2020-0252, New Hampshire Democratic Party v. Secretary of State & a.; League of Women Voters of New Hampshire & a. v. Secretary of State & a.

the joint brief, and Ms. Callais orally), and Perkins Coie LLP, of Seattle, Devaney, Bruce V. Spiva, Amanda R. Callais, and Alexander G. Tischenko on joint brief), Perkins Coie LLP, of Washington, D.C. (Marc E. Elias, John M. Dutton on the joint brief), Twomey Law Office, of Epsom (Paul Twomey on the McLane Middleton, Professional Association, of Manchester (Steven J.

Spencer on the joint brief), for plaintiff New Hampshire Democratic Party. Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy

LEAGUE OF WOMEN VOTE RS OF NEW HAMPSHIRE & a.

No. 2020 - 0252 Hillsborough - northern judicial district

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

circle yes or no and initial each item): This form was executed for purposes of proving (applicant shall

accurate to the best of my knowledge. domicile, I he r e by swear that such information is true and If this form is used in place of proof of identity, age, citizenship, or

provided was true and accurate. See id. That affidavit read: listing his or her domicile address and sign an affidavit tha t the information ( p. 2 2016) (amended 2017). Rather, the ind ividual was required to submit a form vote without presenting any proof of his or her domicile. See RSA 654:7, IV Laws 2017, ch. 205. Before SB 3 was enacted, an individual could register to laws to impose certain requirements for proving an individual’s d omicile. See Enacted in July 2017, SB 3 amend s New Hampshire’s voter registration

Cons t itution. determining that SB 3 also violates the equal protection guarantees of the State we need not address the State’s assertion that the trial court erred in Constitution. B ecause we determine that SB 3 must be stricken in its entirety, the trial court’s ruling that SB 3 violates Part I, Ar ticle 11 of the State the equal protection guarantees of t he New Hampshire Constitution. We affirm violation of Part I, Article 11 of the New Hampshire Constitution and violates (SB 3), is unconstitutional because it unreasonably burdens the right to vote in (Anderson, J.) ruling that Laws p. 2 2017, c hapter 205, also known as Senate Bill 3 Attorney General (collectively, the State), appeal an order of the Superior Court DONOVAN, J. The defendants, the Secretary of State (Secretary) and the

general on the brief, and Mr. Galdieri orally), for the defendants. associate attorney general, and Samuel R.V. Garland, assistant attorney assistant attorney general, Daniel E. Will, solicitor general, Anne E. Edwards, Gordon J. MacDonald, attorney general (Anthony J. Galdie ri, senior

Lopera, Phillip Dragone, Spencer Anderson, and Seysha Mehta. Women Voters of New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Washington (Step hanie R. Holstein on the join t brief), for plaintiffs League of p. 3 3

is open fewer than 20 hours weekly), and that [I] have received the following the election (or p. 3 30 days in towns where the clerk’s office office evidenc e of actions carrying out my intent within 10 days understand that I must mail or personally present to the clerk’s carrying out my intent to be domiciled at this address, that I acknowledging that I have not presented evidence of actions ___ __ By placing my initials next to this paragraph, I am

than 20 hours weekl y). the election ( p. 3 30 days in towns where the clerk’s office is open fewer document at the town or city clerk’s office within 10 days following to the following paragraph and mail a copy or present the present it at the time of regist ration or I must place my initials next be domiciled at this address when registering to vote, I must either I understand that if I have documentary evidence of my intent to

must have acted to carry out that intent. place from which I part icipate in democratic self - government and domicile for voting I must have an intent to make this the one I understand that to make the address I have entered above my

See Laws 2017, 205:2. The first option (Option 1) states: however, they must fill out Form B and elect one of two verification options. have documentation with them proving their place of domicile in order to vote; to register within p. 3 30 days of an election or on election day are not required to they will not be permitted to regi ster. See Laws 2017, 205:1. P erson s seeking present documentation proving that they are domiciled in the town or ward or person s seeking to register to vote more than 30 days before an election must “Voter Registration Form” (Form B). See Laws 2017, ch. 205. Under SB 3, those occurring within 30 days of and on election day; and (2) adding a new between registrations occurring more than 30 days before an election and S B 3 chang ed the voter registration process by: (1) creating a distinction

Id.

Domicile yes/n o ________

Age yes/n o ________

Citizenship yes/n o ________

Identity yes/no ________ p. 4 4

misdemeanor. See RSA 659:3 p. 4 4, I, II. penalties include a civil fine of up to $5,00 0 and criminal liability for a c lass A another is domiciled at a particular address. L aws 2017, 205:13. The Form B; and (3) providing false information in a written statement to prove that domicile; (2) failing to provide follow - up documentation if choosing Option 1 on These include: (1) presenting falsified proof of domicile or verifiable action of statutory penalties for wrongful votin g set forth in RSA 659:34 (Supp. 2020). In addition, SB 3 creates new categories of conduct subject to the

specified on Form B. S ee i d. be submitted to the town or city clerk’s office in the allotted time period where the applicant is claiming to be domiciled. Id. One such document must in a publicly funded elementary or secondary school serving the town or ward driver’s license, or identification card; or (5) enroll ed a dependent minor chil d the registration form; ( p. 4 4) obtain ed a New Hampshire motor vehicle registration, the voter registration form”; (3) purchas ed an abode at the address listed on 30 days to include time directly prior to an election day at the address listed on inst itution of learning; (2) “rent ed or leas ed an abode, for a period of more than he or she has done at least one of the following: (1) establish ed residency at an required to provide.” Id. The VAD requires that a person provide evidence that be submitted to the town or city clerk along with documentation that you are checklist shall be used as a guide for what you may use as evidence and shall Verifiable Action of Domicile (VAD). See id. The VAD states, “T he following Voters who select Option 1 on Form B are provided a separate form titled

Id.

address. on this form or taking other actions to verify my domicile at this that I understand that officials will be sending mail to the address I will not be mailing or delivering evidence to the clerk’s office, and actions carrying out my intent to be domiciled at this address, that acknowledging that I am aware of no documentary evidence of ___ __ By placing my initials next to this paragraph, I am

Id. The s econd option (Option 2) states:

domicile at this address. secretary of state to verify the validity of your claim to a voting prompt official mail to be sent to your domicile address by the Failing to report and provide evidence of a verifiable action will

establishes domicile. items that may be used as evidence of a verifiable action that document produced by the secretary of state that describes the p. 5 5

Dragone, Spencer Anderson, and Seysha Mehta. New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Lopera, Phillip The plaintiffs in this case are New Hampshire Democratic Party, League of Women Voters of 1

voting and/or voter fraud, noting that, “as documented throughout the justified by the State’s interest in preventing and protecting against wrongful The court rejected the St ate’s argument that any burden imposed was

the homeless. mobile individuals, people of low socioeconomic status, undecided voters, and groups of people,” including young people between the ages of 18 - 24, highly the court found that “the negative impact of SB3 will be greater for certain to increase, resulting in longer lines and delays at polling places.” In addition, the new forms,” the court found that “the average registration time is expected timely manner.” Given the “increased complexity and confusion surrounding “confusing, hard to navigate and comply with, and difficult to complete in a paragraphs” and that the plaintiffs demonstrated that SB 3’s forms are general election, Form B contains hundreds of words spread over six contrast to the simplicity of the domicile affidavit successfully used in the 2016 assessing the burdens imposed by SB 3, the trial court found that “[i]n stark enjoin enforcement of SB 3 for the November 2018 midterm elections. In C ourt (Brown, J.) granted the plaintiffs’ motion for a preliminary injunction to In October 2018, following a hearing that lasted over a week, the T rial

see it.” vote, and if there is indeed a ‘compelling’ need for them, the Court has yet to the trial court, SB 3’s pen alties “act as a very serious deterrent on the right to fine or even a year in jail simply for failing to return paperwork.” According to one reason or another,” it appears that “such a voter will be subject to a $ p. 5 5,000 provide them, but t he voter then cannot get them to the clerk’s office in time for a same - day voter has the required documents at home, swears he/she will severe restrictions on the right to vote. The court observed that under SB 3, “if finding that the new civil and criminal pe nalties established by SB 3 imposed preliminarily enjoined enforcement of the penalties associated with SB 3, In September 2017, following a hearing, the T rial C ourt (Temple, J.)

Hampshire voters to endure these burdens.” that “[t]here is no governmental interest . . . that justifies requiring New of SB 3 severely and unreasonably burden [] the fundamental right to vote” and “[t]he procedural requirements, associated penalties, and incomprehensibility the right to vo te in violation of Part I, Article 11. The plaintiffs claimed that unconstitutional under the New Hampshire Constitution because it burdens T he plaintiffs sued, contending, among other things, that SB 3 is 1

B. The Plaintiffs’ Lawsuit p. 6 6

plaintiffs’ claim must fail. determined that the State failed to establish, as a matter of la w, that the to apply to [the plaintiffs’] claims and how those tests are met,” the trial court “faile[d] to advance any argument regarding the appropriate constitutional test Because the State’s arguments relied on a “faulty legal premise” and because it law placed a substantial burden on the vast majority of voters in the State.” Guare indicate that the plaintiffs were required to establish that the challenged Hampshire, 1 p. 6 67 N.H. 658 (2015), reasoning that “[a]t no point did the Court in The court found the State’s argument inconsistent with Guare v. State of New even assuming it might discourage some voters from attempting to register. New Hampshire voters, SB 3 could not be deemed facially unconstitutional plaintiffs failed to show that SB 3 places any burden on the vast majority of The trial court also rejected the State’s argument that, because the

New Hampshire.” an accurate characterization of the law as it has been traditionally applied in one theoretically constitutional appli cation of the challenged statute” was “not ‘no set of circumstances’ standard cannot be met so long as there is at least (Anderson, J.) rejected the State’s argument, finding that its “position that the exist under whic h the challenged statute would be valid. The T rial C ourt State asserted that the plaintiffs could not prove tha t no set of circumstances scenarios purporting to demonstrate constitutional applications of SB 3, the t heir claim that SB 3 is facially unconstitutional. Pointing to three hypothetical among other things, that the plaintiffs could not satisfy the requisite test for Thereafter, the State moved for su mmary judgment. T he State asserted,

provisions of SB 3. court order enjoining the enforcement of the civil and criminal penalty orderly conduct of the election.” H owever, we k ept in force the earli er trial election, created “both a substantial risk of confusion and disruption of the the preliminary injunction, just two weeks before the November midterm plaintiffs’ underlying challenge to SB 3, we were persuaded that the timing of on November p. 6 6, 2018.” While expressing no opinion on the merits of the stay the preliminary injunction order “until after the conclusion of the election In respo nse to the State’s emergency appeal, we granted its request to

fraud, the law simply imposes additional burdens on legitimate voters.” vote can readily do so.” Therefore, the court determined, “instead of combating provide pro of of domicile prior to voting, anyone intent on casting an ineligible reasoning that “[b]ecause neither option on Form B requires a registrant to “most importantly, SB3 itself does nothing to actually prevent voter fraud,” fraud is not widespread or even remotely commonplace.” T he court also found, preliminary injunction hearing and as acknowledged by the legis lature, voter p. 7 7

p roof of domicile within the time period required. In addition, “[o]f the 1,104 2018 who selected Option 1 on Form B complied with the law by submitting to evidence that none of the 66 new registrants between January and Ju ne of subject to the substantial penalties imposed by SB 3.” The trial court pointed practical terms, “a significant majority of registrants will find themselves Because the forms were complicated, th e trial court found that, in

satisfied the list on the VAD. students testified that they did not believe they had documentation that polls with instructions to bring back documentation, and a number of college documentation, some election officials im properly sent voters away from the polling place because they did not think they could vote without providing initial ed both Option 1 and Option 2 on Form B, other registrants left the effect. For example, evidence included testimony that some registrants manifested in different ways during the elections in which SB 3 was partially in T he court found that confusion generated by Form B and the VAD

1 [on Form B].” election o bligations and being exposed to potential pen alties if selecting Option times likel y to result from the complexity of the forms; and incurring post with SB 3 are the confus ion arising from the language of forms; increased wait credited his testimony in finding that “[t]he most prominent costs associated participate in New Hampshire elections as a result of SB 3. The trial court mobile voters, and the homeless, and that, over time, fewer people would disproportionately impact certain voters such as college students, highly person’s decision to vote. Herron t estified that the costs imposed by SB 3 will voting,” which examines the impact of the costs and benefits of voting on a administration, analyzed SB 3 under the theory known as the “calculus of voters. Dr. Herron, an e xpert in the statistical analysis of election complexity, SB 3 will increase voter registration lines and registration time for Dr. Yang, a n expert o n “q ueuing t heory,” opined that, due to its

length and diction.” language contained on [Form B and the VAD] is needlessly complex, both in understand. From this unrebutted testimony, the trial court found that “[t]he and that both forms would be very difficult for the average adult to read and She testified that the VAD is written at the level of a first - year graduate student Form B is written at a readability level equivalent to th e Harvard Law Review. and readability, testified that her analyse s of Form B and the VAD showed that from the plaintiffs’ expert witnesses. Dr. Bosley, an expert in plain language on the right to vote, the trial court ci ted “persuasive and credible” test imony In reaching its determination that SB 3 imposes an unreasonable burden

preliminary injunct ion hearing were also considered by the court. trial. As stipulated by the parties, exhibits and testimony admitted during the In December 2019, the T rial C ourt (Anderson, J.) held a six - day ben ch p. 8 8

issue, as noted at the beginning of this opinion. The State also disputes the trial court’s ruling on equal protection but we do not address that 2

otherwise. Finally, it argue s that, rather than invalidating SB 3, the trial court unconstitutionally burden the right to vote, the trial court erred in determining “substantively incorrect.” Third, the State asserts that because SB 3 does not adopted in A kins v. Secretary of State, 154 N.H. 67 (2006), and because it is we should overrule Guare because it departs from the balancing test we unconstitutional in every set of circumstances.” Second, the State argues that that “the plaintiffs failed to meet their heavy burden of showing that SB 3 was trial court erred in facially invalidating SB 3 and should have ruled instead The State raises four arguments on appeal. First, it asserts that the 2

SB 3, the court invalidated the entire law. This appeal followed. that the unconstitutional provisions were integral to the general structure of its bu rden, the court ruled that SB 3 was facially unconstitutional and, find ing preventing voter fraud, identified by the State. Because the State failed to meet interest, including safeguarding voter confidence in the election system and failed to prove that SB 3 is substantially related to the impo rtant governmental important government objective.’” T he trial court concluded that the State intermediate scrutiny to demonstrate that the law is ‘substantially related to an citing Guare, the court required the State to “meet its burden under discriminatory burden on the rights of voters in New Hampshire.” Accordingly, T he trial court concluded that SB 3 “imposes an unreasonable and

that SB 3, if fully implemented, will suppress voter turnout.” some individuals.” The court determined that “there exists stron g evidence navigating the forms and the penalties, may outweigh the benefit of voting for registration times and result in longer lines at polls,” which, “together with that the complicated and confusing nature of the forms will increase average testimony from a multitude of witnesses and the State’s own data, suggests The trial court found that unrebutted expert testimony, “supported by

knowingly and/or purposely fail to return paperwork.” criminal fine of up to $2,000 and a sentence of up to a year in priso n if they Hampshire, they could nevertheless be civilly fined $5,000 and/or face a entirely truthful about their domicile and is fully eligible to vote in New RSA 65 p. 9 9:34, I(h).” The court observed t hat “[e]ven assuming the new voter is not cast a fraudulent vote in order to be subject to the penalties set forth in and/or criminal penalties.” Further, t he court noted that “an individual need 2 p. 8 89 individuals retur ned proof of domicile, subjecting 815 to potential civil new registrants who selected Option 1 between July and December 2018, only 9

Rather, they argue, the trial court applied the correct standard to their facial statute if just one hypothetical would result in a constitutional application.” statute could be constitutional” and did not impl y that we would “uphold a assert that in Guare, we did not “consider hypotheticals under which the circumstances’ test to evaluate claims of f acial invalidity of voting laws.” They The plaintif fs counter that we have “never used the ‘no set of

that SB 3 is invalid “in all or virtually all of its applications.” an unjustified burden on some,” and, therefore, the plaintiffs failed to prove statute applicable to all voters survives a facial challenge even when it imposes be valid.” (Quotation and brackets omitted.) Second, the State asserts, “A “demonstrate that there is no set of circumstances under which the act might “misapplied the facial - challenge standard,” which requires that the plaintiffs interrelated claims of error. First, t he State asserts that the tria l court appl ied an incorrect legal standard. In support, the S tate raise s two The State argues that, in finding SB 3 facially invalid, the trial court

A. Applicable Legal Standard

N.H. CONST. pt. I, art. 11.

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

Constitution, which provides in part: significance of this right is reflected in Part I, Article 11 of the New Hampshire vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1 p. 9 964). The fundamental). “Other rights, even the most basic, are illusory if the right to U.S. 173, 184 (1979); see Akins, 154 N.H. at 71 (the right to vote is constitutional structure.” Illinois Elections Bd. v. Socialist Workers Party, 440 “[V] oting is of the most fundamental significance under our

N.H. 4 p. 9 9, 53 (2010). the constitution. B d. of Trustees, N.H. Judicial Ret. Plan v. Sec ’ y of State, 161 unconstitutional unless a clear and substantial conflict exists between it and See Guare, 167 N.H. at 661. In other words, we will not hold a statute to be constitutional and will not declare it invalid except upon inescapable grounds. review de novo. Akins, 154 N.H. at 70. We presume a statute to be Whether or not a statute is constitutional is a question of law, which we

bolding omitted.) reduce complexity, cure confusion, and add clarification.” (Capitalization and should have granted the Secretary the opportunity “to revise the forms to p. 10 10

facial challenge outside the context of the First Amendment and determining (citing Salerno and the “no set of circumstances” language as applying to a Amendment. See, e.g., State v. Hollenbeck, 164 N.H. 154, 158, 163 - 64 (2012) to distinguish facial challenges raised outside of the context of the First W e have subsequently cited Salerno ’s “no set of circumstances” language

to Iowa’s tax statute “put[] into doubt its applicability in this area of law.” Id. fact t hat the Supreme Court did not subsequently apply it to a facial c hallenge reasoned that “[e]ven if Salerno correctly stated a test for facial challenges,” the valid.” Id. at 258. Declining to apply the “no circumstances” language, we “must show that there are no circumstances in which the statute would be the State’s argument that, under Salerno, in order to prevail the plaintiffs and interest payments. See Caterpillar Inc., 1 44 N.H. at 257 - 58. W e rejected F ederal Commerce Clause to New Hampshire’s tax treatment of foreign royalty Revenue Admin istration, 144 N.H. 253 (1999), a facial challenge under the We first cited Salerno in Caterpillar Inc. v. New Hampshire Department of

stated in United States v. Richards, 755 F.3d 269, 271 (5th Cir. 2014). sweep” (quotation omitted)), superseded by statute on other grounds as are unconstitutional, judged in relation to the sta tute’s plainly legitimate under the First Amendment “if a substantial number of its applications 460, 473 (20 p. 10 10) (explaining that a law may be invalidated as overbroad Salerno, 481 U.S. at 741, 745; see United States v. Stevens, 559 U.S.

Amendment. “overbreadth” doctrine outside the limited context of the First render it wholly invalid, since we have not recognized an unde r some conceivable set of circumstances is insufficient to The fact that the Bail Reform Act might operate unconstitutionally set of circumstances exists under which the Act would be valid. mount successfully, since the challenger must establish that no A facial challen ge. . . is, of course, the most difficult challenge to

Supreme Court stated: facial challenge to the constitutionality of the F ederal Bail Reform Act, the originated in United States v. Salerno, 481 U.S. 739 (1987). In addressing a plaintiffs’ facial challenge to SB 3. The “no set of circumstances” language language, we take this opportunity to clarify its meaning and application to the Given the parties’ disagreement over the “no set of circumstances”

impacted by it.” (Emphases omitted.) much a law burdens voters generally, but rather how it burdens those (Quotation omitted.) Fur ther, the plaintiffs assert, the question “is not how burdens imposed by the law against the State’s proffered justification.” Akins, “and reaffirmed in Guare, which requires the court to balance the chall enge by evaluating their claim “under the flexible standard set forth” in p. 11 11

thus there is ‘no set of circumstances’ in which the statute would be valid.” Id. constitutional test, it can no longer be constitutionally applied to anyone — and (quotation and emphasis omitted). “[W]here a statute fails the relevant v. Supreme Court of New Mexico, 839 F.3d 888, 917 (10th Cir. 2016) statute fails to satisfy the appropriate constitutional standard.” United States c ircumstances” language “describ [es] the result of a facial challenge in which a other words, rather than setting forth a test f or facial challenges, the “no set of to the challenged statute.” Id. a t 214 (quotation s and brackets omitted). In applications, and is resolved simply by applying the relevant constitutional test understood as a challeng e to the terms of the statute, not hypothetical district court determined that, “in practice, a facial challenge is best hypothetical situation in which application of the statute might be valid,” the statute, without trying to dream up whether or not there exists some challenges simply by applying the relevant constitutional test to the c hallenged Reasoning that b ecause the Supreme Court “has often considered facial

statute might be valid.” Id. (quotations omitted). court’s task is to conj ure up hypothetical situations in which application of the obscure the relevant inquiry, . . . as they could be taken to suggest that a The district court expressed its concern, however, that those standards “may tha t it lacks any ‘ plainly legitimate sweep. ’” Id. at 213 (quotations omitted). would be valid”; and (2) “a plaintiff bringing a facial challenge mu st establish plaintiff establishes that no set of circumstances exists under which the Act challenges to statutes”: (1) “a facial challenge can on ly succeed where the “has articulated two formulations of the standard for assessing facial 2018). At the outset, t he court noted that the United State s Supreme Court analysis to apply. Saucedo v. Gardner, 335 F. Supp. 3d 202, 205, 2 13 (D.N.H. States District Court for th e District of New Hampshire clarified the proper Hampshire’s signature - match requirement for absentee ballots, the United In addressing a facial challenge under the Federal Constitution to New

the statute in order to prevail. affirmatively demonstrate the c onstitutional in validity of every application of circumstances” language as requiring a party raising a facial challenge to challenge). The State cites no case in which we have applied the “no set of constit utional in any circumstance, we construed their challenge to be a facial defendants did not concede that the relevant portion of the ordinance was See State v. Lilley, 171 N.H. 766, 772 (2019) (explaining that whe n the making a facial or an as - applied challenge to the constitutionality of a statute. when addressing the scope of a party’s challenge; that is, whether a party is More recently, we have looked to the “no set of circumstances” language

(2006). circumstances”); Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 642 statute was not rationally relate d to a legit imate governmenta l purpose “in all that the defendant failed under the applicable standard to prove t hat the p. 12 12

(quotations omitted). the S tate” were sufficient to defeat the plaintiffs’ facial challenge. Id. at 202 burden on voters generally, and found that the “pre cise interests advanced by voters.”). Accordingly, the Court weighed the evidence of the law’s limited statute imposes ‘excessively burdensome requirements’ on any class of record that had been made in this litigation, we cannot conclude that the justified.” Crawford, 553 U.S. at 200; id. at 202 (“In sum, on the basis of the this narrow class of voters or the portion of the burden imposed that is ful ly not possible for the Court “to quantify either the magnitude of the burden on the Crawford Court held that “on the basis of the evidence in the record” it was facial challenge even when it imposes an unjustified burde n on some.” Rather, supports the State’s position that a “statute applicable to all voters survives a 181 (2008) (plurality opinion). However, w e are not persuaded that Crawford principle is reflected in” C rawford v. Marion County Election Board, 553 U.S. invalidate a law of general applicability.” The State contends that “[t]his requirements and “a purported burden on some voters is insufficient to unconstitu tional because only some, but not all, voters are burdened by its We also reject the State’s related argument that SB 3 cannot be facially

unconstitutional in every set of circumstances.” “the plaintiffs failed to meet their heavy burden of showing that SB3 was “misapplied the facial - challenge standard” and should have ruled instead that challenged). Accordingly, we reject the State’s argument that the trial court the correct standard in reviewing the constitutionality of the law being N.H. at 6 36 (explaining that the first question is whether the trial court applied challenge to SB 3 i s the test set forth in Guare. See Boulders at Strafford, 153 determined that the constitutional test applicable to the plaintiffs’ f acial constitutional standard. In the case before us, the trial court cor rectly desc ribe the result of a facial c hallenge analyzed under the applicable method of determining constitutional validity, but, rather, is intended to circumstances” language is not intended to be a test that prescribes a specific Based upon the discussion above, w e are persuaded that t he “no set of

the challenged statute.” Saucedo, 335 F. Supp. 3d at 213 (quotation omitted). plaintiffs’ facial challenge “simply by applying the relevant constitutional test to t he statute v iolated the State Constitution. Id. at 669. Thus, we resolved the because the State failed to advance a sufficiently weighty interest to justify it, the language in the statute unreasonably burdened the right to vote and Guare, 167 N.H. at 661 - 62, 667 - 68. I n doing so, we concluded that because constitutional test to the plaintiffs’ facial challenge under Part I, Article 11. w e cited the “no set of circumstances” language and then applied the relevant This interpretation is consistent with our decision in Guare. In Guare,

could not constitutionally be applied in any case”). “legislation may not be applied in a particular case if it is facially invalid and (q uotation omitted); see Boulders at Strafford, 153 N.H. at 642 (explaining that p. 13 13

Burdick v. Tak ushi, 504 U.S. 428 (1992), did the Supr eme Court identify a ny litmus test for As Justice Stevens observed in Crawford, in neither Norman v. Reed, 502 U.S. 27 9 (1992), nor 3

scrutiny.” Id.; s ee Cmty. Res. f or Justice v. City of Manchester, 154 N.H. 748, 3 that we adopted in Akins includes a test that is similar to intermediate intermediate scrutiny” and that we, likewise, “believe that the flexible standard opinion and the dissenting opinion in Crawford embraced “a test comparable to rights cases.” Id. at 667. Nonetheless, we determined that both the plurality regarding the issue of whether intermediate scrutiny is available in voting Crawford, w e observed that the Supreme Court “appears to be divided extremes” of rational basis and strict scrutiny. Id. at 6 66. Next, c iting intermediate scrutiny applies to a voting restriction that falls between the two that “[c]ourts in other jurisdictions have rec ognized that a test similar to ‘nondiscriminatory’ on the other.” Guare, 167 N.H. at 665 - 66. First, we noted restriction falls between “‘severe’ on the one hand and ‘reasonable’ and Guare why we adopted a test “similar to” intermediate scrutiny w hen a voting the balancing test we adopted in Akins, i n f act we explained at some length in Although the State argues that Guare “departs without explanation” from

we have never considered ourselves bound to adopt federal interpretations). 233 (1983) (explaining that when interpreting the New Hampshire Constitution, voting jurisprudence with federal law.” But see State v. Ball, 124 N.H. 226, federal law and that we should, accordingly, “set Guare aside and realign [our] applicable to constitutional challenges of voting regulations employed under Rather, the State’s lament is that Guare does not strictly apply the framework The State does not specifically address these stare decisis factors.

rule of significant application or justification. See id. at 102 - 03. have so changed, or come to be see n so differently, as to have robbed the old old rule no more than a remnant of an abandoned doctrine; and (4) the facts overruling; (3) related principles of law have so far developed as to have left the to a kind of reliance that would lend a special hardship to the consequence of to be intolerable simply by defying practical workability; (2) the rule is subject S everal factors inform our judgment, including whether: (1) the rule has proven enforcement was for that very reason doomed.” Id. (quotation omitted). novo, but whether the ruling has come to be seen so clearly as error that its holding, the question is not whether we wou ld decide the issue differently de (2009) (quotation omitted). “Thus, when asked to reconsider a previous unpredictable results.” Rallis v. D emoulas Super Markets, 159 N.H. 95, 102 deciding c ases becomes a mere exercise of judicial will with arbitrary and law, for when governing legal standards are open to revision in every case, doctrine of stare decisis demands respect in a society governed by the rule of Alternatively, the State asserts that Guare should be overruled. “T he

B. Guare v. State of New Hampshire p. 14 14

U.S. 181, 191 (2008) (quoting Norman, 502 U.S. at 288 - 89). ‘ sufficiently weighty to justify the limitation. ’” Crawford v. Marion County Election Board, 553 that burden may appear,. . . it must be justif i ed by relevant and legitimate state in terests measuring the severity of a burden that a state law imposes on a voter. Instead, “[h]owever slight

lines was “insufficient to invalidate SB3 on its face.” and confusing nature of the forms will result in longer same - day registration subject to SB 3’s pena lties; and (4) the court’s conclusion that the complicated individuals who registered in 2018 using Option 1 would find themselves there was “no reasonable basis” for the trial court to conclude that any of the during the 2018 general election was insufficient to support its conclusion; (3) specific hearsay statements” in concluding that SB 3 caused voter confusion confusing or misleading; (2) the court’s reliance upon “anecdotes and non the State asserts that the court erred because: (1) Form B and the VAD are not that SB 3 imposes an unreasonable b urden on the ri ght to vote. Specifically, We next address the State’s argument that the trial court erred in finding

C. Unreasonable Burden

we are not persuaded that Guare should be overruled. (explaining that we interpret statutes as written). Under these circumsta nces, these voting statutes. See Petition of Malisos, 166 N.H. 726, 729 (20 p. 14 14) decisions simply reflect our interpretation of the legislature’s amendments to 2018 amendments to RSA 21:6 and :6 - a). Accordingly, our post - Guare Resident and Residence), 171 N.H. 128, 137 - 40 (2018) (discussing in detail t he the phrase “for the indefinite future”); see Opinion of the Justices (Definition of “residence” in RSA 21:6 and :6 - a were amended in 2018 to remove from each Casey, 173 N.H. at 270 (explaining that the definiti ons of “resident” and explained in Casey, the statutes at issue in Guare were subsequently amended. Guare rested was wrong.” The short answer to the State’s argument is that, as State, 173 N.H. 266 (2020), “confirms that the legal assumption on which and that our subsequent decision in Casey v. New Hampshire Secretary of See id. Nonetheless, t he State now asserts that its concession was incorrect decidi ng that case, we accepted the State’s conc ession in reaching our decision. legally different. See Guare, 167 N.H. at 663. Therefore, f or purposes of State acknowledges, in Guare, it conceded that those statutory definitions were (amended 2018) and RSA 21:6 - a (2012) (amended 2018). However, as the statutory definition of ‘residence’ and ‘resident’ under” RSA 21:6 (2 012) statutory definition of domicile in R SA 654:1, I (201 6) differed from the “substantively incorrect” in that it “rests on the flawed premise that the The State also asserts that Guare should be overruled because it is

legislation be substantially related to an important governmental objective”). of review require d that the government d emonstrate “that the challenged 7 62 (2007) (in the context of an equal pr otec tion claim, our intermediate level p. 15 15

acknowledge that the interests identified by the State are important, if not vital. manageable level so they can be efficiently and timely investigated.” We wrongful voting,” and reducing the number of sworn registration affidavits “to a domicile qualification” by making “it more difficult for persons to engage in the State further maintains that SB 3 “seeks a b etter assessment of the justify any burden imposed by SB 3. Relying upon SB 3’s legislative history, the State’s elections, and helping to prevent and protect against voter fraud,” “safeguarding voter confidence, protecting public confidence in the integrity of The State also asserts that its important interests, including

capacity was adversely affected by Alzheimer’s). expert testimony supported the trial court’s determination that the testatrix’s Washburn, 141 N.H. 658, 660 (1997) (explaini ng that anecdotal evidence and by P laintiffs, for which the State had no effective rebuttal.” See In re Estate of at trial was “supported by the persuasiv e and credible expert testimony offered (2017). In addition, a s t he trial court expressly stated, the anecdotal evidence weight to be afforded to evidence. See O’Malley v. Little, 170 N.H. 272, 275 hearsay evidence. However, we defer to the trial court’s judgment as to the it challenges the manner by which t he t rial court weighed this anecdotal and spe cific evidence. Rather, in the context of a sufficiency of the evidence claim, arguing, the State does not challenge any of the trial court’s rulings admitting non - specific hearsay sta tements insufficient to support that conclusion.” In so voter confusion during the 2018 general election was “based on anecdotes and The State also argues that the trial court ’s conclusion that SB 3 caused

us, we determine that it supports the findings made by the trial court. Forest Prods., p. 15 155 N.H. 29, 36, 38 (2007). Hav ing reviewed the record before findings the trial court reached.” See Blagbrough Family Realty Trust v. A & T whether there is sufficient evidentiary support for the interpretations and is not whether the court could have interpreted the evidence di fferently; it is evidence. However, as the plaintiffs correctly observe, “the question on appeal the burden beyond minimal, are all based up on its interpretation of the burden on the right to vote, and that sam e - day registration lines do not elevate misleading, that the penalties associated with SB 3 impose only a minimal The State’ s contentions that Form B and the VAD are not confusing or

the plaintiffs. Id. Walker, p. 15 158 N.H. at 60 8. We v iew the evidence in the light most favorable to judgments on the credibility of witnesses and the weight to be given testimony. 172 N.H. 781, 789 (2020). We accord considerable weight to the trial court ’ s Walker v. Walker, 158 N.H. 602, 60 8 (2009); see Boyle v. City of Portsmouth, unless they are lacking in evidentiary support or tainted by error of law. claims as a matter of law and uphold the findings and rulings of the trial court supporting the trial court’s findings. We review sufficiency of the evidence The State’s arguments challenge the sufficiency of the evi dence p. 16 16

See Guare, p. 16 167 N.H. at 667; Anderson, 450 U.S. at 789. justifications necessitating the burdens the law imposes on the right to vote. substantially related to the precise governmental interests it set forth as SB 3 is unconstitutional, as the State has failed to demonstrate that S B 3 is findings are supported by the record before us. Accordingly, we conclude that We are persuaded by the trial court’s analysis and determine that it s

cost of the verification system pre - SB 3.” SB 3 would require “significant costs that, at a minimum, would match the enforcement.” As a result, the trial court concluded that any enforcement of rendered “either entirely meaningless or would result in completely arbitrary verifying their addresses. Otherwise, SB 3’s penalty provision would be ret urn documentation following the 2018 election, as opposed to simply the DOJ investigate each of the 815 voters who selected Option 1 and failed to as the trial court observed, a fully implemented SB 3 regime would require that affidavits “were verified [by] using the internet and phone calls.” By contrast, the enactment of SB 3, the “vast majority” of domicile addresses s ubmitted by Department of Justice (DOJ) investigator, the trial court found that, prior to post - election investigations. Relying upon the testimony of a New Hampshire the important governmental interest of re ducing the administrative cost of The trial court similarly rejected the State’s assertion that SB 3 serves

elections was “illusory.” that the State’s perceived need to protect the integrity of New Hampshire’s trial court rejected the State’s voter - fraud justification, and, likewise, found Consequently, having found that SB 3 does not impede fraudulent voters, the

evidence that these would be a deterrent to a fraudulent voter. voter faced greater penalties under SB 3, the State presented no no a dditional penalties under SB 3. Even assuming a fraud ulent able to do so by selecting Option 2 [on Form B], for which there are Therefore, any individual intent on casting a fraudulent vote will be of distinguishing between ballots once they have been cast. voters registering via affidavit are not provisional; there is no way domicile and cast a valid vote. Notably, the ballots filled out by remains that new voters may register by affidavit without proof of A lthough add itional hurdles have been put in place, the fact

The trial court reasoned:

important gover nmental objective.” Guare, p. 16 167 N.H. at 665. required to prove that the “challenged law [is] substantially related to an Nonetheless, under our intermediate level of scrutiny, at trial the State was p. 17 17

court reasoned that under the former, substituting the words “Yes” and “No” on to “be substantia l ly in the following form.” Id. at 415 (quotation omitted). The require exact expressions in the statutory form with those requiring the ballot (quotations omitted). In resolving that issue, t he court contrasted statutes that pro viding voting spaces designated by the words “Yes” and “No.” Id. at 413 - 14 votes “for” and “against” substantially complied with the statutory form (Ill. 1971). In that case, the issue was whether a ballot providing spaces for language. See People ex rel. Davis v. Chicago, B. & Q. R. Co., 268 N.E.2d 411 i ts broad interpretation of the S ecretary’s authority to modify statutory However, the one relevant case relied upon by the State does not support

decisions of other courts interpreting similar statutory language. form works.” Such revisio ns, the State asserts, would be consistent with indentation and other formatting can be used to more clearly convey how the reduce words; redundant words or phrases can be eliminated or simplified; sentences; passive voice expressions changed to active vo ice expressions to language of the forms so that “[l]ong sentences can be broken into shor ter the following form” in these statutes authorizes the Secretary to alter the RSA 654:7, V (Supp. 2020). The State asserts that the phrase “in s ubstantially

of domicile and shall be in substantially the following form . . . . requirements that re gistrants must furnish documentary evidence “verifiable action of domicile” document shall provide notice of the domicile or a verifiable action to demonstrate domicile. The the election or on el ection day and who do not p rovide proof of distributed to those registrants who register within 30 days before to the voter registration form used under subparagraph IV(c) to be T he secretary of state shall prepare and distribute an addendum

(Supp. 2020). RSA 654:7, V provid es: which shall be in substantially the following form . . . .” RSA 654:7, IV(c) starti ng 30 days before each election and at the polling place on election day, form of the voter registration form to be used only for voter registrations . . . RSA 654:7, IV(c) provides that “[t]he secretary of state shall prescribe the

incorrect. asserts t hat this interpretation of the S ecretary’s statutory authority is S ecr etary may not alter the language in an effort to cure SB 3. The State statutory authority is limited to modifying the physical layout of the forms, the contained in the forms was mandated by the legislature and the S ecretary’s and add clarification.” The trial court determined that, because the language Secretary to revise Form B and the VAD to “reduce complexity, cure confusion, Finally, t he State argues that the trial court erred by not allowing the

D. Voter Registration Form s p. 18 18

the page.” Secretary of State’s involvement is limited to formatting the physical layout “to make sure it fits on testified that the statute s ets forth the specific language in the voter registration forms, and the Indeed, although we are not bound by the opinion of the Deputy S ecretary of Stat e, at trial, he 4

vote. We also conclude that the State failed to carry its burden to demonstrate We conclude that SB 3 imposes unreasonable burdens on the right to

of” SB 3, the law must be stricken in its entirety. Id. (quotation omitted). that Form B and the VAD are “integral and essential in the general structure affidavit to submit within thirty days of an election and on election day.” Given two - tiered registration s ystem no longer functions, as there is no longe r an defined in or actions take[n] pursuant to forms that no longer exist, and the make sense.” As the court expla ined, “T he penalties enacted rely on words centerpieces of SB 3, without which much, if not all, of the l egislation ceases to W e agree with the trial court that “Form B and the VAD are the

an entire collapse and destruction of the statute.” Id. (quotation omitted). general structure of the act that they may not be rejected without the result of unconstitutional provisions of the statute are so integral and essential in the (quotation omitted). “We must also determine, however, whether the reasonably saved.” Associated Press v. State, 153 N.H. 120, 141 (2005) that the invalid part shall not produce entire invalidity if the valid part may be severable from the invalid ones, we are to presume that the legislature intended entirety.” “In determining whether the valid provisions of a statute are f urther reduce the burden” imposed by SB 3, “without striking SB 3 in its In addition, t he State suggests that “the doctrine of severability may

language found to be unconstitutional). no authority to alter the terms of a voter registration statute to correct 591 S.W.3d 4 48, 455 - 56 (Mo. 2020) (determining that the secretary of state has caused the trial court and the plaintiffs concern.” See Priorities USA v. State, 4 clarification” to Form B and the VAD or “to cure the types of form issues that substantive revisions necessary to “reduce complexity, cure confusion, and add conclude that such a legislative directive authorized the Secretary to ma ke may constitute substantial compliance with statutory form, we cannot administrative act of substituting two discrete terms with synonymous words form does not support the State’s position in the case before us. Although the omitted). This interpretation of the word “substantia l” in the context of a ballot “substantially” in the form of “Yes” and “No.” Id. at 413 - 15 (quotations was not prohibited b ecause th e substituted terms “for” and “against” were the ballot form wi th different words would be prohibited, but under the latter it p. 19 19

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

Article 11 of the State Constitution. Accordingly, we affirm the trial court’s determination that SB 3 violates Part I, that SB 3 is substantially related to an important government al objective.