Concerns about noncitizen voting drive sweeping new restrictions in New Hampshire

A new law in New Hampshire will require anyone registering to vote for the first time in the Granite State to provide documentation they are U.S. citizens, like a birth certificate or passport, a noteworthy win for conservatives who argue, without evidence, that elections nationwide may be tainted by noncitizen voting and therefore need more restrictions.

The law will not go into effect until after this year’s general election, but it's already drawn a court challenge. Some experts also worry the timing of the law, signed last week, could confuse people about what they need to vote in New Hampshire this year.

No state has successfully implemented a proof-of-citizenship requirement like New Hampshire’s, despite years of conservative efforts around the issue. But election law experts say this new measure stands the best chance at surviving legal challenges due to an exception in federal voting rules.

If it stands, it would give new momentum to policies that could make it harder to register millions of eligible voters, should other states or Congress follow suit, says Lauren Kunis, executive director of the nonpartisan advocacy group VoteRiders, which helps people get IDs they need to vote.

“The lie that noncitizens are voting in federal elections has taken off like wildfire in the political narrative,” Kunis said. “I think there will be no shortage of opportunity for this type of legislation to be tested in different court systems as we move forward into 2025, absolutely to the detriment of American voters.”

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

When coupled with other New Hampshire policies — no early voting and no online voter registration — the state is quickly becoming an outlier on election policy, Kunis said.

“Adding this new unnecessary hurdle on top of all that could have really disastrous consequences,” she said, noting as well that some voters this cycle will almost certainly be confused about what documents they need to register. “I like to always assume good intent, but it is hard to get there when I look at the timing of this bill.”

New Hampshire’s changing election rules

Republican backers say the new rules will boost confidence in the process, and are a reasonable expansion of voting laws. For months, GOP Gov. Chris Sununu repeatedly told reporters he had concerns about the legislation. Sununu said he was not looking to make any major changes to state election laws and expressed concerns about the bill’s tight timeline.

But after the bill cleared the New Hampshire Legislature in June, Republican state Senate leaders essentially slow-walked the bill’s arrival to the governor’s desk, ensuring that it would not reach Sununu in time to take effect before the 2024 general election. Sununu received the legislation last week.

“We have a proud tradition and proven track record of conducting elections that are trusted and true,” Sununu said in a press release announcing his signature on the bill. “Looking forward to the next decade or two, this legislation will instill even more integrity and trust in the voting process.”

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

“We know that voter fraud is vanishingly rare in New Hampshire, and yet this is an extreme effort that will put us on the far fringes of state electoral systems,” he said.

There is no evidence that the state’s current voting system has been routinely subverted to allow people who live outside of New Hampshire, or who aren’t qualified to vote, to participate in elections. Most local prosecutions for the rare instances of voter fraud involve people with second homes or those who move between towns in New Hampshire.

Republican state Sen. James Gray, a supporter of the bill, argued during legislative hearings that approximately 230 voters statewide could not be located by the New Hampshire attorney general’s office after they voted in 2016 — a tiny fraction of the total votes cast.

“Although it is true that there have not been a lot of prosecutions, I can't tell you that there weren't a lot of people who were not qualified to vote that did vote,” Gray said.

Some local election officials are warning that the proof-of-citizenship and ID requirements will disproportionately impact rural voters, who may live more than an hour from a Department of Motor Vehicles location, as well as college students, who are legally allowed to vote in New Hampshire, but who may not have their passport or birth certificates with them while at school.

“On the surface, it seems like a commonsense law,” said Lindsay Smith, the elections moderator in Enfield, N.H. “But it is actually fixing a problem that doesn’t exist, so I think it is pandering to assumptions that there are problems with our elections.”

In Durham, home to the University of New Hampshire, there are often long lines on Election Day as students seek to register at the polling place, which is permitted under state law. In 2016 and 2020, there were approximately 3,000 same-day registrants, according to Durham town officials, with nearly half of those would-be voters using sworn affidavits to attest to their citizenship qualifications — affidavits that will no longer be allowed.

Other states have tried proof-of-citizenship voter restrictions. Here’s why New Hampshire may succeed

The main reason more conservative states haven’t instituted proof-of-citizenship requirements like the one New Hampshire passed is because of a 1993 law called the National Voter Registration Act. The law requires states to accept a universal federal voter registration card, which asks for a unique identification number like a Social Security number or driver’s license number but does not require proof-of-citizenship documentation. Instead, it asks applicants to attest upon penalty of perjury that they’re citizens, with deportation a possible punishment.

When Kansas attempted to pass a proof-of-citizenship requirement a few years ago, the law was struck down partly because it was found to violate the NVRA. Arizona requires voters to provide proof of citizenship to register to vote for state and local races, but not federal races, as a result of the law.

New Hampshire, however, is one of only six states that was exempted from the law when it was passed because the state offered same-day voter registration, which means the state may also be one of the only states that could successfully implement a rule like this.

“My best guess is that the law will likely 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 NVRA exemption, the most likely path for legal challenges is by arguing the law violates the 14th Amendment by imposing a burden for voting on one group of voters more than others.

Indeed the first lawsuit challenging the bill, filed by the New Hampshire Youth Movement on Tuesday, cites the 14th Amendment, as it alleges the policies will disproportionately affect young voters and college students.

Surveys have also found that citizens of color are more likely to say they lack citizenship documents or can’t readily access them, compared to white citizens.

But Charles said plaintiffs often have a hard time proving a burden will actually impact people’s ability to vote. The law also includes a vague clause indicating a person may provide other “reasonable documentation” to prove citizenship, which could complicate the legal case further.

“These challenges are not often successful,” he said. “I can see a court saying that there are no state benefits here because New Hampshire has no reason to worry about noncitizen voter fraud. ... I actually think that’s the right thing to do here. But more than likely, plaintiffs will have a hard time showing that there are a lot of voters who are burdened, and courts often defer to the state’s judgment that they have to protect the integrity of elections.”

Sean Morales-Doyle, voting rights director for the Brennan Center for Justice, disagrees.

“I do think there is very good reason to think that this new law that New Hampshire has passed violates federal law in more than one way,” he said.

Earlier this year, when the state was still considering the legislation, Morales-Doyle wrote to the Justice Department and Sununu warning that passing the proof-of-citizenship requirement would open the door for the state to be sued and lose its NVRA exemption.

“[When this law goes into effect]Now it may not be the case that everybody can engage in Election Day registration in New Hampshire, and if everyone can't … then arguably New Hampshire should lose its exemption to the National Voter Registration Act,” he said.

Losing that exemption would mean the state would need to comply with the myriad other requirements in the federal law too, such as NVRA-compliant list maintenance.

“I think [this new law] opens up a can of worms for New Hampshire that isn’t even related to documentary proof of citizenship,” Morales-Doyle said.

All in service of “an issue that is not really an issue,” he added.