In 2001 a Yale doctoral student named Jason Sorens published an essay in the small webzine The Libertarian Enterprise, lamenting the failure of libertarian efforts at the ballot box. “Nothing’s working,” he wrote, because libertarians are scattered. The only way to have a real impact, he argued, would be to concentrate thousands of libertarian activists in a state with a small population and an easily accessible government. Sorens settled on an ideal target of 20,000 people, an imaginary cluster of libertarians he christened the Free State Project.
Twelve years later, against all odds, Sorens’ peculiar dream is coming true. At press time, nearly 14,000 liberty lovers had pledged to move to New Hampshire once the Free State Project reaches its goal of 20,000 signatories. More than 1,100 of them, known as “pre-staters,” have already moved to Manchester, Concord, Nashua, and even the state’s rural northern region to prepare the ground for the coming influx of libertarians. These activists are penetrating New Hampshire’s political and judicial establishment, joining community organizations, befriending (and antagonizing) the locals, and generally making themselves at home in New England.
Free Staters in the Legislature
The first Free Stater, Jackie Casey, packed her bags in 2003, just after an online vote determined that New Hampshire would beat out Wyoming and other contenders for the Free State title. Casey had been a Wyoming partisan. “I didn’t vote for New Hampshire,” she told the Boston TV station WCVB in 2004. But “I moved here because I made a commitment.”
One of the main reasons New Hampshire won was the state’s accessible corridors of power. Town meetings are the predominant style of government in most of its municipalities, and the state legislature is the third largest in the world, with 424 seats.
Pre-staters had an easy time picking up seats right away. After the 2012 election, they held about a dozen legislative positions on both sides of the aisle. The number may actually be higher, since some elected Free Staters have been quiet about their affiliation with the movement, due to concerns about backlash at the ballot box. But since the average annual salary of a New Hampshire state legislator is just $100, the work has to be a labor of love and passion—a Free Stater specialty.
The professional breakdown of the Free Staters in the legislature is a reflection of the diversity of the movement; there are real estate brokers, lawyers, writers, EMTs, couriers, and computer programmers. Some are New Hampshire natives, while others hail from Florida, New York, Massachusetts, and libertine Nevada.
The libertarian influence already has paid some dividends in governance. In 2007 the New Hampshire legislature voted to block implementation of a national ID card system in the state. The battle against REAL ID was lead by Joel Winters, the first member of the Free State Project to win a statewide representative seat. Winters, a Democrat and Floridian, ran for office on a platform focused on civil liberties and privacy just two years after he moved to New Hampshire.
Winters, who is a building contractor by trade, notes that other Free State legislative victories are less conspicuous, because they involve stopping bad laws before they start. “There’s always proposals to expand licensing requirements, and we’ve helped stopped those,” he says, ticking off thwarted gun restrictions and seat belt regulations as examples.
Another victory for the Free Staters came in 2010, when state Rep. Jenn Coffey (R) managed to pass a bill that repealed all of New Hampshire’s knife laws with astounding ease. Until Coffey’s legislation passed, the state’s knife restrictions were stricter in some cases than its gun laws. Stilettos, switch blades, daggers, and other collectible knives were poorly defined in the relevant statutes. Coffey’s legislation passed unanimously through both chambers and was quickly signed into law. It was accompanied by another law barring municipalities from passing restrictions reversing Coffey’s legislation.
In 2011 state Reps. Mark Warden (R) and Calvin Pratt (R) stood up for beer freedom, sponsoring a law that gives home brewers permission to open breweries and sell their product without having to set up a working kitchen and offer a full menu to drinkers. The result: a micro-boom in nano-breweries. Warden says there are now at least eight new small, independent brewers in the Live Free or Die State.
Many Free Staters will tell you that one of their biggest wins so far was the passage and strengthening of jury nullification laws. Nullification takes place when jurors acquit a defendant not because they think he is innocent but because they believe the law or its application in that case is unjust.
The effort to resurrect and formalize jury nullification in New Hampshire, which began in the early 2000s, has been the passion of Free Staters such as Cathleen Converse, Richard Angell, and John Connell. They have spent countless hours working with a longtime New Hampshire resident, Bob Constantine, to raise awareness about the right of jurors to judge the law as well as the facts of the case. Their efforts kicked into overdrive in 2005 when the New Hampshire Supreme Court ruled in State v. Sanchez that the state laws on jury nullification were too murky.
Free Staters, along with some liberty-loving locals, run a group modeled after Montana’s Fully Informed Jury Association called New Hampshire Jury Information, which educates prospective jurors and the general public about jury nullification. Its members frequently stand outside courthouses distributing flyers and pamphlets to prospective jurors. For at least a decade, this was the only legal way to let jurors know they could nullify. Then in June 2012, after seven unsuccessful attempts, activists finally pushed through a law allowing defense attorneys to “inform the jury of its right to judge the facts and the application of the law in relation to the facts.”
All this activism produced a high-profile victory in 2012, when a jury that included Converse acquitted a Rastafarian named Douglas Darrell of marijuana cultivation charges after Belknap County Judge James O’Neill read New Hampshire’s rarely heard model jury instruction regarding nullification: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” At the time of Darrell’s trial, New Hampshire law let judges decide whether the nullification instruction was appropriate on a case-by-case basis. O’Neill decided it was after Darrell’s lawyer argued with the prosecution about the justice of convicting him, in light of the fact that he was growing cannabis for his own religious and medicinal use.