Kris Kobach says New Hampshire is suffering from mass vote fraud. This judge says no.

Kris Kobach Says New Hampshire Is Suffering From Mass Vote Fraud. This Judge Says No.

Kris Kobach Says New Hampshire Is Suffering From Mass Vote Fraud. This Judge Says No.

The law, lawyers, and the court.
Sept. 12 2017 5:29 PM

Facts Win

Why a New Hampshire judge blocked the state’s new voter suppression law.

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President Donald Trump speaks alongside Kris Kobach during the first meeting of the Presidential Advisory Commission on Election Integrity in Washington on July 19.

Saul Loeb/AFP/Getty Images

On Tuesday morning, President Donald Trump’s “election integrity” commission was preparing to meet in New Hampshire when a state court issued a major ruling: New Hampshire’s harsh new voting restrictions, which would impose fines and jail time on voters who fail to provide certain documentation, cannot be enforced in Tuesday’s special election. According to the court, the law’s penalties likely violate the state constitution, which guarantees all adult residents “an equal right to vote in any election.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The court’s order constituted an oblique rebuke to the commission’s very purpose. New Hampshire’s GOP-controlled legislature passed its voter suppression law in response to Trump’s allegations that mass voter fraud swung the state against him in 2016. Trump formed his voter fraud commission to prove that such fraud gave his opponent millions of illegal votes in the Granite State and beyond. Just last week, commision co-chair Kris Kobach claimed he had “proof” that votes were stolen in the state. Now a court has examined the evidence—and found no such proof. The decision is a well-timed reminder that this administration’s wild claims of voter fraud cannot stand up to even the slightest scrutiny.

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SB 3, the New Hampshire law at issue, was designed from the start to intimidate voters so severely that some decide it is not worth the trouble to cast a ballot. Its sponsor, Republican Sen. Regina Birdsell, asserted that college students and “people coming over the border” from Massachusetts are swinging state elections—almost exactly what Trump has alleged. Her bill took aim at same-day registration, a long-standing tradition in New Hampshire and a perennial target of Republicans who maintain that it is susceptible to fraud. (In reality, the GOP’s fixation is probably due to the fact that many same-day registrants are college students who lean Democratic.)

Although SB 3 did not eliminate same-day voting, it did make registration significantly more onerous—and risky. Under the law, those who register to vote within 30 days of an election, including on Election Day, must provide proof of their New Hampshire “domicile.” If they forgot to bring such proof, they can still register, but they must submit the necessary documentation no more than 10 days after the election. (Residents have 30 days to submit their documents in towns where the clerk’s offices are open part-time.) If voters fail to provide this documentation within the time limit, they are subject to $5,000 fines and up to one year in jail.

Voters who have no domicile documentation face different hurdles. These individuals can still register—but to do so, they must consent to have their domicile “verified.” Following the election, the New Hampshire Department of Justice may send state investigators to these voters’ houses and demand confirmation of residency. Police officers also retain authority to show up on voters’ doorsteps demanding proof that they live there. Anyone who fails to provide the necessary evidence may be fined and prosecuted for voter fraud.

The New Hampshire Democratic Party and the League of Women Voters challenged these penalties as an infringement upon the state constitution, which protects voting rights. In his Tuesday decision, Superior Court Judge Charles Temple agreed, issuing a restraining order to prevent the state from enforcing SB 3’s punishments. The law, Temple wrote, imposed “severe restrictions on the right to vote.” These restrictions must be “narrowly drawn to advance a state interest of compelling importance” in order to withstand constitutional scrutiny. They were not, Temple concluded—“by any stretch of the imagination.”

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The judge continued: “To the Court, these provisions of SB 3 act as a very serious deterrent on the right to vote, and if there is indeed a ‘compelling’ need for them, the Court has yet to see it.” Here, Temple subtly but firmly rejected the state’s contention that SB 3 is necessary to prevent unlawful “drive-by voting,” as New Hampshire Secretary of State Bill Gardner put it. Politicians can make whatever wild claims they want—but Temple needed actual evidence of fraud to uphold SB 3’s restrictions. New Hampshire couldn’t provide it.

Gardner’s unsubstantiated allegation should not be surprising considering that he sits on Trump’s voter fraud commission alongside Kobach. Last week, Kobach—who has used false allegations of voter fraud to justify disenfranchising thousands—purported to verify claims of New Hampshire fraud in a Breitbart column. He was promptly debunked but still praised SB 3 at Tuesday’s meeting, just hours after the law was blocked in court as unjustified disenfranchisement.

This juxtaposition of fact (in Temple’s ruling) and fiction (from Gardner and Kobach) highlights an important problem in the litigation of voting rights. Temple applied strict scrutiny to SB 3 because plaintiffs sued under the New Hampshire Constitution, which explicitly guarantees the right to cast a ballot. Unfortunately, the United States Constitution does not provide this right so clearly. Various constitutional provisions certainly imply a right to vote—but the Supreme Court has interpreted these stingily. Currently, federal courts apply a balancing test to burdens on voting, weighing the purported benefits of a restriction against the burdens. This lenient standard allows states to defend voter suppression laws in federal court by arguing that vague benefits such as “confidence in elections” offset any disenfranchisement.

Hucksters like Kobach and the serial fabricators on Trump’s commission triumph when courts do not demand evidence of real fraud before approving voter suppression measures. Temple’s decision provides a model for how other state courts should evaluate such laws; Perry Grossman,  the Voting Rights Project attorney at the New York Civil Liberties Union, told me on Tuesday that most state constitutions “have clear and robust language protecting the right to vote.”

The United States Supreme Court also should apply stricter scrutiny to any law that restricts access to the ballot, even if state courts are the safer bet. But in recent years, the court has assumed that tough registration requirements, early voting cuts, and voter ID rules are passed with no intent to disenfranchise citizens. Tuesday’s meeting, coupled with Temple’s ruling, demonstrates that, in the Trump era, this judicial presumption of good faith toward Republican-backed restrictions on the right to vote should be obsolete.

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