New Hampshire Democratic Party v. Secretary of State & a.; League of Women Voters of New Hampshire & a. v. Secretary of State & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2020-0252

NEW HAMPSHIRE DEMOCRATIC PARTY

v.

SECRETARY OF STATE & a.

LEAGUE OF WOMEN VOTERS OF NEW HAMPSHIRE & a.

v.

SECRETARY OF STATE & a.

Argued: April 28, 2021
Opinion Issued: July 2, 2021

Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy
Spencer on the joint brief), for plaintiff New Hampshire Democratic Party.

McLane Middleton, Professional Association, of Manchester (Steven J.
Dutton on the joint brief), Twomey Law Office, of Epsom (Paul Twomey on the
joint brief), Perkins Coie LLP, of Washington, D.C. (Marc E. Elias, John M.
Devaney, Bruce V. Spiva, Amanda R. Callais, and Alexander G. Tischenko on
the joint brief, and Ms. Callais orally), and Perkins Coie LLP, of Seattle,
Washington (Stephanie R. Holstein on the joint brief), for plaintiffs League of
Women Voters of New Hampshire, Douglas Marino, Garrett Muscatel, Adriana
Lopera, Phillip Dragone, Spencer Anderson, and Seysha Mehta.

Gordon J. MacDonald, attorney general (Anthony J. Galdieri, senior
assistant attorney general, Daniel E. Will, solicitor general, Anne E. Edwards,
associate attorney general, and Samuel R.V. Garland, assistant attorney
general on the brief, and Mr. Galdieri orally), for the defendants.

DONOVAN, J. The defendants, the Secretary of State (Secretary) and the
Attorney General (collectively, the State), appeal an order of the Superior Court
(Anderson, J.) ruling that Laws 2017, chapter 205, also known as Senate Bill 3
(SB 3), is unconstitutional because it unreasonably burdens the right to vote in
violation of Part I, Article 11 of the New Hampshire Constitution and violates
the equal protection guarantees of the New Hampshire Constitution. We affirm
the trial court’s ruling that SB 3 violates Part I, Article 11 of the State
Constitution. Because we determine that SB 3 must be stricken in its entirety,
we need not address the State’s assertion that the trial court erred in
determining that SB 3 also violates the equal protection guarantees of the State
Constitution.

I. Factual and Procedural Background

A. SB 3

Enacted in July 2017, SB 3 amends New Hampshire’s voter registration
laws to impose certain requirements for proving an individual’s domicile. See
Laws 2017, ch. 205. Before SB 3 was enacted, an individual could register to
vote without presenting any proof of his or her domicile. See RSA 654:7, IV
(2016) (amended 2017). Rather, the individual was required to submit a form
listing his or her domicile address and sign an affidavit that the information
provided was true and accurate. See id. That affidavit read:

If this form is used in place of proof of identity, age, citizenship, or
domicile, I hereby swear that such information is true and
accurate to the best of my knowledge.

This form was executed for purposes of proving (applicant shall
circle yes or no and initial each item):

2
 Identity yes/no ________
(initials)

Citizenship yes/no ________
(initials)

Age yes/no ________
(initials)

Domicile yes/no ________
(initials)

Id.

SB 3 changed the voter registration process by: (1) creating a distinction
between registrations occurring more than 30 days before an election and
those occurring within 30 days of and on election day; and (2) adding a new
“Voter Registration Form” (Form B). See Laws 2017, ch. 205. Under SB 3,
persons seeking to register to vote more than 30 days before an election must
present documentation proving that they are domiciled in the town or ward or
they will not be permitted to register. See Laws 2017, 205:1. Persons seeking
to register within 30 days of an election or on election day are not required to
have documentation with them proving their place of domicile in order to vote;
however, they must fill out Form B and elect one of two verification options.
See Laws 2017, 205:2. The first option (Option 1) states:

I understand that to make the address I have entered above my
domicile for voting I must have an intent to make this the one
place from which I participate in democratic self-government and
must have acted to carry out that intent.

I understand that if I have documentary evidence of my intent to
be domiciled at this address when registering to vote, I must either
present it at the time of registration or I must place my initials next
to the following paragraph and mail a copy or present the
document at the town or city clerk’s office within 10 days following
the election (30 days in towns where the clerk’s office is open fewer
than 20 hours weekly).

_____ By placing my initials next to this paragraph, I am
acknowledging that I have not presented evidence of actions
carrying out my intent to be domiciled at this address, that I
understand that I must mail or personally present to the clerk’s
office evidence of actions carrying out my intent within 10 days
following the election (or 30 days in towns where the clerk’s office
is open fewer than 20 hours weekly), and that [I] have received the

3
 document produced by the secretary of state that describes the
items that may be used as evidence of a verifiable action that
establishes domicile.

Failing to report and provide evidence of a verifiable action will
prompt official mail to be sent to your domicile address by the
secretary of state to verify the validity of your claim to a voting
domicile at this address.

Id. The second option (Option 2) states:

_____ By placing my initials next to this paragraph, I am
acknowledging that I am aware of no documentary evidence of
actions carrying out my intent to be domiciled at this address, that
I will not be mailing or delivering evidence to the clerk’s office, and
that I understand that officials will be sending mail to the address
on this form or taking other actions to verify my domicile at this
address.

Id.

Voters who select Option 1 on Form B are provided a separate form titled
Verifiable Action of Domicile (VAD). See id. The VAD states, “The following
checklist shall be used as a guide for what you may use as evidence and shall
be submitted to the town or city clerk along with documentation that you are
required to provide.” Id. The VAD requires that a person provide evidence that
he or she has done at least one of the following: (1) established residency at an
institution of learning; (2) “rented or leased an abode, for a period of more than
30 days to include time directly prior to an election day at the address listed on
the voter registration form”; (3) purchased an abode at the address listed on
the registration form; (4) obtained a New Hampshire motor vehicle registration,
driver’s license, or identification card; or (5) enrolled a dependent minor child
in a publicly funded elementary or secondary school serving the town or ward
where the applicant is claiming to be domiciled. Id. One such document must
be submitted to the town or city clerk’s office in the allotted time period
specified on Form B. See id.

In addition, SB 3 creates new categories of conduct subject to the
statutory penalties for wrongful voting set forth in RSA 659:34 (Supp. 2020).
These include: (1) presenting falsified proof of domicile or verifiable action of
domicile; (2) failing to provide follow-up documentation if choosing Option 1 on
Form B; and (3) providing false information in a written statement to prove that
another is domiciled at a particular address. Laws 2017, 205:13. The
penalties include a civil fine of up to $5,000 and criminal liability for a class A
misdemeanor. See RSA 659:34, I, II.

4
 B. The Plaintiffs’ Lawsuit

The plaintiffs1 sued, contending, among other things, that SB 3 is
unconstitutional under the New Hampshire Constitution because it burdens
the right to vote in violation of Part I, Article 11. The plaintiffs claimed that
“[t]he procedural requirements, associated penalties, and incomprehensibility
of SB 3 severely and unreasonably burden[] the fundamental right to vote” and
that “[t]here is no governmental interest . . . that justifies requiring New
Hampshire voters to endure these burdens.”

In September 2017, following a hearing, the Trial Court (Temple, J.)
preliminarily enjoined enforcement of the penalties associated with SB 3,
finding that the new civil and criminal penalties established by SB 3 imposed
severe restrictions on the right to vote. The court observed that under SB 3, “if
a same-day voter has the required documents at home, swears he/she will
provide them, but the voter then cannot get them to the clerk’s office in time for
one reason or another,” it appears that “such a voter will be subject to a $5,000
fine or even a year in jail simply for failing to return paperwork.” According to
the trial court, SB 3’s penalties “act as a very serious deterrent on the right to
vote, and if there is indeed a ‘compelling’ need for them, the Court has yet to
see it.”

In October 2018, following a hearing that lasted over a week, the Trial
Court (Brown, J.) granted the plaintiffs’ motion for a preliminary injunction to
enjoin enforcement of SB 3 for the November 2018 midterm elections. In
assessing the burdens imposed by SB 3, the trial court found that “[i]n stark
contrast to the simplicity of the domicile affidavit successfully used in the 2016
general election, Form B contains hundreds of words spread over six
paragraphs” and that the plaintiffs demonstrated that SB 3’s forms are
“confusing, hard to navigate and comply with, and difficult to complete in a
timely manner.” Given the “increased complexity and confusion surrounding
the new forms,” the court found that “the average registration time is expected
to increase, resulting in longer lines and delays at polling places.” In addition,
the court found that “the negative impact of SB3 will be greater for certain
groups of people,” including young people between the ages of 18-24, highly
mobile individuals, people of low socioeconomic status, undecided voters, and
the homeless.

The court rejected the State’s argument that any burden imposed was
justified by the State’s interest in preventing and protecting against wrongful
voting and/or voter fraud, noting that, “as documented throughout the

1 The plaintiffs in this case are New Hampshire Democratic Party, League of Women Voters of

New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Lopera, Phillip
Dragone, Spencer Anderson, and Seysha Mehta.

5
preliminary injunction hearing and as acknowledged by the legislature, voter
fraud is not widespread or even remotely commonplace.” The court also found,
“most importantly, SB3 itself does nothing to actually prevent voter fraud,”
reasoning that “[b]ecause neither option on Form B requires a registrant to
provide proof of domicile prior to voting, anyone intent on casting an ineligible
vote can readily do so.” Therefore, the court determined, “instead of combating
fraud, the law simply imposes additional burdens on legitimate voters.”

In response to the State’s emergency appeal, we granted its request to
stay the preliminary injunction order “until after the conclusion of the election
on November 6, 2018.” While expressing no opinion on the merits of the
plaintiffs’ underlying challenge to SB 3, we were persuaded that the timing of
the preliminary injunction, just two weeks before the November midterm
election, created “both a substantial risk of confusion and disruption of the
orderly conduct of the election.” However, we kept in force the earlier trial
court order enjoining the enforcement of the civil and criminal penalty
provisions of SB 3.

Thereafter, the State moved for summary judgment. The State asserted,
among other things, that the plaintiffs could not satisfy the requisite test for
their claim that SB 3 is facially unconstitutional. Pointing to three hypothetical
scenarios purporting to demonstrate constitutional applications of SB 3, the
State asserted that the plaintiffs could not prove that no set of circumstances
exist under which the challenged statute would be valid. The Trial Court
(Anderson, J.) rejected the State’s argument, finding that its “position that the
‘no set of circumstances’ standard cannot be met so long as there is at least
one theoretically constitutional application of the challenged statute” was “not
an accurate characterization of the law as it has been traditionally applied in
New Hampshire.”

The trial court also rejected the State’s argument that, because the
plaintiffs failed to show that SB 3 places any burden on the vast majority of
New Hampshire voters, SB 3 could not be deemed facially unconstitutional
even assuming it might discourage some voters from attempting to register.
The court found the State’s argument inconsistent with Guare v. State of New
Hampshire, 167 N.H. 658 (2015), reasoning that “[a]t no point did the Court in
Guare indicate that the plaintiffs were required to establish that the challenged
law placed a substantial burden on the vast majority of voters in the State.”
Because the State’s arguments relied on a “faulty legal premise” and because it
“faile[d] to advance any argument regarding the appropriate constitutional test
to apply to [the plaintiffs’] claims and how those tests are met,” the trial court
determined that the State failed to establish, as a matter of law, that the
plaintiffs’ claim must fail.

6
 In December 2019, the Trial Court (Anderson, J.) held a six-day bench
trial. As stipulated by the parties, exhibits and testimony admitted during the
preliminary injunction hearing were also considered by the court.

In reaching its determination that SB 3 imposes an unreasonable burden
on the right to vote, the trial court cited “persuasive and credible” testimony
from the plaintiffs’ expert witnesses. Dr. Bosley, an expert in plain language
and readability, testified that her analyses of Form B and the VAD showed that
Form B is written at a readability level equivalent to the Harvard Law Review.
She testified that the VAD is written at the level of a first-year graduate student
and that both forms would be very difficult for the average adult to read and
understand. From this unrebutted testimony, the trial court found that “[t]he
language contained on [Form B and the VAD] is needlessly complex, both in
length and diction.”

Dr. Yang, an expert on “queuing theory,” opined that, due to its
complexity, SB 3 will increase voter registration lines and registration time for
voters. Dr. Herron, an expert in the statistical analysis of election
administration, analyzed SB 3 under the theory known as the “calculus of
voting,” which examines the impact of the costs and benefits of voting on a
person’s decision to vote. Herron testified that the costs imposed by SB 3 will
disproportionately impact certain voters such as college students, highly
mobile voters, and the homeless, and that, over time, fewer people would
participate in New Hampshire elections as a result of SB 3. The trial court
credited his testimony in finding that “[t]he most prominent costs associated
with SB 3 are the confusion arising from the language of forms; increased wait
times likely to result from the complexity of the forms; and incurring post-
election obligations and being exposed to potential penalties if selecting Option
1 [on Form B].”

The court found that confusion generated by Form B and the VAD
manifested in different ways during the elections in which SB 3 was partially in
effect. For example, evidence included testimony that some registrants
initialed both Option 1 and Option 2 on Form B, other registrants left the
polling place because they did not think they could vote without providing
documentation, some election officials improperly sent voters away from the
polls with instructions to bring back documentation, and a number of college
students testified that they did not believe they had documentation that
satisfied the list on the VAD.

Because the forms were complicated, the trial court found that, in
practical terms, “a significant majority of registrants will find themselves
subject to the substantial penalties imposed by SB 3.” The trial court pointed
to evidence that none of the 66 new registrants between January and June of
2018 who selected Option 1 on Form B complied with the law by submitting
proof of domicile within the time period required. In addition, “[o]f the 1,104

7
new registrants who selected Option 1 between July and December 2018, only
289 individuals returned proof of domicile, subjecting 815 to potential civil
and/or criminal penalties.” Further, the court noted that “an individual need
not cast a fraudulent vote in order to be subject to the penalties set forth in
RSA 659:34, I(h).” The court observed that “[e]ven assuming the new voter is
entirely truthful about their domicile and is fully eligible to vote in New
Hampshire, they could nevertheless be civilly fined $5,000 and/or face a
criminal fine of up to $2,000 and a sentence of up to a year in prison if they
knowingly and/or purposely fail to return paperwork.”

The trial court found that unrebutted expert testimony, “supported by
testimony from a multitude of witnesses and the State’s own data, suggests
that the complicated and confusing nature of the forms will increase average
registration times and result in longer lines at polls,” which, “together with
navigating the forms and the penalties, may outweigh the benefit of voting for
some individuals.” The court determined that “there exists strong evidence
that SB 3, if fully implemented, will suppress voter turnout.”

The trial court concluded that SB 3 “imposes an unreasonable and
discriminatory burden on the rights of voters in New Hampshire.” Accordingly,
citing Guare, the court required the State to “meet its burden under
intermediate scrutiny to demonstrate that the law is ‘substantially related to an
important government objective.’” The trial court concluded that the State
failed to prove that SB 3 is substantially related to the important governmental
interest, including safeguarding voter confidence in the election system and
preventing voter fraud, identified by the State. Because the State failed to meet
its burden, the court ruled that SB 3 was facially unconstitutional and, finding
that the unconstitutional provisions were integral to the general structure of
SB 3, the court invalidated the entire law. This appeal followed.

II. Analysis

The State raises four arguments on appeal.2 First, it asserts that the
trial court erred in facially invalidating SB 3 and should have ruled instead
that “the plaintiffs failed to meet their heavy burden of showing that SB 3 was
unconstitutional in every set of circumstances.” Second, the State argues that
we should overrule Guare because it departs from the balancing test we
adopted in Akins v. Secretary of State, 154 N.H. 67 (2006), and because it is
“substantively incorrect.” Third, the State asserts that because SB 3 does not
unconstitutionally burden the right to vote, the trial court erred in determining
otherwise. Finally, it argues that, rather than invalidating SB 3, the trial court

2 The State also disputes the trial court’s ruling on equal protection but we do not address that

issue, as noted at the beginning of this opinion.

8
should have granted the Secretary the opportunity “to revise the forms to
reduce complexity, cure confusion, and add clarification.” (Capitalization and
bolding omitted.)

Whether or not a statute is constitutional is a question of law, which we
review de novo. Akins, 154 N.H. at 70. We presume a statute to be
constitutional and will not declare it invalid except upon inescapable grounds.
See Guare, 167 N.H. at 661. In other words, we will not hold a statute to be
unconstitutional unless a clear and substantial conflict exists between it and
the constitution. Bd. of Trustees, N.H. Judicial Ret. Plan v. Sec’y of State, 161
N.H. 49, 53 (2010).

“[V]oting is of the most fundamental significance under our
constitutional structure.” Illinois Elections Bd. v. Socialist Workers Party, 440
U.S. 173, 184 (1979); see Akins, 154 N.H. at 71 (the right to vote is
fundamental). “Other rights, even the most basic, are illusory if the right to
vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The
significance of this right is reflected in Part I, Article 11 of the New Hampshire
Constitution, which provides in part:

All elections are to be free, and every inhabitant of the state of 18
years of age and upwards shall have an equal right to vote in any
election. Every person shall be considered an inhabitant for the
purposes of voting in the town, ward, or unincorporated place
where he has his domicile.

N.H. CONST. pt. I, art. 11.

A. Applicable Legal Standard

The State argues that, in finding SB 3 facially invalid, the trial court
applied an incorrect legal standard. In support, the State raises two
interrelated claims of error. First, the State asserts that the trial court
“misapplied the facial-challenge standard,” which requires that the plaintiffs
“demonstrate that there is no set of circumstances under which the act might
be valid.” (Quotation and brackets omitted.) Second, the State asserts, “A
statute applicable to all voters survives a facial challenge even when it imposes
an unjustified burden on some,” and, therefore, the plaintiffs failed to prove
that SB 3 is invalid “in all or virtually all of its applications.”

The plaintiffs counter that we have “never used the ‘no set of
circumstances’ test to evaluate claims of facial invalidity of voting laws.” They
assert that in Guare, we did not “consider hypotheticals under which the
statute could be constitutional” and did not imply that we would “uphold a
statute if just one hypothetical would result in a constitutional application.”
Rather, they argue, the trial court applied the correct standard to their facial

9
challenge by evaluating their claim “under the flexible standard set forth” in
Akins, “and reaffirmed in Guare, which requires the court to balance the
burdens imposed by the law against the State’s proffered justification.”
(Quotation omitted.) Further, the plaintiffs assert, the question “is not how
much a law burdens voters generally, but rather how it burdens those
impacted by it.” (Emphases omitted.)

Given the parties’ disagreement over the “no set of circumstances”
language, we take this opportunity to clarify its meaning and application to the
plaintiffs’ facial challenge to SB 3. The “no set of circumstances” language
originated in United States v. Salerno, 481 U.S. 739 (1987). In addressing a
facial challenge to the constitutionality of the Federal Bail Reform Act, the
Supreme Court stated:

A facial challenge . . . is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid.
The fact that the Bail Reform Act might operate unconstitutionally
under some conceivable set of circumstances is insufficient to
render it wholly invalid, since we have not recognized an
“overbreadth” doctrine outside the limited context of the First
Amendment.

Salerno, 481 U.S. at 741, 745; see United States v. Stevens, 559 U.S.
460, 473 (2010) (explaining that a law may be invalidated as overbroad
under the First Amendment “if a substantial number of its applications
are unconstitutional, judged in relation to the statute’s plainly legitimate
sweep” (quotation omitted)), superseded by statute on other grounds as
stated in United States v. Richards, 755 F.3d 269, 271 (5th Cir. 2014).

We first cited Salerno in Caterpillar Inc. v. New Hampshire Department of
Revenue Administration, 144 N.H. 253 (1999), a facial challenge under the
Federal Commerce Clause to New Hampshire’s tax treatment of foreign royalty
and interest payments. See Caterpillar Inc., 144 N.H. at 257-58. We rejected
the State’s argument that, under Salerno, in order to prevail the plaintiffs
“must show that there are no circumstances in which the statute would be
valid.” Id. at 258. Declining to apply the “no circumstances” language, we
reasoned that “[e]ven if Salerno correctly stated a test for facial challenges,” the
fact that the Supreme Court did not subsequently apply it to a facial challenge
to Iowa’s tax statute “put[] into doubt its applicability in this area of law.” Id.

We have subsequently cited Salerno’s “no set of circumstances” language
to distinguish facial challenges raised outside of the context of the First
Amendment. See, e.g., State v. Hollenbeck, 164 N.H. 154, 158, 163-64 (2012)
(citing Salerno and the “no set of circumstances” language as applying to a
facial challenge outside the context of the First Amendment and determining

10
that the defendant failed under the applicable standard to prove that the
statute was not rationally related to a legitimate governmental purpose “in all
circumstances”); Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 642
(2006).

More recently, we have looked to the “no set of circumstances” language
when addressing the scope of a party’s challenge; that is, whether a party is
making a facial or an as-applied challenge to the constitutionality of a statute.
See State v. Lilley, 171 N.H. 766, 772 (2019) (explaining that when the
defendants did not concede that the relevant portion of the ordinance was
constitutional in any circumstance, we construed their challenge to be a facial
challenge). The State cites no case in which we have applied the “no set of
circumstances” language as requiring a party raising a facial challenge to
affirmatively demonstrate the constitutional invalidity of every application of
the statute in order to prevail.

In addressing a facial challenge under the Federal Constitution to New
Hampshire’s signature-match requirement for absentee ballots, the United
States District Court for the District of New Hampshire clarified the proper
analysis to apply. Saucedo v. Gardner, 335 F. Supp. 3d 202, 205, 213 (D.N.H.
2018). At the outset, the court noted that the United States Supreme Court
“has articulated two formulations of the standard for assessing facial
challenges to statutes”: (1) “a facial challenge can only succeed where the
plaintiff establishes that no set of circumstances exists under which the Act
would be valid”; and (2) “a plaintiff bringing a facial challenge must establish
that it lacks any ‘plainly legitimate sweep.’” Id. at 213 (quotations omitted).
The district court expressed its concern, however, that those standards “may
obscure the relevant inquiry, . . . as they could be taken to suggest that a
court’s task is to conjure up hypothetical situations in which application of the
statute might be valid.” Id. (quotations omitted).

Reasoning that because the Supreme Court “has often considered facial
challenges simply by applying the relevant constitutional test to the challenged
statute, without trying to dream up whether or not there exists some
hypothetical situation in which application of the statute might be valid,” the
district court determined that, “in practice, a facial challenge is best
understood as a challenge to the terms of the statute, not hypothetical
applications, and is resolved simply by applying the relevant constitutional test
to the challenged statute.” Id. at 214 (quotations and brackets omitted). In
other words, rather than setting forth a test for facial challenges, the “no set of
circumstances” language “describ[es] the result of a facial challenge in which a
statute fails to satisfy the appropriate constitutional standard.” United States
v. Supreme Court of New Mexico, 839 F.3d 888, 917 (10th Cir. 2016)
(quotation and emphasis omitted). “[W]here a statute fails the relevant
constitutional test, it can no longer be constitutionally applied to anyone—and
thus there is ‘no set of circumstances’ in which the statute would be valid.” Id.

11
(quotation omitted); see Boulders at Strafford, 153 N.H. at 642 (explaining that
“legislation may not be applied in a particular case if it is facially invalid and
could not constitutionally be applied in any case”).

This interpretation is consistent with our decision in Guare. In Guare,
we cited the “no set of circumstances” language and then applied the relevant
constitutional test to the plaintiffs’ facial challenge under Part I, Article 11.
Guare, 167 N.H. at 661-62, 667-68. In doing so, we concluded that because
the language in the statute unreasonably burdened the right to vote and
because the State failed to advance a sufficiently weighty interest to justify it,
the statute violated the State Constitution. Id. at 669. Thus, we resolved the
plaintiffs’ facial challenge “simply by applying the relevant constitutional test to
the challenged statute.” Saucedo, 335 F. Supp. 3d at 213 (quotation omitted).

Based upon the discussion above, we are persuaded that the “no set of
circumstances” language is not intended to be a test that prescribes a specific
method of determining constitutional validity, but, rather, is intended to
describe the result of a facial challenge analyzed under the applicable
constitutional standard. In the case before us, the trial court correctly
determined that the constitutional test applicable to the plaintiffs’ facial
challenge to SB 3 is the test set forth in Guare. See Boulders at Strafford, 153
N.H. at 636 (explaining that the first question is whether the trial court applied
the correct standard in reviewing the constitutionality of the law being
challenged). Accordingly, we reject the State’s argument that the trial court
“misapplied the facial-challenge standard” and should have ruled instead that
“the plaintiffs failed to meet their heavy burden of showing that SB3 was
unconstitutional in every set of circumstances.”

We also reject the State’s related argument that SB 3 cannot be facially
unconstitutional because only some, but not all, voters are burdened by its
requirements and “a purported burden on some voters is insufficient to
invalidate a law of general applicability.” The State contends that “[t]his
principle is reflected in” Crawford v. Marion County Election Board, 553 U.S.
181 (2008) (plurality opinion). However, we are not persuaded that Crawford
supports the State’s position that a “statute applicable to all voters survives a
facial challenge even when it imposes an unjustified burden on some.” Rather,
the Crawford Court held that “on the basis of the evidence in the record” it was
not possible for the Court “to quantify either the magnitude of the burden on
this narrow class of voters or the portion of the burden imposed that is fully
justified.” Crawford, 553 U.S. at 200; id. at 202 (“In sum, on the basis of the
record that had been made in this litigation, we cannot conclude that the
statute imposes ‘excessively burdensome requirements’ on any class of
voters.”). Accordingly, the Court weighed the evidence of the law’s limited
burden on voters generally, and found that the “precise interests advanced by
the State” were sufficient to defeat the plaintiffs’ facial challenge. Id. at 202
(quotations omitted).

12
 B. Guare v. State of New Hampshire

Alternatively, the State asserts that Guare should be overruled. “The
doctrine of stare decisis demands respect in a society governed by the rule of
law, for when governing legal standards are open to revision in every case,
deciding cases becomes a mere exercise of judicial will with arbitrary and
unpredictable results.” Rallis v. Demoulas Super Markets, 159 N.H. 95, 102
(2009) (quotation omitted). “Thus, when asked to reconsider a previous
holding, the question is not whether we would decide the issue differently de
novo, but whether the ruling has come to be seen so clearly as error that its
enforcement was for that very reason doomed.” Id. (quotation omitted).
Several factors inform our judgment, including whether: (1) the rule has proven
to be intolerable simply by defying practical workability; (2) the rule is subject
to a kind of reliance that would lend a special hardship to the consequence of
overruling; (3) related principles of law have so far developed as to have left the
old rule no more than a remnant of an abandoned doctrine; and (4) the facts
have so changed, or come to be seen so differently, as to have robbed the old
rule of significant application or justification. See id. at 102-03.

The State does not specifically address these stare decisis factors.
Rather, the State’s lament is that Guare does not strictly apply the framework
applicable to constitutional challenges of voting regulations employed under
federal law and that we should, accordingly, “set Guare aside and realign [our]
voting jurisprudence with federal law.” But see State v. Ball, 124 N.H. 226,
233 (1983) (explaining that when interpreting the New Hampshire Constitution,
we have never considered ourselves bound to adopt federal interpretations).

Although the State argues that Guare “departs without explanation” from
the balancing test we adopted in Akins, in fact we explained at some length in
Guare why we adopted a test “similar to” intermediate scrutiny when a voting
restriction falls between “‘severe’ on the one hand and ‘reasonable’ and
‘nondiscriminatory’ on the other.” Guare, 167 N.H. at 665-66. First, we noted
that “[c]ourts in other jurisdictions have recognized that a test similar to
intermediate scrutiny applies to a voting restriction that falls between the two
extremes” of rational basis and strict scrutiny. Id. at 666. Next, citing
Crawford, we observed that the Supreme Court “appears to be divided
regarding the issue of whether intermediate scrutiny is available in voting
rights cases.” Id. at 667. Nonetheless, we determined that both the plurality
opinion and the dissenting opinion in Crawford embraced “a test comparable to
intermediate scrutiny” and that we, likewise, “believe that the flexible standard
that we adopted in Akins includes a test that is similar to intermediate
scrutiny.” Id.3; see Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748,

3 As Justice Stevens observed in Crawford, in neither Norman v. Reed, 502 U.S. 279 (1992), nor

Burdick v. Takushi, 504 U.S. 428 (1992), did the Supreme Court identify any litmus test for

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762 (2007) (in the context of an equal protection claim, our intermediate level
of review required that the government demonstrate “that the challenged
legislation be substantially related to an important governmental objective”).

The State also asserts that Guare should be overruled because it is
“substantively incorrect” in that it “rests on the flawed premise that the
statutory definition of domicile in RSA 654:1, I (2016) differed from the
statutory definition of ‘residence’ and ‘resident’ under” RSA 21:6 (2012)
(amended 2018) and RSA 21:6-a (2012) (amended 2018). However, as the
State acknowledges, in Guare, it conceded that those statutory definitions were
legally different. See Guare, 167 N.H. at 663. Therefore, for purposes of
deciding that case, we accepted the State’s concession in reaching our decision.
See id. Nonetheless, the State now asserts that its concession was incorrect
and that our subsequent decision in Casey v. New Hampshire Secretary of
State, 173 N.H. 266 (2020), “confirms that the legal assumption on which
Guare rested was wrong.” The short answer to the State’s argument is that, as
explained in Casey, the statutes at issue in Guare were subsequently amended.
Casey, 173 N.H. at 270 (explaining that the definitions of “resident” and
“residence” in RSA 21:6 and :6-a were amended in 2018 to remove from each
the phrase “for the indefinite future”); see Opinion of the Justices (Definition of
Resident and Residence), 171 N.H. 128, 137-40 (2018) (discussing in detail the
2018 amendments to RSA 21:6 and :6-a). Accordingly, our post-Guare
decisions simply reflect our interpretation of the legislature’s amendments to
these voting statutes. See Petition of Malisos, 166 N.H. 726, 729 (2014)
(explaining that we interpret statutes as written). Under these circumstances,
we are not persuaded that Guare should be overruled.

C. Unreasonable Burden

We next address the State’s argument that the trial court erred in finding
that SB 3 imposes an unreasonable burden on the right to vote. Specifically,
the State asserts that the court erred because: (1) Form B and the VAD are not
confusing or misleading; (2) the court’s reliance upon “anecdotes and non-
specific hearsay statements” in concluding that SB 3 caused voter confusion
during the 2018 general election was insufficient to support its conclusion; (3)
there was “no reasonable basis” for the trial court to conclude that any of the
individuals who registered in 2018 using Option 1 would find themselves
subject to SB 3’s penalties; and (4) the court’s conclusion that the complicated
and confusing nature of the forms will result in longer same-day registration
lines was “insufficient to invalidate SB3 on its face.”

measuring the severity of a burden that a state law imposes on a voter. Instead, “[h]owever slight
that burden may appear, . . . it must be justified by relevant and legitimate state interests
‘sufficiently weighty to justify the limitation.’” Crawford v. Marion County Election Board, 553
U.S. 181, 191 (2008) (quoting Norman, 502 U.S. at 288-89).

14
 The State’s arguments challenge the sufficiency of the evidence
supporting the trial court’s findings. We review sufficiency of the evidence
claims as a matter of law and uphold the findings and rulings of the trial court
unless they are lacking in evidentiary support or tainted by error of law.
Walker v. Walker, 158 N.H. 602, 608 (2009); see Boyle v. City of Portsmouth,
172 N.H. 781, 789 (2020). We accord considerable weight to the trial court’s
judgments on the credibility of witnesses and the weight to be given testimony.
Walker, 158 N.H. at 608. We view the evidence in the light most favorable to
the plaintiffs. Id.

The State’s contentions that Form B and the VAD are not confusing or
misleading, that the penalties associated with SB 3 impose only a minimal
burden on the right to vote, and that same-day registration lines do not elevate
the burden beyond minimal, are all based upon its interpretation of the
evidence. However, as the plaintiffs correctly observe, “the question on appeal
is not whether the court could have interpreted the evidence differently; it is
whether there is sufficient evidentiary support for the interpretations and
findings the trial court reached.” See Blagbrough Family Realty Trust v. A & T
Forest Prods., 155 N.H. 29, 36, 38 (2007). Having reviewed the record before
us, we determine that it supports the findings made by the trial court.

The State also argues that the trial court’s conclusion that SB 3 caused
voter confusion during the 2018 general election was “based on anecdotes and
non-specific hearsay statements insufficient to support that conclusion.” In so
arguing, the State does not challenge any of the trial court’s rulings admitting
specific evidence. Rather, in the context of a sufficiency of the evidence claim,
it challenges the manner by which the trial court weighed this anecdotal and
hearsay evidence. However, we defer to the trial court’s judgment as to the
weight to be afforded to evidence. See O’Malley v. Little, 170 N.H. 272, 275
(2017). In addition, as the trial court expressly stated, the anecdotal evidence
at trial was “supported by the persuasive and credible expert testimony offered
by Plaintiffs, for which the State had no effective rebuttal.” See In re Estate of
Washburn, 141 N.H. 658, 660 (1997) (explaining that anecdotal evidence and
expert testimony supported the trial court’s determination that the testatrix’s
capacity was adversely affected by Alzheimer’s).

The State also asserts that its important interests, including
“safeguarding voter confidence, protecting public confidence in the integrity of
the State’s elections, and helping to prevent and protect against voter fraud,”
justify any burden imposed by SB 3. Relying upon SB 3’s legislative history,
the State further maintains that SB 3 “seeks a better assessment of the
domicile qualification” by making “it more difficult for persons to engage in
wrongful voting,” and reducing the number of sworn registration affidavits “to a
manageable level so they can be efficiently and timely investigated.” We
acknowledge that the interests identified by the State are important, if not vital.

15
Nonetheless, under our intermediate level of scrutiny, at trial the State was
required to prove that the “challenged law [is] substantially related to an
important governmental objective.” Guare, 167 N.H. at 665.

The trial court reasoned:

Although additional hurdles have been put in place, the fact
remains that new voters may register by affidavit without proof of
domicile and cast a valid vote. Notably, the ballots filled out by
voters registering via affidavit are not provisional; there is no way
of distinguishing between ballots once they have been cast.
Therefore, any individual intent on casting a fraudulent vote will be
able to do so by selecting Option 2 [on Form B], for which there are
no additional penalties under SB 3. Even assuming a fraudulent
voter faced greater penalties under SB 3, the State presented no
evidence that these would be a deterrent to a fraudulent voter.

Consequently, having found that SB 3 does not impede fraudulent voters, the
trial court rejected the State’s voter-fraud justification, and, likewise, found
that the State’s perceived need to protect the integrity of New Hampshire’s
elections was “illusory.”

The trial court similarly rejected the State’s assertion that SB 3 serves
the important governmental interest of reducing the administrative cost of
post-election investigations. Relying upon the testimony of a New Hampshire
Department of Justice (DOJ) investigator, the trial court found that, prior to
the enactment of SB 3, the “vast majority” of domicile addresses submitted by
affidavits “were verified [by] using the internet and phone calls.” By contrast,
as the trial court observed, a fully implemented SB 3 regime would require that
the DOJ investigate each of the 815 voters who selected Option 1 and failed to
return documentation following the 2018 election, as opposed to simply
verifying their addresses. Otherwise, SB 3’s penalty provision would be
rendered “either entirely meaningless or would result in completely arbitrary
enforcement.” As a result, the trial court concluded that any enforcement of
SB 3 would require “significant costs that, at a minimum, would match the
cost of the verification system pre-SB 3.”

We are persuaded by the trial court’s analysis and determine that its
findings are supported by the record before us. Accordingly, we conclude that
SB 3 is unconstitutional, as the State has failed to demonstrate that SB 3 is
substantially related to the precise governmental interests it set forth as
justifications necessitating the burdens the law imposes on the right to vote.
See Guare, 167 N.H. at 667; Anderson, 450 U.S. at 789.

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 D. Voter Registration Forms

Finally, the State argues that the trial court erred by not allowing the
Secretary to revise Form B and the VAD to “reduce complexity, cure confusion,
and add clarification.” The trial court determined that, because the language
contained in the forms was mandated by the legislature and the Secretary’s
statutory authority is limited to modifying the physical layout of the forms, the
Secretary may not alter the language in an effort to cure SB 3. The State
asserts that this interpretation of the Secretary’s statutory authority is
incorrect.

RSA 654:7, IV(c) provides that “[t]he secretary of state shall prescribe the
form of the voter registration form to be used only for voter registrations . . .
starting 30 days before each election and at the polling place on election day,
which shall be in substantially the following form . . . .” RSA 654:7, IV(c)
(Supp. 2020). RSA 654:7, V provides:

The secretary of state shall prepare and distribute an addendum
to the voter registration form used under subparagraph IV(c) to be
distributed to those registrants who register within 30 days before
the election or on election day and who do not provide proof of
domicile or a verifiable action to demonstrate domicile. The
“verifiable action of domicile” document shall provide notice of the
requirements that registrants must furnish documentary evidence
of domicile and shall be in substantially the following form . . . .

RSA 654:7, V (Supp. 2020). The State asserts that the phrase “in substantially
the following form” in these statutes authorizes the Secretary to alter the
language of the forms so that “[l]ong sentences can be broken into shorter
sentences; passive voice expressions changed to active voice expressions to
reduce words; redundant words or phrases can be eliminated or simplified;
indentation and other formatting can be used to more clearly convey how the
form works.” Such revisions, the State asserts, would be consistent with
decisions of other courts interpreting similar statutory language.

However, the one relevant case relied upon by the State does not support
its broad interpretation of the Secretary’s authority to modify statutory
language. See People ex rel. Davis v. Chicago, B. & Q. R. Co., 268 N.E.2d 411
(Ill. 1971). In that case, the issue was whether a ballot providing spaces for
votes “for” and “against” substantially complied with the statutory form
providing voting spaces designated by the words “Yes” and “No.” Id. at 413-14
(quotations omitted). In resolving that issue, the court contrasted statutes that
require exact expressions in the statutory form with those requiring the ballot
to “be substantially in the following form.” Id. at 415 (quotation omitted). The
court reasoned that under the former, substituting the words “Yes” and “No” on

17
the ballot form with different words would be prohibited, but under the latter it
was not prohibited because the substituted terms “for” and “against” were
“substantially” in the form of “Yes” and “No.” Id. at 413-15 (quotations
omitted). This interpretation of the word “substantial” in the context of a ballot
form does not support the State’s position in the case before us. Although the
administrative act of substituting two discrete terms with synonymous words
may constitute substantial compliance with statutory form, we cannot
conclude that such a legislative directive authorized the Secretary to make
substantive revisions necessary to “reduce complexity, cure confusion, and add
clarification” to Form B and the VAD or “to cure the types of form issues that
caused the trial court and the plaintiffs concern.”4 See Priorities USA v. State,
591 S.W.3d 448, 455-56 (Mo. 2020) (determining that the secretary of state has
no authority to alter the terms of a voter registration statute to correct
language found to be unconstitutional).

In addition, the State suggests that “the doctrine of severability may
further reduce the burden” imposed by SB 3, “without striking SB 3 in its
entirety.” “In determining whether the valid provisions of a statute are
severable from the invalid ones, we are to presume that the legislature intended
that the invalid part shall not produce entire invalidity if the valid part may be
reasonably saved.” Associated Press v. State, 153 N.H. 120, 141 (2005)
(quotation omitted). “We must also determine, however, whether the
unconstitutional provisions of the statute are so integral and essential in the
general structure of the act that they may not be rejected without the result of
an entire collapse and destruction of the statute.” Id. (quotation omitted).

We agree with the trial court that “Form B and the VAD are the
centerpieces of SB 3, without which much, if not all, of the legislation ceases to
make sense.” As the court explained, “The penalties enacted rely on words
defined in or actions take[n] pursuant to forms that no longer exist, and the
two-tiered registration system no longer functions, as there is no longer an
affidavit to submit within thirty days of an election and on election day.” Given
that Form B and the VAD are “integral and essential in the general structure
of” SB 3, the law must be stricken in its entirety. Id. (quotation omitted).

III. Conclusion

We conclude that SB 3 imposes unreasonable burdens on the right to
vote. We also conclude that the State failed to carry its burden to demonstrate

4 Indeed, although we are not bound by the opinion of the Deputy Secretary of State, at trial, he

testified that the statute sets forth the specific language in the voter registration forms, and the
Secretary of State’s involvement is limited to formatting the physical layout “to make sure it fits on
the page.”

18
that SB 3 is substantially related to an important governmental objective.
Accordingly, we affirm the trial court’s determination that SB 3 violates Part I,
Article 11 of the State Constitution.

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

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