By GARRY RAYNO, InDepthNH.org
CONCORD — New Hampshire voters claiming the Executive Council and State Senate districts were unconstitutionally and unlawfully gerrymandered will have their day before the Supreme Court May 11.
The case Brown vs. Scanlan was dismissed by a superior court judge late last year, and appealed to the Supreme Court.
The Plaintiffs, with the National Redistricting Foundation, filed a brief last week claiming the state did not address their arguments, cherry-picked and misrepresented case law, and manufactured hypothetical issues to “shadowbox,” before the court.
The state’s brief claims the plaintiffs have not proven the issue should be before the court, and in similar cases has been turned down by other courts.
The original case was dismissed by Hillsborough County Superior Court Judge Jacalyn Colburn Oct. 5 as she cited the constitutional independence of the three branches of government and no specific constitutional prohibition on gerrymandering as reasons for dismissing the suit.
She said the constitution clearly gives the legislature the authority to redraw the state’s political boundaries, and past cases indicate the court should be very careful not to usurp that power.
But the plaintiffs’ appeal refutes that contention.
The plaintiffs, a group of New Hampshire voters including former House Speaker Terie Norelli, claim the redrawn districts approved by the Republican controlled legislature and signed by GOP Gov. Chris Sununu, were politically gerrymandered to give their party an overwhelming majority in the Senate and Executive Council which disenfranchises Democrats with more registered voters in the state than Republicans.
They claim the newly redrawn districts violate the state constitution’s “free and fair elections” clause as well as the constitution’s equal protection guarantee by denying their right to equal weight of their votes compared to Republicans.
And they also believe the redistricting plans violate the constitution’s guarantee of free speech and association, as the plans discriminate and retaliate against Democrats by diluting their ability to band together and elect candidates of their choice.
The state argued redistricting is the legislature’s purview and that the newly redrawn districts meet all constitutional requirements such as equal population and “one man, one vote” provisions.
“Not content with gerrymandering their way to political power, Republicans are also slicing and dicing the state constitution to make an argument defending their partisan gerrymander,” said Olivia Mendoza, Director of Litigation and Policy for the NRF. “We are asking the court to protect New Hampshirites’ constitutional right to vote on equal terms and have substantially equal voting power in Senate and Executive Council elections.”
Results from the 2022 elections indicate votes for Democrats outnumbered votes for Republican candidates, but the partisan breakdown for the Executive Council is four Republicans and one Democrat, and the state Senate, 14 Republicans and 10 Democrats.
In her ruling, Colburn wrote “Based on the foregoing, the Court concludes that the only justiciable issues it can address concerning senate and executive council redistricting are whether the newly-enacted districts meet the express requirements of Articles 26 and 65. Because the newly-drawn districts meet those express requirements, the Court must decline to consider the plaintiffs’ challenge to the constitutionality of the districts based on claims of excessive political gerrymandering as such claims present non-justiciable political questions.”
She notes the constitution clearly gives the Legislature the authority to redraw the political districts, and also requires the three branches of government to be independent of one another.
In her ruling, Colburn cites a 2003 Supreme Court decision in Horton vs. McLaughlin that states “The political question doctrine is essentially a function of the separation of powers, existing to restrain courts from inappropriate interference in the business of the other branches of Government, and deriving in large part from prudential concerns about the respect we owe the political departments.”
She says the constitution prohibits one branch from encroaching on the powers and functions of another branch.
The plaintiff’s brief argues the court does have the power to intercede if constitutional rights are violated as they claim they are.
The superior court judge also cited a number of other Supreme Court decisions indicating the courts need to tread carefully on political questions in another branch of government. The plaintiff’s brief discusses many of the cases and says they are being misinterpreted or fail to address the issues the plaintiffs raised in the cases.
For example, the state contends “the free and fair election clause” concerns the right to vote and an equal opportunity to vote.
“There is a distinction between an equal opportunity to cast a ballot and the equal weight afforded that ballot; Plaintiffs claim that they have been denied the latter in violation of the State Constitution— including the Free and Equal Elections Clause,” the attorneys write in their brief.
The state contends in its answer to the appeal, that the legislature met objective criteria in drawing the maps and deciding a remedy would necessitate a political solution that should be left to the Legislature.
But the Plaintiffs disagree, saying “crafting a remedy does not require wading into the murky waters of proportionality. Any new Senate and Executive Council maps that do not unlawfully dilute the voting strength of Democratic voters will redress Plaintiffs’ constitutional injuries. And Plaintiffs and their experts have identified which criteria can be employed to make that determination.”
The plaintiffs argue the judge’s decision blocked their only path to addressing the unconstitutional gerrymandering of the Executive Council and state Senate districts.
“When considered in context, the authorities on which Defendants rely confirm that New Hampshire courts can and must adjudicate Plaintiffs’ partisan-gerrymandering claim” the plaintiffs’ attorneys write.
The Supreme Court did take over the question of drawing the political boundaries for the state’s two Congressional Districts when the legislature and Gov. Sununu failed to reach an agreement on a plan with the election approaching.
Rather than make significant changes in the districts as Republicans proposed in several plans, the court hired a special master to redraw the lines, which he did, that moved five towns in the northern part of the state from the first to the second district to make the needed changes due to population figures derived from the 2020 census.
Oral arguments before the state Supreme Court are scheduled for 9:30 a.m. May 11 at the court at 1 Charles Doe Drive.
Garry Rayno may be reached at email@example.com.