By GARRY RAYNO, Distant Dome
November was an amazing month for New Hampshire.
Some of the biggest state issues over the past few decades came to a head, although they are far from being put to rest.
From equitable education funding to extreme partisan gerrymandering, from education vouchers to voting rights, from constitutional protections to the date of the New Hampshire Presidential Primary, and from potential mass shootings to illegal legislative voting, the state dealt with all of this in one form or another during the 30 days of November.
While the issues may appear divergent, they are tied together and driven by changing attitudes that frankly are alarming.
Looking down the list, the one item that makes so many of the others possible is gerrymandering political boundaries.
As has been the case for some time now, Democrats in general elections have received more votes than Republicans for the Senate, House and Executive Council but rarely control those bodies. Yet the Congressional delegation is all Democrats and Democrats controlled the governor’s office for 18 or 20 years until 2016 when Gov. Chris Sununu put an end to the run.
However, Republicans have mostly, but not always controlled the Legislature because they have been the majority when the political boundaries are redrawn every 10 years.
This redrawing was particularly extreme for the Senate and Executive Council the last time so Democrats have no chance at all to take control absent some major scandal.
But last week the state Supreme Court in a 3-2 decision said the constitution gives the legislature sole authority to redraw the political boundaries and there is nothing in the constitution or in statutes forbidding extreme partisan gerrymandering. The court said it is not an issue courts can resolve.
The court dismissed the challenge brought by a group of Democratic voters, leaving no venue outside of the ballot box to do anything about diminishing the voting weight of more than half the state’s residents.
The ruling prompted attorney Paul Twomey, who was involved in the case, to say it was a “disingenuous” decision made to ensure a political outcome.
The decision “will perpetuate a situation where the minority will always have control over the majority,” Twomey said. “I
don’t know what that is, but it is not democracy. It’s shameful.”
Gerrymandering assures Republicans they don’t have to answer to their constituents and can skirt the rules and even the constitution if they are all but guaranteed the majority.
It came to light last week that former Rep. Troy Merner of somewhere up north, should not have been seated in the House because he did not live in the district he was elected to represent in the last general election.
The Attorney General’s Office investigated Merner’s whereabouts and notified the House Leadership through Terry Pfaff, the legislature’s chief operating officer, they had all but determined Merner no longer lived in Lancaster but in Twin Mountain, which is not in the district.
The attorney general’s office sent an email memo that could shine a little more light on the conversation but as of to date right-to-know requests have been denied to release it.
If you have been around the State House for a while, you know involving Pfaff the day before Organization Day when the House and Senate members are sworn in, was encouraging the House leadership to take care of it and not let Merner be sworn in.
But that didn’t happen and he was sworn in, voted during all of the 2023 session, while casting the deciding vote on some key issues like turning over the Education Freedom Account voucher program’s administration to the Department of Education instead of the Children’s Education Fund NH which is allowed a 10 percent share of the program’s grants which this year stands at $30 million in the budget.
In days past, such a notification about a person living outside his or her district would have had a very different outcome.
According to the state constitution, a representative has to live in the district he or she represents. The House determines who can sit in its hallowed chambers, but the constitution determines who is qualified to sit there.
And all 424 lawmakers have to take the Oath of Office which is also in the constitution and says “Any person chosen governor, councilor, senator, or representative, military or civil officer, (town officers excepted) accepting the trust, shall, before he proceeds to execute the duties of his office, make and subscribe the following declaration, viz.
“I, A.B. do solemnly swear, that I will bear faith and true allegiance to the United States of America and the state of New Hampshire, and will support the constitution thereof. So help me God.”
So not only did Merner break his oath, so did every other lawmaker who knew he did not belong there.
The House is about as evenly split as it could be without being tied and you know leadership wanted that vote, just like it did when it blocked at-risk members — all Democrats — from participating remotely at the height of the pandemic during the 2021-22 session when Republicans had a slightly larger majority.
By keeping six to eight Democrats at home and unable to vote makes for some breathing room.
And Republicans every time there is a special election in a House seat likely to go to the Democrats, make sure there is a Republican primary which puts off the date of the general election and means the seat is empty longer.
You can call that good political strategy, but it denies the residents of the district representation a little longer so it really is a case of party over state.
EFA Funds
Another legal ruling this month found the funding of the EFA program constitutional although the constitution prohibits Lottery revenues from being used for anything other than for the state’s school districts, and the state constitution has long forbidden the use of taxpayer money for religious schools.
State statute also required the Education Trust Fund to be used for public education, but lawmakers changed that law earlier this year.
Supporters of using state money for religious instruction say the US Supreme Court has overruled the state prohibition, which was the Blaine amendment, which they tried to repeal but failed.
The Blaine amendment reads that “no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.”
The US Supreme Court did not address another section in the state constitution from the Bill of Rights that says “But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination.” That section is under the religious freedom article.
The EFA program has been a pet project of the Republican right wing and Education Commissioner Frank Edelblut and does not have the support of a majority of the state’s residents if you believe the polling.
But if you are comfortably in office with little chance of being defeated, you can push the agenda of outside organizations like the Heritage Foundation, ALEC or the Cato Institute and not worry about losing your seat.
Voter Suppression
Another way to maintain minority rule is through voter suppression and the minority won another round this month as well when a court decision dismissed a constitutional challenge to the “affidavit voting” law that separates voters’ ballots who do not have the accepted identification, mostly students or people who have just moved into a new town or ward.
The ballots are set aside and counted separately after the polls have closed. The voter is given a packet to return to the Secretary of State with the necessary document within seven days or the vote will be deducted from the totals for the candidates or the proposed constitutional amendment the person selected.
Among the provisions the plaintiffs challenged were constitutional articles concerning when official vote totals are announced, voting requirements and rights, and privacy and other constitutional rights.
The case was dismissed because the individuals and organizations bringing the suit would not be affected by the change in law, so they lacked standing to bring the challenge.
The controversial law drew criticism from military personnel and families stationed overseas with a limited time to return their ballots. The new law elongates the time between the election and when ballots may be mailed overseas.
Give Up
The problem with minority rule, the longer it goes on, the more many in the majority give up on the election process and stop participating in the system when they should be most energized to make changes.
It is all just a slow walk — much like the attorney general’s investigation into Merner’s residence — to one-party rule and that cuts short a democracy’s life expectancy.
Garry Rayno may be reached at garry.rayno@yahoo.com.
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.