2018-0267, Opinion of the Justices (Definition of Resident and Residence)

Constitution. (a) The Equal Protection Clause of Part I, Article 2 of the New Hampshire

provisions of the New Hampshire or United States Constitutions? therewith, would House Bill 1264, on its face, violate any of the following required by RAs 261:45 and 263:35 and to pay any fees or taxes associated Hampshire, including but not limited to the requirements to take actions purposes to the same legal requirements as those who are residents of New "I. By subjecting those who are domiciled in New Hampshire for voting

give their opinion on the following questions of law: action. The Governor and Executive Council have requested that the justices upon completion of which the bill will be placed before the Governor for his New Hampshire Senate, and is currently pending in the enrolled bills process, has been approved by the New Hampshire House of Representatives and the definition of "resident" and "residence" in RSA 21:6 and RSA 21:6-a. The act opinion of the justices regarding House Bill (HB) 1264, an act amending the of the Governor and Executive Council dated the same date requesting an and the associate justices of the supreme court a certified copy of a resolution On May 16, 2018, the Secretary of State transmitted to the chief justice

No. 2018-0267 Request of the Governor and Council

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, Concord, 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

render advisory opinions "only in carefully circumscribed situations." Duncan noted, this provision of the constitution empowers the justices of this court to important questions of law and upon solemn occasions." As we have often authority to require the opinions of the justices of the supreme court upon branch of the legislature as well as the governor and council shall have Part II, Article 74 of the New Hampshire Constitution provides: "Each

I. Propriety of an Advisory Opinion

the certified questions must be answered in the negative. advisory opinion. Accordingly, we respectfully return our response that all of conclude that the request constitutes a proper circumstance for us to issue an Having reviewed these submissions and fully considered the issues, we

in your resolution. Supreme Court return the following separate replies to the questions presented memoranda addressing the above questions. The undersigned justices of the Upon receipt of the request, we invited interested parties to submit

To the Honorable Governor and Council:

United States Constitution." (c) The Equal Protection Clause of the Fourteenth Amendment to the

(b) Part I, Article 11 of the New Hampshire Constitution.

Constitution. (a) The Equal Protection Clause of Part I, Article p. 2 2 of the New Hampshire

of the New Hampshire or United States Constitutions? claim New Hampshire as their residence, violate any of the following provisions claim New Hampshire as their domicile for voting purposes but who do not postsecondary institution within the State of New Hampshire who currently therewith, would House Bill 1 p. 2 264, as applied to students attending a required by RSAs 261:45 and 263:35 and to pay any fees or taxes associated Hampshire, including but not limited to the requirements to take actions purposes to the same legal requirements as those who are residents of New II. By subjecting those who are domiciled in New Hampshire for voting

United States Constitution. (c) The Equal Protection Clause of the Fourteenth Amendment to the

(b) Part 1, Article 11 of the New Hampshire Constitution. p. 3 3

answers regarding voting rights issues requires factual development that can questions is that we have insufficient information to do so because providing The other argument advanced in support of our declining to answer the

answer the questions submitted. in making his decision. Under these circumstances, we believe it is our duty to alia, is to serve as advisor to the Governor, has sought our guidance to aid him constitutionality and, with the concurrence of the Council, whose role, inter law without his signature. He has expressed concerns as to its constitutional responsibility to approve or veto HB 1264 or allow it to become with the requirements of Part II, Article 74. The Governor has the opinions to solemn occasions, we are satisfied that the request here comports Although we remain sensitive to the importance of confining our advisory

Justices, 79 N.H. 5 p. 3 35 (1919). See Opinion of the Justices, 113 N.H. at 88-89; see also Opinion of the involvement, proposed to include in the budget he submitted to the legislature. to the constitutionality of a footnote that the Governor, without Council (1973), where the questions submitted by the Governor and Council pertained functioning of the executive branch in Opinion of the Justices, 113 N.H. 87 We made a similar assumption as to the usefulness of our answers to the performance of the duties legally imposed upon you." Id. (quotation omitted). "upon the assumption that our opinion may be of use to you in the executive duty." Id. at 514. That being the case, we submitted our answers submitted in the resolution of the Governor and Council pertain to their legislature. Id. In providing our response, we observed that "the questions become law unless disapproved by concurrent resolution of both houses of the concurrence of the Council - to adopt the measures, which would then with the assistance of advice from a special commission, but without the 14. The legislation authorizing the reorganization called for the Governor executive branch of state government. Opinion of the Justices, 96 N.H. at 513constitutionality of measures proposing the reorganization of agencies of the opinion, at the behest of the Governor and Council, concerning the Justices, 96 N.H. 513 (1949), the majority of the justices provided their previously answered questions in analogous circumstances. In Opinion of the opinion in a situation the same as that presented here. However, we have We acknowledge that we have not previously been asked for an advisory

by the justices in an advisory opinion. We find this argument unpersuasive. Council, as a body, has no interest that will be advanced by any advice given without his signature, see N.H. CONST. pt. II, art. p. 4 44, the Governor and respect to HB 1264, by signing it, vetoing it, or allowing it to become law than the Governor and Council, has the exclusive authority to take action with of this position. First, it is argued that, because the Governor alone, rather decline to issue an advisory opinion. Two arguments are advanced in support v. State, 166 N.H. 6 p. 3 30, 640 (2014). Several interested parties urge us to 4

the court's ruling on summary judgment. of fact regarding such testimony, that testimony could not have formed the basis for our review of language of the form. But because we did not indicate that the trial court had made any findings 1 We did point to testimony of several of the petitioners in Guare that they were confused by the

violated Part I, Article 11 of the State Constitution. Id. at 665, 669. unreasonable burden on the right to vote as a matter of law and therefore qualified voter not to register to vote in New Hampshire," it imposed an was "confusing and inaccurate," and therefore "could cause an otherwise Applying intermediate scrutiny, we held that, because the language on the form not severe and therefore that the strict scrutiny test did not apply. Id. subject. See id. at 665. Rather, we assumed that the burden on voting was form's language imposed on voting or the level of scrutiny to which it was particular facts developed in the trial court, either the extent of the burden the More importantly, we found it unnecessary to determine, based on any

its face, it was "susceptible of different interpretations." Id. at 66 p. 4 4.1 then explained that the language used in the form was confusing, in that, on unconstitutional," and thus subject to de novo review by this court. Id. We treated the court's decision as "a determination that the language is facially particular facts and circumstances of this case." Id. at 661. Accordingly, we court's ruling was not based upon applying the challenged language to the registration form at issue. Id. at 659-60. As we specifically observed, "the trial disputes — in favor of the parties who challenged the legality of the voter judgment ruling — in which the trial court was not permitted to resolve factual (2015). To the contrary, the appeal was based upon the trial court's summary made by the trial court in that case. See Guare v. State of N.H., 167 N.H. 658 appeal in Guare, we did not find it necessary to rely upon any factual findings Significantly, however, in subsequently addressing the merits of the

request. Id. at 5 p. 4 42-43. two years" that raised similar legal issues to those raised by the House in its case, Guare v. State of New Hampshire, "with a factual record developed over Id. We also noted that there was then pending before this court a litigated concluded that it could not be resolved in the context of an advisory opinion. vote. See id. at 542. Because that determination was a factual question, we determine the extent of the burden which the measure imposed on the right to what level of scrutiny to apply to the proposed legislation would require us to Purposes), 167 N.H. 539, 541 (2015). As grounds, we observed that deciding domicile for voting purposes. Opinion of the Justices (Domicile for Voting House of Representatives on a bill proposing to amend the definition of from answering a request for an advisory opinion from the New Hampshire Justices (Domicile for Voting Purposes). In that case, we asked to be excused the opponents of HB 1264 rely primarily on our decision in Opinion of the only occur in the context of a fully litigated case. In support of this position, p. 5 Opinion of the Justices, 129 N.H. at 290, 295 (1987). Rather, fairly students, nor could we opine about the same without a factual record. See how the statute might apply to the circumstances of any particular student or "residence" for other purposes. The questions do not ask for our opinion as to New Hampshire as their "domicile" for voting purposes but not as their postsecondary educational institutions in New Hampshire who currently claim general application of HB 1264 to the at-large population of students attending these questions do not ask about any circumstances more specific than the individual's special circumstances. But, unlike a typical as-applied challenge, should be treated as though they seek our opinion regarding a specific Furthermore, our colleagues assume that questions II(a) through (c)

with our precedents establishing the applicable standard of review. See id. on the mere possibility that such a motive might exist is fundamentally at odds Governor and Council our opinion on the constitutionality of HB 1264 based Lawsuit), 162 N.H. 160, 164 (2011). Accordingly, to decline to give the constitutional. See Opinion of the Justices (Requiring Att'y Gen. to Join which, as we explain below, it is not — we presume legislative enactments to be improper legislative purpose could be grounds for invalidating HB 1264 the legislation and one such purpose could be improper. However, even if an through (c) because, they claim, there is a factual dispute as to the purpose of Second, our colleagues assert an inability to answer questions Il(a)

proposition that, as explained below, tails as a matter of law. special, more relaxed legal standard tor dom ■ c ■ le tor vot ■ ng purposes only, a unless the State or Federal Constitution requires New Hampshire to maintain a voting purposes equal to the legal standard for residence for other purposes — more narrowly tailor HB 1264 than to make the legal standard for domicile for interest." Yet they fail to explain what facts could require the legislature to are unable to assess whether HB 1264 is "narrowly drawn' to serve that with the population generally, they assert that, without a factual record, they insuring that those allowed to vote in this state share a community of interest while willing to assume that HB 1264 serves the compelling state interest in questions on two grounds. First, with respect to questions I(a) through (c), In their separate opinion, our colleagues decline to answer the submitted

standard of review. if, as we also assume without deciding, it is subject to the most exacting population generally. Therefore, the bill satisfies constitutional standards even those allowed to vote in this state share a community of interest with the for other purposes, the bill serves the compelling state interest of insuring that Hampshire some or all of those affected by the change in the law of residence assume that its collateral consequences will discourage from voting in New we explain below, HB 12 p. 6 64 has no effect on eligibility to vote, and even if we to answer the questions submitted despite the absence of a factual record. As Consistent with the above discussion, we conclude here that we are able 6

subdivision of this state, and who has, through all of his actions, both in this state and in any city, town or other political state shall be a person who is domiciled or has a place of abode or this state and of any city, town or other political subdivision of this Resident; Inhabitant. A resident or inhabitant or both of

"Residence," which provide: this are RSA 21: p. 6 6 and :6-a, entitled, respectively, "Resident; Inhabitant" and are frequently used synonymously. 28 C.J.S. Domicile § 5. Prime examples of Despite the difference in meaning, the terms "domicile" and "residence"

Henderson, 78 N.H. 509, 512 (1917). as consisting of actual residence coupled with an intention to remain. Felker v. than one domicile at a time"). To the same effect, we have described domicile domicile at all times and, at least for the same purpose, no person has more (Second) of Conflict of Laws § 11(2) (1988) (explaining that "[elvery person has a time, but only one domicile. * 28 Ca.S. mortha on reside see at statement the conclusion that "one .. connection with a locality than is encompassed by mere residence, supporting thus universally understood to connote a more significant and lasting 892 A.2d p. 6 604, 626 (Md. Ct. Spec. App. 2006) (quotations omitted). Domicile is rights and performs the duties of a citizen." Bergmann v. Board of Regents, the person "identifies himself and all his interests" and there "exercises the relatively short duration, whereas a person's domicile is the place with which understood to be the place where he or she is currently living, even if only for deeply engrained in American law. A person's residence is generally The distinction between the concepts of "residence" and "domicile" is

A. Background

II. The Merits

Governor and Council. conclude that we are duty bound to answer the questions propounded by the For the above reasons, we respectfully disagree with our colleagues and

firm intention to leave at a fixed time" (emphasis added)). include "all [persons] who would be permitted to register [to vote] but for their properly certified, it was "not the most comprehensive" class because it did not students subject to New Hampshire's then-existing statute for voting was (D.N.H. 19 p. 7 72) (observing that, although the plaintiff class comprised of all questions themselves. Cf. Newburger v. Peterson, 344 F. Supp. 559, 5 p. 6 60 questions, we need to know nothing more than the facts postulated in the of HB 1264 to such persons unconstitutional. To provide answers to these is anything about the status of being a "student" that would render application understood, questions II(a) through (c) ask us to opine only as to whether there 7

subject to RSA 21:6 and :6-a. "resident" or "residence," to avoid confusion we also use those terms when describing persons than mere residency. However, because the legislature labels the relationship thus defined as that would be effectuated if HB 1264 becomes law, satisfies the traditional test of domicile, rather 2 The connection to place defined by RSA 21:6 and :6-a, either with or without the amendments

(1862), which, like the terms of current RSA 21:6 and :6-a, required that the the common law of domicile, as embodied in State v. Daniels, 44 N.H. 383 he dwells and has his home," the voting authorities interpreted it to incorporate then in effect granted the right to vote to an inhabitant "in the town in which he intended to leave Hanover upon his graduation." Id. Although the statute vote, he was denied "solely because he stated to voter registration officials that Newburger, 344 F. Supp. at 560. When the student attempted to register to attending school but who intend to leave those communities upon graduation." students who wish to register in the communities where they reside while action suit brought by a Dartmouth College student on behalf of "all voting age years ago as the result of the decision in Newburger. Newburger was a class The genesis of the problem described above first came to light many

from the text of RSA 21:6 and :6-a. To correct this problem, HB 1264 removes the words "for the indefinite future" be domiciled in this state for voting purposes pursuant to RSA 654:1, 1(2016).2 requires a degree of connection to a place that is greater than that required to used in their titles, to satisfy the current definitions of RSA 21:6 and :6-a as it may be — is that, notwithstanding the "resident" and "residence" labels go beyond the traditional definition of domicile. The result - counterintuitive is that the above definitions have been interpreted to impose requirements that gives rise to the proposed change in the law of residency set forth in HB 1264 that, at a minimum, satisfies the traditional test of domicile. The problem that clear that they are intended to describe the intensity of connection to a place "residence" in the titles of these sections, the language of the definitions makes RSA 21:6-a (2012). Notwithstanding the use of the words "resident" and

residence or residency as the principal place of physical presence. temporary absence from it, if there is an intent to return to such residence or residency shall not be interrupted or lost by a for the indefinite future to the exclusion of all others. Such designated by a person as his principal place of physical presence place of abode or domicile. The place of abode or domicile is that Residence. Residence or residency shall mean a person's

the exclusion of all others. his principal place of physical presence for the indefinite future to demonstrated a current intent to designate that place of abode as p. 8 8

so as to be entitled to vote. from persons being "in every meaningful sense members of New Hampshire political communities" 3 Significantly, the Newburger court had no occasion to address what other consequences flow

I-a for voting purposes and, under RSA 21:6 and :6-a for most other purposes, The difference between the definition of domicile under RSA 654:1, I, and

the "for the indefinite future" language from RSA 21:6 and :6-a. Until now, however, the legislature has never enacted legislation that removes

of RSA 654:1, I. such student's claim of domicile otherwise meets the requirements which he or she lives while attending such institution of learning if domicile for voting purposes in the New Hampshire town or city in I-a. A student of any institution of learning may lawfully claim

person actually moves. does not, of itself, terminate an established domicile before the time, however a mere intention to change domicile in the future government. A person has the right to change domicile at any civil purposes relevant to participating in democratic selfmaintain a single continuous presence for domestic, social, and established a physical presence and manifests an intent to one place where a person, more than any other place, has is domiciled. An inhabitant's domicile for voting purposes is that vote in the town, ward, or unincorporated place in which he or she New Hampshire, shall have a right at any meeting or election, to the age provided for in Article 11 of Part First of the Constitution of domicile for voting purposes, being a citizen of the United States, of I. Every inhabitant of the state, having a single established

654:1, 1, and I-a (2016), which provide: regarding domicile for voting purposes. Currently, that law is codified in RSA Subsequent to the Newburger decision, New Hampshire amended its law

the right." Id.3 they are no longer concerned, if indeed the former community still recognizes communities elsewhere which they have long departed and with whose affairs meaningful sense members of New Hampshire political communities to vote in "the challenged New Hampshire law forces persons who are in every Amendment." Id. at 563. In reaching this decision, the court observed that application to the class "offends the equal protection clause of the Fourteenth necessary to serve a compelling [state] interest," and therefore that its The district court ruled that "the indefinite intention requirement is [not] place in order to qualify as a domiciliary. See Newburger, 344 F. Supp. at 560. person have an intention to remain permanently or indefinitely in a particular equivalent to the definition of "domicile" in RSA 654:1, I. p. 9 disputes that the bill makes the definitions of "resident" and "residence" in RSA 21:6 and :6-a 4 None of the parties who have submitted memoranda in support of or in opposition to HB 1264

Id. This means that we will not hold the act to be unconstitutional unless a constitutional and will not declare it invalid except upon inescapable grounds. legislation, as when we review an existing statute, we presume it to be constitutional rights in any given case. Id. Thus, in reviewing proposed the legislation if enacted will be construed harmoniously with an individual's standard applies when we review proposed legislation, for it is understood that the Justices (Requiring Att'y Gen. to Join Lawsuit), 162 N.H. at 164. The same conflict with constitutional rights whenever reasonably possible. Opinion of When we interpret statutes already in effect, they are construed to avoid

Hampshire. applied to students attending postsecondary educational institutions in New by the State Constitution, see N.H. CONST. pt. I, art. 11, either facially or as CONST. pt. I, art. 2; U.S. CONST. amend. XIV, or the right to vote guaranteed the equal protection clauses of the State or Federal Constitutions, see N.H. The submitted questions ask our opinion as to whether HB 1264 violates

B. Analysis

the one hand, and RSA 654:1, 1, on the other, is not identical.4 notwithstanding that the text of the amended version of RSA 21:6 and :6-a, on the same as the definition of "domicile" as used in RSA 654:1, I, the definitions of "resident" and "residence" as used in those statutes effectively the words "for the indefinite future" from RSA 21:6 and :6-a, HB 1264 makes HB 1264 redresses the confusion we identified in Guare. By removing

or to obtain a New Hampshire driver's license. Id. at 664-65. vote, the person would be required to register his or her car in New Hampshire form could erroneously lead a prospective voter to believe that, by registering to because they were domiciled here. Id. Accordingly, we concluded that the New Hampshire residents, they were entitled to vote in New Hampshire id. at 663, and thus it was undisputed that even though the plaintiffs were not at 664-65. The State conceded that such an interpretation was not accurate, 21:6 and :6-a were the same as the definition of "domicile" in RSA 654:1, I. Id. interpreted to mean that the definitions of "resident" and "residence" in RSA agreed with the plaintiffs that the form was confusing because it could be form which stated that they were required to do so. Id. As discussed above, we Guare, 167 N.H. at 659-60. They challenged language in the voter registration laws that apply to persons meeting the definitions of RSA 21:6 and :6-a. who did not believe that doing so required them thereafter to comply with other group of mostly college students who desired to vote in New Hampshire but is the issue underlying our decision in Guare. The plaintiffs in Guare were a p. 10 10

relaxed legal standard for domicile for voting purposes only. "first impression" under either the State or Federal Constitution that a state must have a special, 5 Thus, we disagree with the intimation in our colleagues opinion that there is a viable claim of

any election. Every person shall be considered an inhabitant for of 18 years of age and upwards shall have an equal right to vote in All elections are to be free, and every inhabitant of the state

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

New Hampshire in the absence of HB 1264 will not do so. bill becomes law, a significant number of this group who would have voted in comprise a substantial portion of those impacted by HB 1264 and that, if the from other states to attend institutions of postsecondary education will challenging its constitutionality: that students who come to New Hampshire questions making the assumptions that the opponents of HB 1264 urge in Furthermore, with respect to questions II(a) through (c), we answer these

that we therefore need not repeat the analysis separately for each question. analysis required to address all of the submitted questions is the same, and State, 154 N.H. 67, 71-73 (2006). For these reasons, we conclude that the voting rights under the State and Federal Constitutions. See Akins v. Sec'y of of scrutiny analysis used in considering equal protection claims involving under Part I, Article 11 of the State Constitution, we have used the same level constitution, see id. at 637-40. In addition, when considering claims raised used by the federal courts in considering claims raised under either 150 N.H. 634, 637 (2004), and we have applied an analysis identical to that does Part I, Article 2 of the New Hampshire Constitution, see In re Sandra H., that the Fourteenth Amendment provides no greater level of protection than clauses of both the State and Federal Constitutions, we have previously held Although the submitted questions are directed to the equal protection

has a compelling state interest not to do so. Hampshire have no such constitutional obligation but, quite the contrary, it other purposes. We have no hesitancy in opining that not only does New claim residency here only for voting purposes while eschewing this status for the State of New Hampshire to permit persons to vote in this state who seek to the questions submitted is whether the State or Federal Constitution requires or in opposition to HB 1264, we observe that the fundamental issue posed by Before we proceed to address specific arguments advanced in support of

those doubts must be resolved in favor of its constitutionality. Id. means that when doubts exist as to the constitutionality of a legislative act, clear and substantial conflict exists between it and the constitution. Id. It also p. 11 11

required to have a special rule of domicile solely for voting purposes, so that that the premise of the opponents' arguments is that New Hampshire is license, see RSA 263:35 (2014). Viewed from this perspective, it is apparent (Supp. 2017), and, if they drive, they must obtain a New Hampshire driver's they must register their motor vehicle in New Hampshire, see RSA 261:45, I residents for purposes of the requirement that, if they own a motor vehicle, persons who are domiciled in New Hampshire for voting purposes also will be "domicile" found in RSA 654:1, I. Thus, for example, if HB 1264 becomes law, Hampshire law so that those definitions are equivalent to the definition of RSA 21:6 and :6-a for purposes of the application of other provisions of New Instead, HB 1264 amends the definitions of "resident" and "residence" in

qualified as domiciliaries if HB 1264 is enacted into law. who qualify as domiciliaries of this state at the present time will remain 1264 purports to change the terms of that statute. Accordingly, all persons domicile for voting purposes is set forth in RSA 654:1, 1, and nothing in HB domicile" (quotations omitted)). As discussed above, our state's definition of geographical area, the term residence should be equated with the concept of statutory provisions limit the right to vote to the residents of a given matter of virtually uniform recognition that, where state constitutional and Purposes, 44 A.L.R.3d 797 § 2, at 801 (1972), for the proposition that "lilt is a 1256, 1261 (2d Cir. 2002) (citing Annotation, Residence of Students for Voting vote dominates the election laws of most states." Wit v. Berman, 306 F.3d Hampshire elections. "The domicile test for determining where citizens may HB 1264 does not affect the eligibility of persons to vote in New

and effect of HB 1264. against young voters. These arguments, however, misconstrue the purpose interests, constitutes a prohibited "poll tax," and improperly discriminates to vote that are not justified by either compelling, or even important, state because the bill imposes severe, or at least significant, restrictions on the right oppose HB 1264 argue that it violates the State and Federal Constitutions In urging affirmative answers to the submitted questions, those who

justify the restrictions." Id. (quotations omitted). voters, the State's important regulatory interests are generally sufficient to imposes only reasonable, nondiscriminatory restrictions upon the rights of 167 N.H. at 663 (quotation omitted). "But when a state election law provision "narrowly drawn to advance a state interest of compelling importance." Guare, When a measure subjects voting rights to "severe" restrictions, it must be depending upon the extent of the burden imposed on the right. See id. at 72. legislation affecting the right to vote are reviewed under differing standards The right to vote is a fundamental right. Akins, 154 N.H. at 71. Challenges to

where he has his domicile. the purposes of voting in the town, ward, or unincorporated place p. 12 12

their automobiles in Maryland and obtain drivers' permits and license plates from the state, the enclave paid state income, gasoline, sales, and use taxes, and were required to register elections." Evans v. Cornman, 398 U.S. 419, 422 (1970). However, given that the residents of sufficiently compelling to justify limitations on the suffrage, at least with regard to some affected by electoral decisions have a voice in making them" was "assumed ... [to] be state to "insure that only those citizens who are primarily or substantially interested in or Maryland's proffered reason for denying the vote to residents of a federal enclave within the registration, or driver's license." Id. at 352. In Evans, the Court noted that the State of voters... would collect such objective indicia of bona fide residence as a dwelling, car the community is in fact a resident," id., and that it was "unlikely that would-be fraudulent difficult for Tennessee to determine on an individualized basis whether one recently arrived in community were bona fide residents, see id. at 351, the Court reasoned that it was "not very for the durational requirement as a means of determining whether certain persons in the tested by the stringent standard." Id. at 343-44. In rejecting the State's proffered justification representing a separate voting qualification imposed on bona fide residents, must be separately could withstand close constitutional scrutiny. But durational residence requirements, may be necessary to preserve the basic conception of a political community, and therefore stated, "[a]n appropriately defined and uniformly applied requirement of bona fide residence voters be bona fide residents of the relevant political subdivision." Id. at 343. As the Court had on several occasions "noted approvingly that the States have the power to require that bona fide residence requirements and durational residence requirements," reiterating that it further a sufficiently substantial state interest, the Court emphasized "the difference between determining whether Tennessee had shown that durational requirements were needed to residents," but, rather, challenged the "additional durational residence requirement." Id. In did not present a challenge to Tennessee's "power to restrict the vote to bona fide Tennessee to vote. Dunn v. Blumstein, 405 U.S. 330, 334 (1972). As the Court expressly noted, the case for one year in the state and three months in the county in which he or she sought to register which, in addition to being a resident, a would-be voter was required to have been a resident Supreme Court reviewed a challenge to Tennessee's durational residence requirement under that persons who desire to vote in New Hampshire be residents of the state. In Dunn, the distinguishable and, in fact, support our conclusion that the State may constitutionally require Blumstein and Evans v. Cornman in support. Those cases are, however, readily from the franchise a sector of the population because of the way they may vote," citing Dunn v. "community of interest" is "susceptible of abuse" and may serve as a pretext for "fencing out 6 Our colleagues express concern that the State's interest in insuring that voters share a

highest order.° See, e.g., Dunn v. Blumstein, 405 U.S. 330, 343-44 (1972) interest with other citizens of the jurisdiction is a legitimate concern of the who are permitted to vote are bona fide residents who share a community of Court and other courts have repeatedly emphasized that insuring that those State has a compelling justification for making that change. The Supreme once the definitions of "domicile" and "residence" are made equivalent, the to take advantage of that special rule, but who will no longer be able to do so p. 12 1264 could be viewed as imposing a "burden" on those voters who now are able domicile rule for voting purposes that would result from the enactment of HB Moreover, even assuming that the elimination of RSA 654:1, I's "special"

Constitution or the constitution of any state. we aware of, any authority supporting such a requirement under the Federal citizenship normally imposed. The opponents of the bill have not cited, nor are persons are allowed to vote here without assuming the other obligations of p. 13 13

unconstitutional to deny them the right to vote. Id. at 424-25. such residents were effectively treated as state residents to such an extent that it was

domicile, see Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992); person votes is regarded as a "weighty factor" in the determination of one's the state in which a person is registered to vote; at the very least, where a democratic self-government." RSA 654:1, I. Domicile is sometimes presumed in presence for domestic, social, and civil purposes relevant to participating in physical presence and manifest| | an intent to maintain a single continuous "that one place where [they], more than any other place, [have] established a who not only are present in the state but who also regard New Hampshire as Under RSA 654:1, I, persons entitled to vote in New Hampshire are those

voting behaviors severely undermine notions of representative government. marginal connections to the electoral district"). These potential aberrations in it in their interests to attempt to register large numbers of persons with only (noting, in a related context, that "some political organizations might well find Dunn, 405 U.S. at 345 (emphasis added); see also Wit, 306 F.3d at 1263

legitimate and compelling government goal. candidate to win by fraud. Surely the prevention of such fraud is a residents to become eligible to vote, and, by voting, allow a temporarily invade the State or county, falsely swear that they are singly or in groups. The main concern is that nonresidents will The impurities feared ... all involve voting by nonresidents, either

against which residency requirements are designed to protect: community. In Dunn, Justice Marshall aptly described one of the harms confidence in political outcomes and guards against a distortion of the political Insuring a community of interest among voters and residents promotes

omitted)). ferreting out those whose claimed residence is not bona fide" (quotation physical residence may not coincide," the statute "permissibly aids the State in identifying classes of persons whose residence for voting purposes and whose inquiry than is applicable to prospective registrants generally" because, "[bly with other groups likely to include transients, to the risk of a more searching voter registration law that "distinguishes students by subjecting them, along 1985) (assuming that strict scrutiny standard applied, court upheld a state availability of the ballot'); Auerbach v. Rettaliata, 765 F.2d 350, 354-55 (2d Cir. unquestioned power to impose reasonable residence restrictions on the scrutiny"); Carrington v. Rash, 380 U.S. 89, 91 (1965) (stating that "Texas has political community, and therefore could withstand close constitutional of bona fide residence may be necessary to preserve the basic conception of a (recognizing that "[a]n appropriately defined and uniformly applied requirement p. 14 14

necessary to the accomplishment of its legitimate purpose" (quotation (explaining that to satisfy strict scrutiny, the challenged law "must be interest. See Guare, 167 N.H. at 663; see also Akins, 154 N.H. at 73 interest, we next consider whether it is narrowly drawn to advance that Because we determine that HB 1264 is justified by a compelling state

and responsibilities was precisely the purpose of HB 1264. catalogued in memoranda submitted to us, correcting this imbalance of rights legislative history and to public remarks made by its legislative supporters as Newburger, 344 F. Supp. at 563. As demonstrated by the references to its

hoped-for goal of discharge. term, a military person on a term of duty, a hospital patient with a contractor on a project with a deadline, a city manager hired for a government trainee working up a precise career ladder, a research construction worker on a long but time-limited job, an industrial or career plan that gives him two or three years in New Hampshire, a to his Florida cottage at age 65, a hospital intern or resident with a graduation, a newly-arrived executive with a firm intention to retire [Al student candid enough to say that he intends to move on after

and other obligations of state citizenship: Newburger, to vote in New Hampshire without incurring responsibility for these permits all of the following persons, allegedly "nonresidents," as described in The current incongruity between RSA 654:1, I, and RSA 21:6 and :6-a,

Mutual of New York Life Ins. Co., 213 F. Supp. 2d 667, 669 (S.D. Miss. 2002). LLC, 652 F.3d 340, 344 (3d Cir. 2011); Bank One, 964 F.2d at 50; Brown v. e.g., Vlandis v. Kline, 412 U.S. 441, 448, 454 (1973); Washington v. Hovensa indicators that a person does in fact have his or her domicile in that state. See, and registering one's vehicle in the state are universally recognized as important because every state regulates this activity, obtaining an in-state driver's license and license plates from the State"). Indeed, because driving is ubiquitous and required to register their automobiles in Maryland and obtain drivers' permits individuals living on a federal enclave within the state, that such persons "are decision that Maryland could not constitutionally deny the right to vote to Evans v. Cornman, 398 U.S. 419, 424 (1970) (noting, as a factor supporting its obtaining a New Hampshire license if the person drives a motor vehicle. See registering his or her motor vehicle in this state if the person has one, or 654:1, 1, may constitutionally be expected to demonstrate such commitment by New Hampshire to be of the strength and character necessary to satisfy RSA in the commonwealth"). Thus, a person who considers his or her connection to commonwealth during any period in which such person ... is registered to vote motor vehicle in Massachusetts "shall be deemed to be a resident of the claiming to be a nonresident and therefore exempt from registering his or her see also Mass. Gen. Laws ch. 90, § 3½ (a)(11) (2012) (providing that a person p. 15 15

State may legitimately establish procedures by which persons who may be justification for doing so. See Auerbach, 765 F.2d at 354-55. Simply put, the interest in insuring bona fide residency for voting purposes provides adequate compliance with the other responsibilities of residency, the State's compelling assumed to be the most likely cause of an official inquiry designed to enforce Third, and most importantly, even if the act of registering to vote were

registering to vote. fides of his or her residency in a manner similar to that which would attend form of identification, could well be subjected to official scrutiny as to the bona resident of New Hampshire, but produces an out-of-state driver's license as a kind of government benefit. A person who does those things claiming to be a include, for example, applying for a local library card, dump permit, or some and a governmental official of one kind or another. Such interactions might scrutiny could result from many other kinds of interactions between the person bona fide resident, this may sometimes be true. But it is also true that similar vote is the event that will alert authorities to question a person's status as a Second, to the extent the opponents suggest that the act of registering to

whether or not they seek to vote. voting under RSA 654:1, I, will apply to all persons subject to its terms, for residency established under HB 1264, which is equivalent to that applied to not do so. This argument misses the mark for three reasons. First, the criteria his or her residency in New Hampshire while a person who does not vote need voters because its effect is to require a person who registers to vote to declare The opponents of HB 1264 contend that the bill discriminates against

purposes the same other than enacting legislation to do just that. domicile for voting purposes and the legal standard for residents for other that could have a bearing on whether the State can make the legal standard for purposes. In short, unlike our colleagues, we discern no factual development a more relaxed legal standard for domicile for voting purposes than for other circumstances under which a state has a constitutional obligation to maintain aware of no authority supporting the proposition that there are any would defeat the purpose of the legislation, and, as noted previously, we are obligations of state citizenship that apply to all residents of the state. That domicile in New Hampshire for voting purposes yet avoid incurring other between the definitions so that some persons would be permitted to claim their be drawn more narrowly only if it left in place, to some degree, the dichotomy legislation necessarily removes the distinction between the two. HB 1264 could voters and residents on equal footing as New Hampshire citizens, the with the legal standard for residence for other purposes. In order to place this objective by equalizing the legal standard for domicile for voting purposes the electoral community. The remedy effectuated by HB 1264 accomplishes compelling governmental interest in insuring that voters are full members of omitted)). We conclude that HB 1264 is narrowly drawn to advance the p. 16 16

sources" that exceeds $2,400 per year (emphasis added)). I(a) (Supp. 2017) (requiring residents to pay tax on gross interest and dividends income "from all of-state sources) based on a claim of nonresidency may no longer be able to do so. See RSA 77:3, New Hampshire taxes on all their interest and dividends income (including that derived from outexample, that if HB 1264 becomes law, some persons who currently may be able to avoid paying have consequences beyond the context of motor vehicle fees and taxes. It also may mean, for 8 The removal of the "for the indefinite future" language from RSA 21:6 and :6-a presumably will which other similarly situated persons are subjected. law effectively allows some to obtain representation without the payment of taxes or fees to founding principle of our country - instead of "no taxation without representation" - current 7 Indeed, not to correct this problem could be viewed as fundamentally inconsistent with a

entirely proper, requirements of state law. lessen the prospects of detection for those inclined to evade unrelated, yet compelling interest in insuring that voters are bona fide residents in order to aware of no constitutional principle that requires a state to forego its that, even if we were to assume the posited scenario to be accurate, we are 1264 will effectively operate as a poll tax. The short answer to this argument is persons to incur motor vehicle taxes and fees, thus demonstrating that HB voting is the act that, as a practical matter, will trigger the obligation for such not register to vote. This circumstance, the opponents claim, means that likely to remain "under the radar screen," and thus avoid detection if they do license or own vehicles that are not registered in New Hampshire will be more qualify as residents of the state but who drive without a New Hampshire The opponents of HB 1264 suggest that, under the bill, persons who

of whether he or she votes. motor vehicle will be subject to New Hampshire motor vehicle laws regardless a resident under the law proposed by HB 1264 and who does drive or own a to pay motor vehicle related fees. By the same token, a person who qualifies as purposes but who does not drive or own a motor vehicle will have no obligation of this state. Thus, a person who claims domicile in New Hampshire for voting votes, but because the person owns or drives a motor vehicle and is a resident becomes obligated to pay such fees or taxes, it will not be because the person voting on the payment of motor vehicle fees or taxes. Rather, if a person opponents of HB 1264 are mistaken when they claim that the bill conditions Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966). However, the that states may not condition the right to vote on the payment of a tax or fee. state and obtaining a New Hampshire driver's license. There is no question Hampshire to incur the expense of registering his or her motor vehicle in the unconstitutional poll tax because it requires a person desiring to vote in New The opponents of HB 1264 also claim that it constitutes an

panoply of obligations imposed on all other state residents.? doing so by the prospect that such a claim can result in their incurring the full tempted to insincerely claim domicile for voting purposes are discouraged from p. 17 17

interest in obtaining benefits of diversity). as a factor in law school admissions decisions because it furthered the school's compelling see also Grutter v. Bollinger, 539 U.S. 306, 343-44 (2003) (upholding narrowly tailored use of race satisfies strict scrutiny, our most rigorous standard of constitutional review" (emphasis added)); factor" explaining the Georgia legislature's redistricting plan, that plan "cannot be upheld unless it Johnson, 515 U.S. 900, 920 (1995) (reasoning that because race was "the predominant, overriding on the basis of an otherwise forbidden distinction, such as race or ethnicity. See Miller v. further a compelling State interest is valid even when, for example, it specifically classifies persons here. But that is not how the law operates. On the contrary, a law that is narrowly tailored to State's compelling interest in ensuring that people who vote in New Hampshire actually do live unarticulated though necessary premise of this view is that such a finding would trump the required to continue to maintain a special, for-voting-purposes-only domicile rule. The way they may vote, the legislation would be invalid, thus meaning that New Hampshire would be 1264 were "found" (presumably by a trial judge) to be to disenfranchise students because of the 9 Our colleagues' opinion appears to be predicated in part on the view that if the purpose of HB

here, such persons come to regard New Hampshire as "home" and establish described in Newburger, who are similarly situated, will have a choice. If, while to New Hampshire to attend a postsecondary institution, or others, as To summarize, if HB 1264 becomes law, out-of-state students who come

impacted. constitutional rights of students or any other group who may be disparately be dispersed evenly by age among the population does not violate the determined. That those likely affected by the remedy thus fashioned may not the legislation is to establish a more reliable system by which that question is have a constitutional right to vote in New Hampshire, when the very purpose of the claim is premised entirely upon the assumption that the targeted persons is based on circular reasoning, in that it assumes the point at issue. That is, characterize as the legislature's discriminatory intent to "disenfranchise voters" 391 U.S. 367, 383-84 (1968).º Moreover, what opponents of HB 1264 effect of disqualifying otherwise qualified voters, see United States v. O'Brien, least where, as here, the legislation does not, on its tace, have the inevitable unconstitutional," Libertarian Party N.H. v. State, 154 N.H. 376, 387 (2006), at purpose, such a purpose "is not a recognized basis for declaring a statute Indeed, to the extent the opponents of HB 1264 allege a nefarious legislative Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 264-65 (1977). that the latter affords protection only against intentional discrimination, Amendment counterpart, In re Sandra H., 150 N.H. at 637, and it is settled law protection guarantee to provide greater protection than its Fourteenth discussed previously, we have never interpreted our State Constitution's equal or protected class for constitutional purposes in this context. Further, as and the opponents do not claim that either age or student status is a suspect neutral and applies to all persons without regard to their age or student status, be younger than the voting population generally. However, HB 1264 is facially is aimed to discourage voting by college students, who as a group are likely to discriminates on the basis of age. The thesis appears to be that the legislation Finally, the opponents of HB 1264 assert that it unconstitutionally p. 18 18

Associate Justice Patrick E. Donovan

Associate Justice inna Barbara Hantz Marconi Latter HumButan

Chief Justice Robert J. Lyn

Respectfully submitted,

submitted to us by the Honorable Governor and Executive Council. For the reasons stated above, we answer "no" to each of the six questions

III. Conclusion

unconstitutional about state laws that require persons to make this choice. drive, or to register their motor vehicle in this state. There is nothing unfair or also may not then be obligated to obtain a New Hampshire license in order to then that place, rather than New Hampshire, is where they must vote, but they regard some other place as home and choose to maintain their domicile there, imposed on all other residents of the state. On the other hand, if such persons domicile, they also will incur the same obligations of state citizenship as are they will be entitled to vote here. But if New Hampshire does become their sufficient attachment to the state to satisfy the requirements of domicile, then p. 19 19

omitted). For HB 1264 to be facially unconstitutional, there must be "no set of applications." State v. Hollenbeck, 164 N.H. 154, 158 (2012) (quotation that the challenged [law] violates the Constitution in all, or virtually all, of its "A facial challenge is a head-on attack of a legislative judgment, an assertion The first question concerns the facial constitutional validity of HB 1264.

questions of fact. Id. opinions does not include answering legal questions that require resolving constitutional duty of the justices of the supreme court to give advisory Justices (Domicile for Voting Purposes), 167 N.H. 539, 542 (2015). The opinion of the justices does not constitute binding precedent." Opinion of the Executive Council, and is not an opinion of the court in a litigated case, an an advisory opinion issued to a branch of the legislature, Governor, or Chief Justice), 150 N.H. 355, 356 (2003). "Because an opinion of the justices is the legislative or executive branches." Opinion of the Justices (Appointment of opinions, "we act not as a court, but as individual constitutional advisors to State, 166 N.H. 630, 640 (2014) (quotation omitted). When we issue such presentations, only in carefully circumscribed situations." Duncan v. fully-developed factual situations and without the benefit of adversary legal supreme court to render advisory opinions, outside the context of concrete, Part II, Article 74 of the State Constitution "empowers the justices of the

respectfully request to be excused from answering both questions. students attending a postsecondary institution in New Hampshire. We would violate the foregoing constitutional provisions as applied to certain State Constitution. In the second question, we are asked whether HB 1264 clauses of the State or Federal Constitutions; or (b) Part I, Article 11 of the whether, on its face, HB 1264 would violate either: (a) the equal protection regarding the constitutionality of HB 1264. In the first question, we are asked The Governor and Council have asked us to opine upon two questions

Hampshire driver's license, see RSA 263:35 (2014). their vehicles here, see RSA 261:45 (Supp. 2017), and to obtain a New who are "residents" of the State - e.g., HB 1264 would require them to register New Hampshire for voting purposes to the same legal requirements as those HB 1264, if it were to become law, would subject those who are "domiciled" in I (2016). Assuming this to be the case for purposes of this advisory opinion, "residence" equivalent to the statutory definition of "domicile." See RSA 654:1, proposed amendments will render the statutory definitions of "resident" and (2012). Both the proponents and opponents of HB 1264 posit that the "resident" and "residence" as set forth in RSA 21:6 (2012) and RSA 21:6-a House Bill (HB) 1264 proposes to amend the statutory definitions of

unconstitutionally infringes upon a complaining party's equal right to vote Pursuant to that balancing test, determining whether HB 1264

"flexible" balancing approach as a rigid rule). Crawford, 553 U.S. at p. 20 204-05 (Scalia, J., concurring) (referring to the same put forward by the State as justifications for the burden imposed by its rule"); "balancing approach" under which it "identiflies] and evaluate[s] the interests protection challenge involving the fundamental right to vote, the court applies a 181, 190 (2008) (plurality opinion of Stevens, J.) (when evaluating an equal 376, 383-84 (2006); see also Crawford v. Marion County Election Bd., 553 U.S. implicated by the first question. See Libertarian Party N.H. v. State, 154 N.H. the same balancing test applies under all three constitutional provisions level of scrutiny that we must apply." Id. We agree with our colleagues that 167 N.H. 658, 663 (2015). "Instead, we apply a balancing test to determine the any impingement upon that right to strict scrutiny." Guare v. State of N.H., "Although the right to vote is fundamental, we do not necessarily subject

fundamental. Akins v. Sec'y of State, 154 N.H. 67, 71 ( p. 20 2006). previously held that the equal right to vote, as set forth in Part I, Article 11, is upwards shall have an equal right to vote in any election." The court has elections are to be free, and every inhabitant of the state of 18 years of age and XIV. Part I, Article 11 of the State Constitution provides, in relevant part: "All Protection Clause. See N.H. CONST. pt. I, arts. 2, 11; U.S. CONST. amend. Clause of the New Hampshire Constitution, and/or the Federal Equal Part I, Article 11 of the New Hampshire Constitution, the Equal Protection The first question asks whether HB 1264 is facially constitutional under

that are critical to our constitutional analysis. However, the presumption of constitutionality does not apply to disputed facts Justices (Requiring Att'y Gen. to Join Lawsuit), 162 N.H. 160, 164 ( p. 20 2011). declare it to be invalid except upon inescapable grounds. See Opinion of the not yet been enacted, we must presume that it is constitutional and will not constitutional rights in any given case." Id. at 26-27. Although HB 1264 has statute if enacted will be construed harmoniously with an individual's proposed legislation in an opinion of the justices "for it is understood that the This principle also applies when the justices review the constitutionality of Justices (Certain Evidence in Sexual Assault Cases), 140 N.H. 22, 26 (1995). conflict with constitutional rights wherever reasonably possible. Opinion of the When we interpret statutes already in effect, we construe them to avoid

450 ( p. 20 2008). Washington State Grange v. Washington State Republican Party, 552 U.S. 442, requirements and speculate about 'hypothetical' or 'imaginary' cases." determination, a court "must be careful not to go beyond [a law's] facial United States v. Salerno, 481 U.S. 739, 745 (1987). In making such a circumstances" under which it would be valid. Id. (quotation omitted); see p. 21 21

injury" to voting rights). However, for the purposes of this opinion, given the a challenge" by first considering the "character and magnitude of the asserted will separate valid from invalid restrictions"; rather, "a court must resolve such of a State's election laws ... cannot be resolved by any litmus-paper test' that 780, 789 (1983) (stating that "[c]onstitutional challenges to specific provisions conflicting claims. See id. at 542; see also Anderson v. Celebrezze, 460 U.S. Without a developed factual record, we cannot evaluate the merits of these right to vote. The opponents counter that the burden imposed is severe. The proponents of HB 1264 assert that the bill imposes no burden on the

excused from answering it. our ability to answer the first question that we must respectfully request to be below, the lack of a developed factual record in this case sufficiently inhibits because of the lack of a developed factual record. Id. at 543. As we explain from answering whether proposed legislation violated Part I, Article 11, in part, Purposes), 167 N.H. at 542. In that opinion, the justices asked to be excused "inherently fact-specific." Opinion of the Justices (Domicile for Voting described the analysis required by the balancing test set forth above as In Opinion of the Justices (Domicile for Voting Purposes), the justices

addresses, the interest set forth." Id. (quotation omitted). the particular restriction imposed is actually necessary, meaning it actually must "articulate specific, rather than abstract state interests, and explain why intermediate scrutiny. Guare, 167 N.H. at 667. Under that test, the State Our balancing test also includes a level of scrutiny that is similar to

(quotations omitted); see Guare, 167 N.H. at 663. generally sufficient to justify the restrictions." Burdick, 504 U.S. at 434 upon the rights of voters, "the State's important regulatory interests are When an election law imposes only "reasonable, nondiscriminatory restrictions" Guare, 167 N.H. at 663 (quotation omitted); see Burdick, 504 U.S. at 434. must be "narrowly drawn to advance a state interest of compelling importance." omitted); see Burdick, 504 U.S. at 434. To withstand strict scrutiny, the law withstand strict scrutiny to be constitutional. Akins, 154 N.H. at 72 (quotation When those rights are subjected to "severe" restrictions, the law must burdens" a complaining party's equal right to vote. Burdick, 504 U.S. at 434. ... election law depends upon the extent to which a challenged regulation this balancing test, "the rigorousness of our inquiry into the propriety of [an] and ellipsis omitted); see Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under to burden the [complaining party's] rights." Akins, 154 N.H. at 72 (quotation taking into consideration the extent to which those interests make it necessary put forward by the State as justifications for the burden imposed by its rule, rights that [a complaining party] seeks to vindicate against the precise interests requires weighing "the character and magnitude of the asserted injury to the p. 22 22

voter fraud. Nor do they assert that the voters impacted by it are not "bona fide" residents. " Notably, the proponents do not claim that the purpose or effect of HB 1264 is to prevent standard should apply. But we do not have the facts before us at this time. 10 It may be that, after development of a factual record, we would conclude that a less rigorous

substantially interested in or affected by electoral decisions have a voice in law is intended to "insure that only those citizens who are primarily or explained in Evans v. Cornman, we cannot "lightly ... accept| |" a claim that a knowledgeable about the issues). As the United States Supreme Court 356 (referring to state's interest in limiting the franchise to voters who are a compelling state interest, it is also "susceptible of abuse." Dunn, 405 U.S. at colleagues that ensuring that voters share a "community of interest" is, indeed, representation." Carrington, 380 U.S. at 94. While we agree with our qualified residents, have a right to an equal opportunity for political who intend to make New Hampshire their home, then "they, as all other 343-44 (1972). But, if voters are, in fact, bona fide New Hampshire residents conception of a political community ...." Dunn v. Blumstein, 405 U.S. 330, requirement of bona fide residence may be necessary to preserve the basic U.S. 89, 91, 94 (1965). "An appropriately defined and uniformly applied require all voters to be "bona fide" state residents.' Carrington v. Rash, 380 reasonable residence restrictions on the availability of the ballot," and to generally." We recognize that the State "has unquestioned power to impose allowed to vote in this state share a community of interest with the population that HB 1264 "serves the compelling state interest of insuring that those Our colleagues credit the interest advanced by the House and conclude

a compelling interest. there is "absolutely no legitimate justification" for the proposed law, much less exercise their franchise." For their part, opponents of HB 1264 contend that incentivizing voters to have a stable connection to the community where they those burdens are "necessary to accomplish the State's compelling interest in Hampshire House of Representatives (House), on the other hand, asserts that state interest justities the burdens imposed on voters by HB 1264. The New Here, the New Hampshire Senate does not explicitly argue that a compelling justifications for the burden." Guare, 167 N.H. at 663 (quotation omitted). we must examine the "precise interests put forward by the State as When determining the State's interest in legislation under strict scrutiny,

ability to determine whether HB 1264 satisfies this test. omitted); see Guare, 167 N.H. at 663. The lack of a factual record hampers our interest of compelling importance." Burdick, 504 U.S. at 434 (quotation scrutiny standard, meaning that it must be "narrowly drawn to advance a state That assumption triggers the requirement that HB 1264 satisfy the strict

burdens the fundamental right to vote. 10 lack of a factual record, like our colleagues, we assume that HB 1264 severely p. 23 23

presented "more than the mere possibility of voter confusion" (quotation omitted)). upon testimony of certain petitioners to conclude that language in voter registration form the parties had filed their summary judgment motions nearly two years later); id. at 665 (relying 167 N.H. at 660 (observing that the litigation at issue had been filed in September 2012 and that (quotation omitted)). Our decision in Guare does not stand for a contrary proposition. See Guare, challenged statute did not impose "excessively burdensome requirements on any class of voters" developed during pretrial discovery and facts of which the court could take judicial notice, that fact specific inquiry"); see also Crawford, 553 U.S. at 202 (concluding, on the basis of evidence Cir. 2007) (describing the balancing test set forth in Anderson v. Celebrezze as involving a "highly intensive inquiry, we disagree. See Libertarian Party of NM v. Herrera, 506 F.3d 1303, 1308 (10th 12 To the extent that our colleagues argue that a voting rights challenge does not require a fact-

I, Article 11 of the State Constitution, the State Equal Protection Clause, The second question asks whether HB 1264 is constitutional under Part

(Domicile for Voting Purposes), 167 N.H. at 543.12 excused from answering the first question. See Opinion of the Justices Accordingly, because of the lack of a factual record, we respectfully ask to be facts are sharply disputed. To do otherwise undermines our credibility. Dunn, when, as in this case, a fundamental right is implicated and material hew closely to the important principles enunciated in Guare, Burdick, and "requires the [government] to come forward with proof"). It is crucial that we requirement is narrowly drawn to advance a compelling governmental interest F.3d 14, 22 (1st Cir. 2000) (explaining that to show that a ballot access record, we are unable to make that determination. See Cruz v. Melecio, 204 if it does not "unduly harm members of any racial group"). Without a factual race-conscious admissions program meets the "narrowly tailored" requirement at 343; cf. Grutter v. Bollinger, 539 U.S. 306, 341 (2003) (explaining that a "with a lesser burden on a constitutionally protected activity." Dunn, 405 U.S. "there are other, reasonable ways to achieve" the State's compelling interests Determining whether a law is narrowly drawn requires evaluating whether drawn" to serve that interest. Burdick, 504 U.S. at 434 (quotation omitted). unable, absent a factual record, to determine whether HB 1264 is "narrowly constitutes the State's "precise" interest and that it is compelling, we are Here, even if we assume that the interest asserted by the House

"their neighbors who live off the enclave"). residents were "just as interested in and connected with electoral decisions" as serve State's compelling interest in preserving political community because the (determining that precluding residents of a federal enclave from voting did not impermissible." Id. at 4 p. 23 23 (quotation and brackets omitted); see id. at 426 population because of the way they may vote is constitutionally than a different interest, and 'fencing out' from the franchise a sector of the omitted). "All too often, lack of a 'substantial interest' might mean no more making them." Evans v. Cornman, 398 U.S. 419, 422 (1970) (citations p. 24 24

purpose of providing guidelines for determining bona fide residency"). franchise" because statute "was enacted, at least in part, for the constitutionally permissible was enacted "for the constitutionally impermissible purpose of fencing students out of the Supp. 897, 902 (N.D.N.Y. 1991) (denying plaintiffs' request to invalidate statute on ground that it who, on completing their studies, "move on" (quotation omitted)); cf. Levy v. Scranton, 780 F. 14 See Dunn, 405 U.S. at 355, 356 n.28 (describing as "impermissible" excluding college students New Hampshire indefinitely is not necessary to serve a compelling interest). Federal Equal Protection Clause on the ground that the requirement that a voter intend to stay in (D.N.H. 1972) (ruling that "indefinite intention" test, as applied to college students, violated the democratic self-government," RSA 654:1, I; cf. Newburger v. Peterson, 344 F. Supp. 559, 562-63 continuous presence" here "for domestic, social, and civil purposes relevant to participating in establish "a physical presence" in New Hampshire and "manifest| | an intent to maintain a single city in which [they] livel | while attending [college]," RSA 654:1, I-a (2016), provided that they 13 We observe that college students have the statutory right to vote "in the New Hampshire town or

Cir. 1984). The proponents disagree. Whether the opponents' theory is viable stated in United States v. Dallas County Com'n, 739 F.2d 1529, 1532-33 (11th by a discriminatory purpose."), superseded on other grounds by statute as racially neutral on its face violates the Fifteenth Amendment only if motivated opinion) ("Our decisions ... have made clear that action by a State that is Protection Clause."); cf. Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality discriminatory intent or purpose is required to show a violation of the Equal Heights v. Metropolitan Housing Corp., 429 U.S. 252, 264 (1977) ("Proof of ... impact on those students by discouraging them from voting. 14 See Arlington domiciliaries and, thus, lawful voters13 — and because it will have a disparate purpose - to disenfranchise college students who are New Hampshire 1264 is unconstitutional as applied because it was passed for an impermissible public statements made by legislators, opponents of the bill assert that HB attending New Hampshire postsecondary institutions. For instance, citing analysis of whether HB 1264 is constitutional as applied to certain students Moreover, there are disputed issues of fact that may bear upon our

consider" when determining whether the challenge is ripe for adjudication). necessarily requires the development of a factual record for the court to a statute cannot be constitutionally applied in particular circumstances, it (11th Cir. 2009) (explaining that, because an as-applied "challenge asserts that intensive. Cf. Harris v. Mexican Speciality Foods, Inc., 564 F.3d 1301, 1308 brackets omitted). An as-applied challenge is, therefore, necessarily factcircumstances of the case." Hollenbeck, 164 N.H. at 158 (quotation and many of its applications, but contends that it is not so under the particular "An as-applied challenge ... concedes that [a law] may be constitutional in factual record, so too are we unable to answer the second question. Just as we are unable to answer the first question without a developed

residence. domicile for voting purposes, but who do not claim New Hampshire as their New Hampshire postsecondary institution who claim New Hampshire as their and/or the Federal Equal Protection Clause as applied to students attending a p. 25 25

Associate Justice James/ P. Bassett

Plat

Sanior Associate y ustice Guné. AS,

Respectfully submitted,

Opinion of the Justices (Domicile for Voting Purposes), 167 N.H. at 543. respectfully ask to be excused from answering the second question. See give advice on issues of first impression without a developed factual record, we such possible issues in advance"). Therefore, because it would require us to the bill," because "[t]here is no practical opportunity to deal with the range of [proposed] statutory amendments are in fact applied, assuming enactment of "makes no attempt to anticipate particular issues that may arise only as the Justices, 129 N.H. 290, 295 (1987) (explaining that the opinion of the justices disparate impact upon eligible college student voters. See Opinion of the opponents suggest, even if HB 1264 is applied neutrally, it would have a Legislature for passing HB 1264. Nor can we assess whether, as some factual record, we cannot assess the motivation of the New Hampshire transcripts of legislative debates and timing of legislation). Absent a developed (exam ■ n ■ ng whether discriminatory purpose was motivating tactor by reviewing available."); Levy v. Scranton, 780 F. Supp. 897, 902 (N.D.N.Y. 1991) inquiry into such circumstantial and direct evidence of intent as may be ... discriminatory purpose was a motivating factor demands a sensitive omitted)); Metropolitan Housing Corp., 429 U.S. at 266 ("Determining whether members of the decisionmaking body" (quotations, ellipsis, and brackets the law, and "legislative ... history, especially any contemporary statements by the challenged law, "the specific sequence of events" leading up to passage of impact of the official action at issue as well as "the historical background" of U.S. 471, 489 (1997) (assessing d ■ ser ■ m ■ natory ■ ntent requires exam ■ n ■ ng denied, 137 S. Ct. 612 (2017); see also Reno v. Bossier Parish School Bd., 520 v. Abbott, 830 F.3d 216, 230 (5th Cir. 2016) (en banc) (quotation omitted), cert. "Legislative motivation or intent is a paradigmatic fact question." Veasey

the Federal Equal Protection Clause. impression for this court, and may also be an issue of first impression under under the State Equal Protection Clause or Part I, Article 11 is an issue of first p. 26 26

Daniel Alain Richard, of Epsom, filed a memorandum.

Taxpayers in support of negative answers to the questions presented. Ed Naile, of Concord, filed a memorandum on behalf of Coalition of NH

negative answers to the questions presented. Edward C. Mosca, of Manchester, filed a memorandum in support of

presented. Granite State Taxpayers in support of negative answers to the questions Ray F. Chadwick, of Manchester, filed a memorandum on behalf of

affirmative answers to the questions presented. to answer the questions presented or, in the alternative, in support of Hampshire and the Fair Elections Center, in support of the Justices declining memorandum on behalf of the American Civil Liberties Union of New Concord (William E. Christie and S. Amy Spencer on the memorandum), filed a Gilles R. Bissonnette, of Concord, and Shaheen & Gordon, P.A., of

answers to the questions presented. answer the questions presented or, in the alternative, in support of affirmative Feltes, of the New Hampshire Senate, in support of the Justices declining to memorandum on behalf of Senators Jeff Woodburn, Donna Soucy, and Dan Dan Feltes, of Concord, and Paul Twomey, of Epsom, filed a

alternative, in support of affirmative answers to the questions presented. support of the Justices declining to answer the questions presented or, in the Executive Councilor Andru Volinsky, of Concord, filed a memorandum in Executive Councilor Christopher C. Pappas, of Manchester, and

on the memorandum), filed a memorandum on behalf of the Secretary of State. Wadleigh, Starr & Peters, PLLC, of Manchester (Eugene M. Van Loan, III

questions presented. memorandum), filed a memorandum in support of the Justices answering the attorney general, and Lisa M. English, senior assistant attorney general, on the Gordon J. MacDonald, attorney general (Francis C. Fredericks, assistant

support of negative answers to the questions presented. memorandum), filed a memorandum on behalf of the New Hampshire Senate in Lehmann Law Office, PLLC, of Manchester (Richard J. Lehmann on the

questions presented. Hampshire House of Representatives in support of negative answers to the Lamontagne on the memorandum), filed a memorandum on behalf of the New Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Ovide M.