The 2016 election was a bittersweet one for the New Hampshire Republican Party. The GOP won unified control of the state government, but Hillary Clinton carried the state and Democratic Sen. Maggie Hassan squeaked out a narrow victory. Donald Trump alleged that voters bused in illegally from Massachusetts tipped the state away from him, a claim endorsed by GOP state legislators despite a total lack of evidence. Kansas’ Republican Secretary of State Kris Kobach, the head of Trump’s voter fraud commission, has also falsely claimed to have “proof” that thousands of illegal votes tipped the 2016 election toward Democrats.
In response, New Hampshire Republicans have initiated a crackdown on voting rights designed to suppress likely Democratic voters. First, legislators rammed through a voter intimidation bill, creating new documentation requirements for those who wish to cast a ballot and subjecting them to arrest and prosecution if they lack the necessary forms. (A state court quickly blocked the measure.) Now Republicans are taking aim at the population they blame for last year’s Democratic successes: college students. A new bill would impose steep fees on all voters who lack a New Hampshire driver’s license—despite the fact that it is perfectly legal to vote in New Hampshire with an out-of-state license. The measure is tantamount to a post-election poll tax. It stands an excellent chance of becoming law.
New Hampshire has a long history of disenfranchising college students. Shortly after the ratification of the 26th Amendment in 1971, which lowered the national voting age to 18, the state declared it could deny the ballot to university students who planned to leave the state after graduation. A federal court disagreed in 1972’s Newburger v. Peterson, ruling that students hold a constitutional right to vote where they live. But when the state began swinging to the left in the 1990s, Republican lawyers flooded the polls to challenge students attempting to register with out-of-state licenses. GOP town clerks also illegally denied ballots to university students. And in 2012, the Republican-dominated state Legislature passed a confusing law that incorrectly informed new voters that they could register only if they planned to remain in the state indefinitely. The New Hampshire Supreme Court unanimously struck down that measure as a violation of the state constitution.
The new bill moving through the state Legislature, known as HB 372, is much worse. Under current law—which is a reflection of federal court mandates—an individual may vote in New Hampshire if she is “domiciled” there. That simply means she resides in the state “more than any other place,” a standard that comports with the U.S. Constitution. Under HB 372, however, an individual is allowed to vote in New Hampshire only if she is a “resident.” And residency status carries two affirmative obligations: Within 60 days of becoming a resident, an individual must register her car with the state and obtain a New Hampshire driver’s license.
That’s not cheap. A driver’s license costs $50, and car registration costs even more. Initial registration and plate fees cost $23. Registrants must also pay separate state and municipal fees; state fees for a midsize car add up to $50 a year while municipal fees for a new vehicle can total several hundred dollars. Various administrative fees (title application, waste reclamation, data processing) add another $20. (College students who don’t have cars won’t face these obligations; a student who moves to New Hampshire for college might prefer to leave her car behind in order to preserve her voting rights.)
If HB 372 passes, then, car-driving college students who move to New Hampshire from another state will have two options. They can relinquish their right to vote, remain “domiciled” without residency, and retain their out-of-state license and registration, costing them nothing. Or they can exercise their right to vote, become “residents,” and turn over hundreds of dollars to the state. Properly understood, the law looks a lot like a special tax on college students who exercise the franchise.
Fortunately for New Hampshire voters, the legality of HB 372 is rather dubious. The 24th Amendment to the U.S. Constitution bars the imposition of poll taxes in federal elections, and the Equal Protection Clause prohibits such taxes in state elections as well. Federal courts have inconsistently applied these guarantees in recent years. The good news here is that the New Hampshire Constitution provides robust protection for the right to vote, declaring that “every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election.” The state Supreme Court has interpreted this provision to mean that a “severe” burden on the right to vote must be “narrowly drawn to advance a state interest of compelling importance.”
HB 372 almost certainly constitutes a severe burden on the franchise, compelling university students to spend a nontrivial amount of money to vote in the state. And it is plainly unsupported by any state interest, let alone a compelling one.
The bill’s Republican sponsors have provided two justifications for the bill, one erroneous, one illegitimate. First, they assert that the bill corrects legally problematic language in the current law—a laughable claim given that it actually introduces new, legally suspect requirements. Second, they admit, with startling candor, that the bill is meant to weed out college students.
“If you’re a resident, if this is the place you choose to live abandoning all others, I want you to vote in New Hampshire,” Republican state Sen. James Gray, a co-sponsor of the bill, told the Concord Monitor. “But if that place you choose to interact with is in Massachusetts, in Vermont, in Maine, in Kalamazoo, [in] New Mexico, then I want you [to] vote there.”
This rationale is just as illegal today as it was back in 1972 when the Newburger court rejected it. College students hold a fundamental right under state and federal law to vote where they attend school, even if they plan to move away the day after graduation. And yet HB 372 is quickly gliding toward passage. It sailed out of committee on a party-line vote and should soon receive a vote in the state Senate. A version of the bill already passed the House, and there is no reason to doubt that Republican Gov. Chris Sununu will sign it into law once the two chambers reconcile the measure. Sununu was happy to sign the GOP voter intimidation bill this summer. Like that law, this new measure will probably be halted by the courts should it pass.
What’s most striking about HB 372 is its relative lack of pretext. In pushing their previous voter suppression law—which was designed to disenfranchise individuals who might lack proof of domicile, including college students—New Hampshire Republicans purported to believe that voter fraud is a genuine problem in the state. (It’s not.) Now the GOP is simply acknowledging that it does not want university students to vote and is pursuing this goal by enacting a de facto poll tax. At least some Republicans, it seems, have given up pretending that their anti-voting schemes are about anything more than Democratic disenfranchisement.
