New Hampshire Republicans Are Throwing Voting Restrictions at the Wall and Seeing What Sticks

In 2020, New Hampshire Republicans took the state by surprise. Even as the majority of voters in New Hampshire cast their ballots for Joe Biden to become president, Republicans flipped both chambers in the statehouse, gaining a trifecta in the state. New Hampshire was the only state legislature that flipped party control — and the two chambers were the only chambers in the country that went from blue to red. Donald Trump was pushing the lie that the elections in New Hampshire — and elsewhere — were the subject of “massive Election Fraud.” And Republicans in the state were actually in a position to do something about it.

Over the past year, Republicans in New Hampshire passed two bills designed to suppress votes and sow doubt in elections, and introduced at least two dozen others. The first makes it easier to purge voters based on third-party information related to change of residence. (New Hampshire allows voters to register on Election Day, so voter purges are more likely to increase wait times at the polls than stop someone from voting altogether.) The other bill changes the process for people who want to register to vote on Election Day to have their picture taken if they don’t have a photo ID, but only slightly tweaks the process for taking the photo, which was already required.

While New Hampshire has same-day voter registration and passed another law last year that made it easier for incarcerated people to vote, it offers few of the expansive voting options offered in 35 states, like no-excuse absentee voting or all-mail elections. And it’s one of six states that are exempt from the 1993 National Voter Registration Act, a law that makes it easier for people to vote and limits parameters for purging voters. As a result, Republicans are coming up with more creative ways to make the process more difficult, and several bills have raised concerns among Democrats and voting rights advocates in the state.

Among those are measures that would eliminate ballot-counting machines and require election workers to count all ballots by hand; make it harder to register to vote on Election Day; and make it easier for citizens to sue election officials, according to the Brennan Center for Justice’s latest roundup of restrictive voting laws. Other Republican bills would allow for the recall of elected officials, make it easier for election observers to intimidate voters, and require audits of the 2020 election.

“New Hampshire in many ways has become sort of the Texas-lite,” said Democratic state Sen. Becky Whitley. “They’re weaponizing blatant lies about voter fraud to justify the bills. … The national narratives have just really invaded the statehouse.”

The laws have the potential to make a significant impact on the midterms later this year and continue to polarize what has become an increasingly partisan legislature. New Hampshire’s elections are notoriously tight, owing to the state’s unusual combination of a small statewide population, a large college population, and an affinity for libertarian ideals. Sen. Maggie Hassan, D-N.H., beat the incumbent, Republican Sen. Kelly Ayotte, by just over 1,000 votes in 2016. Flipping just 300 votes in 2020 would have changed the makeup of the state Senate. Some of the most energized voters in the state — outside of its burgeoning population of liberal-leaning college students — believe that the 2020 election was rigged.

In the last 45 years, “New Hampshire has had 44 elections that ended in a tie or in a one-vote victory,” one of the proposed bills, S.B. 418, reads, pointing to the outsized influence that a small number of votes can have in New Hampshire. “On average, that is almost once per year. This clearly proves that just one improperly cast vote can adversely influence an election each year.”

What’s happening now is almost a replay of 2016, except Republicans in 2020 are more cavalier, trying whatever they can to chip away at voting rights. Just days before his election to the governor’s office in 2016, Chris Sununu claimed in a radio interview that Democrats were using the state’s Election Day registration law to commit voter fraud. “The Democrats are very sly. … [In New Hampshire] we have same-day voter registration, and to be honest, when Massachusetts elections are not very close, they’re busing them in all over the place,” Sununu said.

Less than a month later, after Sununu beat Democratic candidate Colin Van Ostern and Trump lost to Hillary Clinton by just under 3,000 votes, Trump repeated the claim on Twitter. “Serious voter fraud in Virginia, New Hampshire and California – so why isn’t the media reporting on this? Serious bias – big problem!” He later claimed he and Ayotte would have won if Democrats had not bused people in from out of state to vote. Nevertheless, Sununu’s win that year gave the GOP a trifecta for the first time since 2004. When Trump launched his short-lived Presidential Advisory Commission on Election Integrity the following year, New Hampshire was its second stop. New Hampshire’s attorney general investigated Trump’s claims and found no pattern of widespread voting fraud.

From 2017 to 2018, Republicans targeted the voting rights of college students. They passed a proof of residency law, S.B. 3, and another law required people to establish residency if they vote in New Hampshire — by getting a driver’s license or registering their car. Advocates unsuccessfully challenged the law in court, and Republicans tweaked it slightly after the state Supreme Court issued an advisory opinion that the bill was unconstitutional because it discouraged some people from voting.

Democrats briefly took back control of the state Senate and House in 2018. During much of that time, the state Democratic Party was fighting the 2017 proof of residency law in court. Lucas Meyer, director of the New Hampshire voting advocacy group 603 Forward, testified against the bill in 2018, when he was president of the New Hampshire Young Democrats and sat on the state party’s board. Meyer was also previously a voting rights lobbyist. His group fought the residency bill before it passed, and advocates have been actively fighting similar Republican proposals for years.

The state Supreme Court blocked S.B. 3 in July. New Hampshire spent $4.17 million in attorneys’ fees to defend two suits related to the 2017 law, a large amount of money for a small state. But the frenzy of obsession with Trump’s “big lie,” Meyer said, has made their work more difficult. Republican efforts to create more hurdles are “more in the spotlight in New Hampshire. But this has been an ongoing battle for a while.”

Some of the more extreme bills — like one that would require that the public be allowed to observe absentee ballot counts — aren’t expected to pass or have been marked as “inexpedient to legislate.” And Republicans in the state legislature let a number of voter suppression bills die last year, including a bill that would have stopped people from registering to vote on Election Day. The bill would have risked the state’s exemption to the National Voter Registration Act but didn’t get past committee and was voted earlier this month as inexpedient to legislate. Then Republicans introduced another bill that would make the process harder by forcing people who register on Election Day to fill out a provisional ballot, creating delays and extra work for election workers, and pose civil liberties concerns and a potential constitutional violation.

One bill that advocates are worried has a chance of passing, S.B. 418, would give voters whose identity or residence can’t be verified on Election Day an affidavit ballot, meaning they would get a ballot of another color at the polling place, receive a serial number, and have to return a packet of information by a certain date in order to submit their vote. Their names would be kept on a list of people who voted by affidavit ballot, Meyer said, and the bill could potentially impact thousands of voters if they don’t submit their information correctly.

“S.B. 418 is particularly dangerous,” Meyer said. “The bill is rooted in this conspiracy that there’s voter fraud and we need to do something about it. That’s not the case.” And the bill should be concerning to Republicans because it “weakens one of the most fundamental rights of the election process, which is the privacy of the ballot, by adding serial numbers and attaching names to ballots,” Meyer said. “If I’m a Republican or a libertarian, [you don’t want] big government over your shoulder while you’re casting your vote. … I think that makes people very uncomfortable in New Hampshire, and it should.”

The bill text cites the case of a woman who voted in two cities in the 2016 general election “and only paid a $500 fine; hardly a deterrent.” In the same election, the text continues, the attorney general’s office “was unable to verify the identity of 66 domicile affidavit voters and 164 qualified affidavit voters. To turn a blind eye to this level of uncertainty does a grave disservice to both the electoral process of the state of New Hampshire and its citizens. Something must be done, immediately.”

The American Civil Liberties Union of New Hampshire testified against the bill in January and urged state senators to deem it inexpedient to legislate. “Election laws are becoming increasingly more partisan, and troublingly more partisan,” ACLU-NH Senior Staff Attorney Henry Klementowicz told The Intercept.

It’s also unlikely that Republicans will pass a Democratic bill to expand no-excuse absentee voting, which New Hampshire had in 2020 during the Covid-19 pandemic and helped produce record turnout — not just for Democrats, but for Republicans and Independents too. Democrats have tried, and failed so far, to build on that. “We’ve just been stymied at every turn,” Whitley, the state senator, said. And the idea that Republicans and Democrats can still agree on major issues in New Hampshire is moving further out of reach with each voter suppression bill.

“These bills are building on the same narrative that led to the insurrection in the Capitol,” Whitley said. “It’s this sort of win-at-all-costs view of politics that is incredibly corrosive to democracy. Trying to work across the aisle to get things done has really been eroded.”

Many of the Republican proposals center around adding hurdles to the same-day registration process, confusing voters about who is considered a New Hampshire resident, and eroding the base of college voters in the state.

One confusing Republican proposal could pose another risk to the state losing its exemption from the National Voter Registration Act or “motor voter” law, which registers people to vote when they interact with certain agencies like the Department of Motor Vehicles. New Hampshire got around that requirement by offering same-day voter registration.

“It’s possible that this would be enough to shift away from the intent of same-day voter registration [such] that the Department of Justice could rule to have us engage, and then we would become a motor voter state,” Meyer said. “The fact that Republicans are threatening that status is confusing to say the least.”

“It’s totally a solution in search of a problem,” Meyer said. Republicans’ concerns are “not actually about voter fraud. It’s about picking who gets to vote and who doesn’t get to vote. And they know when more people vote, it’s not necessarily good for them.”

Earlier efforts to suppress the vote in New Hampshire were more explicit, Meyer said, and targeted college students in particular. In 2011, then Republican House Speaker Bill O’Brien said he wanted to “tighten up the definition of a New Hampshire resident” and stem the number of college students who register to vote on Election Day. “They are kids voting liberal, voting their feelings, with no life experience,” O’Brien said.

“That was a little refreshing,” Meyer said. “Because at least they were admitting it. They weren’t trying to hide it” by creating bills that rely on confusing voters in order to work. “But that has been the playbook for New Hampshire Republicans for the past two decades, of how do they keep tinkering with our elections, moving the goal posts, make same-day registration more complicated.”