___________________________

Merrimack

No. 98-695

DAVID J. FISCHER

v.

GOVERNOR & a.

March 24, 2000

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the plaintiff.

Philip T. McLaughlin, attorney general (Martin P. Honigberg, senior assistant attorney general, and Mary E. Schwarzer, attorney, on the brief, and Mr. Honigberg orally), for the State.

Michael, Jones & Wensley, of Rochester, for the defendants, the City of Rochester and the Rochester Board of Supervisors of the Checklist, filed no brief.

Marc Mauer, of Washington, D.C., by brief, for The Sentencing Project, as amicus curiae.

Gillian E. Metzger & a., of New York, New York, by brief, for Brennan Center for Justice at New York University School of Law, as amicus curiae.

Emily Bolton, of New Orleans, Louisiana, by brief, as amicus curiae.

BRODERICK, J. The State appeals a ruling of the Superior Court (Brennan, J.) that the felon disenfranchisement statutes, RSA 607-A:2 (1986) and RSA 654:5 (1996), violate Part I, Article 11 of the New Hampshire Constitution. It argues that the legislature has constitutional authority under Article 11 to determine voter qualifications and that the legislature reasonably excluded incarcerated felons from the franchise. Alternatively, it argues that if no such authority exists under Article 11, the legislature had compelling reasons to deprive incarcerated felons of their right to vote. The State also asserts that the trial court did not have the proper parties before it. We reverse.

I

The plaintiff, David J. Fischer, is incarcerated at the New Hampshire State Prison on two felony convictions, attempted first degree assault and witness tampering. In September 1998, he requested that the Rochester city clerk register him to vote in the next election and send him an absentee ballot. In response, the city clerk sent him a copy of RSA 607-A:2, which prohibits a felon from voting "from the time of his sentence until his final discharge."

The plaintiff brought a petition for declaratory judgment and injunctive relief against the defendants, the Governor, the Secretary of State, and the Supervisor of the Checklist of the City of Rochester. He alleged that the disenfranchisement statutes violate his right to vote under Part I, Article 11 of the New Hampshire Constitution. The trial court agreed and declared the disenfranchisement statutes unconstitutional. It ordered local election officials to allow the plaintiff and others similarly situated to register and vote in the next election. This appeal followed.

II

We briefly address the State's argument that the trial court did not have the proper parties before it to decide the plaintiff's case and that its decision should be vacated. The State argues that neither the Governor nor the Secretary of State had the authority to remove or add a name to the voting checklist, and that the local supervisors of the checklist are the only proper parties to this action under RSA 654:42 (1996). The State acknowledges that one checklist supervisor was named as a defendant but asserts that she was never properly served with process. The named supervisor, however, did not object to service irregularities. She submitted herself to the court's jurisdiction by filing a motion to dismiss, arguing that she had no independent authority to change the checklist. See Lachapelle v. Town of Goffstown, 134 N.H. 478, 480, 593 A.2d 1152, 1153 (1991); Dolber v. Young, 81 N.H. 157, 159, 123 A. 218, 219 (1923). The trial court denied her motion and joined the remaining local supervisors as defendants. Those rulings were not appealed. Because the trial court had proper parties before it, it possessed the authority to decide the matter at issue. We need not decide, therefore, whether the Governor and Secretary of State were appropriate parties.

III

Having determined that the trial court had the authority to decide this case, we turn directly to its central issue: whether the felon disenfranchisement statutes violate Part I, Article 11 of the State Constitution. After a review of Article 11, its constitutional history, and legislation pertinent to the historical right of felons to vote, we conclude that the legislature retains the authority under Article 11 to determine voter qualifications and that the felon disenfranchisement statutes are a reasonable exercise of legislative authority.

The State argues that from its inception, Article 11 has always provided the legislature with the authority to determine voter qualifications. Although acknowledging that Article 11 has been amended over the years to remove certain qualifications from the legislature's purview, the State asserts that the legislature's underlying constitutional authority to identify qualified voters has never been altered. The plaintiff contends that Article 11 as presently crafted is plain on its face and grants the right to vote to all inhabitants who are at least eighteen years old, excepting only persons convicted of three enumerated offenses: treason, bribery, and willful violation of State or federal election laws. He acknowledges that the legislature previously had the power under Article 11 to determine voter qualifications, but asserts that a 1974 constitutional amendment removed that authority from Article 11. We begin our review with the language of the constitution itself. See N.H. Munic. Workers' Comp. Fund v. Flynn, Comm'r, 133 N.H. 17, 21, 573 A.2d 439, 441 (1990).

Part I, Article 11 in its present form states:

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. No person shall have the right to vote under the constitution of this state who has been convicted of treason, bribery or any willful violation of the election laws of this state or of the United States; but the supreme court may, on notice to the attorney general, restore the privilege to vote to any person who may have forfeited it by conviction of such offenses. The general court shall provide by law for voting by qualified voters who at the time of the biennial or state elections, or of the primary elections therefor, or of city elections, or of town elections by official ballot, are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice of any officer or officers to be elected or upon any question submitted at such election. Voting registration and polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote in the choice of any officer or officers to be elected or upon any question submitted at such election. The right to vote shall not be denied to any person because of the nonpayment of any tax. Every inhabitant of the state, having the proper qualifications, has an equal right to be elected into office.

N.H. CONST. pt. I, art. 11. By the article's plain language, an individual must satisfy several criteria to be allowed to vote. An individual must be an inhabitant of this State, at least eighteen years of age, and without prior conviction for treason, bribery, or willful violation of the State or federal election laws. Finally, any individual in need of an absentee ballot must be a "qualified voter[]" in order to vote. It is not disputed that the plaintiff meets all of the criteria but the last. The definition of "qualified voters" in the absentee ballot provision, however, is not clear on the face of the article. "[Q]ualified voters" may encompass only those qualifications enumerated within Article 11 itself; namely, age, inhabitancy, and lack of prior convictions. Alternatively, because the term falls within a constitutional directive to the legislature to enact absentee voter legislation, "qualified voters" may vest the legislature with authority to define the qualifications for absentee voters, a class which includes incarcerated felons. To determine the intended parameters of "qualified voters," therefore, we look behind the language of Article 11 to examine its relevant historical development. See Claremont School Dist. v. Governor, 138 N.H. 183, 186-88, 635 A.2d 1375, 1377-79 (1993).

At its inception in 1784, Article 11 provided:

All elections ought to be free, and every inhabitant of the State, having the proper qualifications, has equal right to elect and be elected into office.

N.H. CONST. pt. I, art. 11, reprinted in The New Hampshire Manual of Useful Information 42 (1889). The language of the article was broad, granting the right to vote and to be elected to all inhabitants of New Hampshire with "proper qualifications." Because "proper qualifications" was defined neither in Article 11 nor in the constitution itself, the legislature necessarily had the constitutional authority to define its scope. See State v. Sullivan, 101 N.H. 429, 430, 146 A.2d 1, 2-3 (1958) (although right to vote is constitutionally protected under Part I, Article 11, it is subject to reasonable regulation by legislature).

In 1789, exercising its authority under Article 11, the legislature circumscribed the right to vote by limiting the franchise to male taxpayers who were at least twenty-one years of age. Laws 1789, ch. 64. Decades later, the legislature further restricted the franchise to native or naturalized citizens of the United States and revoked the right to vote for "paupers and persons excused from paying taxes at their own request." Laws 1830, tit. XCVI