Major N.H. voting law change nears finish line despite objections

The largest change to New Hampshire election laws in recent history: That’s how some are describing a set of Republican-backed bills that would create new requirements for people looking to register to vote. The bills would also make New Hampshire among the strictest states in the country when it comes to new voter registration.

But despite the potential consequences, the top election official in the state — and Gov. Chris Sununu — have declined to say what they think of the bills.

State lawmakers and Sununu will make the final decision about whether these bills become law in the coming weeks. Here’s an overview of the potential changes coming to voter registration laws, and what the path ahead looks like.

To vote in New Hampshire, everyone needs to prove four things:

While the vast majority of people seeking to register to vote bring proof of these qualifications, under a long-standing state law, if someone doesn’t have proof, they can instead sign a legally binding form, known as an affidavit.

For example, if you have a driver's license and a utility bill, but you don’t have your passport with you, the state permits you to sign an affidavit swearing you are a U.S. citizen. And then you can cast a ballot.

The current affidavit system does come with legal penalties for people who lie when filling it out. But some Republicans say it still falls short.

In practice, the New Hampshire Attorney General’s office investigates the background of everyone who uses an affidavit when they register. And if they determine the person wasn’t qualified — because, for instance, they actually lived in another state — then prosecutors can bring criminal charges. That is exceptionally rare, however.

But many Republican lawmakers point to the fact that there are some people who fill out the affidavit who the attorney general’s office simply can’t locate after the fact. In the 2016 election, there were about 230 voters out of more than several hundred thousand cast who used affidavits who then couldn’t be located or confirmed by investigators.

State Sen. James Gray of Rochester, who’s been among those leading the charge for stricter voter registration rules, says even though those 230 or so voters may have been qualified legally to vote here, the fact that the state never obtained proof of that is a flaw.

“Although it is true that there have not been a lot of prosecutions, I can't tell you that there weren't a lot of people who were not qualified to vote that did vote,” he said.

In a word: no.

The numbers show that it’s a tiny fraction of a percent of the total number of people who voted in the 2016 election who couldn’t be tracked down after voting with affidavit ballots. Again, there’s no proof that those 230 or so people weren’t qualified to vote. The state, for whatever reason, just wasn’t able to find them after they cast their ballot.

The state Attorney General’s office was not able to provide NHPR with any examples of prosecutions for non-citizens who tried to cast a ballot in a New Hampshire election.

The big change would be the complete end of sworn affidavits for people looking to register to vote at the polls on Election Day. Gray and his GOP colleagues say that all would-be voters should have proof — in hand — when they register to vote for the first time in the state. That includes proving their citizenship.

This would be a unique system not used anywhere else in the country, and according to the proposal’s critics, it would create the most restrictive voter registration system nationwide.

They wouldn’t be able to register to vote. And that’s in part why opponents say this is just too much of a burden. They also say it’s likely to disenfranchise completely legitimate voters who don’t hear about these new rules, and show up on election day without these documents.

“This specific bill is absolutely a bill in search for a problem, because we don’t have folks who we know are fraudulently voting or fraudulently filling out these affidavits,” said McKenzie St. Germain, director of the New Hampshire Campaign for Voting Rights, one of the groups opposing this proposed law.

She called the proposed change a “drastic overhaul” of current law.

It gets a little complicated here, but there is one version of this bill that’s already cleared the House and the Senate, which means it will now head to Gov. Chris Sununu’s desk to either sign or veto. Sununu has not said what he thinks of the measure, but has previously told reporters that he’s not looking to make any major changes to the state’s election laws.

There is also a second bill that’s still alive that is nearly identical, in terms of removing the sworn affidavits — but it’s got a twist.

Gray is proposing that to remedy some of the concerns that legitimate voters are going to be disenfranchised, that the state set up an Election Day hotline, a kind of war room

It would be staffed by the AG’s office, the Secretary of State’s office and the DMV.

How it would work, in theory, is that a local election official could call and say they have a would-be voter in front of them who can prove they are 18 and their identity but, for instance, they can’t prove their residence or their citizenship. On the other end of the line, investigators would then use databases to try and look people up and either permit them to register to vote, or reject their registration, in real time.

That office is saying nothing, which is unusual. Secretary of State David Scanlan — New Hampshire’s top elections official — has declined to say anything publicly about ending the use of affidavits or the creation of this hotline

He’s somebody who frequently testifies on election bills, or sends one of his deputies to do so. And lawmakers often work with his office to craft policies he thinks can work

But on this proposal — arguably the biggest change to state election laws in recent history —Scanlan’s office has been silent, refusing to comment on if it thinks this change is necessary or if it's constitutional.

And on that last point: If this does become law, it is nearly certain to be challenged in court.

A law with some similarities about proving citizenship with documents previously passed Kansas, but federal courts blocked it.

This story is a production of the New England News Collaborative. It was originally published by New Hampshire Public Media.