by Greg Sorg

Many years ago, when I left home to enter the University of Maryland, it was with the intention of living there only from September through May of each year. It was my expectation – which events justified – that from June through August between terms I would work a summer job, ideally one that would enable me to live at home in order to avoid depleting my earnings by paying rent. It was further my expectation – which events also justified – that upon graduation, I would depart for whichever new location the job market or post-graduate study took me.

These intentions and expectations on my part were basically the same as those of 99 college students out of 100, or perhaps 999 out of 1,000. It never entered my mind to abandon my existing domicile and register to vote in College Park, Maryland, because it was so transparently obvious how unfair it would be were the votes of 15 to 20,000 college students able to drown out those of the permanent inhabitants of that town that I never imagined the law would ever countenance such a travesty of self-government. The same considerations also kept me from registering to vote on Lexington, Virginia, when I attended Washington & Lee University Law School.

A college or university is by design an insular community of scholars and instructors sheltered from the distractions of the larger world, replicating in its essentials the life that most students had to then always lived as dependents of their parents. It is a sort of educational theme park surrounded by the larger community of people dealing with the real-world concerns of getting and holding jobs, raising their children, caring for their homes, and paying taxes They, unlike the transient inmates of the college, have a long-term stake in the future of the community, county and State, which they ensure – or try to ensure – through their votes. Their legitimate interests cannot be effectively represented and promoted when their votes are diluted – or entirely canceled – by those of a huge, largely monolithic demographic group artificially imposed upon them, comprised of people with a dearth of experience and a plethora of the easy self-confidence that only ignorance and inexperience can produce, people whose youthful idealism is focused on remaking the world (with themselves in charge, of course!) rather than with the mundane hum-drum of local government.

Such a situation is fundamentally unfair, and – as it happens – proscribed under the Constitution of New Hampshire, which limits the right to vote to persons domiciled, and not merely residing, in the affected ward, town, city, district, county, or state. Until 2007, the laws of New Hampshire reflected this, although enforcement had become lax long before amendments to the laws in the 2007 and 2009 legislative sessions purported to legalize this laxity.

It is time to restore the rights of the legitimate inhabitants of Durham, Plymouth, Keene, Hanover and all the other cities and towns of this State containing, or proximate to, a college or university.

I might add that at the root of much of the mischief of voter fraud from which New Hampshire is suffering is the unconstitutional federal intervention into this and other states’ voter registration and election processes. In particular, “motor-voter” and “same-day registration” subvert the process by which a would-be voter’s bona fides can be determined. Article 11 of the New Hampshire Bill of Rights establishes domicile as the benchmark of the right to vote in this state: “All elections are to be free, and every inhabitant of the state of l8 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.”

Domicile is a question of intention, State v. Palmer, 65 NH 9 (1889). To make a place the domicile of a person, two things are essential: actual residence and an intention to remain indefinitely; in other words, a general intention to remain, with no definite purpose to remove elsewhere, Concord v. Rumney, 45 NH 423 (1864). To acquire a domicile, residence and the intention to make it the home must concur. Once acquired, actual residence is not indispensable for its retention; it may be retained by the intention not to change it, Foss v. Foss, 58 NH 283 (1878). For jurisdictional purposes, domicile, once existing, continues until another is acquired, Hanson v. Hanson, 78 NH 560 (1918). A person may not, by his absence, lose his domicile in a state, Ward v. Cole, 32 NH 452 (1855). The place of one’s domicile is the place of his home, and his existing domicile is not changed or lost by a departure from it for a temporary purpose, or with the intention of returning, Foss v. Foss, 58 NH 283 (1878). A domicile once existing continues until another is gained, Bailey v. Bailey, 93 NH 259 (1945). To constitute a new domicile, both residence in the new locality and intention to remain there are indispensable, State v. Daniels, 44 NH 383 (1862); Leach v. Pillsbury, 15 NH 137 (1844). At common law, the father is the natural guardian of his minor child, and because of this, his domicile is the domicile of the child, White v. White, 77 NH 26 (1913).

As the dates of these New Hampshire Supreme Court case citations show, the concept of domicile, as opposed to mere presence or residence, is ancient. Every lawyer knows it; it is taught in first year law school Wills & Trusts class.

The determination of domicile involves the determination of questions of fact, and particularly the fact of intention, McGee v. Bragg, 94 NH 349 (1947). Election officials cannot determine a would-be registrant’s intention without a period in which to evaluate such objective information as may exist. Without such a period, all they have to go by is what the registrant tells them when he arrives at the polling place on election day. But, at least until the arrival of motor-voter and same-day registration, mere declarations by one as to his domicile and future intentions were inadmissible to show his legal domicile unless it appears they were made at a time when he had no interest in making evidence on the subject, Ayer v. Weeks, 65 NH 248 (1889).

By obliterating the opportunity to investigate, Congress and the federal courts have intruded into the reserved powers of the State of New Hampshire. There is no basis in the federal Constitution for intervention such as has occurred with motor-voter and same-day registration, which have made unenforceable Article 11’s limitation of the right to vote in New Hampshire to persons domiciled in New Hampshire. Indeed, such federal intervention contravenes express language in the federal Constitution, which leave the determination of a state’s electorate up to the states:

Art I, §2, Cl. 1 [Election of Representatives]: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Amendment XVII, §1 [Election of Senators]: The Senate of the United State shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The Electors in each State shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislatures.

Art II, §1, Cl. 2 and 3 [Election of President and Vice-President]: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…The Electors shall meet in their respective States and vote by Ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.

The only exceptions to the states’ plenary authority to determine the composition of its electorate and its registration and voting procedures are for race (15th Amendment), sex (19th Amendment), failure to pay a poll tax (24th Amendment), and age over 18 (26th Amendment).