After court ruling, here’s what Granite Staters need to register to vote

When a U.S. District Court judge struck down New Hampshire’s proof-of-citizenship voter registration requirement in May, advocates on both sides of the political spectrum responded with emotion.

Republicans called the decision an unwarranted blow to a commonsense proposal to require new voters to provide hard evidence of citizenship, with no exceptions. Democrats celebrated the pause of a law they said would disenfranchise voters.

But the decision did not wholly dismantle New Hampshire’s new voting law. In reality, many of the new voting requirements in the 2024 Republican bill, House Bill 1569, remain intact ahead of the Sept. 8 primary and Nov. 3 general election.

First-time voters will still need to provide documentary proof of their age, identity, and domicile, despite Judge Samantha Elliott’s ruling. And those same voters will still be turned away if they lack those documents at the polls. Both requirements are new for a major election in New Hampshire. 

“The court’s order does not impact the portions of HB 1569 that require registrants to provide documentary proof of identity, age, and domicile, and a voter cannot use an affidavit to prove identity, age, or domicile,” read a May 29 statement from the Secretary of State’s Office shortly after the ruling. 

And now, with months to go before this year’s closely watched federal midterm elections, voting advocates are working to help voters comply with the pieces of the 2024 bill that are still law — even as both sides are expecting the state to eventually appeal the May ruling. 

“We need everybody’s help to educate everybody they know,” said Olivia Zink, executive director of Open Democracy New Hampshire, a voting rights group and one of the plaintiffs of the lawsuit. “… We need a full-court press to tell people that there’s a lot of new rules.” 

Ahead of midterms, federal court strikes down NH proof-of-citizenship voter registration law

What’s now required from voters

After Elliott’s ruling, here is what voters should know for September and November: 

Under the new legal landscape, any New Hampshire voter who is not already on the state’s voter rolls — either because they have never before voted in the state or because they did not vote in the last five years and were removed — must provide hard documentation. 

To prove their identity, a voter must have a photo driver’s license or photo ID issued by any state or the federal government; a passport; an armed services ID; or any evidence that makes it “more likely than not” that they are who they say they, including an in-person verification by an election official who knows them.

To prove their age — and that they are at least 18 years old as of Election Day — a voter can use any of those same documents.

To prove their domicile and demonstrate that they live in the precinct in which they are voting, a voter must first attempt to provide one of four documents: a New Hampshire driver’s license or non-driver ID card; a New Hampshire vehicle registration; a U.S. government photo ID that has their current New Hampshire address; or a government-issued check, benefit statement, or tax document with their current address.

If a voter does not have any of those documents, they may attest, under penalty of voter fraud, that they do not possess them. After doing that, they may provide any document from a broader list, including a utility bill, a lease or rental agreement, evidence of a property purchase, a school enrollment form, and U.S. Postal Service records. Any voter whose name is not on their home’s utility bill or lease — such as a roommate or a person living with their parents or other family members — can provide a written statement by a co-inhabitant, landlord, or manager affirming that that voter lives there, signed under penalty of perjury. 

Those documentary requirements are absolute, and failure to follow them could result in a prospective voter being denied voter registration. 

Finally, to prove their citizenship, a new voter should provide documentary proof if possible, via a passport, birth certificate, naturalization certificate, or other document. But after Elliott’s ruling, any voter attempting to register for the first time who does not have one of those documents may sign a “qualified voter affidavit” attesting under penalty of voter fraud that they are a U.S. citizen. 

A new state law also allows local election officials with an internet connection to check a database maintained by the Secretary of State’s Office that can verify a voter’s citizenship if they were born in New Hampshire and have a state birth certificate, or if they obtained a REAL ID driver’s license in New Hampshire, which requires proof of U.S. citizenship. 

In its May 29 statement after the District Court ruling, the Secretary of State’s Office confirmed it would be making that citizenship affidavit available in order to comply with the ruling.

“Until further notice, the Secretary of State’s Office will reimplement the use of the qualified voter affidavit solely for a registrant to prove citizenship,” the statement said. “However, Secretary (Dave) Scanlan encourages all registrants, to the extent possible, to provide documentary proof of citizenship or ask election officials to verify citizenship using state inquiries of Vital Records and Division of Motor Vehicles information.”

How we got here

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The current complicated state of election law is a result of the federal court’s partial dismantling of a 2024 Republican law that tightened voting requirements. 

HB 1569, which was signed by Gov. Chris Sununu and took effect a week after the Nov. 8 presidential election in 2024, imposed a strict requirement that new voters bring proof of their U.S. citizenship, identity, age, and current domicile in order to register to vote.

For decades, New Hampshire law had called for those documents but had offered a crucial exception: Voters who did not have the documents could sign an affidavit that asserted, under penalty of voter fraud, that they met the eligibility requirements even if they did not have the documents. If the voter knowingly signed the affidavit and cast a ballot despite not being qualified, they could be investigated later and be convicted of a Class B felony, which could carry up to seven years jail.

Republican supporters of HB 1569 saw that affidavit as a weakness of the state’s voting law, despite the potential for jail time if a voter committed fraud. They argued the state could not catch and prosecute everyone who used an affidavit fraudulently, and that even if the state did, it would not stop that voter from casting a ballot that would be counted on election night and could influence results.

When HB 1569 passed and eliminated those affidavits, two groups of voting rights advocates sued in federal courts; those lawsuits were eventually consolidated into one case. But the plaintiffs did not ask the federal courts to strike down the requirements for documentary proof of age, domicile, or identity. They asked only for the citizenship requirements to be declared unconstitutional. At the time, New Hampshire was the only state that required hard proof of citizenship, and lawyers for the plaintiffs believed that requirement was the easiest to prove unconstitutional. 

In her ruling, Elliott sided with the plaintiffs, striking down the citizenship requirement, but leaving the others intact.

In an interview, Henry Klementowicz, deputy legal director of the American Civil Liberties Union of New Hampshire, who has helped litigate the case, said Elliott’s invalidation of the citizenship requirements will make a difference for voters.

“What I’d say is that we got all of the relief that we asked for,” he said.

He added: “This is a huge victory for the voters of the state, and we appreciate the court’s meticulous and careful analysis of the facts and law at issue.”

Voter education efforts

Exactly what comes next in the federal court case is unclear. On May 29, a day after the ruling, a spokesman for the Department of Justice, Michael Garrity, said the state would appeal. But as of June 8, the state had not filed a notice of appeal. The department has also not filed a motion to stay the case — which would be necessary to freeze Elliott’s decision and keep the full 2024 law in effect for the fall elections. 

On Monday, Garrity said the department had no new updates on its plans to appeal. 

Amid the complicated reality, voting groups are pushing one key message to voters: Go early, and bring all the documents you can.

“(Voters) should bring everything they have,” said Zink. “If they have a birth certificate, if they have their car registration, if they have the documents, bring them.”

Zink’s other piece of advice: If possible, don’t wait until Election Day to attempt to register to vote. Going to a town or city hall in the weeks or months ahead of the elections will help clarify which documents are required, and prevent disappointment on voting day, she said.

To help voters navigate the documentary requirements, Open Democracy will use visual aids, such as a “grid” graphic listing the needed documents, Zink said. They will reach out to high schools to educate eligible voters on how to prove domicile — such as by obtaining a written attestation from a parent if they still live with them. And they will explain to college students that a newly signed law this year will no longer allow them to use student identification cards to vote, and will require a trip to a Division of Motor Vehicles location to obtain a non-driver’s license for $20.

Rep. Ross Berry, a Weare Republican, chairman of the House Election Law Committee, and one of the strongest proponents of the 2024 law, says he is not happy with Elliott’s ruling, and believes she violated previous U.S. Supreme Court precedents. And while he said he appreciates that many of the documentary requirements in HB 1569 did survive, he believes a higher court should overturn her repeal of the citizenship requirement. 

“It’s always two steps forward, one step back,” he said in an interview, referring to Republican attempts to tighten voting requirements in New Hampshire, and the lawsuits that often follow. 

But when it came to voter advice, Berry and Zink were united.

“Just register to vote before the election,” Berry said. “I have always sung this tune. … Doing this in advance is the way to go.”

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