2009-251, OPINION OF THE JUSTICES (VOTING AGE IN PRIMARY ELECTIONS II)

Representatives in HR 32 adopted on April 23, 2008, the Court answered in the the Court on May 19, 2008 in response to the request of the House of "Whereas, in Opinion of the Justices (Voting Age in Primaries) issued by

the person will be 18 years of age; and election or a presidential primary election preceding a general election at which who otherwise meets voter eligibility requirements may vote at a state primary "Whereas, SB 21 would provide that a person who is 17 years of age and

prior to turning 18 years of age,' is presently pending in the senate; and "Whereas, SB 21, 'An act enabling certain persons to vote in primaries

2009, and filed it with the supreme court on April 3, 2009: The New Hampshire Senate adopted the following resolution on April 1,

of Senate Bill 21. Hampshire Legislative Youth Advisory Council, in favor of the constitutionality Brendan P. Bertagnoll, filed a memorandum on behalf of the New

Committee in favor of the constitutionality of Senate Bill 21. filed a memorandum as members of the New Hampshire Democratic National Peter H. Burling, of Cornish, and Kathleen N. Sullivan, of Manchester,

Senate Bill 21. the President of the New Hampshire Senate in favor of the constitutionality of Jelfrey A. Meyers, senate legal counsel, filed a memorandum on behalf of

No. 2009-251 Request of the Senate

permitted under SB p. 2 21? general election at which the person will be 18 years of age, as would be year-old person to vote in a state or presidential primary that precedes a political parties such that the legislature may allow an otherwise qualified 17- Article 32 of the New Hampshire Constitution of the associational rights of Constitution provide greater protection than do Part I, Article 11 and Part I, "2. Do the First and Fourteenth Amendments to the United States

Fourteenth Amendments to the United States Constitution? associational rights guaranteed to political parties under the First and choosing the party's nominee for the general election, infringe upon the at the next general election, in order to allow such persons to participate in presidential primary election by 17-year-old persons who will be 18 years of age "1. Would enactment of SB p. 2 21 to allow voting in a state primary and

their opinion upon the following questions of law: "That the justices of the supreme court be respectfully requested to give

"Resolved by the Senate:

before the bill is enacted; now, therefore, be it "Whereas, it is important that this constitutional question be settled

nominee for the general election; and age, in order to permit such persons to participate in choosing the party's primary that precedes a general election at which the person will be 18 years of allow an otherwise qualified 17-year-old person to vote in a state or presidential the associational rights of any political party such that the legislature may do Part I, Article 11 and Part I, Article 3 p. 2 2 of the New Hampshire Constitution of Amendments to the United States Constitution provide greater protection than "Whereas, a question has arisen as to whether the First and Fourteenth

the United States Constitution includes partisan political organization[s]; and freedom of association protected by the First and Fourteenth Amendments to "Whereas, the United States Supreme Court has recognized that the

"Whereas, the provisions of SB p. 2 21 are identical to SB 436; and

First Amendment to the United States Constitution; and infringe upon the associational rights of political parties guaranteed by the had not been asked and therefore did not opine upon whether SB 436 would "Whereas, in the same Opinion of the Justices, the Court noted that it

the New Hampshire Constitution; and affirmative the question of whether SB 4 p. 3 36 would violate Part I, Article 11 of 3

person is registering under RSA 654:7-c." years of age and will be 18 years of age on the date of the general election if the indicating the applicant is 18 years of age or older, or that the applicant is 17 following emphasized language: "AGE. Any reasonable documentation Finally, SB 21 proposes to amend RSA 654:12, I(b) (2008) to include the

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 be entitled to vote as if his or her name is on the checklist. The 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 a general election at which the person will be 18 years of age. 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

"Registration by 17-Year-Old Voting at Primary Election," which would provide: Additionally, SB 21 proposes to add a new statute, RSA 654:7-C,

I must be a United States citizen, and I must be domiciled in this city/town." primary preceding a general election at which I will be 18 years of age, and that years of age, or 17 years of age to vote in a state primary or presidential of state: "I understand that to vote in this city/town, I must be at least 18 emphasized language to the voter registration form prescribed by the secretary SB 21 also proposes to amend RSA 654:7 (2008) to add the following

election at which the person will be 18 years of age." state primary election or a presidential primary election preceding a general who otherwise meets the eligibility requirements of paragraph I, may vote at a section, RS ■ 654:1, III, which would provide: "A person who is 17 years of age, Senate Bill (SB) 21 proposes to amend RSA 654:1 (2008) by adding a new

The following response is respectfully returned:

To the Honorable Senate:

292, issued on May 19, 2008?" SB 21 be constitutional notwithstanding the Opinion of the Justices, No. 2008- " p. 3 3. If the Court answers the second question in the affirmative, would p. 4 4

We answer both questions in the negative. Supremacy Clause, the First and Fourteenth Amendments take precedence. and Fourteenth Amendments to the Federal Constitution such that, under the less protective of the associational rights of political parties than are the First primary elections; and (2) whether Part I, Article 32 of the State Constitution is the State from allowing political parties to invite unqualified voters to vote in and Fourteenth Amendments to the Federal Constitution in that it precludes to political parties by Part I, Article 32 of the State Constitution and the First interpreted it in Voting Age I, conflicts with the associational rights guaranteed follows: (1) whether Part I, Article 11 of the State Constitution, as we Based, in part, upon her submission, we have reframed the questions as

federal constitutional right. or presidential primary, and, therefore, Part I, Article 11 must yield to this precludes an otherwise qualified seventeen-year-old voter from voting in a state guaranteed to political parties by the Federal Constitution to the extent that it interpreted it in Voting Age I, impermissibly burdens the right of association Senate argues that Part I, Article 11 of the New Hampshire Constitution, as we In discussing these questions, the President of the New Hampshire

SB 21 be constitutional notwithstanding our opinion in Voting Age I. States Constitution; and (3) if the answer to the second question is "yes," would of political parties than do the First and Fourteenth Amendments to the United New Hampshire Constitution provide less protection to the associational rights States Constitution"; (2) whether Part I, Article 11 and Part I, Article 32 of the to political parties under the First and Fourteenth Amendments to the United enactment of SB 21 would "infringe upon the associational rights guaranteed questions that are related to the issue we left open in Voting Age I: (1) whether In the instant matter, we have been asked to give our opinion upon three

Constitution. Id. of political parties guaranteed by the First Amendment to the United States upon whether the proposed legislation infringed upon the associational rights addressed the issue, we had not been asked and therefore would not opine Id. In Voting Age I, we observed that although those submitting memoranda and state primary elections, violated Part I, Article 11 of the State Constitution. individuals who were younger than eighteen years of age to vote in presidential N.H. at 267. We concluded that the proposed legislation, which allowed upwards shall have an equal right to vote in any election." Voting Age I, 157 in pertinent part, that "every inhabitant of the state of 18 years of age and violated Part I, Article 11 of the New Hampshire Constitution, which provides, (Voting Age I). In Voting Age I, we were asked whether the proposed legislation Opinion of the Justices (Voting Age in Primaries), 157 N.H. 265, 267 (2008) SB 21 is identical to the legislation upon which we were asked to opine in p. 5 520 U.S. at 358 (quotations omitted); see Clingman v. Beaver, 5 p. 4 44 U.S. 581, extent to which the State's concerns make the burden necessary." Timmons, against the interests the State contends justify that burden, and consider the character and magnitude of the burden the State's rule imposes on those rights whether a state election law violates ... associational rights, we weigh the Because of these competing constitutional concerns, "[when deciding

Republican Party of Connecticut, 479 U.S. 208, 217 (1986). elections. Akins v. Sec'y of State, 154 N.H. 67, 71-72 (2006); see Tashijian v. States broad power to regulate the time, place, and manner of state and federal omitted). Article I, Section 4, Clause 1 of the Federal Constitution grants accompany the democratic process." Burdick, 504 U.S. at 433 (quotation to be fair and honest and if some sort of order, rather than chaos, is to practical matter, there must be a substantial regulation of elections if they are election- and campaign-related disorder." Timmons, 520 U.S. at 358. "As a must, enact reasonable regulations of parties, elections, and ballots to reduce Burdick v. Takushi, 504 U.S. 428, 433 (1992). "States may, and inevitably The right to associate for political purposes, however, is not absolute.

358. organize itself, conduct its affairs and select its leaders. Timmons, 520 U.S. at constitutional protection," which includes the party's discretion in how to "As a result, political parties' government, structure, and activities enjoy Democratic Comm., 489 U.S. 214, 224 (1989) (citations and quotation omitted). represents the party's ideologies and preferences." Eu v. San Francisco who constitute the association and to select a standard bearer who best of her choice, but also that a political party has a right to identify the people only that an individual voter has the right to associate with the political party Area New Party, 520 U.S. 351, 357 (1997). "Freedom of association means not advancement of common political goals and ideas." Timmons v. Twin Cities "protects the right of citizens to associate and to form political parties for the Part 1, Article 32, like the First Amendment to the Federal Constitution,

Press v. State of N.H., 153 N.H. 120, 140 (2005). the First Amendment to the Federal Constitution for guidance. See Associated interpreting Part I, Article 32, therefore, we rely upon federal cases interpreting Constitution. Opinion of the Justices, 121 N.H. 434, 437 (1981). In speech and association" as does the First Amendment to the Federal grievances they suffer." This provision "guarantees the same right to free way of petition or remonstrance, redress of the wrongs done them, and of the instructions to their representatives, and to request of the legislative body, by and peaceable manner, to assemble and consult upon the common good, give 32 of the State Constitution provides: "The people have a right, in an orderly political parties under Part I, Article 32 of the State Constitution. Part I, Article We first address the protection available to the associational rights of p. 6 6

Storer v. Brown, 415 U.S. 724, 73 p. 6 6 (1974) (giving little weight to the interest that a political party may have in associating with unqualified voters. Cf. party's freedom of association is limited. We give little weight to the interest the qualifications set forth in Part I, Article 11. Any burden on a political It is likewise eminently reasonable to restrict voters to those who meet

eminently reasonable." prototypical example of a regulation that, while it affects the right to vote, is to those who have complied with state election law requirements is the explained in Burdick, 504 U.S. at 440 n. 10, "limiting the choice of candidates did not severely burden the party's associational rights. Id. As the Court circumstances, precluding the party's nominee from appearing on the ballot cannot appear on the ballot. See id. The Court concluded that, under these Such a nominee may be ineligible for office, for instance, and in such a case entitled to have its nominee appear on the ballot as the party's candidate. Id. political party has the right to select its own candidate, it was not absolutely In Timmons, for instance, the Court ruled that although an independent

vote in its primary. Cf. Timmons, 520 U.S. at 359. 489 U.S. at 224. A party is not absolutely entitled to allow anyone it wants to the right to determine voter qualifications. See Tashijian, 479 U.S. at 224; Eu, select its own structure and standard bearer, it does not follow that it also has Although a political party has the constitutionally-protected right to

disagree. its ability to lower the age at which its members can vote in its primary." We freedom of association would be severely burdened by a state law prohibiting contend that we must apply strict scrutiny because "[a] [political] party's See Tashijian, 479 U.S. at 224; Eu, 489 U.S. at 224. They a standard bearer. political party's constitutional right to determine its own structure and to select year-olds to vote in political primaries would constitute an exercise of a Proponents of SB 21's constitutionality argue that allowing seventeen-

omitted); see Akins, 154 N.H. at p. 7 72. nondiscriminatory restrictions." Clingman, 544 U.S. at 593 (quotation regulatory interests will usually be enough to justify reasonable, provision places no heavy burden on associational rights, a State's important (quotation omitted); see Akins, 154 N.H. at 72. But "[w]hen a state electoral advance a state interest of compelling importance." Burdick, 504 U.S. at 434 to 'severe' restrictions," the election law at issue must be "narrowly drawn to 504 U.S. at 434; see Akins, 154 N.H. at 72. "[W]hen those rights are subjected regulation burden(s]" constitutionally protected associational rights. Burdick, propriety of a state election law depends upon the extent to which a challenged 58 p. 6 6-87 (2005). "Under this standard, the rigorousness of our inquiry into the 7

burden is severe." Id. at 592. Tashijian [and Eul have clarified, strict scrutiny is appropriate only if the associational rights is subject to strict scrutiny. Instead, as ... cases since Clingman, 544 U.S. at 591-92. "But not every electoral law that burdens imposed" by the practices at issue upon the parties' associational rights. "applied strict scrutiny with little discussion of the magnitude of the burdens that strict scrutiny applies to the instant matter. In both cases, the Court In any event, neither Eu nor Tashijian support the proponents' argument

at best. registered voters, its interest in associating with unqualified voters is dubious While a political party may have a compelling interest in associating with allowing political parties to invite unqualified voters to vote in the primary. applies to major and minor parties alike, simply precludes the State from Part I, Article 11 does not. Timmons, 520 U.S. at 360. Part I, Article 11, which While Tashijian involved a political party's "core associational activities,"

selecting the Party's candidates." Id. at 215-16 (quotation omitted). voters whom the Party may invite to participate in the basic function of interfered with a party's associational rights by limiting "the group of registered party members. Tashijian, 4 p. 7 79 U.S. at 210-11. This law, the Court ruled, Tashijian, the law at issue required voters in a party primary to be registered More to the point is the proponents' reliance upon Tashijian. In

impose upon a political party's associational rights is limited. age requirement. As we concluded previously, whatever burden this may . merely reduces the universe of potential voters to those who meet a minimum governance, and policymaking." Timmons, 520 U.S. at 363. Part I, Article 11 By contrast, Part 1, Article 11 is "silent on parties' internal structure,

leaders. Id. at 230-31. discretion in how to organize itself, conduct its own affairs and select its 230. These restrictions, the Court ruled, directly limited a political party's between residents of northern and southern California. Eu, 489 U.S. at 229, chair of the party's state central committee, and required the chair to rotate their official governing bodies at the county level, imposed term limits for the 360. In Eu, the election laws at issue required political parties to establish involved "regulation of political parties' internal affairs." Timmons, 520 U.S. at 21's constitutionality mistakenly rely upon Eu. This case is inapposite as it In arguing that we should apply strict scrutiny, the proponents of SB

early decision to seek independent ballot status"). "the candidate and his supporters may have in making a late rather than an consideration in determining the qualifications of voters." Lassiter v. p. 8 age... are obvious examples indicating factors which a State may take into support and members." Eu, 489 U.S. at 231. "Residence requirements [and] for voters ..., even though they limit a political party's ability to garner Towards these ends, "a State may impose certain eligibility requirements

legitimate interest in integrity of ballot by ensuring competent candidates). protection of underage plaintiffs; such classification is expressive of State's minimum age requirements for certain elective offices did not violate equal A. 2d 617, 618 (N.J. 1976) (holding that state constitution's provision regarding public office), appeal dismissed by 429 U.S. 1083 (1977); Wurtzel v. Falcey, 354 (Minn. 1976) (discussing State's interest in assuring maturity of those holding their right to vote meaningfully. See Meyers v. Roberts, 246 N.W.2d 186, 188 228, and in assuring that those who vote are sufficiently mature to exercise Additionally, the State has a legitimate interest in an informed electorate, id. at preserving the integrity of its election process." Eu, 489 U.S. at 231. officials." Id. at 364. "A State indisputably [also] has a compelling interest in efficiency of their ballots and election processes as means for electing public "States certainly have an interest in protecting the integrity, fairness, and

associational rights of political parties. See Timmons, 520 U.S. at 358. sufficiently weighty to justify the minimal limitation imposed upon the instead review only whether the State's asserted regulatory interests are Voting Age I, is narrowly tailored to serve compelling state interests, but We, therefore, do not review whether Part I, Article 11, as interpreted in

116 Cong. Rec. 20167 (June 17, 1 p. 9 970). Professor Charles A. Wright to President Richard M. Nixon, April 20, 1970, in Constitution is that these lines are for the states to draw." Letter from before. It is a problem in drawing lines and ... the clear meaning ... of the suddenly informed members of the electorate though they were not so one day day in the life of all citizens in which it can rationally be said that they are eighteen from voting), aff'd, 409 U.S. 809 (1972) . "There is no single specific to equal protection challenge to State law precluding individuals under 341 F. Supp. 1187, 1188-89, 1192 (S.D. Ohio) (applying reasonableness as test (Stewart, J., concurring in part and dissenting in part); see Gaunt v. Brown, necessarily involves the power to choose a reasonable one. Id. at 294-95 dissenting in part). Rather, the power to establish an age requirement than another." Mitchell, 400 U.S. at 294 (Stewart, J., concurring in part and 'compelling interest' in drawing the line with respect to age at one point rather deny a State any choice at all, because no State could demonstrate a establish an age qualification by the 'compelling interest' standard is really to an age qualification for voting. As he observed: "[Tlo test the power to U.S.112, 294-95 (1970), that it would be futile to use strict scrutiny to analyze We agree with Justice Stewart's analysis in Oregon v. Mitchell, 400 9

May 6, 200 p. 9 9

Communication v. City of Lebanon, 148 N.H. 618, 620 (2002). Supremacy Clause. See U.S. CONST. art. VI, cl. 2; see also Koor Constitution and no need to yield to the Federal Constitution under the Constitution and the First and Fourteenth Amendments to the Federal light of this, we find no conflict between Part I, Article 32 of the State at 437, we necessarily reach the same conclusion under both constitutions. In Amendments to the Federal Constitution, see Opinion of the Justices, 121 N.H. associational rights of political parties as do the First and Fourteenth Because Part I, Article 32 provides at least as much protection to the

inviting unqualified voters to vote in primary elections. Consistent with Part I, Article 32, political parties may be precluded from political parties guaranteed by Part I, Article 32 of the State Constitution. in Voting Age 1, does not conflict with or violate the associational rights of political parties. Accordingly, we conclude that Part I, Article 11, as interpreted I, Article 11 of the State Constitution imposes upon the associational rights of We believe that these valid state interests justify whatever burdens Part

White, 415 U.S. 767 (1 p. 9 974); Gaunt, 341 F. Supp. at 1190, 1192. and vacated in part on other grounds sub nom. American Party of Texas v. Unida Party v. Bullock, 349 F. Supp. 1272, 1283 (W.D. Tex. 1972), aff'd in part U.S. at 294 (Stewart, J., concurring in part and dissenting in part); see Raza establishing an age qualification for voters is "unimpeachable." Mitchell, 400 (State may impose age minimum for voters). The State's interest in Northampton Elections Bd., 360 U.S. 45, 51 (1959); see Eu, 489 U.S. at 231