This article originally appeared in the July 12, 2021 Concord Monitor.
Under the Supremacy Clause, the Supreme Court has the final say when it comes to interpreting the Constitution, meaning that a state cannot undermine federal constitutional rights. But the opposite is not true. Federal rights, both constitutional and statutory, may establish a floor but they do not create a ceiling. In other words, a state court can provide its citizens with more constitutional rights under its local constitution.
Two recent voting rights decisions, one by the United States Supreme Court and the other by the New Hampshire Supreme Court—illustrate the significance of this constitutional dichotomy. At the federal level, Arizona’s recently-enacted election day restrictions survived judicial scrutiny, while New Hampshire’s voter registration identification requirements did not.
On July 1, the Supreme Court decided in Brnovich v. Democratic National Committee that Arizona could impose restrictions on delivery of absentee ballots (so-called “ballot harvesting”) and could invalidate ballots mistakenly cast in the wrong precinct. This was not a constitutional ruling as such but rather was based on Section 2 of the Voting Rights Act of 1965. Congress passed that law, which prohibits states from enacting election laws that discriminate on account of race or color. under the enabling authority granted by Section 2 of the Fifteenth Amendment.
The argument against Arizona was that the law’s restrictions fell disproportionately on minority voters, including Native Americans. The Ninth Circuit Court of Appeals held that the law’s intent was to discriminate and agreed that the out-of-precinct policy and the ballotcollection restriction had an adverse impact on minority voters. Justice Alito’s legalese-laden opinion for the six-Justice majority dismissed such concerns. According to him, Arizona “makes it easy to vote,” and voting “necessarily requires some effort and compliance with some rules.” “Mere inconvenience” is not enough.
I won’t go into more detail but will, instead, cite Justice Kagan’s dissent, which begins with the observation that the Voting Rights Act represents “the best of America” and at the same time reminds us of “the worst of America.” She traces the quest for democratic voting rights from the Declaration of Independence to the Fifteenth Amendment to the civil rights movement and the Bloody Sunday march from Selma to Birmingham.
In her words, the Court’s decision “inhabits a law-free zone” and weakens a law “that stands as a monument to America’s greatness” and is supposed to address “ever-new forms of discrimination.” Her dissent carves up the Alito opinion like a knife through butter and explains, chapter and verse, why Arizona’s law has created a disparity between minority and white voters.
On July 2, the New Hampshire Supreme Court took a very different approach to a 2017 law that imposed a serious of complicated rules regarding proof of domicile as part of the voter registration process. The case, brought by the New Hampshire Democratic Party and the League of Women Voters against the Secretary of State, challenged the law under Part I, Article 11, of the New Hampshire Constitution. That section says that every “inhabitant” 18 or older “shall have an equal right to vote in any election.”
The Court’s unanimous decision (Chief Justice MacDonald did not participate) tells us what evidence was presented during the six-day trial. Two facts are especially important. First, a qualified expert testified that the forms required by the law required a “readability level equivalent to the Harvard Law Review.” And second, the statistical evidence showed that the impact of SB 3 fell disproportionately on college students, highly mobile voters, and the
2 homeless, all of whom are “inhabitants” protected by Article 11. To make matters worse, the forms required by SB 3 lengthened both registration times and lines at the polls.
Superior Court Judge David A. Anderson ruled that SB 3 “imposes an unreasonable and discriminatory burden on the rights of voters in New Hampshire” and was therefore unconstitutional. I can’t prove it but, based on Justice Alito’s opinion in the Brnovich case, I believe the Supreme Court would have overturned Judge Anderson.
Not so the New Hampshire Supreme Court, whose newest Associate Justice, Patrick E. Donovan (appointed by Governor Sununu in 2018), wrote the opinion. Unlike Justice Alito, he did not linger over whether voting involves burdens. Instead, he looked at the record and whether the State had met its burden to show that SB 3 was “substantially related to an important government interest.” The trial judge didn’t think so, and neither did Justice Donovan and his three concurring colleagues, Justices Hicks, Bassett, and Hantz Marconi.
“We conclude that SB 3 imposes unreasonable burdens on the right to vote.”
It is true that SB 3 was supported by Republican legislators and that the Democratic Party brought the lawsuit. But the New Hampshire Supreme Court’s decision is “bi-partisan” in the best sense of the word. It is a welcome reminder that under the New Hampshire Constitution the rule of law knows no party, and neither does the right to vote.