Weeks before election, state appeals ruling striking down proof-of-citizenship voting law

A month after a federal judge struck down a law requiring hard proof of citizenship to register to vote in New Hampshire, the state Attorney General’s Office has requested a stay of the decision while it appeals.

On May 28, Judge Samantha Elliott of the U.S. District Court of New Hampshire ruled that the Republican law imposes an unconstitutional burden on the right to vote.

Because of that ruling, first-time voters do not currently need hard proof of citizenship to register for the September state primary and November general elections, though they will need proof of identity, age, and domicile. The state’s motion, if successful, would allow the new proof-of-citizenship law to take effect this fall. 

The frozen law, which was passed via House Bill 1569 and took effect just after the 2024 presidential election, required people registering to vote for the first time in New Hampshire to produce documentary evidence, such as a passport, birth certificate, naturalization certificate, or other document, that they are U.S. citizens or be denied registration, with no exceptions. It eliminated the previous option for a voter to sign a “qualified voter affidavit” in which they testified on penalty of voter fraud charges that they were a U.S. citizen in order to register to vote without presenting those documents.

After a group of voting rights organizations and voters sued to block the law, Elliott ruled that requiring proof of citizenship violated the First and 14th Amendments because it could disenfranchise voters. She ordered the Secretary of State’s Office to restore the qualified voter affidavits for citizenship.

Now, with the state’s Sept. 8 primary less than 11 weeks away, attorneys for the state are asking Elliott to stay her ruling while they appeal to the 1st Circuit Court of Appeals in Boston. 

To succeed, they’ll need to prove that they are likely to defeat the ruling on appeal, that allowing the new law to stay in effect is in the public interest, and that Elliott’s blocking of the law will cause irreparable injury to the state and other parties.

Here’s why the state argues Elliott’s ruling was wrong.

Argument One: The state’s interest in proving citizenship overrides the inconvenience to voters

At the heart of any federal lawsuit against a voting law — and the key for both sides of the upcoming appeal — is a legal mechanism: the Anderson-Burdick framework.

Named after two Supreme Court precedents, Anderson v. Celebrezze in 1983 and Burdick v. Takushi in 1992, the test asks whether the state’s interest in having a voting law justifies the burden that law poses to voters. 

To answer that, a court must decide whether the law imposes a “severe” burden on the right to vote or a “non-severe” burden. If the burden is severe, the government must show that the law has been “narrowly drawn” to achieve a “compelling” state interest or else the court may strike down the law. 

If the burden is not deemed severe, the courts will usually uphold the law, as long as it serves an important regulatory purpose.

In her ruling, Elliott held that the proof of citizenship law “will significantly burden New Hampshire voters” and that the state’s interests do not justify it. She pointed to testimony at trial showing that 17% of first-time registrants in 2024 used an affidavit to register and suggested that up to 31,291 Granite Staters do not currently possess the documents to prove their citizenship.  

In its request to stay the ruling, the state argues there are clear governmental interests to the new law, including the prevention of potential voter fraud and an increase in voter confidence. 

And the Attorney General’s Office argues Elliott misapplied the Anderson-Burdick test by focusing on a small subset of voters who don’t have citizenship documents in order to measure the law’s burden. Elliott also overstated the intrusiveness of the requirement to prove citizenship, the state argues.

“The Supreme Court defines ‘severe burdens’ as those that go beyond that which is merely inconvenient,” the state wrote in its brief. “A generally applicable election law that requires nominal effort imposes ordinary and widespread burdens.”

To make that case, the state is relying heavily on Crawford v. Marion County Election Board, a 2008 decision in which the Supreme Court upheld an Indiana law requiring voter ID to vote, finding that the state’s interest in preventing voter fraud cleared the Anderson-Burdick test.

But in her ruling,  Elliott sought to challenge the relevance of Crawford to New Hampshire’s law. Voters in Indiana have the option to cast provisional ballots if they forget their identification at the polls, meaning they can cast a ballot that will be set aside and counted if they later return with their document. New Hampshire does not have that option, making the consequence of forgetting a citizenship document on Election Day more severe, Elliott wrote.

Argument Two: The plaintiffs are not actually harmed by the law

In addition to defending the law, the state is also arguing that the plaintiffs behind the lawsuit are not sufficiently affected by it to sue.

The plaintiffs are three individual voters and two organizations, Open Democracy and the New Hampshire Youth Movement. In her ruling, Elliott held that all five have standing to sue over the law.

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The state is pushing back on that. Because the three voter plaintiffs testified they now have documents to prove their citizenship, the elimination of the voter registration affidavits will not affect them, the state argued in its motion to stay.

And the state says Open Democracy and the New Hampshire Youth Movement do not have standing to sue because they have not suffered concrete harm due to the law. Those organizations have argued that the citizenship voting law has forced them to divert more resources to voter education on the new restrictions and away from typical voter assistance.  

The state points to a 2024 Supreme Court ruling, FDA v. Alliance for Hippocratic Medicine, in which the court sought to limit the circumstances in which an organization can sue to block a statute. In that decision, the court decided that organizations can’t sue over a law simply because they have chosen to spend funds to oppose it, and that there needs to be concrete harm. 

In her ruling, Elliott held that the organizations did suffer “a legally cognizable injury” that went beyond voluntary advocacy, because the new law forced them to invest in more resources for education.

Argument Three: The New Hampshire federal court is improperly interfering in state legislation

The state also argues Elliott wrongly inserted the federal court into a state legislative matter. State attorneys say that because the law does not violate the Constitution “beyond all question,” there is no justification to strike it down. Doing so would violate “the will of the people” who elected the lawmakers who passed the law, the Attorney General’s Office argues.

And even if the plaintiffs were right, the solution Elliott has ordered to address it is inappropriate, the state added. Elliott directed the state to restore the qualified voter affidavits for the purpose of citizenship and to make sure they are distributed in the coming elections. That directive goes beyond merely striking down the law and amounts to the court telling the state to resurrect a process — the qualified voter affidavits — that has been repealed by lawmakers, the state wrote.

“Even if HB 1569 were unconstitutional, the order entirely displaces the policy choices made by New Hampshire’s elected representatives,” the state argued. 

But Elliott wrote in her ruling that requiring the return of qualified voter affidavits would allow for continuity, not disruption.

“New Hampshire voters have relied extensively on QVAs to prove citizenship in the past, and election officials already know how to administer them,” she wrote.

Argument Four: The law should not be blocked before it has been fully tested

The final major theme of the state’s argument against Elliott’s ruling is that she wrongly struck down HB 1569 on its face. In other words, the court should not have invalidated the law before it took full effect in its first statewide elections, the state argues.

The state’s motion notes that the Supreme Court is generally wary of sweeping “facial” challenges to statutes, preferring “as-applied” challenges where plaintiffs point to direct harms. 

And the state argues the plaintiffs have not met the high bar for a facial challenge, pointing to the Crawford decision, which held that “a facial challenge must fail where the statute has a plainly legitimate sweep.” 

In essence, the Attorney General’s Office argues that a voting law that affects only some should not be struck down for all.

“Even if there were a small subset of the population that could experience burdens greater than the general public, that would be insufficient to invalidate the entirety of a duly enacted law on its face,” the state argues. 

In her ruling, Elliott disagreed with that interpretation. 

“The ‘proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant,’” Elliott wrote, quoting the 1992 decision of Planned Parenthood v. Casey. 

What’s next

For now, Elliott’s ruling holds. In its motion, the state is requesting Elliott freeze her ruling. Plaintiffs are expected to file response briefs opposing the stay. 

Meanwhile, the state formally opened the appeal process before the 1st Circuit Court of Appeals this week, and it will likely ask that court to impose a stay if Elliott declines. 

Whether or not the ruling is paused by September or November, a final decision by the appeals court is at least a year away.