One of the nation’s many ongoing political debates involves the regulation of voting. Some people argue that voting, as the essence of democracy, should be as easy as possible. Others argue that voting rules should minimize the possibility of fraud, even if the rules make it more difficult to vote.
Laws that make it difficult to vote are often challenged in court. A recent case in New Hampshire illustrates how expert witnesses help courts understand the impact of laws that might burden the right to cast a ballot.
New Hampshire Law
A New Hampshire town election in 2020 sparked claims of voter fraud. An audit determined that some ballots had been folded in a way that caused a counting machine to count too many or too few votes for a candidate whose name was in line with the fold. The audit found no evidence of voter fraud.
Alleged concerns about voter fraud in New Hampshire predated the 2020 election. In 2017, the New Hampshire legislature changed its voting laws to remedy a nonexistent problem. A key change affected voter registration.
Under previous law, voters who registered could present proof that they lived in the voter district or could sign an affidavit affirming that their stated identity, age, citizenship, and place of domicile (place of residence) were all true. The new law required anyone who registered more than 30 days before an election to present proof that they were domiciled in the voting district where they registered. The affidavit that was formerly used was not regarded as proof.
Voters who registered within 30 days of an election were given a choice. If they had “documentary evidence” of their intent to be domiciled at their registered address, they could check a box stating that they would submit that evidence within ten days after voting. If they failed to do so, “official mail” would be sent to their registered address to confirm their domicile. A voter who failed to meet the 10-day deadline was also subject to civil or criminal penalties.
If the registering voter had no “documentary evidence” establishing an intent to be domiciled at their registered address, the voter could check a different box. “Official mail” would then be sent to their registered address to confirm the voter’s domicile.
Registering voters who stated that they had “documentary evidence” of their intent to be domiciled at their registered address were given a separate form that described the kinds of evidence that the state deemed acceptable. That evidence included proof of purchase of residential property within the district, proof that a lease was executed within the district more than 30 days before the election, proof of residency at a college dorm, proof that the voter’s dependent minor child was enrolled in a public school within the district, or a New Hampshire driver’s license or ID showing an address within the district.
Challenge to Voter Registration Law
The state Democratic party and the League of Woman Voters sued the Secretary of State, alleging that the new law violated the New Hampshire Constitution by unreasonably burdening the right to vote. The trial judge entered a preliminary injunction against the law on the ground that threatening to jail voters for failing to deliver paperwork to a county office within ten days after an election would deter people from voting.
The court noted the absence of any evidence that voters were unlawfully registering and voting in New Hampshire districts. Since there was no compelling need for a law that would suppress voting, the judge determined that it was probably unconstitutional.
The injunction prevented the law from taking effect prior to state elections in 2018. However, the Supreme Court vacated the injunction to avoid confusion, since it was entered shortly before the election was to occur. It nevertheless maintained an injunction against enforcement of the provision that allowed voters to be punished for failing to submit evidence of their domicile within 10 days after the election.
The trial court then heard evidence to decide whether a permanent injunction should be entered. The trial focused on the complex and confusing language used in the various forms that were provided to voters who wanted to register within 30 days of an election.
Plain Language Expert
The challengers to the election law called Deborah S. Bosley as an expert witness. Bosley is a professor emeritus of technical communication at UNC Charlotte, a former board member of the Center for Plain Language, and the owner of The Plain Language Group. Her expertise is in helping organizations create written information that is easy to use and understand.
Bosley knew from its title that New Hampshire’s new “Verifiable Action of Domicile” document wouldn’t be easy to read. She reviewed that document and the new six-page voter registration form. She conducted a readability analysis and tested the documents’ usability in the age group 18-29, which has the lowest voter turnout in New Hampshire. She compared the documents to Federal Election Commission standards and to standards followed by experts in the field of plain language.
Bosley concluded that the voter registration form is “written at a readability level equivalent to the Harvard Law Review.” Bosley testified that the Verifiable Action of Domicile 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.”
The State called no expert witness to challenge Bosley’s testimony. Based on her uncontested opinions, the trial court determined that the language in both forms was “needlessly complex, both in length and in diction.”
Other Expert Witnesses
The League of Women Voters also called Muer Yang as an expert witness. The League identified Yang as a leading expert on voter line management and optimization, a subset of the field of mathematics known as queuing theory. Yang testified that the new law would lengthen voter registration lines and increase the time it would take voters to register.
Michael Herron, a professor of government at Dartmouth, testified as an expert in the statistical analysis of election administration. Herron analyzed the new law using the “calculus of voting” theory, which examines the impact of the costs and benefits of voting on the decision to vote. Herron testified that the costs imposed by the new law would have a disproportionate impact on certain voters, including college students, highly mobile voters, and the homeless. He concluded that, over time, fewer people would participate in New Hampshire elections as a result of the new law.
Trial Court Decision
The trial court credited the expert testimony in finding that New Hampshire’s new voter registration law was unconstitutional. The court agreed with Bosley that the language of the new documents was confusing and needlessly complex. The court agreed with Yang that the new law would increase the time it takes to register.
Based on that testimony, the court identified voter confusion and longer lines as costs associated with the new law. Those costs, as well as fear of being jailed if the required information could not be provided promptly after the election, burdened the right to vote. The court agreed with Herron that certain voters would be discouraged from voting because of the new law.
Evidence of how the new law affected the 2018 election confirmed the experts’ conclusions. The court found that some registrants filled out the registration form incorrectly by checking both boxes. Other registrants left the polling place because they did not believe they could register without producing immediate evidence of their address. Some election officials turned away registrants who did not produce required documents despite their willingness to do so after the election. Several college students testified that they did not register because they believed they would be unable to prove their residence within the district.
The court also noted that honest voters who were eligible to vote would be subjected to criminal prosecution if they failed to produce required documents within ten days after the election. The court concluded that subjecting honest, eligible voters to the risk of criminal prosecution because they did not gather documents and bring them to a municipal clerk within a short window was an unreasonable burden on the right to vote.
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 trial court concluded that the new law, “if fully implemented, will suppress voter turnout.” It therefore invalidated the law.
State Supreme Court Decision
The New Hampshire Supreme Court affirmed the trial court’s decision. The supreme court rejected the state’s argument that the trial court based its ruling on anecdotal evidence. The supreme court accepted the trial court’s findings that its decision was “supported by the persuasive and credible expert testimony offered by Plaintiffs, for which the State had no effective rebuttal.”
In the end, expert testimony carried the day for the election law challengers. The state’s failure to call its own experts to challenge any of the expert opinions offered by the plaintiffs amounted to a concession that those opinions were correct. The supreme court affirmed the trial court’s decision because expert testimony firmly established that New Hampshire’s new law would unreasonably burden the right to vote and would suppress voter turnout with no demonstrable improvement of election integrity.