ACLU, Voting Rights Groups, and Voters File Federal Lawsuit Challenging Unconstitutional New Hampshire Voting Law

CONCORD, N.H. — The ACLU of New Hampshire, American Civil Liberties Union, and Ropes & Gray LLP filed a federal lawsuit today challenging HB 1569, a new, significant, and unconstitutional change to New Hampshire’s voting laws that would create needless barriers to vote and remove some options that people are able to use when registering to vote.

The groups represent the Coalition for Open Democracy, the League of Women Voters of New Hampshire, the Forward Foundation, and five current and future voters.

Under current state law, a person registering to vote who does not have certain documentation can sign a sworn statement at the polls in order to cast their ballot. But, under HB 1569, that option will be removed, likely leading to eligible voters getting turned away at the polls and leaving them wholly unable to vote.

“Voting is the cornerstone of our democracy — and laws like this, which create unconstitutional roadblocks to voting and which could stop thousands of eligible voters from participating in an election, have no place in our state,” said Henry Klementowicz, deputy legal director at the ACLU of New Hampshire.

Despite the proven accuracy, reliability, and security of New Hampshire’s elections, HB 1569 introduces fundamental changes to the state’s election law that will make it materially harder, if not impossible, for thousands of New Hampshire citizens to exercise their right to vote — changes that violate the First and 14th Amendments of the U.S. Constitution.

This unnecessary new law would, for example, require documentary proof of citizenship for voter registration — documents like a passport or birth certificate that many people do not have.

Many New Hampshire would-be voters lack ready access to documents (like a birth certificate or passport) to prove citizenship, and their sworn statements have historically been a vital tool for those registering to vote — enabling hundreds, if not thousands, of citizens to vote in the most recent presidential elections, virtually without demonstrated fraud.

HB 1569 is one of the most restrictive voting laws in the entire United States. No state has successfully done what this law attempts in imposing a documentary proof of citizenship requirement to register to vote for federal elections without an affidavit option.

Federal courts have weighed in on this issue previously, determining that a similar Kansas law, which imposed a proof of citizenship requirement for state and federal elections, violated both the U.S. Constitution and National Voter Registration Act of 1993.

“By requiring documentary proof of citizenship for both state and federal elections, HB 1569 will impose one of the strictest voter registration schemes in the nation and make New Hampshire a clear outlier among the states,” said Jacob van Leer, staff attorney with the national ACLU’s Voting Rights Project.

“We are pleased to be working with the ACLU of New Hampshire and to represent the plaintiffs in this lawsuit seeking to vindicate their constitutionally protected rights to register to vote and access the ballot without undue hassle and burden,” said Patrick Roath, associate at Ropes & Gray LLP.

HB 1569 would also change “voter challenges,” which could disqualify certain ballots from being counted at all and would deprive voters of due process when challenging a ballot.

Under current law, a prospective voter whose eligibility is successfully challenged by a peer voter (or political party appointed challenger) is permitted to cast an eligible ballot through a Challenged Voter Affidavit, sworn under the penalties of voter fraud and perjury.

HB 1569 entirely removes the right to vote by Challenged Voter Affidavit. 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 undefined in HB 1569, without any articulated standard of review or meaningful, readily available right of appeal. This change violates the Equal Protection and Due Process Clauses of the 14th Amendment of the U.S. Constitution.

HB 1569 is not scheduled to go into effect until after the November 2024 election.

Liz Tentarelli, president of the nonpartisan League of Women Voters New Hampshire, said, “HB 1569 is dangerous for our state and our democracy. This newly enacted voter registration requirement creates confusion, raises doubts for voters, and leaves them feeling hampered by the process. Instead of creating unnecessary barriers to voters, we need our elected officials to advance meaningful legislation that ensures New Hampshire voters can make their voices heard.”

Olivia Zink, executive director of Open Democracy NH, said, “New Hampshire elections are safe and secure. New Hampshire voters take pride in their elections and have no reason not to trust the results in 2024. HB 1569 will make New Hampshire’s voter registration system one of the most restrictive in the country. New Hampshire voters deserve better.”

Celina Stewart, CEO of the League of Women Voters of the United States, said, “Excessive and unnecessary voting laws only serve to burden the most vulnerable communities, and create barriers where there shouldn’t. New Hampshire's HB 1569 voting law does not protect democracy, and instead harms it by making it harder for people to exercise their right to vote.”

Julianne Gadoury, executive director of The Forward Foundation, said, “New Hampshire politicians are yet again using unfounded rhetoric to push for laws that make it harder to vote and take away our freedoms. HB 1569 is just another example of these efforts. But here’s the truth — voting in New Hampshire is already safe, secure, and accurate. Our vote is our power and our future. This new law will put a burden on election officials to turn voters away and make it more difficult — or even impossible — for hardworking eligible Granite Staters to have all the documents they need to register to vote.”

The complaint is online here.