ANNEMARIE GUARE & a.
STATE OF NEW HAMPSHIRE
Argued: April 22, 2015.
Shaheen & Gordon, P.A., of Concord (William E. Christie and Benjamin T. Siracusa Hillman on the brief, and Mr. Christie orally), American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), and Sisti Law Offices, of Portsmouth (Alan J. Cronheim on the brief), for the petitioners.
Joseph A. Foster, attorney general (Anne M. Edwards, associate attorney general, and Stephen G. LaBonte, assistant attorney general, on the brief, and Mr. LaBonte orally), for the State.
The State appeals an order of the Superior Court (Tucker, J.) denying the State's summary judgment motion and granting that of the petitioners, Annemarie E. Guare, Cody Blesedell, Garret Healey, Joan Ashwell, and the League of Women Voters, on their petition for declaratory and injunctive relief. When this case was decided by the trial court, petitioners Guare, Blesedell, and Healey were students enrolled at the University of New Hampshire, and petitioner Ashwell was a volunteer with the New Hampshire League of Women Voters.
The order on appeal made permanent the preliminary injunction issued in 2012 by the Superior Court (Lewis, J.), pursuant to which the State was required to delete from the standard voter registration form the following language: "In declaring New Hampshire as my domicile, I am subject to the laws of the state of New Hampshire which apply to all residents, including laws requiring a driver to register a motor vehicle and apply for a New Hampshire[ ] driver's license within 60 days of becoming a resident." Laws 2012, 285:2. The trial court issued the permanent injunction after concluding that the challenged language violated Part I, Article 11 of the New Hampshire Constitution. On appeal, the State does not separately challenge the trial court's issuance of injunctive relief. Rather, the State confines its appellate arguments to the trial court's determination that the challenged language violates Part I, Article 11. We affirm.
Language similar to the challenged language was first added to the standard voter registration form in 2003. See Laws 2003, 289:25. It was removed from the form in 2007. See Laws 2007, 10:1. The challenged language was added to the standard voter registration form in 2012. See Laws 2012, 285:2. The sole issue in this appeal is whether the challenged language required by Laws 2012, 285:2 violates Part I, Article 11 of the New Hampshire Constitution.
In September 2012, the petitioners filed the instant action, alleging that the challenged language is confusing because it conflates the statutory definitions of "domicile" and "residence, " and, therefore, violates a citizen's constitutional right to vote. See RSA 654:1, I (Supp. 2014) (defining "domicile"); RSA 21:6 (2012) (defining "resident"); RSA 21:6-a (2012) (defining "residence"). Following several hearings, the superior court issued a preliminary injunction, which removed the language from the voter registration form pending final resolution of this case. In October 2012, the State filed with this court an emergency motion for a stay. We denied the State's motion on October 9, 2012.
The petitioners filed their summary judgment motion in the trial court in March 2014, and the State filed its objection and cross-motion in April 2014. In its summary judgment order, the trial court first determined that it had to apply our strict scrutiny standard of review to the challenged language. The trial court reasoned that strict scrutiny was required because the right to vote is a fundamental right, see Akins v. Sec'y of State, 154 N.H. 67, 71 (2006), and because, in the trial court's view, the subject language severely burdened the right to vote by confusing potential registrants and causing otherwise qualified voters to forgo registering to vote. Although the State advanced three interests to justify the language, the trial court found that none was sufficiently weighty to justify the severe burden upon a citizen's fundamental right to vote. See id. Accordingly, the court concluded that the subject language violates Part I, Article 11 of the State Constitution.
On appeal, the State argues that the trial court erred by applying strict scrutiny to the subject language. The State contends that because the language is "consistent with New Hampshire law[ ] and is both reasonable and nondiscriminatory, " it imposes no burden upon a citizen's fundamental right to vote. The State further contends that "[a]ny restrictions that the subject language places on [the] right to vote" are justified by the State's interest in complying with certain provisions of the federal Help America Vote Act (HAVA), see 52 U.S.C.A. § 21083 (Supp. 2014). Because the State has not briefed on appeal the other two interests it asserted in the trial court to justify the challenged language, we consider its arguments about those interests waived. See Aubert v. Aubert, 129 N.H. 422, 428 (1987) ("Arguments not briefed are waived on appeal.").
A. Standard of Review