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Legislative Redistricting - Rick's Take in the Union Leader


BILLS INTRODUCED in the New Hampshire Senate and House propose to create an independent redistricting commission to draw new district maps after the 2020 census. Both bills are unconstitutional because they do not require population equality among districts, both bills order the commission to use redistricting criteria that ignore constitutional requirements as well as established redistricting criteria, and both bills seek to bind the actions of future legislatures.

Under these bills, traditional redistricting principles — some of which are constitutionally required and some of which have developed over decades — would be thrown out in favor of new, vague criteria. In order of importance, the bills force the proposed redistricting commission to prioritize: (1) compliance with the U.S. Constitution and federal law (but not the New Hampshire Constitution); (2) contiguity — meaning that districts are a single whole and are not divided by other districts; (3) respect for economic, social, cultural, geographic or historic “communities of interest”; (4) respect for the geographical integrity of political boundaries but only if doing so does not violate any of the first three criteria; (5) provide racial and language minorities with equal opportunities to participate; and (6) not favor incumbents or any political party.

The New Hampshire Constitution requires any redistricting bill to focus on population equality, a requirement completely absent from the bills, to create contiguous districts, and to not divide towns or city wards.

These are not optional features of a redistricting plan, they are constitutional mandates.

Only after these requirements are met can any other factors be considered. However, the bills tell the proposed redistricting commission to prioritize vague “communities of interest” over the clear constitutional requirement that towns and city wards remain undivided. This is patently unconstitutional.

“Communities of interest” could be just about anything, especially when prioritized above maintaining existing town and city ward boundaries.

For example, the redistricting commission could find that an economic community of interest exists in people who live within a quarter mile of Lake Winnipesaukee, people employed by Fidelity Investments in Merrimack, or people whose grandparents spoke French as a first language.

The “communities of interest” that the redistricting commission might identify in carving up the state into voting districts is nearly unlimited and subverts constitutional requirements.

Further, the bills completely leave out compactness as a criterion. Requiring compact districts limits gerrymandering, a word coined from an early Massachusetts congressional district represented by Massachusetts congressman Elbridge Gerry. We can look at a political map and see obvious signs of gerrymandering in districts that spread out too much and do not appear as compact units.

The bills also propose to bind the action of future legislatures by dictating how representatives and senators elected in the next election must proceed in their efforts to create new legislative districts. This also violates the NH Constitution, as the NH Constitution gives each House and Senate complete authority to make its own rules and procedures.

Conservatives have long wished to impose a super-majority requirement on legislation seeking to raise taxes, but have been unable to, for exactly this reason. The same rule that forbids conservatives from controlling future legislatures applies with equal force to the current House and Senate.

Finally, the bills would allow a redistricting plan to become law without the legislature ever approving it. Under both bills, if the legislature does not pass a plan by Feb. 15, the redistricting commission proposal becomes law “as if that plan had been enacted into law.”

The Constitution says that the legislature draws electoral districts, not an un-elected commission with no accountability to the people.

It does not allow this responsibility to be sloughed off on a group of political insiders appointed by elected officials.

If the legislature wants to appoint a commission to recommend a redistricting plan it can do so, but it cannot bind the next legislature.

There is a constitutional amendment pending in the legislature that would allow a commission to draw legislative districts. Advocates of a redistricting commission need to amend the New Hampshire Constitution to accomplish their goals.

Richard Lehmann is a Manchester lawyer who served as legal counsel to the New Hampshire Senate from 2001-2005 and 2010-2018.

Rick Lehmann