06 November 2011
By Bryan Gould
Every 10 years, the United States conducts a census. Based on it, the states must redraw their voting districts so that the population in each district is substantially the same. The legal principle is called "one person, one vote."
Under both the U.S. and New Hampshire constitutions, the state Legislature must make an honest and good-faith effort to redistrict so no one person's vote is worth significantly more or less than another person's.
This may sound easy in concept, but redistricting the state House of Representatives has proven to be quite challenging in the past. Although the people of the state adopted a constitutional amendment in 2006 that was intended to simplify redistricting, based on my review of the law I have concluded the task will not be any easier this session year when a new plan must be enacted.
Ten years ago, the House and Senate passed a redistricting plan for House districts. Gov. Jeanne Shaheen vetoed the plan.
The Legislature failed to override the veto, so the job fell to the state Supreme Court to create a constitutional plan.
In its 2002 opinion in Burling v. Chandler, the New Hampshire Supreme Court rejected the use of floterial districts as proposed in the Legislature's redistricting plan. A floterial district is superimposed on (or "floats" over) more than one underlying voting district. In other words, in a floterial district the member towns elect their own representatives but also share one or more representatives. Relying on a recent U.S. Supreme Court case, our state Supreme Court held that floterial districts violate the one person, one vote principle unless they are structured in a way that is difficult to achieve in practice. The court therefore rejected the Legislature's proposals and created its own plan with no floterial districts, relying instead almost entirely upon large multi-member districts within county boundaries.
Many in the Legislature viewed the court's redistricting plan as a departure from New Hampshire's tradition of keeping representation as local as possible. To remedy this, the Legislature placed an amendment on the ballot in 2006, which provided that towns would get their own representative(s) so long as the one person, one vote requirement was met. This approach, however, would necessitate the use of floterial districts. Sen. Peter Burling testified against the proposed amendment, cautioning that "it is impossible to design a constitutional redistricting plan which uses floterials in anything like ... what this [amendment] would propose to do." The Legislature was determined, however, to maximize local representation when redistricting after the 2010 Census, and it believed floterial districts would help achieve that goal.
Voters passed the 2006 amendment, and now it must be applied to the 2010 census. The key question is whether the 2006 amendment satisfies the federal constitution's one person, one vote principle. I have concluded that in most cases it does not.
The fundamental problem is that, to give towns their own representative districts, the plan would have to make heavy use of floterial districts because almost no town has the "ideal" district population (3,291 persons, based on the 2010 Census), and the "overage" has to be put in a floterial district. Burling held, however, that the method that must be used to calculate population disparity in floterial districts rarely results in substantial equality among voters.
Accordingly, I expect the Legislature will find it impossible to create single-town or single-ward districts lawfully except in a handful of instances.
I recognize this is not welcome news, not least because it means the will of the people of New Hampshire as expressed in our state constitution cannot be fully implemented. On the other hand, the constitutional requirement that each vote be as equal as possible is essential to fair elections and is binding on the states.
I am confident the state Supreme Court would not be enthusiastic about having to redistrict the state again, but if the Legislature's plan does not meet constitutional standards, the court will have no choice.
Rather than engaging in an effort to implement the 2006 constitutional amendment only to have the plan struck down by the court, it will better serve the state's citizens if the Legislature enacts a plan that satisfies the one person, one vote principle. Otherwise, the Legislature will, in the name of increasing the accountability of elected representatives, again cede redistricting to the only unelected branch of government.
Bryan Gould is an attorney in Concord. He has previously served as special counsel to Gov. Craig Benson, counsel to the New Hampshire Executive Council and counsel to the New Hampshire Republican State Committee.