New Hampshire court strikes down documentary voter-registration proof rule

New Hampshire's House Bill 1569, signed by Governor Chris Sununu on September 12, 2024, made the state the only one in the country requiring every new registrant to produce documentary proof of citizenship for both state and federal elections. Rep. Bob Lynn (R-Windham), a former chief justice of the New Hampshire Supreme Court, introduced the bill in December 2023 and said he wanted the law to stamp out potential voter fraud and make voting a more intentional act. The Republican-controlled legislature passed it in May 2024 on a party-line vote. The law wiped out two forms voters had used for decades: the Qualified Voter Affidavit, which let new registrants swear under penalty of perjury that they were U.S. citizens and local residents, and the Challenged Voter Affidavit, which let voters respond when their eligibility was questioned at the polls. Before the law took effect, a voter could walk into a polling place without a passport or birth certificate, sign a sworn statement, and cast a ballot legally.

groups including the ACLU of New Hampshire, the Coalition for Open Democracy, the League of Women Voters of New Hampshire, the Forward Foundation, and the New Hampshire Youth Movement filed a federal lawsuit in September 2024 challenging the law under the First and Fourteenth Amendments. The case was styled Coalition for Open Democracy v. Scanlan.

Congress set the federal floor for voter registration in a series of laws stretching back three decades. The National Voter Registration Act of 1993, also called the Motor Voter Act, was sponsored in the House by Rep. Al Swift (D-WA) and Rep. John Conyers (D-MI) and in the Senate by Sen. Wendell Ford (D-KY). President Clinton signed it on May 20, 1993, after Democrats failed to advance nearly identical bills in the 101st and 102nd Congresses. The NVRA requires states to accept the federal voter registration form, which asks applicants to attest under penalty of perjury that they are U.S. citizens but doesn't require documentary proof. The Help America Vote Act of 2002 built on that framework by requiring states to verify driver's license numbers or the last four digits of Social Security numbers for first-time mail registrants, but it similarly didn't require documentary citizenship proof. In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court ruled 7-2 that the NVRA preempted Arizona's 2004 requirement that voters provide documentary citizenship proof with the federal form. Justice Antonin Scalia wrote the majority opinion, holding that states must 'accept and use' the federal form as written and can't add documentary requirements on top of it for federal elections. New Hampshire structured HB 1569 to apply to state elections as well, making it legally distinct from Arizona's approach, but the underlying question of whether documentary citizenship proof can coexist with the perjury-penalty attestation system remained unresolved.

U.S. District Judge Samantha Elliott, appointed by President Biden on September 30, 2021, and confirmed 62-37, issued a 98-page ruling on May 29, 2026, finding HB 1569 unconstitutional on three counts. She ruled the removal of both voter affidavits violated the First and Fourteenth Amendments, and that the elimination of the Challenged Voter Affidavit violated procedural by forcing challenged voters to appeal to superior court to cast a ballot.

Elliott applied the Anderson-Burdick balancing test, drawn from Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992), which requires courts to weigh the severity of a voting restriction's burden against the state interest it claims to serve. She wrote: 'A sworn affidavit capable of exposing an affiant to criminal prosecution is a method of proving citizenship and not an exception to that requirement.' She added that 'New Hampshire's interest in election integrity cannot justify the burden on New Hampshire voters based on the evidence in this case.' The injunction took effect immediately and covers all future elections, including the 2026 midterms and September primary.

The evidence at trial cut sharply against the state's fraud rationale. A plaintiff's expert found only 47 instances of wrongful voting out of roughly 8.3 million ballots cast in New Hampshire between 1998 and 2024. Only eight of those cases involved potential noncitizens. Secretary of State David Scanlan himself testified during the trial that noncitizen voting is 'essentially non-existent' in the state. Nationally, the Heritage Foundation's own election fraud database, maintained by a conservative organization that supports stricter election laws, documents approximately 68 total noncitizen voting cases across all U.S. elections going back to the 1980s.

Despite that record, HB 1569 eliminated the affidavit option that 14,737 voters used to register between April 29 and November 10, 2024, more than 10 percent of all new registrants in that window and approximately 16.8 percent of first-time registrants. More than 10,000 of those affidavits were signed on Election Day alone, by voters who arrived to register without documentary proof of citizenship.

Judge Elliott's ruling is the first major federal court decision on whether states can eliminate sworn-affidavit options as a method of proving citizenship for voter registration. Elliott deliberately limited her holding: she didn't decide whether a state can require proof of citizenship at all. Her ruling addressed only the narrower question of whether a state can remove the sworn-affidavit as one constitutionally available method once it has required citizenship proof.

H.R. 22, the Safeguard American Voter Eligibility Act, passed the U.S. House in April 2025 along party lines. Rep. Chip Roy (R-TX-21) sponsored the House bill, and Sens. Mike Lee (R-UT) and John Cornyn (R-TX) introduced the Senate companion in January 2026. The bill would require documentary proof of citizenship for all federal election registrations and eliminate most online and mail registration options. Senate Majority Leader John Thune acknowledged publicly that the bill lacked both the 60 votes needed to overcome a Senate filibuster and the 50 Republican votes needed to eliminate the filibuster rule itself. The Senate shelved the bill. The New Hampshire ruling is the first federal test of how courts will weigh citizenship verification requirements against voting-rights guarantees.

Secretary of State David Scanlan said on May 29, 2026, that his office would reinstate both voter affidavits immediately. He noted that the ruling doesn't touch HB 1569's other requirements: registrants still must provide documentary proof of identity, age, and domicile; only citizenship can now be attested by affidavit. Scanlan had testified during proceedings that affidavit forms needed to be available by early July to allow sufficient time before the fall election cycle.

The New Hampshire attorney general's office said it intends to pursue an appeal and would review the court's order. The office had defended HB 1569 as a 'common-sense approach to voter registration and election administration designed to protect the integrity of our elections.' Before filing at the First Circuit, the state could file a stay motion in the district court first, then escalate to the First Circuit if denied. A stay would suspend Elliott's injunction and strip the affidavit option again before November 2026.

The populations most affected by HB 1569's documentary requirement include college students registering in New Hampshire for the first time, women who changed their names after marriage, and low-income voters who lack passports. A March 2025 survey by University of Maryland researcher Jillian Andres Rothschild found that over 21.3 million eligible voters, about 9 percent of the citizen electorate, don't have or can't readily access documentary proof of citizenship. Younger voters, voters of color, low-income people, and people who have changed their names face the highest risk of being unable to meet documentary requirements.

In New Hampshire specifically, Elliott's ruling cited testimony showing the affidavit's elimination would have a 'particularly detrimental impact on young residents and married women.' Women who changed their last name after marriage face an inherent mismatch between their birth certificate name and their current identification, a mismatch that makes documentary citizenship proof harder to produce than a sworn statement. Roughly 56 percent of Black Americans don't have a passport, compared with much lower rates among higher-income Americans, because passport fees and the time required to apply impose costs that fall disproportionately on lower-income households.

The Coalition for Open Democracy, the ACLU-NH, and the League of Women Voters of New Hampshire brought the case. The ACLU's national office joined the litigation. Gilles Bissonnette, legal director of the ACLU-NH, led the legal team. The plaintiffs argued that a sworn affidavit signed under penalty of perjury, which exposes the signer to criminal prosecution if false, is a constitutionally adequate way to prove citizenship because the state already has a legal mechanism to punish false attestations.

New Hampshire has prosecuted false affidavit claims in the past. The state's own election fraud database lists cases in which voters were charged under the criminal statutes triggered by false sworn statements, demonstrating that the affidavit system has an enforcement mechanism independent of documentary verification. After the ruling, Bissonnette called it a victory for every New Hampshire voter who relies on the affidavit option. Olivia Zink, executive director of the Coalition for Open Democracy, coordinated the multi-plaintiff challenge alongside the ACLU-NH, League of Women Voters, Forward Foundation, and New Hampshire Youth Movement.

HB 1569 passed during a broader national movement. President Trump issued an executive order in March 2026 titled 'Ensuring Citizenship Verification and Integrity in Federal Elections' directing federal agencies to support state proof-of-citizenship efforts. H.R. 22, the SAVE Act, was introduced in the 119th Congress with Rep. Chip Roy as a primary House sponsor and passed the House in April 2025 with 110 Republican cosponsors. It would eliminate most online and mail registration options and require in-person documentary proof of citizenship before completing federal election registration.

Sens. Mike Lee (R-UT) and John Cornyn (R-TX) introduced the Senate companion in January 2026. Senate Majority Leader John Thune told reporters: 'We don't have the votes, either to proceed to a talking filibuster nor to sustain one if we got on one.' Trump allies planned a Senate floor takeover to force a vote, but Thune blocked it. As of May 2026, the SAVE Act remains shelved in the Senate, with neither the 60-vote cloture threshold nor the 50 votes needed to change the filibuster rule within reach.

The case name is Coalition for Open Democracy v. Scanlan, filed in the U.S. District Court for the District of New Hampshire. Judge Elliott, who became chief judge of that district on November 1, 2025, presided over a two-week trial that began February 10, 2026. The plaintiffs presented expert testimony from election administration specialists and voting-rights researchers alongside statistical evidence about affidavit usage rates in New Hampshire elections.

The state's defense rested primarily on the interest in election integrity and preventing noncitizen voting. Elliott found that interest insufficient given the near-zero evidence of noncitizen fraud in the state's own records and the substantial burden on eligible voters who rely on affidavits, particularly same-day registrants on high-turnout Election Days. Prior to this ruling, the closest federal precedent was Arizona v. Inter Tribal Council (2013), in which the Supreme Court blocked Arizona's documentary requirement for the federal election form but on NVRA preemption grounds rather than constitutional grounds. Elliott's ruling goes further, grounding the right to use a sworn affidavit in the First and Fourteenth Amendments directly.

New Hampshire set a record for voter turnout in the 2024 general election, with 834,651 ballots cast, surpassing the prior record of 814,499 in 2020. Of those voters, 92,730 registered at the polls on Election Day itself. More than 10,000 of those same-day registrants used the Qualified Voter Affidavit to prove citizenship. Had HB 1569's documentary requirement been fully in effect for that election without the affidavit option, those voters would have been turned away or redirected to a provisional process.

New Hampshire has allowed same-day voter registration since 1994 and used the Qualified Voter Affidavit for 30 years without documented systematic fraud. The 30-year practice produced only eight documented potential noncitizen votes in 26 years of records, a rate of roughly one potential noncitizen vote per million ballots cast. Rep. Lynn's bill eliminated that 30-year practice based on a fraud rate the state's own secretary of state called essentially non-existent.

The First Circuit Court of Appeals, based in Boston, has jurisdiction over federal cases from Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. A First Circuit ruling on the NH appeal would set binding precedent for all five jurisdictions, including Massachusetts and Rhode Island, which have their own active debates about voter registration requirements.

The NVRA, HAVA, and the Elections Clause together set the federal floor for voter registration. States can make requirements stricter than the federal floor, but courts have consistently held they can't strip options that federal law contemplates. The First Circuit will need to decide whether Elliott's constitutional reasoning, grounded in the and the First and Fourteenth Amendments, extends to a state law that went beyond what the Arizona precedent addressed. If the First Circuit affirms, the ruling could reach the Supreme Court before the 2028 presidential election cycle, where its interaction with the Elections Clause and potential SAVE Act litigation would come to a head.