Concerns about voting for noncitizens lead to sweeping new restrictions in New Hampshire

A new law in New Hampshire requires all voters registering to vote for the first time in the Granite State to provide proof of their U.S. citizenship, such as a birth certificate or passport. It's a remarkable victory for conservatives who argue without evidence that statewide elections can be rigged by noncitizens voting and that more restrictions are needed.

The law won't take effect until after this year's general election, but it has already been challenged in court. Some experts also worry that the timing of the passage of the law, which was signed last week, could confuse people about what to vote for in New Hampshire this year.

Despite years of conservative efforts on the issue, no state has successfully passed a proof-of-citizenship requirement like New Hampshire. But voting rights experts say this new measure has the best chance of withstanding legal challenges because of an exception in federal election rules.

If the bill stands, it would give new impetus to a policy that could make it harder for millions of eligible voters to register if other states or Congress follow suit, said Lauren Kunis, executive director of the nonpartisan advocacy group VoteRiders, which helps people get the IDs they need to vote.

“The lie that non-citizens can vote in federal elections has spread like wildfire in the political narrative,” Kunis said. “I think there will be no shortage of opportunities to test this type of legislation in various court systems throughout 2025, clearly to the detriment of the American voter.”

In addition to citizenship requirements for first-time registrants, the law eliminates all exemptions for voters who show up to vote without proper identification.

Combined with other policies in New Hampshire — no early voting and no online voter registration — the state is quickly becoming an outlier in electoral politics, Kunis said.

“Adding this new, unnecessary hurdle to all of that could have really disastrous consequences,” she said, also noting that some voters this election cycle will almost certainly be confused about what documents they need to register. “I always like to assume good intentions, but when I look at the timing of this law, that's hard to achieve.”

The changing voting rules in New Hampshire

Republican supporters say the new rules will increase confidence in the process and are a sensible expansion of election laws. Republican Gov. Chris Sununu had repeatedly told reporters for months that he had concerns about the legislation. Sununu said he did not want to make major changes to the state's election laws and expressed concerns about the tight timeline for the bill.

But after the bill passed the New Hampshire legislature in June, Republican Senate leaders essentially delayed the bill's arrival on the governor's desk, ensuring it would not reach Sununu in time to take effect before the 2024 general election. Sununu received the bill last week.

“We have a proud tradition and a proven track record of conducting trustworthy and honest elections,” Sununu said in a press release announcing his signature on the bill. “As we look ahead to the next decade or two, this bill will bring even more integrity and trust to the electoral process.”

But Henry Klementowicz of the ACLU's state chapter says the law will disenfranchise legitimate voters.

“We know that voter fraud is extremely rare in New Hampshire, and yet this is an extreme attempt that will push us to the very edge of the state's election systems,” he said.

There is no evidence that the state's current voting system has been routinely subverted to allow people who live outside New Hampshire or are ineligible to vote to participate in elections. Most local prosecutions for the rare cases of voter fraud involve people with second homes or those who move between towns in New Hampshire.

Republican Senator James Gray, a supporter of the bill, argued during legislative hearings that the New Hampshire Attorney General's Office was unable to locate about 230 voters across the state after they cast their ballots in 2016 – a tiny fraction of the total votes cast.

“While it's true that there haven't been many prosecutions, I can't tell you that there haven't been many people who weren't eligible to vote,” Gray said.

Some local election officials warn that the citizenship and identification requirements will have a disproportionate impact on voters in rural areas who may live more than an hour from a Department of Motor Vehicle office. Students will also be affected by the requirements, as they may be allowed to vote in New Hampshire but may not have their passport or birth certificate with them while in college.

“On the surface, it seems like a sensible law,” said Lindsay Smith, an election moderator in Enfield, New Hampshire. “But in reality, it fixes a problem that doesn't exist. So I think it feeds the idea that there are problems with our elections.”

In Durham, home of the University of New Hampshire, there are often long lines on Election Day as students seek to register at the polling place, which is allowed under state law. In 2016 and 2020, there were about 3,000 voters who registered on the same day, according to the city of Durham, with nearly half of those prospective voters providing affidavits confirming their citizenship – affidavits that are no longer allowed.

Other states have tried to restrict voters by requiring proof of citizenship. Here's why New Hampshire could succeed

The main reason more conservative states have not adopted proof of citizenship requirements like New Hampshire is a 1993 law called the National Voter Registration Act. The law requires states to accept a universal federal voter registration card that requires a unique identification number, such as a Social Security number or driver's license number, but not proof of citizenship. Instead, applicants are asked to affirm that they are citizens under penalty of perjury, which can result in deportation.

When Kansas tried to impose proof of citizenship a few years ago, the law was defeated in part because it was deemed a violation of the NVRA. Arizona requires voters to show proof of citizenship to register for state and local elections because of this law, but not for federal elections.

However, New Hampshire is one of only six states that were exempt from the law when it was passed because it offered same-day voter registration, making it potentially one of the few states that could successfully implement such a policy.

“My best guess is that the law will probably be upheld,” Guy-Uriel Charles, an election law expert at Harvard University, wrote in an email to NPR.

Charles explained that because of New Hampshire's exemption from the NVRA, the most likely way to challenge a lawsuit is to argue that the law violates the 14th Amendment by imposing a greater burden on one group of voters than others.

The first lawsuit against the law, filed Tuesday by the New Hampshire youth movement, actually invokes the 14th Amendment, claiming that the measures would disproportionately affect young voters and students.

Surveys have also shown that black citizens are more likely than white citizens to report not having citizenship documents or not being able to easily access them.

But Charles said it's often difficult for plaintiffs to prove that a burden actually affects people's ability to vote. The law also contains a vague clause saying a person can provide other “reasonable documentation” to prove citizenship, which could further complicate the litigation.

“These appeals are not often successful,” he said. “I can imagine a court saying there is no state advantage here because New Hampshire has no reason to worry about voter fraud by noncitizens. … I actually think that's the right thing to do here. But most likely the plaintiffs will have a hard time proving that many voters are being disadvantaged, and courts often defer to the state's judgment that it must protect election integrity.”

Sean Morales-Doyle, election law director at the Brennan Center for Justice, disagrees.

“I think there are very good reasons to believe that this new law that New Hampshire has passed violates federal law in more ways than one,” he said.

Earlier this year, when the state was still considering the bill, Morales-Doyle wrote to the Justice Department and Sununu warning that passing the proof-of-citizenship requirement could result in the state being sued and losing its NVRA exemption.

“[When this law goes into effect]”It may not be the case that everyone in New Hampshire can register on Election Day, and if everyone can't, then New Hampshire should probably lose its exemption from the National Voter Registration Act,” he said.

Losing this exemption would require the state to comply with countless other requirements of federal law, such as maintaining an NVRA-compliant list.

“I find [this new law] “This opens a bottomless pit for New Hampshire that has nothing to do with documentary proof of citizenship,” Morales-Doyle said.

All in the service of “a cause that is not really a cause,” he added.

Copyright: NPR