If Sununu, legislature can't get redistricting right, high court to step in

The Supreme Court in session earlier this month (Screenshot)

CONCORD - The New Hampshire Supreme Court ruled Thursday that the current statute establishing the state's two Congressional districts is unconstitutional.

The court, in a unanimous opinion, determined that upon a demonstrated legislative impasse, "this court must establish a new district plan and, in doing so, we will apply the 'least change' approach."

The suit was originally filed in Hillsborough County Superior Court South and claimed the legislature is at an impasse with the governor threatening to veto the plan approved by the House and Senate that made major changes in the two districts.

The state Supreme Court took supervisory jurisdiction over the case from the Superior Court saying the issue needs to be resolved quickly so the dates of the filing period do not have to be changed. The filing period for candidates runs from June 1 to June 10.

After the court ruled that it will intervene if the legislature cannot reach agreement on a constitutional rewrite of Congressional Districts, and will use a 'least change' approach to establish new districts if necessary, House Democratic Leader Rep. David E. Cote, D-Nashua, said from the start of the redistricting process, Democrats have advocated keeping the Congressional districts fair and competitive by making the fewest adjustments needed to comply with the 2020 census.

"Claiming a right to gerrymander, Republican leaders argued that the Court had no authority to intervene when unconstitutional districts are challenged. The Court rightly rejected that claim, as the judiciary clearly has the authority to intervene in the enactment of unconstitutional laws," Cote said.

Senate President Chuck Morse, R-Salem, and Speaker of the House Sherman Packard, R-Londonderry, issued the following joint statement Thursday regarding SB 200 after the court's ruling was announced.

"The House and Senate have agreed that a Committee of Conference will be scheduled to discuss Senate Bill 200 which includes the redistricting plan for the state's two U.S. Congressional Districts based on population changes in the federal decennial census."

"We have directed Rep. Barbara Griffin, R-Goffstown, Chair of the Special Committee on Redistricting, and Sen. Jim Gray, R-Rochester, Chair of the Senate Election Law & Municipal Affairs Committee, to work together on a new map apportioning our congressional districts that is constitutional, fair, and released in a timely manner to ensure that the public has an opportunity to provide input," the release said.

It said all Committee of Conference meetings on SB 200 will be open to the public. Details regarding the schedule will be released soon and posted on The General Court of New Hampshire website at: The General Court of New Hampshire (state.nh.us) This will include information regarding a live stream on YouTube."

The four voters filing the lawsuit suit, including former House Speaker Terie Norelli, argued the districts will not be finalized when candidate filing period with the Secretary of State's Office opens in June.

Secretary of State David Scanlan is the defendant in the suit.

Thursday's Supreme Court order said: "This court has both the authority and the obligation to ensure that the upcoming election proceeds under a legally valid congressional district plan.

"We conclude that changes in New Hampshire's population, as reflected in the 2020 census and undisputed by the parties, have rendered the existing congressional districting statute, RSA 662:1, unconstitutional in violation of Article I, Section 2 of the United States Constitution.
"Accordingly, we will take the necessary steps to formulate a district plan that complies with all applicable laws in order to protect the fundamental rights of New Hampshire voters. We reiterate that the legislature is not precluded from enacting a legally valid congressional district plan at any time prior to the close of this case."

The House Speaker, and Senate President argued last week that the New Hampshire Supreme Court should leave the current maps in place for the 2022 election. They suggested the state court may not have the authority to decide a solution, and it may better be addressed in federal courts.

But the plaintiffs' attorney argued the state court certainly has the authority to intervene and called it extraordinary the state leaders would believe the votes of slightly more than half the state's voters should be diluted because one district is larger than the other by 2.6 percent.

"We are being told that it is okay to take the extraordinary position of the state and Senate President that it is okay to dilute the voting power of half of voters of the state," said attorney John Devaney. "You have the power not to dilute the vote of almost half the citizens of the state."

Gov. Chris Sununu has said he would veto the plan developed by the Republican majority on the House Special Redistricting Committee that significantly changed the existing districts but was approved by the House and Senate.