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Judge allows DNC’s lawsuit over affidavit ballots to continue over state's objection

Todd Bookman

A state superior court judge is allowing the Democratic National Committee’s lawsuit against the New Hampshire Secretary of State’s office to proceed, ruling that a newly implemented affidavit ballot system backed by Republicans could negatively impact some qualified voters.

Two previous lawsuits brought by voter advocacy groups and the ACLU of New Hampshire challenging the constitutionality of the same law, SB 418, which took effect in January 2023, were dismissed on procedural grounds. Those cases are now on appeal to the New Hampshire Supreme Court.

Under the law, which was backed by Republicans and signed by Gov. Chris Sununu, first-time New Hampshire voters who register at their polling locations without identification are able to cast provisional numbered ballots. The would-be voter is then given seven days to mail necessary documents to the Secretary of State’s office to prove their eligibility. If that paperwork is not received in time, the city or town is notified and required to pull the marked ballots from totals, and amend the final election results.

Republicans argued the change was necessary to prevent illegal voting in state elections. Under the previous law, voters were able to sign an affidavit swearing to their eligibility, with potential legal penalties for fraudulent voting. Even if criminal charges were subsequently filed for wrongful voting, however, those votes would remain in the final tallies.

Last fall, the DNC, along with the New Hampshire Democratic Party, sued the state, alleging the law violated the rights of would-be voters, and that it would place an undue burden on younger voters, as well as low-income and non-white voters, who the Democrats alleged are more likely to register at the polls.

In a 20-page order released this week, Judge Amy Ignatius denied the state’s motion to dismiss the case, ruling that the law “poses a risk of depriving some qualified voters of their right to vote.” Ignatius also affirmed that the DNC has standing in the case to challenge voting laws.

The case will now head to the discovery phase. No trial date has been scheduled.

Ignatius denied the DNC's request for a preliminary injunction, meaning the law remains in effect.

The New Hampshire Republican Party joined the lawsuit, and with the Secretary of State’s office, moved to have the case dismissed, in part, because the plaintiff’s were not able to identify anyone harmed by the law.

According to figures released to NHPR by the Secretary of State’s office, there have been just five affidavit ballots cast since the law went into effect on Jan. 1, 2023.

Last November, a Manchester resident became the first person to cast an affidavit ballot during city-wide elections. The voter then failed to provide proof of his eligibility within seven days, leading to city officials altering final vote totals.

Republican lawmakers in Concord this session are backing a separate bill that would do away with sworn affidavits for all voters seeking to register, not just first-time voters in the state.

Under the proposal, would-be voters would need to provide a birth certificate or passport along with other documentation to prove their citizenship and residency. Democrats and the ACLU of New Hampshire oppose the bill, arguing it could disenfranchise potential voters. The measure cleared the House, and is now awaiting a hearing in the state Senate.

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University. He can be reached at tbookman@nhpr.org.