2014-0558, Annemarie Guare & a. v. State of New Hampshire

J.) denying the State’s summary judgment motion and granting that of the PER CURIAM. The State appeals an order of the Superior Court (Tucker,

Mr. La B onte orally), for the State. general, and Stephen G. LaBonte, assistant attorney general, on the brief, and Joseph A. Foster, attorney general (Anne M. Edwards, associate attorney

the petitioners. brief), and Sisti Law Offices, of Portsmouth (Alan J. Cronheim on the brief), for Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the T. Siracusa Hillman on the brief, and Mr. Christie orally), American Civil Shaheen & Gordon, P.A., of Concord (William E. Christie and Benjamin

No. 2014 - 558 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

apply our strict scrutiny standard of review to the challenged language. The In its summary judgment order, the trial court first determined that it ha d to March p. 2 2014, and the State filed its objection and cross - motion in April 2014. The petitioners filed their summary judgment motion in the trial court in

October 9, p. 2 2012. this court an emergency motion for a stay. We denied the State’s motion on form pending final resolution of this case. In October 2012, the State filed with preliminary injunction, which removed the language from the voter registration “residence”). Following several hearings, the superior court issued a “domicile”); RSA 21:6 (2012) (defining “resident”); RSA 21:6 - a (2012) (defining constitutional right to vote. See RSA 654:1, I (Supp. 2014) (defining definitions of “do micile” and “residence,” and, therefore, violates a citizen’s the challenged language is confusing because it conflates the statutory In September 2012, the petitioners filed the instant action, alleging that

Constitution. req uired by Laws p. 2 2012, 285: 2 violates Part I, Article 11 of the New Hampshire 2012, 285: 2. The sole issue in this appeal is whether the challenged language language was added to the standard voter registration form in 2012. See Laws removed from the form in 2007. See Laws 2007, 10:1. The challenged standard voter registration form in 2003. See Laws 2003, 289:25. It was Language similar to the challenged language was first added to the

I. Background

violates Part I, Article 11. We affirm. arguments to the tri al court’s determination that the challenged language court’s issuance of injunctive relief. Rather, the State confines its appellate Constitution. On appeal, the State does not separately challenge the trial challenged language violated Part I, Article 11 of the New Hampshire trial court issued the permanent injunction after concluding that the driver’s license within 60 days of becoming a resident.” Laws p. 2 2012, 285: 2. The requiring a driver to register a motor vehicle and apply for a New Hampshire [ ] laws of the s tate of New Hampshire which appl y to all residents, including laws language: “In declaring New Hampshire as my domicile, I am subject to the required to delete from the standard voter registration form the following in 2012 by the Superior Court (Lewis, J.), pursuant to which the State was The order on appeal made permanent the preliminary injunction issued

League of Women Voters. Hampshire, and p etitioner Ashwell wa s a volunteer with the New Hampshire Gua re, Blesedell, and Heal e y were students enrolled at the University of New injunctive relief. When this case was decided by the trial court, p etitioners and the League of Women Voters, on their petition for declaratory and petitioners, Annemarie E. Guare, Cody Blesedell, Garret Heal e y, Joan Ashwell, p. 3 3

State v. Carter, 167 N.H. 161, 165 (2014). Thus, the petitioners, as challenger s amounts to a determination that the language is facially unconstitutional. See challenged language to the particular facts and circumstances of this case, it See i d. Because the tr ial court’ s ruling was not based upon applying the constitutional and will not declare it invalid e xcept upon inescapable grounds. Because it is part of a legislative act, we presume the language to be Teachers – N.H. v. State of N.H., 167 N.H. ___, ___, 111 A. p. 3 3d 63, 68 (2015). issue violate s Part I, Article 11 of the State Constitution. See Am. Fed ’n of We also review de novo the trial court’s determination that the language at We review the trial court’ s application of the law to the facts de novo. Id.

will affirm the grant of summary judgment. Id. fact and if the moving party is entitled to judgment as a matter of law, then we (2014). If our review of that evidence discloses no genuine issue of material ma tter of law. B ovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758 exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, we consider the evidence in the light most favorable to each party in In reviewing the trial court’ s rulings on cross - motions for summary

A. Standard of Review

II. Discussion

waived on appeal.”). See Aubert v. Aubert, 129 N.H. 422, 428 (1987) (“Arguments not briefed are challenged language, we consider its arguments about those i nterests waived. appeal the other two interests it asserted in the trial court to justify the see 52 U.S.C. A. § 2108 p. 3 3 (Supp. 2014). Because the State has not briefed on complying wit h certain provisions of the federal Help America Vote Act (HAVA), language places on [the] right to vote” are justified by the State’s interest in vote. The State further contends that “[a]ny restrictions that the subject nondiscriminatory,” it imposes no burden up on a citizen’s fundamental right to language is “consistent with New Hampshire law[ ] and is both reasonab le and scrutiny to the subject language. The State contends that because the On appeal, the State argues that the trial court erred by applying strict

Article 11 of the State Constitution. Accordingly, the court concluded that the subject language violates Part I, to justify the severe burden up on a citizen’s fundamental right to vote. See id. to justify the language, the trial court found that none was sufficiently weighty voter s to forgo registering to vote. Although the State advanced three interests right to vote by confusing potential registrants and causing otherwise qualified because, in the trial court’s view, the subject language severely burdened the is a fundamental right, see Akins v. Sec’y of State, 15 p. 4 4 N.H. 67, 71 (2006), and trial court reasoned that strict scrutiny was required because the right to vote 4

Hampshire “domicile” has not manifested th at sa me intent. Hampshire for the indefinite future, while a person who merely has a New “domicile,” is that a “resident” has manifested an intent to remain in New betw een a “resident” and a person who merely has a New Hampshire New Hampshire although they have their “domicile” here. The basic difference (201 p. 4 4). These requirements do not apply to citizens who are not “residents” of obtain a New Hampshire driver’s license. See RSA 261:45 (2014); RSA 263:35 Hampshire, one has 60 days in which to register one’s ve hicle here and to of “resident.” See RSA 259:88 (2014). Upon becoming a “resident” of New future to the exclusion of all others.” Our motor vehicle laws use th is definition place of abode as his principal plac e of physical presence for the indefinite through all of his actions, demonstrated a current intent to designate that domiciled or has a place of abode or both in this state . . . , and who has, all others.” R SA 21:6 - a. Pursuant to RSA 21:6, a “resident” is “a person who is principal place of physical presence for the indefinite future to the exclusion of abode or domicile” is d efined as “that [place] designated by a person as his “Residence” is “a person’s place of abode or domicile,” and the phrase “place of The legislature has defined “residence” differently from “domicile.”

otherwise meets the requirements of RSA 65 p. 4 4:1, I.” she lives while attending [college] . . . if such student’ s claim of domicile domicile for voting purposes in the New Hampshire town or city in which he or 654:1, I - a (Supp. 2014) provides that a college student “may lawfully claim terminate an established domicile before the person actually moves.” RSA I, a p erson’s “mere intention to change domicile in the future does not, of itself, participating in democratic self - government.” RSA 654:1, I. Under RSA 654:1, continuous presence for domestic, social, and civil purposes relevant to established a physical presence and manifests an intent to maintain a single, defined it as “that one place where a person, more than a ny other place, has Although the State Constitution does not define “domicile,” the legislature has

where he has his domicile. purposes of voting in the town, ward, or unincorporated place election. Every person shall be consid ered an inhabitant for the years of age and upwards shall have an equal right to vote in any All elections are to be free, and every inhabitant of the state of 18

pertinent part: Pa rt I, Article 11 of the New Hampshire Constitution provides, in

B. Relevant Constitutional and Statutory Provisions

brackets omitted). circ umstances exist under which it would be valid.” Id. (quotation and of the language’s constitutionality, “must establish that no set of p. 5 5

N.H. 1 p. 5 54, 163 (2012) (describing rational basis test). rational basis is the proper standard of review. See State v. Hollenbeck, 164 reasonable and nondiscrimi natory.” Thus, the State argues, a test similar t o not only “is entirely consistent with New Hampshire law,” but also “is both imposes no burden up on the right to vote. According to the State, the language language is not misleading and does not misstate New Hampshire law, it not to register to vote. The State counters that, because the challeng ed potentially causing an otherwise qualified voter to be confused and to choose vote by conflating the statutory definitions of “domicile” and “residence” and challenged language imposes a severe burden up on the fundamental right to The petitioners argue that strict scrutiny is required because the

Obama for America v. Hust ed, 697 F.3d 423, 429 (6th Cir. 2012). Akins, 1 p. 5 54 N.H. at 72. “Most cases fall in between these two extremes.” justify the restrictions.” Burdick, 504 U.S. at 4 34 (quotations omitted); see vo ters, “the State’ s important regulatory interests are generally sufficient to imposes only “reasonable, nondiscriminatory restrictions” upon t he rights of omitted); see Akins, 154 N.H. at 72. But when a state election law provision state interest of compelling importance.” Burdick, 504 U.S. at 434 (quotation s “severe” restrictions, the regulation must be “narrowly drawn to advance a U.S. at 434; see Akins, 154 N.H. at 72. When those rights are subjected to challenged regulation burdens” the fundamental right to vote. Burdick, 504 into the propriety of a state election law depends upon the extent to which a the State Constitution). “Under this standard, the rigorousness of our inquiry (quotations omitted); see Akins, 154 N.H. at 7 2 (adopting this analysis under the plaint iff's rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) consideration the extent to which those interests make it necessary to burden State as justifications for the burden imposed by its rule, taking into rights” sought to be vindicated “against the precise interests put forward by the “weigh the character and magnitude of the asserted injury to the [voting] determine the level of scrutiny that we must apply. See id. Under that test, we scrutiny. See Akins, 154 N.H. at 72. Instead, we apply a balancing test to we do not necessarily subject any i mpingement upon that right to strict applies to the challenged language. Although the right to vote is fundamental, Like the trial court, we begin by considering the level of scrutiny that

C. Level of Scrutiny

“domicile,” and need not be a New Hampshire “resident.” that, to vote in New Hampshire, a citizen need only have a New Hampshire the statutory definition of “residence” differ. Further, the State has agreed The State has also acknowledged that the statutory definition of “domicile” and 28 p. 5 5: 2, does not alter the statutory definitions of “domicile” and “residence.” that a dded the challenged language to the voter registration form, Laws 2012, For the purposes of this appeal, the State has agreed that the 2012 law p. 6 6

confusion.” Washington State Grange v. Washington State Republican Party, Moreover, in this case, there is more than the “mere possibility of voter

and to register her vehicle here, before voting here. not a New Hampshire “resident,” to obtain a New Hampshire driver’s license challenged language requires a voter with a New Hampshire domicile, who is after this litigation was commenced, a few le gislators publicly opined that the domicile in New Hampshire and vote in a New Hampshire election.” Similarly, definition of residency” by including in that definition “persons who declare a According to the Hous e, the challenged language “expand[s] the [statutory] emergency motion to intervene filed in the trial court, argued just the opposite. and “residence,” the New Hampshire House of Representatives (House), in its that the challenged language left intact the statutory definitions of “domicile” interpretation of it). For instance, although the State has argued in this appeal that statute is ambiguous because there is more than one reasonable Leader Corp. v. N.H. Retirement Sys., 1 p. 6 62 N.H. 673, 677 (2011) (concluding confusing because it is susceptible of different int erpretations. Cf. Union We also agree with the petitioners that the challenged language is

driver’s license and registering a motor vehicle. our laws that “apply to all residents,” including our laws regarding obtaining a domicile that, upon declaring New Hampshire as her domicile, she is subject to not s tate that either. Instead, it informs a citizen with a New Hampshire and apply for a New Hampshire driver’s license. However, the language does future, within p. 6 60 days of doing so, she must register her motor vehicle here a New Hampshire domicile that, if and when she becomes a resident in the The State further argues that the language merely informs a citizen with

“which apply to all residents.” person who declares New Hampshire as her domicile is subject are those the language specifies that the laws of the State of New Hampshire to which a traffic laws. However, t his is n ot what the challenged language states. Rather, statement – non - residents are subject to certain New Hampshire laws, such as to the laws of the s tate of New Hampshire.” The State argues that this is a true a citizen that, upon declaring New Hampshire as her domicile, she is “subject The State argues that, properly interpreted, the language merely informs

of the state of New Hampshire which apply to all residents.” does not meet the statutory definition of “resident,” is not “subject to the laws This is inaccurate. A person who has only a New Hamp shire domicile, but who driver’s license within p. 6 60 days of becoming a resident.” Laws 2012, 285: 2. requiring a driver to register a motor vehicle and apply for a New Hampshire [ ] law s of the state of New Hampshire which apply to all residents, including laws that, upon declaring New Hampshire as her domicile, she is “subject to the states New Hampshire law. The challenged language informs a potential voter We agree with the petitioners that the challenged language inaccurat ely p. 7 7

vote”); In re Contest of November 8, 2011, 40 A.3d 684, 698 (N.J. 2012) basis – comes down to the severity of the burden being imposed on the right to among the degrees of scrutiny – ranging from strict to intermediate to rational 06 C 1159, 200 p. 7 7 WL 2892667, at *9 (N.D. Ill. 2007) (explaining that “[c]hoosing between the two extremes. See G ustafson v. Illinois State Bd. of Elections, No. similar to intermediate scrutiny applies to a voting restriction that falls those burdens). Courts in other jurisdictions have recognized that a test reasonable, the State’s important regulatory interests were sufficient to justify (concluding that, because any additional burdens upon the plaintiffs were severe), with Libertarian Party N.H. v. State, 154 N.H. 376, 386 (2006) at 72 - 73 (applying strict scrutiny because burden u pon voting rights was “reasonable” and “nondiscriminatory” on the other). Compare Akins, 154 N.H. voting restriction falls between the two extremes (“severe” on the one hand and We have not previously c onsidered what level of scrutiny applies when a

(quotations omitted). post hoc in response to litigation, nor upon overbroad generalizations.” Id. government may not rely upon justifications that are hypothesized or invented review, the State bears the burden of proof. See id. “To meet this burden, the intermediate scrutiny test in equal protection context). Under this level of Justice v. City of Manchester, 154 N.H. p. 7 748, 762 (2007) (discussing substantially related to an important governmental objective. Cmty. Res. for Our intermediate level of scrutiny requires that a challenged law be

scrutiny. intermediate scrutiny, a test that is more deferential to the State than strict that the burden in this case is not severe, the challenged language fails under invi tation to apply strict scrutiny because, even if we assume, without deciding, rational basis level of scrutiny. However, we similarly decline the petitioners’ Accordingly, we decline the State’s invitation to apply a test similar to our burden it imposes upon the fundamental right to vote i s unreasonable. not to register to vote in New Hampshire, we hold that, as a matter of law, the because, as the trial court found, it could cause an otherwise qualified voter Because the challenged language is confusing and inaccurate, and

they are entitled to vote in New Hampshire because they are “domiciled” here. even though Guare, Blesedell, and Healey are not New Hampshire “residents,” Hampshire because of the challenged language. However, it is undisputed that also testified that they would feel uncomfortable registering to vote in New and motor vehicle registration upon registering to vote. Blesedell and Healey not a New Hampshire “resident,” must obtain a New Hampshire driver’s license and is unclear as to whether a citizen with a New Hampsh ire “domicile,” who is confusi ng because it uses the words “domicile” and “resident” interchangeably Blesedell, and Healey testified that they found the challenged language its face based upon “mere poss ibility of voter confusion”). Petitioners Guare, 552 U.S. 442, 455 (200 p. 8 8) (concluding that court cannot invalidate statute on 8

issue of whether intermediate scrutiny is available in voting rights cases. See The United States Supreme Court appears to be divided regarding t he

Id. at 54 p. 8 8. the State must demonstrate tha t such costs would actually be burdensome.” restrictions [,]. . . where more than minimal burdens on voters are established, because “some cost - saving rationale could be identified in most voting voters.” Id. Similarly, with regard to reducing costs, the court explained that that might more directly target the asserted prob lem without burdening a way that is ‘necessary’ to burden . . . voters,. . . as opposed to a measure “eliminating Golden Week serves to prevent a ‘precise’ problem of voter fraud in Id. at 547. Rather, the State had the burden of dem onstrating that “regarding the difficulties of verifying voter registration before counting ballots.” provide only “a handful of actual examples of voter fraud” and general evidence preventing voter fraud, the court conclude d that the State had to do more than eliminating “Golden Week” necessary. See i d. For instance, with regard to the State failed to present sufficient proof that it s abstract interests made imposed upon Ohio voters. Id. at 546 - 49. However, the court determined that reducing costs, and promoting uniformity justified the law’s significant burden F.3d at 531 - 32. The State asserted that its interests in preventing voter fraud, register and vote on the same day. Ohio State Conference of N.A.A.C.P., 768 “Golden Week,” a five - day period during which Ohio voters were allowed to The law at issue i n Ohio State Conference of N.A.A.C.P. eliminated

to justify that burden). interest in the smooth functioning of local boards of elections” was insufficient law “is not severe, but neither is it slight,” and concluding that State’s “vague 433, 434 (holding that burden upon non - military Ohio voters from challenged Conference of N.A.A.C.P., 76 p. 8 8 F.3d at 545; see Obama for America, 697 F.3d at necessary, meaning it actually addresses, the interest put forth.” Ohio State interests, and explain why the particular restriction imposed is actually burden under this test is to “articulate specific, rather than abs tract state omitted); see Burdick, 504 U.S. at 434. The court explained that the State’s interests make it necessary to burden the plaintiff’ s rights.” Id. (quotations imposed by its rule, taking into consider ation the extent to which those “precise interests put forward by the State as justifications for the burden granted, 135 S. Ct. 42 (2014). The court then weighed the burdens against the State Conference o f N.A.A.C.P. v. Husted, 768 F.3d 524, 545 (6th Cir.), stay burden imposed by the challenged law was “significant, but not severe.” Ohio Court of Appeals upheld the district court’s determination that the overall For instance, in Ohio State Conference of N.A.A.C.P., the Sixth Circuit

d uration”). “requirements that candidates live in a district or municipality for a particular commonly applied level of scrutiny” when analyzing the constitutionality of (explaining that intermediate scrutiny “appears to have become the more p. 9 9

Governor’s veto. See N.H.H.R. Jour. 1773 - 74 (2012). Complying with HAVA is Senate Bill (SB) 318, which the legislature ultimately enacted by overr id ing the interest in adopting Laws 2012, 28 5: 2. L aws 2012, 285:2 had its genesis as petitioners rightly assert, however, this interest was not the State’s actual State has advanced on appeal is its interest in complying with HAVA. As the we apply this intermediate scrutiny test. The only governmental interest the unreasonable and because we assume, without deciding, that it is not severe, Because we have held that the burden in the instant case is

omitted)). hoc in response to litigation, nor upo n overbroad generalizations” (quotations State “may not rely upon justifications that are hypothesized or invented post Res. for Justice, 154 N.H. at 762 (to meet burden under intermediate scrutiny, granted on other grounds, 2010 WL 383404 p. 9 9 (D. N.M. July 28, 2010); Cmty. more than assert that its regulatory in terests are important), reconsideration Amendment of the Federal Constitution to voter registration law, State must do 1183, 1220 (D. N.M. 2010) (to respond to a challenge under the First F.3d at 5 45; cf. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d addresses, the interest set forth.” Ohio State Conference of N.A.A.C.P., 768 particular restriction imposed is actually necessary, meaning it actually “articulate specific, rather than abstract state interests, and explain why the test that is similar to intermediate scrutiny. Under that test, the State must We believe that the flexible standard that we adopted in Akins includes a

to the “two - track approach” to voting rights cases). nondiscriminatory restri ctions.” Id. at 204 - 05 (Scalia, J., concurring) (referring scrutiny for severe restrictions and rational basis for “nonsevere, opined that there are only two levels of scrutiny for election laws – strict at 2 p. 10 10. By contrast, in their concurrence, Justices Scalia, Thomas, and Alito under which “the scrutiny varies with the effect of the regulation at issue.” Id. “avoided preset levels of scrutiny in favor of a sliding - scale balancing analysis,” and the right of States to regulate elections, on the other hand), the C ourt has competing, legitimate interests (the fundamental right to vote, o n the one hand, (citation omitted). They explained that, because voting rights cases involve two its interests outweigh the particular impediments it has imposed.” Id. at 20 p. 9 9 even compelling, but must make a particular, fa ctual showing that threats to the right to vote merely by invoking abstract interests, be they legitimate or (Souter, J., dissenting). These justices opined that “a State may not burden similar to intermediate scrutiny to voting rights cases. See id. at 209 - 10 Crawford, Justices Souter and Ginsburg expressed support for applying a test intermediate scrutiny. Id. at 191 - 203 (plurality opinion). In their dissent in balancing test that, arguably, could encompass a test comparable to intermediate scrutiny was available in voting rights cases, it applied a fle xible Justice Roberts and Justice Kennedy, did not directly address whether plurality opinion in Crawford, written by Justice Stevens and joined by Chief Crawford v. Marion County Election B d., 55 3 U.S. 1 81 (2008). Although the 10

DALIANIS, C.J.