OPINION OF THE JUSTICES (VOTING AGE IN PRIMARIES)

person will be 18 years of age by the time of the next state general election; and party’s presidential primary and state primary election, provided that such

representatives; and

equal right to vote in any election,’ N.H. CONST. pt. I, art. 11; and

age and who otherwise meets voter eligibility requirements may participate in a

primaries prior to turning 18 years of age,’ is presently pending in the house of

‘every inhabitant of the state of 18 years of age and upwards shall have an 2008: “Whereas, Part I, Article 11 of the Constitution of New Hampshire states:

“Whereas, Senate Bill 436 would provide that a person who is 17 years of

“Whereas, Senate Bill 436, ‘An act enabling certain persons to vote in

resolution on April 23, 2008, and filed it with the supreme court on April 24, The New Hampshire House of Representatives adopted the following

support of negative answers to the questions. a memorandum on behalf of the New Hampshire Civil Liberties Union in Twomey Law Office, of Concord (Paul Twomey on the memorandum), filed

support of negative answers to the questions. House of Representatives and the President of the New Hampshire Senate in counsel, filed a memorandum on behalf of the Speaker of the New Hampshire David Frydman, house legal counsel, and Jeffrey A. Meyers, senate legal

No. 2008-292 Request of the House of Representatives

of state: “I understand that to vote in this city/town, I must be 18 years of age, emphasized language to the voter registration form prescribed by the secretary a general election at which the person will be 18 years of age. 436 also proposes to amend RSA 654:7 (Supp. p. 2 2007) to add the following state primary election or a presidential primary election preceding eligibility requirements of RSA 654:1, I, may register to vote at a I. A person who is 17 years of age, who otherwise meets the

Voting at Primary Election,” which would provide: proposes to add a new statute, RSA 654:7-c, “Registration by 17-Year-Old States citizen, and I must be domiciled in this city/town.” SB 436 also Constitution of New Hampshire? general election at which I will be 18 years of age, and that I must be a United of age at the next state general election, violate Part I, Article 11 of the or 17 years of age to vote in a state primary or presidential primary preceding a

violate Part I, Article p. 2 28-a, of the Constitution of New Hampshire?” old persons who will be 18 years of age at the next state general election, preceding a general election at which the person will be 18 years of age.” SB allowing voting in a presidential primary and state primary election by 17-year- I, may vote at a state primary election or a presidential primary election registration, voting, and maintenance of the voter checklists involved in 17 years of age, who otherwise meets the eligibility requirements of paragraph adding a new section, RSA 654:1, III, which would provide: “A person who is Senate Bill (SB) 436 proposes to amend RSA 654:1 (Supp. 2007) by

The following response is respectfully returned:

primary and state primary election by 17-year-old persons who will be 18 years To the Honorable House of Representatives:

their opinion upon the following questions of law:

responsibilities upon local supervisors of the checklist regarding the “ p. 2 2. Would enactment of Senate Bill 436 which places specific before the bill is enacted; now, therefore, be it

“1. Would enactment of Senate Bill 436 to allow voting in a presidential

“That the justices of the supreme court be respectfully requested to give

“Resolved by the House of Representatives:

“Whereas, it is important that those constitutional questions be settled

and “Whereas, a question has arisen as to the constitutionality of the bill; surrounding circumstances.”

rights of political parties guaranteed by the First Amendment to the United therefore do not opine upon whether SB 4 p. 3 36 infringes upon the associational

gather their intention from the language used, viewed in the light of the situation of the parties at the time the instrument was made, that it may amendments, the court endeavors to place itself as nearly as possible in the

those submitting memoranda address the issue, we have not been asked and laws were adopted.” Id. at 1 p. 3 33-34 (quotation omitted). question in the affirmative and the second question in the negative. Although To interpret the meaning of this provision, we examine its purpose and intent. in that sense in which it was used at the time when the constitution and the Article 28-a, of the Constitution of New Hampshire.” We answer the first 18 years of age and upwards shall have an equal right to vote in any election.” the legislature as well as the people, is to be always understood and explained Hampshire,” and second, whether enactment of SB 436 would “violate Part I, “The language used by the people in the great paramount law which controls

N.H. 490, 495 (1985). “By reviewing the history of the constitution and its had to the electorate when the vote was cast.” Opinion of the Justices, 126 “we will give the words in question the meaning they must be presumed to have See Baines v. N.H. Senate President, 152 N.H. 124, 1 p. 3 33 (2005). In so doing,

pertinent part: “All elections are to be free, and every inhabitant of the state of enactment of SB 4 p. 3 36 would “violate Part I, Article 11 of the Constitution of New Part I, Article 11 of the New Hampshire Constitution provides, in

I. Part I, Article 11

following the person’s eighteenth birthday. shall add the person’s name to the checklist at their meeting next supervisors shall retain the person’s voter registration form and We have been asked to give our opinion on two questions: first, whether be entitled to vote as if his or her name is on the checklist. The

is registering under RSA 654:7-c.” age and will be 18 years of age on the date of the general election if the person indicating applicant is 18 years of age or older, or that applicant is 17 years of the following emphasized language: “AGE. Any reasonable documentation Finally, SB 4 p. 3 36 proposes to amend RSA 654:12, I(b) (Supp. 2007) to include

registering under this section is qualified to vote, the person shall II. If the supervisors of the checklist determine that the person

applicable election day. Such person may only register at the polling place on the p. 4 4

Article 11 would incorporate the age qualification. eighteen.” was, in part, to provide “that the minimum age of voters be reduced to

and the administration of elections.” 177 (June 12, 197 p. 4 4). constitutional convention. present wording of the Constitution.” Journal of Constitutional Convention committee stated that another purpose of the resolution was to “simplif[y] the Journal of Constitutional Convention 33 (May 15, 1974). The report of the Resolution 86 was referred to the committee on the bill of rights.

(Appendix A).

Journal of Constitutional Convention p. 4 434 (June 20, 1974), 521 several respects and to repeal Part II, Article 28 because the amended Part I,

(May 15, 197 p. 4 4), 434 (June 20, 1974), 521 (Appendix A). Its stated purpose

(Index). Resolution 86 was a resolution “[r]elating to the qualifications of voters qualified to vote for representatives, the governor and councilors. See Journal of Constitutional Convention 58 p. 4 4 The ratified amendments had their genesis in Resolution 86 of the 1974 eligible to vote for senators. General Court 687-88 (1977). 145 N.H. at 36. The amendments were ratified in 1976. Manual for the Constitutional Convention 465 (June 26, 1974), 521-23 (Appendix A); Fischer,

qualifications” had an equal right to vote. The 197 p. 4 4 constitutional convention voted to amend Part I, Article 11 in

the reference to “male” inhabitants was removed. Id.

the constitution provided that those qualified to vote for senators were also

inhabitants twenty-one years of age and older who paid their poll tax were Part II, Article 28 was enacted in 178 p. 4 4 and provided that male times. and its final amendment in 1984, Part I, Article 11 has been amended seven Article 28 of the State Constitution. Before 1976, the age qualification for voting provision was found in Part II, has equal right to elect and be elected into office.” See Fischer, 145 N.H. at 36-37. qualification, but rather stated that every inhabitant with the “proper Before Part I, Article 11 was amended in 1976, it did not contain an age

constitutional convention are the most pertinent. 1976 amendments to Part I, Article 11 that were a result of the 197 p. 4 4 1912, 1942 and 1976 amendments to Part I, Article 11). For our purposes, the Guide 55 (2004); see also Fischer, 145 N.H. at 33-36 (discussing, in detail, See S. Marshall, The New Hampshire State Constitution: A Reference

N.H. 28, 32 (2000) (quotation omitted). Between its original enactment in 178 p. 4 4

to be free, and every inhabitant of the State, having the proper qualifications, At its inception in 178 p. 4 4, Part I, Article 11 provided: “All elections ought primary elections, violates Part I, Article 11.

are ineligible. We conclude, therefore, that SB 436, which allows individuals age and older are eligible to vote in an election; those under the age of eighteen equal right to vote in any election” is that only those who are eighteen years of

6 p. 5 54:5 (1996), statutes that disenfranchise incarcerated felons. See Fischer, Fischer concerned the constitutionality of RSA 607-A:2 (2001) and RSA inhabitant of the state of eighteen years of age and upwards shall have an of age. We disagree. The meaning that the electorate must have given to the phrase “every has authority to set a minimum age for voting that is lower than eighteen years to vote in any election” establishes eighteen as the minimum age for voting. Union asserts that, despite the language of Part I, Article 11, the legislature Relying upon our decision in Fischer, the New Hampshire Civil Liberties

the minimum age of voters to eighteen.” 1976 amendments in light of all of the surrounding circumstances, amendments, it became eighteen years of age. Viewing the language of the

inhabitant of the state of 18 years of age and upwards shall have an equal right Builders, 101 N.H. p. 5 59, 60 (1957), we conclude that the phrase “every the electorate, see Fischer, 145 N.H. at 37-38; Concrete Co. v. Rheaume 152 N.H. at 133, which necessarily includes the ballot question submitted to Constitution to make the following changes relating to elections: (a) to reduce see Baines, eight inquired, in pertinent part: “Are you in favor of amending the and Part II, Article 28 lower the minimum voting age to eighteen. Question contained in Part II, Article 28 was twenty-one years of age, after the 1976 reflected the convention’s intent that the amendments to Part I, Article 11 was amended in 1976 to include an age qualification, the minimum voting age lower the minimum voting age to eighteen. Whereas before Part I, Article 11 qualification to Part I, Article 11 and deleting one from Part II, Article 28 was to This history reveals that the intended purpose of adding an age

for the General Court 688 (1977). omitted); see Journal of Constitutional Convention p. 5 523 (Appendix A); Manual an equal right to vote in any election.” Fischer, 145 N.H. at 38 (quotation every inhabitant of the state of eighteen years of age and upwards shall have

The ballot question regarding age at voting submitted to the citizenry in

II, Article 28. Journal of Constitutional Convention p. 5 523 (Appendix A). Convention 521 (Appendix A). Part VI of the resolution proposed repealing Part constitutional convention retained this language. Journal of Constitutional 178 (June 12, 1974). The text of Resolution 86 ultimately adopted by the

Article 11 to state, in pertinent part, that “[a]ll elections are to be free, and As reported out of committee, the resolution proposed amending Part I, of Part I, Article 11.

p. 6 would prevail only if a primary election is not an “election” within the meaning

in any election.” Thus, the argument of the Speaker and Senate President gives those who are “eighteen years of age and upwards” an “equal right to vote November election, is eligible to vote. Part I, Article 11, however, exclusively

by the time of the primary elections, but who will be eighteen as of the November election. In this way, they contend, an individual who is seventeen individual has achieved the requisite age must be measured as of the right to elect one’s elected officials.” They argue, however, that whether an

Part I, Article 11] lowered to 18 the age at which one was entitled to the equal the minimum voting age at eighteen. As they state: “The[ ] amendments [to the New Hampshire Civil Liberties Union, concede that Part I, Article 11 sets and President of the New Hampshire Senate (Senate President), in contrast to The Speaker of the New Hampshire House of Representatives (Speaker)

which sets it at eighteen. which set the minimum voting age at twenty-one, and now in Part I, Article 11, authority has always resided in the constitution: first in Part II, Article 28, historically had the authority to set age qualifications for voters. That assertions of the New Hampshire Civil Liberties Union, the legislature has not has no authority to set a different minimum voting age. Indeed, contrary to the minimum voting age as eighteen years of age, we conclude that the legislature in Part I, Article 11. In this case, where Part I, Article 11 establishes the recognize legislative authority to define voter qualifications contradicting those qualifications beyond those in Part I, Article 11. Id. at 35. We did not The legislative authority we recognized in Fischer was to define voter

it. Id. at 37-39. of the amendments and because voters had no notice that they were removing ineffective because removing this authority was not one of the stated purposes could be read to have removed this authority, we concluded that they were 1976. See id. at 38-39. To the extent that the amendments to Part I, Article 11 was not removed, we held, when the voters voted to amend Part I, Article 11 in beyond those set forth in the constitution. See id. at 32-35. This authority historically, had always had the authority to determine voter qualifications as incarcerated felons. See id. at 34, 39. We observed that the legislature, legislature retained the authority to disenfranchise additional individuals, such convicted of “treason, bribery, or any willful violation of the election laws,” the We ruled that although Part I, Article 11 disenfranchises individuals

under Part I, Article 11. Id. judgment, arguing that RSA 607-A:2 and RSA 654:5 violated his right to vote copy of RSA 607-A:2. Id. at 30. The plaintiff petitioned for declaratory an absentee ballot for the next election. Id. at 29-30. The city clerk sent him a 145 N.H. at 29. The plaintiff in Fischer, an incarcerated felon, had requested primary election. p. 7 seventeen years old have no equal right to vote in any election, including a

only to those who are eighteen years of age or older, individuals who are contrary, because Part I, Article 11 grants an equal right to vote in any election constitutionally protected equal right to elect their elected officials.” To the voting in the primary election imposes a severe restriction on these voters’

within the meaning of Part I, Article 11. candidates for election . . . , and which . . . controls that choice, is an election” disagree. “[A] primary election which involves a necessary step in the choice of olds who will be 18 years old by the date of the next general election from the meaning of Part I, Article 11 because it is merely a nominating process, we The Speaker and Senate President also argue that “[p]reventing 17-year-

(2006) (Souter, J. concurring in part and dissenting in part). United Latin Am. Citizens v. Perry, 548 U.S. 399, ___, 126 S. Ct. 2594, 2649 (Mo. 1972) (quotation omitted); see Classic, 313 U.S. at 318-19; League of applicable to voters at party primaries.” Totton v. Murdock, 482 S.W.2d 65, 67 election machinery, general provisions as to qualifications of voters are 320 (1941). “In so far as the primary election is made an essential part of the

Speaker and Senate President assert that a primary is not an “election” within special elections.” To the extent that either the New Hampshire Civil Liberties Union or the

to all elections, including primary elections. in light of the surrounding circumstances, we conclude that this phrase refers (1977). Viewing the reference to “any election” in Part I, Article 11 as amended, Constitutional Convention 523 (Appendix A); Manual for the General Court 688 Fischer, 145 N.H. at 38 (quotation omitted; emphasis added); see Journal of they were in favor of “reduc[ing] the minimum age of voters to eighteen.” limit the age qualification to certain elections. Rather, they were only asked if Citizens voting on the 1976 ballot question were never notified of any intent to see Journal of Constitutional Convention 58 (roster of bill of rights committee).

elections, whether they be for Constitutional Conventions or general primary or rights committee, explained: “The intention is that [they] will apply to all constitutional convention elections, Delegate Hall, the vice-chair of the bill of When asked whether the proposed amendments to Part I, Article 11 applied to further reveals that the intent of this language was, in fact, to be all-inclusive. 97 (unabridged ed. 2002). The journal of the 1974 constitutional convention no matter what one : EVERY.” Webster’s Third New International Dictionary added.) The use of the word “any” is all-inclusive. The word “any” means “one, election” to those who are “eighteen years of age and upwards.” (Emphasis primary elections. Part I, Article 11 grants an equal right to vote in “any reflected in its language and history is that it applies to all elections, including The purpose and intent of the age qualification in Part I, Article 11 as p. 8 8

state mandate under this provision “does not hinge solely on whether or not it Flynn, Comm’r, 133 N.H. 17, 22 (1990). The constitutionality of a particular providing the necessary funding.” N.H. Munic. Trust Workers’ Comp. Fund v. obligations on local government without either obtaining their consent or This amendment “was designed to prohibit the State from placing additional

legislative body of the political subdivision. offices. responsibilities are approved for funding by a vote of the local setting one age for voting and the legislature setting another for other elected fully funded by the state or unless such programs or qualification for certain elective offices, we see no absurdity in the constitution political subdivision unless such programs or responsibilities are such a way as to necessitate additional local expenditures by the modified programs or responsibilities to any political subdivision in The state shall not mandate or assign any new, expanded or

Part I, Article 2 p. 8 8-a of the New Hampshire Constitution provides:

II. Part I, Article 2 p. 8 8-a

voting age at eighteen, certain elective offices. Although the State Constitution sets the minimum

constitutional matter, the age qualification for voting is not related to the age thirty-five years old to be President, see U.S. CONST. art II, sec. 1. If, as a member of the house of representatives, see U.S. CONST. art. I, sec. 2, and to be senators, see U.S. CONST. art. I, sec. 3, twenty-five years old to be a U.S. CONST. amend. XXVI, it requires individuals to be at least thirty years old extends the right to vote to citizens who are eighteen years of age or older, see CONST. pt. II, arts. 29, 42. Similarly, although the Federal Constitution is not thirty years of age from serving as either a senator or governor. See N.H.

run for office, even though he or she is only seventeen, it would be absurd to Constitutions between voting age and the age at which individuals may hold primary. There is no correlation under either the State or Federal fail to see the absurdity of precluding such an individual from voting in the be eighteen by the time of the general election may run for an elected office, we Even if we assume, without deciding, that a seventeen-year-old who will

the election for which he or she is a candidate). office must aver that he or she “will be at least 1 p. 8 8 years of age” on the date of eighteen years of age”); RSA 655:29, IV (Supp. 2007) (individual running for (Supp. 2007) (individual cannot hold office unless he or she is “at least

individual who will be eighteen as of the date of the November elections may The Speaker and Senate President also state that because, “arguably,” an and general elections. p. 9 of RSA 654:7-a and RSA 654:7-b, “election day” refers, in part, to state primary subsequent town, state and federal elections.” RSA 654:7-b. For the purposes

person who registers to vote on election day . . . shall be registered to vote at all requesting to be registered to vote at the polling place on election day.” “Any the checklist but who is otherwise a qualified voter shall be entitled to vote by

old voters. 654:7-c, which pertains to the registration process for certain seventeen-yearpolling places shall be easily accessible to all persons.” See RSA 654:7-a, I. SB 436 adds a new provision, RSA election,” and which provides, in pertinent part, that “[v]oting registration and primaries. of the state of 18 years of age and upwards . . . an equal right to vote in any gives certain seventeen-year-olds the right to vote in state and presidential proposes to amend RSA 654:1 by adding a new provision, RSA 654:1, III, which ward, or unincorporated place in which he or she is domiciled.” SB 436

registration. Pursuant to RSA 654:7-a, II: “Any person whose name is not on RSA 654:7-a (Supp. 2007) and RSA 654:7-b (1997) discuss election day

used throughout the state”; SB 436 amends this form in certain respects. RSA 654:7 sets forth the standard voter registration form that “shall be

the State Constitution, which, as previously discussed, gives “every inhabitant

New Hampshire,” the “right at any meeting or election, to vote in the town, and is “of the age provided for in Article 11 of Part First of the Constitution of the context of existing provisions. United States citizen, has a “single established domicile for voting purposes,” & Supp. 2007). RSA 654:1, I, gives every inhabitant of the state, who is a Voting and voter registration is also governed by RSA chapter 654 (1996

expenditures by virtue of the mandate.” political subdivision and a requirement of additional local political subdivision

Voting and voter registration is governed, in part, by Part I, Article 11 of

Disposal), 135 N.H. at 545.

Part I, Article 28-a, we first examine the language of the proposed statutes in To determine whether SB 436 constitutes a mandate in contravention of

(quotation and brackets omitted).

constitutional prohibition requires both a mandate of responsibility to the Opinion of the Justices (Solid Waste Disposal), 135 N.H. at 545. “Invoking this 75, 78 (2001). “The primary consideration is the net effect of the program.” has been expanded. Town of Nelson v. N.H. Dep’t of Transportation, 146 N.H. Nor are increased expenditures alone dispositive of whether a responsibility Justices (Solid Waste Disposal), 135 N.H. 543, 545 (1992) (quotation omitted). may be categorized as a new, expanded or modified program.” Opinion of the p. 10 10

voter registrations is not new. “may be a new development,” but municipal responsibility for processing all allows certain seventeen-year-olds to register and vote in primary elections municipalities are responsible for processing voter registrations. That SB 436

does not propose to amend these provisions. proof that an application was made. RSA 654:13, II (Supp. 2007). SB 436 must notify the applicant in writing and retain the original registration form as unfunded mandate. See id. at 79-80. circumstances, we conclude that SB 436 does not create an unconstitutional

require municipalities to accept a new responsibility. Even without SB 436, These provisions reveal that SB 436 does not create any new program or

If the supervisors elect not to add the applicant’s name to the checklist, they they must keep the original registration form. See RSA 654:13, I (Supp. 2007). If the supervisors decide to add the applicant’s name to the checklist,

required of certain seventeen-year-olds. identity. SB 436 adds language to RSA 654:12 that pertains to the proof of age and domicile, and RSA 654:12, III requires an applicant to prove his or her RSA 654:12, I and II require an applicant to provide proof of citizenship, age qualifications as provided in RSA 654:12 (Supp. 2007). See RSA 654:7-a, II. or town or city clerk must require the applicant to produce proof of To determine whether a voter is qualified, the supervisors of the checklist p. 11 11

May 19, 2008