Opponents of New Hampshire voter registration law see a blueprint in Kansas

When Kansas passed a law requiring all voters to provide documentary proof of citizenship to register to vote, the effects were swift.

Three years after the law took effect, 31,089 voter registration applicants – 12 percent of all applications – were denied because they lacked hard proof when they applied. One analysis of individual-level data suggested that the majority were eligible citizens who simply did not have the documents in time to vote.

In 2020, the U.S. 10th Circuit Court of Appeals ruled that the intentions of that law – to prevent fraudulent voting – failed to overcome its negative effects: the 31,000 people who were denied the ability to vote. The Kansas law was struck down, and the U.S. Supreme Court denied a further appeal. 

Opponents of a similar law signed by New Hampshire Gov. Chris Sununu this month are hoping New England courts will rule similarly. 

House Bill 1569 requires that people seeking to register to vote for the first time in the state provide hard documentary proof of U.S. citizenship in the form of a birth certificate, passport, naturalization papers, or other document.

It also requires all voters to produce hard proof of their identity when voting, or be turned away.

The law takes effect Nov. 11 and will not affect people voting in the Nov. 5 general election.

Already, one progressive group, the New Hampshire Youth Movement, has filed a lawsuit in the U.S. District Court of New Hampshire, arguing that the citizenship documentation requirement is an unconstitutional burden on the right to vote. And the outcome in Kansas has become a roadmap. 

The 10th Circuit’s decision over Kansas’ law does not have direct bearing on New Hampshire, which follows decisions of the 1st Circuit in Boston. And the circumstances in Kansas are not exactly the same as those in New Hampshire.

But opponents say New Hampshire’s law is more restrictive than the Kansas law was, and argue that creates a higher chance that the Granite State’s law will also be struck down in federal courts. 

Supporters of the law are hoping the Supreme Court steps in this time to uphold it.

Differences in Kansas and NH

The New Hampshire and Kansas laws are broadly similar, but they do have differences. 

Kansas’ law, enacted in 2013, required applicants to submit documentary proof of citizenship as part of their voter registration applications. That proof could include a driver’s license, a birth certificate, naturalization documents, documents issued by the federal government under the Immigration and Nationality Act of 1952, a bureau of Indian Affairs card number, a consular report of birth abroad of a U.S. citizen, a certificate of citizenship, a certificate aid report of birth by the U.S. State Department, an American Indian card, a U.S. military service record, or a hospital record of birth. 

New Hampshire’s new law does not allow a driver’s license as proof of citizenship, and it does not enumerate as many examples. But it leaves open the possibility of other forms of proof. 

The Kansas law allowed an applicant who did not have any of those documents to attest to that fact under penalty of perjury and present alternative evidence of citizenship to a panel consisting of the secretary of state, the attorney general, and the lieutenant governor. In the three years the law was implemented, five citizens did so successfully. 

New Hampshire’s HB 1569 does not allow this possibility.

Kansas’ status as a “motor voter” state also distinguishes it from New Hampshire. In Kansas, visitors to Division of Vehicles branches applying for a driver’s license may register to vote at the same visit. In New Hampshire, which received an exemption from the 1993 National Voter Registration Act by allowing Election Day voter registration, there is no option to register to vote at the Division of Motor Vehicles. 

The effect: Residents in Kansas are more likely to register – or attempt to register – to vote at all times of the year, depending on when they seek to obtain or renew their licenses. Residents in New Hampshire are more likely to register to vote at their polling places on Election Day.

To some analysts, that difference is one reason Kansas’ law might have imposed less of a burden than New Hampshire’s; Kansas residents could potentially find out earlier in the year if they needed more documents to register and take steps to acquire them, whereas some New Hampshire voters might find out about the the documentary requirements on Election Day, when it could be too late.

“The Kansas law, in many ways, presents more ways for election officials to help voters out in the way that the New Hampshire law just doesn’t allow for,” said Alex Tischenko, senior policy adviser for the Institute for Responsive Government, and a former attorney for the U.S. Justice Department. 

Tischenko added that the fact that 12 percent of applications were still rejected in Kansas suggests that even with a somewhat less stringent law, the effects were still significant. 

A lawsuit in New Hampshire

Unlike with the Kansas lawsuit, the plaintiffs in New Hampshire are not waiting years for HB 1569 to take effect. Attorneys will not have troves of data on hand to back up the claims that the law is disenfranchising voters. And they won’t have voters who were denied their right to vote to use as plaintiffs. 

Instead, the New Hampshire Youth Movement’s lawsuit, brought by lawyers from McLane Middleton in New Hampshire and Elias Law Group in Washington, D.C., seeks to prove that the youth organization itself will be affected by the law. 

The lawsuit claims the confusion caused by the implementation of HB 1569, as well as the impetus to educate new registrants about the need to find or obtain their citizenship documents, will create new burdens for the New Hampshire Youth Movement and distract them from their usual advocacy work.

But even without voter plaintiffs, outside observers say the lawsuit will likely come down to one test: the Anderson-Burdick doctrine.

The doctrine is a balancing test. It holds that whenever a court is reviewing a voting law, it must first determine how much of a burden the law imposes on electoral participation. Then, it must compare that burden against the benefits of the law to the state.

If the burdens overpower the benefits, the law could violate the 14th Amendment, the doctrine states.

The test has sometimes been used to uphold stricter voting laws; in the 2008 Supreme Court opinion of Crawford v. Marion County Election Board, the court held 6-3 that an Indiana law requiring photo ID was constitutional, ruling in part that the state’s asserted interests in the law “is unquestionably relevant” to its interest in upholding reliable elections.

But in Kansas, the 10th Circuit used the test to invalidate the voter registration law, using the number of people denied as an argument the law failed the test.

“There was almost no evidence he attempted noncitizen registrations at all, let alone noncitizen voting,” Tischenko said.

Lawyers suing to stop New Hampshire’s law will not have a similar list of plaintiffs. But Henry

Klementowicz, deputy legal director at the American Civil Liberties Union of New Hampshire – which is not involved in the New Hampshire Youth Movement lawsuit – pointed to state figures that indicate more than 1,400 voters used the affidavits to register to vote in the 2020 presidential election and more than 700 voters did so in the 2022 midterms. Those voters would have been turned away had the law been in effect.

“In New Hampshire, we know thousands of people use these affidavits and could potentially be disenfranchised,” Klementowicz said. “And on the other hand, voter fraud is vanishingly rare in New Hampshire, and most of the cases that I see of voter fraud are people double voting. I don’t see how, for example, requiring documentary proof of citizenship would do anything to address that type of voter fraud.”

The Kansas decision questioned

Not all see the Kansas circuit court decision as convincing. Rep. Bob Lynn, the former chief justice of the New Hampshire Supreme Court and the author of HB 1569, said he disagrees with the court’s conclusions.

Even though 31,000 Kansans were not allowed to vote, and even after expert testimony from statisticians suggested many of them should have been able to vote, the court made its ruling without verifying that assumption, Lynn argued.

“The thing that the court never says is that there’s some reason to believe that those people are citizens,” he said in an interview about the decision in May. “How do we know that those people are not all illegal aliens?”

And Lynn said the court had not adequately explored how difficult it would have been for the plaintiffs to obtain a birth certificate or other documentation.

“The court said, ‘Well, he doesn’t have to show that there was some difficulty with him getting his birth certificate, he just doesn’t have to do it,” said Lynn, speaking about one plaintiff. 

The Supreme Court denied certiorari in the Kansas case, meaning they decided not to review it and the 10th Circuit Court’s decision stood. But analysts on both sides of the debate cautioned not to read too much into that decision when it comes to New Hampshire’s case. 

“There could be a number of reasons why the court didn’t grant certiorari,” Lynn said. “If this was like one of the first cases, they often will not take one of them. They’ll wait and see what a lot of other circuit courts do.”

He added: “My sense would be that if this actually got to the Supreme Court, that the Supreme Court would find the bills constitutional. But can I say that definitively? Obviously not.” 

This story was originally published by the New Hampshire Bulletin