining party’s] rights.” Akins 154 N.H. at 72 (quotation
and ellipsis omitted); see Burdick v. Takushi, 504 U.S. 428, 434 (1992]. Under
this balancing test, “the rigorousness of our inquiry into the propriety of [an]
. . election law depends upon the extent to which a challenged regulation
burdens” a complaining party’s equal right to vote Burdick, 504 U.S. at 434.
When those rights are subjected to “severe” restrictions the law must
withstand strict scrutiny to be constitutional Akins, 154 N.I-l. at 72 (quotation
omitted); § Burdick, 504 U.S. at 434. To withstand strict scrutiny, the law
must be “narrowly drawn to advance a state interest of compelling importance.”
Guare, 167 N.H. at 663 (quotation omitted); g Burdick, 504 U.S. at 434.
When an election law imposes only “reasonable, nondiscriminatory restrictions”
upon the rights of voters “the State’s important regulatory interests are
generally sufficient to justify the restrictions” Burdick, 504 U.S. at 434
(quotations omitted); g Guare 167 N.l-l. at 663.
Our balancing test also includes a level of scrutiny that is similar to
intermediate scrutiny. Guare, 167 N.H. at 667. Under that test, the State
must “articulate specific, rather than abstract state interests and explain why
the particular restriction imposed is actually necessary, meaning it actually
addresses the interest set forth.” ld. (quotation omitted).
ln Opinion of the Justices (Domicile for Voting Purposes), the justices
described the analysis required by the balancing test set forth above as
“inherently fact-specific.” Opinion of the Justices (Domicile for Voting
Purposesl, 167 N.l-I. at 542. ln that opinion, the justices asked to be excused
from answering whether proposed legislation violated Part l, Article 11, in part,
because of the lack of a developed factual record. E. at 543. As we explain
below, the lack of a developed factual record in this case sufficiently inhibits
our ability to answer the first question that We must respectfully request to be
excused from answering it.
The proponents of HB 1264 assert that the bill imposes no burden on the
right to vote The opponents counter that the burden imposed is severe
Without a developed factual record, we cannot evaluate the merits of these
conflicting claims E Q. at 542; see also Anderson v. Celebrezze, 460 U.S.
780, 789 (1983) (stating that “[c]onstitutional challenges to specific provisions
of a State’s election laws . . . cannot be resolved by any ‘litmus-paper test’ that
will separate valid from invalid restrictions”; rather, “a court must resolve such
a challenge” by first considering the “character and magnitude of the asserted
injury” to voting rights]. However, for the purposes of this opinion, given the
21
lack of a factual record, like our colleagues we assume that I-IB 1264 severely
burdens the fundamental right to vote10
That assumption triggers the requirement that l-lB 1264 satisfy the strict
scrutiny standard, meaning that it must be “narrowly drawn to advance a state
interest of compelling importance.” Burdick, 504 U.S. at 434 (quotation
omitted); g Guare, 167 N.H. at 663. The lack of a factual record hampers our
ability to determine whether HB 1264 satisfies this test.
When determining the State’s interest in legislation under strict scrutiny,
we must examine the “precise interests put forward by the State as
justifications for the burden.” Guare, 167 N.H. at 663 (quotation omitted).
Here the New Hampshire Senate does not explicitly argue that a compelling
state interest justifies the burdens imposed on voters by I-IB 1264. The New
Hampshire House of Representatives (House), on the other hand, asserts that
those burdens are “necessary to accomplish the State’s compelling interest in
incentivizing voters to have a stable connection to the community where they
exercise their franchise,” F`or their part, opponents of HB 1264 contend that
there is “absolutely no legitimate justification” for the proposed law, much less
a compelling interest.
Our colleagues credit the interest advanced by the l-Iouse and conclude
that l-IB 1264 “serves the compelling state interest of insuring that those
allowed to vote in this state share a community of interest with the population
generally.” We recognize that the State “has unquestioned power to impose
reasonable residence restrictions on the availability of the ballot,” and to
require all voters to be “bona fide” state residents.11 Carrington v. Rash, 380
U.S. 89, 91, 94 {1965). “An appropriately defined and uniformly applied
requirement of bona fide residence may be necessary to preserve the basic
conception of a political community . . . .” Dunn v. Blumstein, 405 U.S. 330,
343-44 [1972). But, if voters are in fact, bona fide New Hampshire residents
who intend to make New Hampshire their home then “they, as all other
qualified residents have a right to an equal opportunity for political
representation.” Carrington, 380 U.S. at 94. While we agree with our
colleagues that ensuring that voters share a “cornmunity of interest” is indeed,
a compelling state interest, it is also “susceptible of abuse.” Dunn, 405 U.S. at
356 (referring to state ’s interest in limiting the franchise to voters who are
knowledgeable about the issues]. As the United States Supreme Court
explained in Evans v. Cornman, we cannot “lightly . . . accept[ ]” a claim that a
law is intended to “insure that only those citizens who are primarily or
substantially interested in or affected by electoral decisions have a voice in
19 lt may be that, after development of a factual record, we would conclude that a less rigorous
standard should apply. But we do not have the facts before us at this time
11 Notably, the proponents do not claim that the purpose or effect of l-lB 1264 is to prevent
voter fraud. Nor do they assert that the voters impacted by it are not “bona fide” residents
22
making them.” Evans v. Cornman, 398 U.S. 419, 422 (1970] (citations
omitted). “All too often, lack of a ‘substantial interest’ might mean no more
than a different interest, and ‘fencing out’ from the franchise a sector of the
population because of the way they may vote is constitutionally
impermissible.” Q. at 423 (quotation and brackets omitted); _s_e_e E. at 426
(determining that precluding residents of a federal enclave from voting did not
serve State’s compelling interest in preserving political community because the
residents were “just as interested in and connected with electoral decisions” as
“their neighbors who live off the enclave”).
Here even if we assume that the interest asserted by the House
constitutes the State’s “precise” interest and that it is compelling, we are
unable absent a factual record, to determine whether HB 1264 is “narrowly
drawn” to serve that interest. Burdick, 504 U.S. at 434 (quotation omitted).
Determining whether a law is narrowly drawn requires evaluating whether
“there are other, reasonable ways to achieve” the State’s compelling interests
“with a lesser burden on a constitutionally protected activity.” Dunn, 405 U.S.
at 343; c_f. Grutter v. Bollinger, 539 U.S. 306, 341 (2003} (explaining that a
race-conscious admissions program meets the “narrowly tailored” requirement
if it does not “unduly harm members of any racial group”). Without a factual
record, we are unable to make that determination § Cruz v. Melecio, 204
F`.3d 14, 22 (1st Cir. 2000) (explaining that to show that a ballot access
requirement is narrowly drawn to advance a compelling governmental interest
“requires the [government] to come forward with proof”]. lt is crucial that we
hew closely to the important principles enunciated in Guare, Burdick, and
Dunn, when, as in this case a fundamental right is implicated and material
facts are sharply disputed. To do otherwise undermines our credibility.
Accordingly, because of the lack of a factual record, we respectfully ask to be
excused from answering the first question. See Opinion of the Justices
(Domicile for Voting Purposes), 167 N.l-l. at 543.12
II
The second question asks whether HB 1264 is constitutional under Part
l, Article 11 of the State Constitution, the State Equal Protection Clause
111 To the extent that our colleagues argue that a voting rights challenge does not require a fact-
intensive inquiry, we disagree § Libertarian Partv of NM v. Herrera, 506 F.3d 1303, 1308 (10th
Cir. 2007) (describing the balancing test set forth in Anderson v. Celebrezze as involving a “highly
fact specific inquiiy”]; see also Crawford, 553 U.S. at 202 (concluding, on the basis of evidence
developed during pretrial discovery and facts of which the court could take judicial notice that
challenged statute did not impose “excessively burdensome requirements on any class of voters”
(quotation omitted)). Our decision in Guare does not stand for a contrary proposition § Guare,
167 N.H. at 660 (observing that the litigation at issue had been filed in September 2012 and that
the parties had filed their summary judgment motions nearly two years later]; Q. at 665 (relying
upon testimony of certain petitioners to conclude that language in voter registration form
presented “more than the mere possibility of voter confusion” (quotation omitted]).
23
and /or the Federal Equal Protection Clause as applied to students attending a
New Hampshire postsecondary institution who claim New Hampshire as their
domicile for voting purposes but who do not claim New Hampshire as their
residence
Just as we are unable to answer the first question without a developed
factual record, so too are we unable to answer the second question.
“An as-applied challenge . . . concedes that [a law] may be constitutional in
many of its applications but contends that it is not so under the particular
circumstances of the case.” I-Iollenbeck, 164 N.H. at 158 (quotation and
brackets omitted). An as-applied challenge is therefore necessarily fact-
intensive. gi Harris v. Mexican Specialitv Foods, Inc., 564 F`.3d 1301, 1308
(11th Cir. 2009) (explaining that, because an as-applied “challenge asserts that
a statute cannot be constitutionally applied in particular circumstances it
necessarily requires the development of a factual record for the court to
Consider” when determining whether the challenge is ripe for adjudication].
Moreover, there are disputed issues of fact that may bear upon our
analysis of whether HB 1264 is constitutional as applied to certain students
attending New Hampshire postsecondary institutions F or instance citing
public statements made by legislators opponents of the bill assert that l-IB
1264 is unconstitutional as applied because it was passed for an impermissible
purpose -- to disenfranchise college students who are New Hampshire
domiciliaries and, thus lawful voters13 _ and because it will have a disparate
impact on those students by discouraging them from voting.1‘1 §e_§ Arlington
l-Ieights v. l\/letropolitan Housing Corp., 429 U.S. 252, 264 [1977) (“Proof of. . .
discriminatory intent or purpose is required to show a violation of the Equal
Protection Clause.”); c_f. l\/lobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality
opinion) (“Our decisions . . . have made clear that action by a State that is
racially neutral on its face violates the F`ifteenth Amendment only if motivated
by a discriminatory purpose.”), superseded on other grounds by statute as
stated in United States v. Dallas Countv Com’n, 739 F`.2d 1529, 1532-33 (l 1th
Cir. 1984). The proponents disagree Whether the opponents’ theory is viable
13 We observe that college students have the statutory right to vote “in the New Hampshire town or
city in which [they] live[ ] while attending [college],” RSA 654:1, l-a (2016), provided that they
establish “a physical presence” in New Hampshire and “manifest[ ] an intent to maintain a single
continuous presence” here “for domestic, social, and civil purposes relevant to participating in
democratic self-government,” RSA 654:1, I; gf`. Newburger v. Peterson, 344 F. Supp. 559, 562-63
(D.N.H. 1972) [ruling that “indefinite intention” test, as applied to college students violated the
Federal Equal Protection Clause on the ground that the requirement that a voter intend to stay in
New Hampshire indefinitely is not necessary to serve a compelling interest).
14 w Dunn, 405 U.S. at 355, 356 n.28 (describing as “impermissible” excluding college students
who, on completing their studies “move on” (quotation omitted]|; c_f. Leg; v. Scranton, 780 F.
Supp. 897, 902 [N.D.N.Y. 1991) (denying plaintiffs’ request to invalidate statute on ground that it
was enacted “for the constitutionally impermissible purpose of fencing students out of the
franchise” because statute “was enacted, at least in part, for the constitutionally permissible
purpose of providing guidelines for determining bona fide residency”].
24
under the State Equal Protection Clause or Part I, Article 11 is an issue of first
impression for this court, and may also be an issue of first impression under
the Federal Equal Protection Clause.
“Legislative motivation or intent is a paradigmatic fact question.” Veasey
v. Abbott, 830 F`.3d 216, 230 [5th Cir. 2016) (en banc) (quotation omitted], Lrt.
denied, 137 S. Ct. 612 (2017); see also Reno v. Bossier Parish School Bd., 520
U.S. 471, 489 (1997) (assessing discriminatory intent requires examining
impact of the official action at issue as well as “the historical background” of
the challenged law, “the specific sequence of events” leading up to passage of
the law, and “legislative . . . history, especially any contemporary statements by
members of the decisionmaking body” (quotations ellipsis and brackets
omitted)); Metropolitan Housing Corp., 429 U.S. at 266 (“Determining whether
. . . discriminatory purpose was a motivating factor demands a sensitive
inquiry into such circumstantial and direct evidence of intent as may be
available.”); Leyy v. Scranton, 780 F. Supp. 897, 902 (N.D.N.Y. 1991)
(examining whether discriminatory purpose was motivating factor by reviewing
transcripts of legislative debates and timing of legislation}. Absent a developed
factual record, we cannot assess the motivation of the New Hampshire
Legislature for passing I-IB 1264. Nor can we assess whether, as some
opponents suggest, even if I-IB 1264 is applied neutrally, it would have a
disparate impact upon eligible college student voters § Opinion of the
Justices, 129 N.H. 290, 295 (1987) (explaining that the opinion of the justices
“makes no attempt to anticipate particular issues that may arise only as the
[proposed] statutory amendments are in fact applied, assuming enactment of
the bill,” because “[t]here is no practical opportunity to deal with the range of
such possible issues in advance”). Therefore, because it would require us to
give advice on issues of first impression without a developed factual record, we
respectfully ask to be excused from answering the second question. §§§
Opinion of the Justices (Domicile for Voting Purposes], 167 N.H. at 543.
Respectfully submitted,
.,._W\
Ja§i;:jP. Bassett
As 1ate Justice
25
Bernstein, Shur, Sawver 85 Nelson, P.A., of Manchester (Ovide M.
Lamontagne on the memorandum), filed a memorandum on behalf of the New
Hampshire House of Representatives in support of negative answers to the
questions presented
Lehmann Law Office, PLLC, of Manchester (Richard J. Lehmann on the
memorandum), filed a memorandum on behalf of the New Hampshire Senate in
support of negative answers to the questions presented
Gordon J. MacDonald, attorney general (Francis C. Fredericks, assistant
attorney general, and Lisa M. English, senior assistant attorney general, on the
memorandum), filed a memorandum in support of the Justices answering the
questions presented
Wadleigh, Starr &, Peters, PLLC, of Manchester (Eugene M. Van Loan, IH
on the memorandum), filed a memorandum on behalf of the Secretary of State.
EXecutive Councilor Christopher C. Pappas, of Manchester, and
Executive Councilor Andru Volinsky, of Concord, filed a memorandum in
support of the Justices declining to answer the questions presented or, in the
alternative, in support of affirmative answers to the questions presented
Dan Feltes, of Concord, and Paul Twomey, of Epsom, filed a
memorandum on behalf of Senators Jeff Woodburn, Donna Soucy, and Dan
Feltes, of the New Hampshire Senate, in support of the Justices declining to
answer the questions presented or, in the alternative, in support of affirmative
answers to the questions presented
Gilles R. Bissonnette, of Concord, and Shaheen &, Gordon, P.A., of
Concord (William E. Christie and S. Amy Spencer on the memorandum), filed a
memorandum on behalf of the American Civil Liberties Union of New
Hampshire and the Fair Elections Center, in support of the Justices declining
to answer the questions presented or, in the alternative, in support of
affirmative answers to the questions presented
Ray F. Chadwick, of Manchester, filed a memorandum on behalf of
Granite State Taxpayers in support of negative answers to the questions
presented
Edward C. Mosca, of Manchester, filed a memorandum in support of
negative answers to the questions presented
Ed Naile, of Concord, filed a memorandum on behalf of Coalition of NH
Taxpayers in support of negative answers to the questions presented
Daniel Alain Richard, of Epsom, filed a memorandum.
26