Legal Q&A: Election Readiness

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

I. VOTING REGISTRATION

Q: Can the voter registration form require a person to agree they must register a motor vehicle and apply for a New Hampshire driver’s license within 60 days of becoming a resident?

A: No. In 2012 the New Hampshire Legislature adopted 2012 NH Laws 285:2 requiring persons who register to vote to affirm under oath that by declaring New Hampshire as their domicile, they agree they must register any motor vehicle and apply for a New Hampshire driver’s license within 60 days. In Guare v. State, 167 NH ____ (decided May 15, 2015) the New Hampshire Supreme Court declared that the difference between a “resident” and a person who merely has a New Hampshire “domicile, “ is that a “resident” has manifested an intent to remain in New Hampshire for the indefinite future, while a person who merely has a New Hampshire “domicile” has not manifested that same intent. The Court went on to rule that by requiring a person claiming domicile to also agree they must also establish residency violates Pt. I, Art. 11 of the NH Constitution. That provision of the NH Constitution provides: “Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile.”

Q: Does temporary absence from the state indicate a person no longer has domicile in New Hampshire for voting purposes?

A: No, in 2014 the New Hampshire Legislature clarified in 2014 NH Laws 104:1 that temporary absence from the state does no deprive a person of domicile provided they have the intention of returning. The statute, RSA 654:2, also provides that no person shall lose domicile when employed in the service of the United States; nor while engaged in the navigation of the waters of the United States or of the high seas; nor while a teacher in or student of any seminary of learning; nor while confined in any public prison or other penal institution; nor while a patient or confined for any reason in any nursing, convalescent home or hospital, old folks or old age home, or like institution or private facility.

Q: Are the Supervisors of the Checklist the only persons authorized to receive voter registration applications?

A: No, under RSA 654:8 the office of a town or city clerk are required to accept voter registration applications under the following conditions: (1) the supervisors have issued guidelines for the taking of evidence of voter qualifications, (2) no application can be accepted after the last meeting of the supervisors before an election, and, (3) the application is made during the regular business hours of the town or city clerk.

Q: What are the approved forms of documentation or identification necessary
in order to register to vote?

A: A voter must present proof of citizenship, age and domicile in order to register to vote. RSA 654:12.

The acceptable forms of identification for citizenship are: birth certificate, passport, naturalization papers, a qualified voter affidavit, a sworn statement on the general election day voter registration form, or any other reasonable documentation which indicates the applicant is a United States citizen.

The acceptable form of identification for age are: any reasonable documentation indicating the applicant will be 18 years of age or older at the next election, a qualified voter affidavit, or a sworn statement on the general election day voter registration form.

The acceptable forms of identification for domicile are: any reasonable documentation which indicates that the applicant has a domicile and intends to maintain a domicile in the town, city, or ward in which he or she desires to vote, or a sworn statement on the general election day voter registration form, or a domicile affidavit prescribed in RSA 654:12 (I) (c).

Q: Must a person who is registering to vote present a photo identification?

A: RSA 654:12 (III) states that if a person who is registering to vote has in her immediate possession an approved photo identification she must present that photo identification in order to register to vote. For voter registration purposes the following forms of identification are deemed sufficient: (1) New Hampshire driver’s license, (2) New Hampshire vehicle registration (3) Armed services identification, or other photo identification issued by the United States government. If the person does not have a photo identification in her possession, she may register if she completes a qualified voter affidavit as provided in RSA 652:12 (I) (a).

Q: Can a person register to vote on election day?

A: Yes, any qualified voter may register to vote on election day. Same day voter registration applies to state primary and to state general elections, all town, city, school district, and village district elections, and to all official ballot meetings where persons may vote by absentee ballot. RSA 654:7-a. New Hampshire has not been required to fully implement the National Voter Registration Act of 1993, 42 USC §197gg et seq., because New Hampshire has election day registration at polling places. That federal law applies to 44 states and mandates the availability of voter registration when applying or renewing a driver’s license, at offices of state funded disability assistance programs and voter registration by mail.

II. ABSENTEE BALLOTING

Q: In general, who is permitted to vote by absentee ballot?

A: Any person who is absent on election day from the city, town, or unincorporated place where he is registered to vote. If a person is unable to appear at any time during polling hours because they must remain physically at work or be in transit to or from work when the polls are open is also eligible to vote absentee.

Any person who cannot appear in public on election day because of his observance of a religious commitment.

Any person who is unable to vote in person by reason of physical disability. RSA 657:1.

Q: What absentee balloting rules govern uniformed service members and those living overseas?

A: An absent uniformed services voter has the right to vote absentee in any state election in the town or city in New Hampshire in which she had her domicile immediately prior to service, even though she no longer maintains domicile in said town or city and even though her intent to return thereto is uncertain.

Absent voters temporarily residing outside the United States. An absent voter temporarily residing outside the United States shall have the right to vote absentee in any election in the town or city in New Hampshire in which she had her domicile immediately prior to her departure. RSA 654:3.

Q: How does a person obtain permission to vote absentee?

A: First, the voter must request an absentee voter application form from the secretary of state or from any town or city clerk.

The absentee voter application form must be mailed or delivered to the applicant.

The completed absentee voter application form must then be sent by the voter to the clerk of the town or city in which he or she desires to vote.  RSA 657:6.

Q: What procedure must the city or town clerk follow to verify the submitted absentee voter application?

A:  For a state general election or a local election the town clerk must determine if the applicant is on the checklist of voters.

For a state or presidential primary election the town clerk must determine if the applicant is on the checklist of voters and is properly registered as to party designation. RSA 657:12 - :13.

Q: How are absentee voting ballots delivered to absentee voters?

A: After the absentee voter application has been verified the clerk must retain the application and, without delay, personally deliver or mail to the applicant the appropriate ballot and other materials. For Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) voters the clerk has the option to email an absentee ballot to a voter. The clerk must send absentee ballots in response to verified absentee ballot requests until 5:00 p.m. on the day before the election. RSA 657:15.

Q: How and when must absentee ballots be returned to the town or city clerk?

A: The voter must either mail or personally deliver the completed absentee ballot to the town or city clerk.

The voter’s spouse, parent, sibling, or child may also deliver the absentee ballot if the family member completes a form provided by the secretary of state, which shall be maintained by the city or town clerk, and the family member presents a government-issued photo identification or has his or her identity verified by the city or town clerk. RSA 657:17.

Absentee ballots must be received by the city or town clerk by no later than 5:00 pm on election day. RSA 657:22.

Q: What happens if a voter’s name has been marked on the checklist as voting absentee appears at the polling place on election day?

A: The ballot clerk shall notify the moderator if a voter appears at the polling place on election day to vote and that voter’s name has been marked as voting absentee on the checklist. RSA 659:55.

III. VOTER INDENTIFICATION

Q: What form of photo identification must a voter present to obtain a ballot?

A: A valid photo identification showing the name of the individual to whom the identification was issued, and the name shall substantially conform to the name in the individual’s voter registration record; it also shall show a photograph of the individual to whom the identification was issued.

The photo identification shall also have an expiration date that has not been exceeded by a period of more than 5 years, except that a voter 65 years of age or older may use an otherwise qualified form of identification without regard to expiration date.

The following are deemed valid photo identifications:
A driver’s license issued by any state or the federal government.
A New Hampshire DMV non-driver’s identification card or a non-driver’s identification card issued by the motor vehicles division, department, agency, or office of any other state.
A United States armed services identification card.
A United States passport or passcard.
A valid student identification card that has either an expiration date or an issuance date that has not been exceeded by a period of more than 5 years, except that, at all elections prior to September 1, 2018, student identification cards without a date of expiration or issuance shall be accepted, and the student identification card is issued by:
A college, university, or career school in New Hampshire and approved to operate or licensed to operate in New Hampshire.
A public high school in New Hampshire.
A nonpublic high school in New Hampshire accredited by a private school accrediting agency that is recognized by the department of education.

Dartmouth College.
A college or university operated by the university system of New Hampshire or the community college system of New Hampshire. RSA 659:13 (II).

Q: What procedure must be followed when a voter is unable to produce a valid photo identification?

A: If the voter does not have a valid photo identification, the voter shall execute a challenged voter affidavit, and the moderator or the moderator’s designee shall take a photograph of the voter and immediately print and attach the photograph to, and thus make it a part of, the affidavit form. The photograph shall be 2 inches by 2 inches, or larger, and be in color. The moderator or his or her designee who took the photograph and the voter shall then sign the challenged voter affidavit.

If the voter objects to the photograph requirement because of religious beliefs, he or she may execute an affidavit of religious exemption in accordance with RSA 659:13-b, which shall be attested to by an election officer and attached to the challenged voter affidavit.

The person’s identity may be verified by a moderator or supervisor of the checklist or the clerk of a town, ward, or city, provided that if any person authorized to challenge a voter under RSA 659:27 objects to such verification, identifies the reason for the objection in writing, and states the specific source of the information or personal knowledge upon which the challenge of the photo identification is based, the voter shall be required to execute a challenged voter affidavit as if no verification was made. RSA 659:13.

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext 3408 or at legalinquiries@nhmunicipal.org.