Coalition for Open Democracy v. Scanlan

Despite New Hampshire’s success in administering secure elections, the state’s legislature has persistently attempted to introduce new barriers to exercising the right to vote. HB 1569, the law at issue in this action, represents the state’s latest and most aggressive attempt to erect barriers to enfranchisement. The law—which goes into effect on November 11, 2024—constitutes a wholesale rewrite of New Hampshire’s longstanding voter registration laws.

First, under longstanding law, prospective voters establishing citizenship, domicile, identity, and age when registering either by presenting adequate documentary evidence or by executing a so-called Qualified Voter Affidavit or Domicile Affidavit attesting to their qualifications under the penalty of voter fraud and perjury. Because many New Hampshire would-be voters lack ready access to documents to prove citizenship, Qualified Voter Affidavits have historically been a vital tool for those registering to vote, enabling thousands of citizens to vote in the most recent presidential elections, without any instances of fraudulent use. HB 1569 eliminates the option of registering to vote via a Qualified Voter Affidavit or Domicile Affidavit, instead requiring registrants to present a birth certificate, a passport, or naturalization papers to prove their citizenship. The elimination of the affidavit option for New Hampshire registrants would have serious and irremediable impacts on qualified would-be New Hampshire voters seeking to participate in democratic elections, especially in light of the widespread use of same-day registration by new voters in the state.

Second, under current law before HB 1569, a prospective voter who is already registered (and, thus, has already established eligibility to vote) but whose eligibility is nevertheless challenged by a peer voter (or political-party appointed challenger) on election day is permitted to cast an eligible ballot through a Challenged Voter Affidavit, sworn under the penalties of voter fraud and perjury. HB 1569 removes the right to vote by Challenged Voter Affidavit for these voters who have already registered and established their eligibility, many of whom would not have documentary proof of citizenship with them on election day to rebut a surprise challenge to their qualifications because they registered before election day. Without the availability of this affidavit, any otherwise eligible voter can be disenfranchised if a moderator decides a voter challenge is “more likely than not” to be “well grounded,” a vague standard that is undefined in HB 1569, without any articulated standard of review or meaningful, readily available right of appeal.

On September 30, 2024, the ACLU, ACLU of New Hampshire, and Ropes & Gray LLP filed this lawsuit challenging the constitutionality HB 1569. The suit is brought on behalf of the Coalition for Open Democracy, the League of Women Voters of New Hampshire, and the Forward Foundation, as well as several individuals. Plaintiffs challenge HB 1569’s removal of the Qualified Voter Affidavit to prove citizenship as an unjustifiable burden on the fundamental right to vote in violation of the First and Fourteenth Amendments of the U.S. Constitution. They challenge HB 1569’s elimination of the Challenge Voter Affidavit as an unjustifiable burden on the right to vote, and as a violation of the procedural due process and equal protection guarantees of the Fourteenth Amendment.