2009 SESSION

09-1052.0

03/09

SENATE RESOLUTION 1

ANALYSIS

This senate resolution requests an opinion of the justices concerning the constitutionality of SB 21.

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09-1052.0

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nine

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; 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, issued on May 19, 2008?

That the clerk of the senate transmit copies of this resolution and SB 21 to the Justices of the New Hampshire Supreme Court.