In re Op. of the Justices

• Decision Date: 06 May 2009
• Docket Number: Request of the Senate, No. 2009–251.
• Court: New Hampshire Supreme Court
• Parties: OPINION OF THE JUSTICES (VOTING AGE IN PRIMARY ELECTIONS II).

158 N.H. 661

973 A.2d 915

OPINION OF THE JUSTICES (VOTING AGE IN PRIMARY ELECTIONS II).

Request of the Senate, No. 2009–251.

Supreme Court of New Hampshire.

Submitted: May 4, 2009.

Opinion Issued: May 6, 2009.

Jeffrey A. Meyers, senate legal counsel, filed a memorandum on behalf of the President of the New Hampshire Senate in favor of the constitutionality of Senate Bill 21.

Peter H. Burling, of Cornish, and Kathleen N. Sullivan, of Manchester, filed a memorandum as members of the New Hampshire Democratic National Committee in favor of the constitutionality of Senate Bill 21.

Brendan P. Bertagnoll, filed a memorandum on behalf of the New Hampshire Legislative Youth Advisory Council, in favor of the constitutionality of Senate Bill 21.

The New Hampshire Senate adopted the following resolution on April 1, 2009, and filed it with the supreme court on April 3, 2009:

"Whereas, SB 21, ‘An act enabling certain persons to vote in primaries prior to turning 18 years of age,’ is presently pending in the senate; and

"Whereas, SB 21 would provide that a person who is 17 years of age and who otherwise meets voter eligibility requirements may vote at a state primary election or a presidential primary election preceding a general election at which the person will be 18 years of age; and "Whereas, in Opinion of the Justices (Voting Age in Primaries) issued by the Court on May 19, 2008 in response to the request of the House of Representatives in HR 32 adopted on April 23, 2008, the Court answered in the affirmative the question of whether SB 436 would violate Part I, Article 11 of the New Hampshire Constitution ; and "Whereas, in the same Opinion of the Justices, the Court noted that it had not been asked and therefore did not opine upon whether SB 436 would infringe upon the associational rights of political parties guaranteed by the First Amendment to the United States Constitution; and

"Whereas, the provisions of SB 21 are identical to SB 436; and

"Whereas, the United States Supreme Court has recognized that the freedom of association protected by the First and Fourteenth Amendments to the United States Constitution includes partisan political organization[s]; and

"Whereas, a question has arisen as to whether the First and Fourteenth Amendments to the United States Constitution provide greater protection than do Part I, Article 11 and Part I, Article 32 of the New Hampshire Constitution of the associational rights of any political party such that the legislature may allow an otherwise qualified 17–year–old person to vote in a state or presidential primary that precedes a general election at which the person will be 18 years of age, in order to permit such persons to participate in choosing the party's nominee for the general election; and

"Whereas, it is important that this constitutional question be settled before the bill is enacted; now, therefore, be it

"Resolved by the Senate:

"That the justices of the supreme court be respectfully requested to give their opinion upon the following questions of law:

"1. Would enactment of SB 21 to allow voting in a state primary and presidential primary election by 17–year–old persons who will be 18 years of age at the next general election, in order to allow such persons to participate in choosing the party's nominee for the general election, infringe upon the associational rights guaranteed to political parties under the First and Fourteenth Amendments to the United States Constitution?

"2. Do the First and Fourteenth Amendments to the United States Constitution provide greater protection than do Part I, Article 11 and Part I, Article 32 of the New Hampshire Constitution of the associational rights of political parties such that the legislature may allow an otherwise qualified 17–year–old person to vote in a state or presidential primary that precedes a general election at which the person will be 18 years of age, as would be permitted under SB 21?

"3. If the Court answers the second question in the affirmative, would SB 21 be constitutional notwithstanding the Opinion of the Justices, No. 2008–292, [157 N.H. 265, 949 A.2d 670,] issued on May 19, 2008 ?"

To the Honorable Senate:

The following response is respectfully returned:

Senate Bill (SB) 21 proposes to amend RSA 654:1 (2008) by adding a new section, RSA 654:1, III, which would provide: "A person who is 17 years of age, who otherwise meets the eligibility requirements of paragraph I, may vote at a state primary election or a presidential primary election preceding a general election at which the person will be 18 years of age."

SB 21 also proposes to amend RSA 654:7 (2008) to add the following emphasized language to the voter registration form prescribed by the secretary of state: "I understand that to vote in this city/town, I must be at least 18 years of age, or 17 years of age to vote in a state primary or presidential primary preceding a general election at which I will be 18 years of age, and that I must be a United States citizen, and I must be domiciled in this city/town."

Additionally, SB 21 proposes to add a new statute, RSA 654:7–c, "Registration by 17–Year–Old Voting at Primary Election," which would provide:

I. A person who is 17 years of age, who otherwise meets the eligibility requirements of RSA 654:1, I, may register to vote at a state primary election or a presidential primary election preceding a general election at which the person will be 18 years of age. Such person may only register at the polling place on the applicable election day.

II. If the supervisors of the checklist determine that the person registering under this section is qualified to vote, the person shall be entitled to vote as if his or her name is on the checklist. The supervisors shall retain the person's voter registration form and shall add the person's name to the checklist at their meeting next following the person's eighteenth birthday.

Finally, SB 21 proposes to amend RSA 654:12, I(b) (2008) to include the following emphasized language: "AGE. Any reasonable documentation indicating the applicant is 18 years of age or older, or that the applicant is 17 years of age and will be 18 years of age on the date of the general election if the person is registering under RSA 654:7–c. "

SB 21 is identical to the legislation upon which we were asked to opine in Opinion of the Justices (Voting Age in Primaries), 157 N.H. 265, 267, 949 A.2d 670 (2008) (Voting Age I ). In Voting Age I, we were asked whether the proposed legislation violated Part I, Article 11 of the New Hampshire Constitution, which provides, in pertinent part, that "every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election." Voting Age I, 157 N.H. at 267, 949 A.2d 670. We concluded that the proposed legislation, which allowed individuals who were younger than eighteen years of age to vote in presidential and state primary elections, violated Part I, Article 11 of the State Constitution. Id. In Voting Age I, we observed that although those submitting memoranda addressed the issue, we had not been asked and therefore would not opine upon whether the proposed legislation infringed upon the associational rights of political parties guaranteed by the First Amendment to the United States Constitution. Id.

In the instant matter, we have been asked to give our opinion upon three questions that are related to the issue we left open in Voting Age I: (1) whether enactment of SB 21 would "infringe upon the associational rights guaranteed to political parties under the First and Fourteenth Amendments to the United States Constitution"; (2) whether Part I, Article 11 and Part I, Article 32 of the New Hampshire Constitution provide less protection to the associational rights of political parties than do the First and Fourteenth Amendments to the United States Constitution; and (3) if the answer to the second question is "yes," would SB 21 be constitutional notwithstanding our opinion in Voting Age I.

In discussing these questions, the President of the New Hampshire Senate argues that Part I, Article 11 of the New Hampshire Constitution, as we interpreted it in Voting Age I, impermissibly burdens the right of association guaranteed to political parties by the Federal Constitution to the extent that it precludes an otherwise qualified seventeen-year-old voter from voting in a state or presidential primary, and, therefore, Part I, Article 11 must yield to this federal constitutional right.

Based, in part, upon her submission, we have reframed the questions as follows: (1) whether Part I, Article 11 of the State Constitution, as we interpreted it in Voting Age I, conflicts with the associational rights guaranteed to political parties by Part I, Article 32 of the State Constitution and the First and Fourteenth Amendments to the Federal Constitution in that it precludes the State from allowing political parties to invite unqualified voters to vote in primary elections; and (2) whether Part I, Article 32 of the State Constitution is less protective of the associational rights of political parties than are the First and Fourteenth Amendments to the Federal Constitution such that, under the Supremacy Clause, the First and Fourteenth Amendments take precedence. We answer both questions in the negative.

We first address the protection available to the associational rights of political parties under Part I, Article 32 of the State Constitution. Part I, Article 32 of the State Constitution provides: "The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer." This provision " guarantees the same right to free speech and association" as does the First Amendment to the Federal Constitution. Opinion of the Justices, 121 N.H. 434, 437, 430 A.2d 191 ...