When do voting requirements infringe on the right to vote? This was among the questions considered during a panel discussion on Feb. 22 hosted by the N.H. Supreme Court Society and the Warren B. Rudman Center for Justice, Leadership & Public Service.
“We have two cases in New Hampshire, both of which I was involved in, involving attempts to restrict the right to vote here in New Hampshire. Both times, the trial court and the New Hampshire Supreme Court found that the voting regulation that was put in place was unconstitutional under Part 1, Article 11 of the New Hampshire Constitution, because it unduly restricted the right to vote,” said Bill Christie, of Shaheen & Gordon, P.A. (See the N.H. Supreme Court ruling striking down the voter registration law, SB3)
Visit here for the video of this event, Voting, Democracy, and the Court. The quotes in this piece have been edited slightly for clarity.
Voting, Democracy, and the Court, panel discussion. From left to right: Prof. Julian Jefferson; Adjunct Prof. Kelsey Klementowicz; Bill Christie, Shaheen & Gordon, P.A.; Rick Lehmann, Lehmann Major List, PLLC.
On the role of the courts in dealing with gerrymandering:
“Our state Supreme Court reached effectively the same decision as the U.S. Supreme Court, saying this is not an appropriate thing for a judicial branch to be doing. It gets us too intertwined in politics. We're not capable of doing it in a neutral way because there is no neutral way. There's no such thing as neutral redistricting. There are a bunch of different criteria that you might be able to create if you wanted to. But even choosing among the criteria is a political act. -– Rick Lehmann, Lehmann Major List, PLLC, panelist.
“The question for partisan redistricting is to what extent is that permissible? How far can they go? And at what point does doing that become impermissible under the Constitution in a way that creates an advantage that is unfair or too unfair.” -- Rick Lehmann
“Gerrymandering has been going on since the beginning of the country. The problem is it's becoming more and more sophisticated. For legislatures who are drawing maps after every census, there are national groups assisting them with computer models that allow them to gerrymander not by county, not by town, but down to neighborhoods and houses within neighborhoods. And they can draw maps to effectively create an ongoing majority for the party that's in power at the time that the maps are drawn. “ -- Bill Christie, Shaheen & Gordon, P.A., panelist.
”The danger is if you're in a state or a jurisdiction where it gets to the point where voters are voting for candidates from one party and it’s almost impossible for that party to ever get a majority in the legislature. Who fixes that? The legislature that's in control and winning elections, even though it's not really the majority party, has no incentive to fix it. They're not going to fix it. The fear is, that continues to go on and on into perpetuity. So, the question is, can the courts fix it? So far, the United States Supreme Court has said it's a political question and the New Hampshire Supreme Court has also said it's a political question.” -- Bill Christie
On whether an independent commission can be truly independent -- and might help prevent gerrymandering:
“I think commissions can be nonpartisan. When Governor Sununu put me on the LEACT ( Law Enforcement, Accountability, Community, and Transparency) Commission, we were half law enforcement, half people from the community. And after some really grueling sessions, we came up with 48 recommendations that were universally adopted by both the governor and the legislature. So I think, as part of this public discourse, I know from my personal experience, you can have commissions that have an equal number of people of various stakeholders and really come up with some good product. – Julian Jefferson, clinical assistant professor, UNH Franklin Pierce School of Law, event moderator.
On the Colorado Supreme Court decision disqualifying former President Trump from the Colorado primary ballot, a case now under consideration by the U.S. Supreme Court:
“The President is the only office everybody in the country votes for, everything else is divided out by districts. If you get to the point where people in some states don't have the opportunity to vote for the presidential candidate they want to vote for, except by writing in or something, which isn't even permitted in every state or counted in every state, then the risk is that we stop being a single country.” -- Rick Lehmann
“The answer that they were looking for seemed to be that no, we shouldn't have a patchwork of litigation across 50 states on whether or not the leading candidate for the Republican nomination should be on the ballot. I think there's discomfort there when there's so much political turmoil in place-- Kelsey Klementowicz, adjunct professor, UNH Franklin Pierce School of Law, panelist.
“The states decide who is eligible to be on the ballot using a variety of criteria, and it would not be controversial if someone who was under 35 or not a born in the United States walked into a Secretary of State's office and said that they want to be on the ballot, and the Secretary of State said no. So the question really is, why, on this issue of interpreting who's eligible to be on the ballot, can the state not make that decision? But on the other hand, this does seem to be more of an adjudicatory decision than those other decisions. The way the 14th Amendment is written requires a bunch of factual determinations. And I think that's where the question becomes difficult." -- Bill Christie
"Does Congress need to create a statutory procedure to have somebody declared ineligible to be president? I think the answer should be yes." -- Rick Lehmann
