House Redistricting Committee may ignore NH Constitution

By Grant Bosse on October 31, 2011
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(CONCORD) The House Committee charged with redistricting will consider rules tomorrow that would ignore the New Hampshire Constitution in order to avoid a possible legal challenge in federal court. The rules could prevent the House from complying with a recently approved Constitutional Amendment requiring that every town large enough to warrant its own district get at least one Representative in Concord to itself.

Following the 2002 Census, the Republican controlled Legislature and Democratic Governor Jeanne Shaheen were unable to agree on new district lines for the New Hampshire House or Senate, prompting the New Hampshire Supreme Court to draw its own lines. In drafting this map under Burling v Chandler, the Court found that the system of “floterial” districts, in which neighboring towns share at-large representatives in addition to their own seats, violated the U.S. Constitution’s principle of one man, one vote. The New Hampshire House map drawn by the Court in Burling lumped towns together, creating several large super-districts that elected large blocks of Representatives from several towns.

In 2006, New Hampshire voters approved an amendment to the state constitution doing away with super-districts, and requiring that any town “within a reasonable deviation” of its ideal population to “have its own district of one or more representative seats.” Towns with populations not evenly divided by the ideal population of 3,291 would be grouped with neighboring towns into a “floterial” district.

A subcommittee of the House Redistricting Committee has adopted proposed rules that will be taken up by the full Committee tomorrow afternoon. These rules would require that the House calculate the deviation of each district from its ideal population using the “component method”, which breaks out each town’s contribution to the floterial, rather than using the “aggregate method” to calculate the deviation of the district as a whole. In recommending this method, House Counsel Ed Mosca refers to the Burling case, even though that ruling was made moot by the 2006 amendment. But Mosca argues that the Court’s reliance in Burling has not been overridden by the amendment. In a column that ran in several New Hampshire papers, Mosca writes:

Unfortunately, federal constitutional cases dealing with redistricting clearly hold that compliance with one-person-one-vote must be determined under the “component method.” As a result, the Legislature will be forced in many instances to create districts comprised of multiple towns, even where some of these towns would be entitled to their own representatives under the 2006 amendment. The method of avoiding these large districts — floterials — is just not available under federal law.

But that determination may not be as clear as Mosca argues. In Burling, the New Hampshire Supreme Court could not even determine for certain that federal precedent required the component method, writing that “the court apparently relied upon a version of the component method… (emphasis added)” before deciding to use the component method itself. And the case that the Court cites in Burling, Board of Estimate of NYC v Morris (1989), deals with facts far different than New Hampshire’s unique legislative districts.

In Morris, the City of New York had assigned seats on a municipal board to the Presidents of each of the City’s five boroughs and to three officials elected citywide. Given the widely divergent populations of Brooklyn and Staten Island, this plan had a deviation of 132%, far beyond the 10% generally accepted by federal courts as within the discretion of local map makers.

The Court held that the presence of at-large members elected citywide on the board did not diminish the need to base the remaining seats on substantially equal populations. But New Hampshire’s legislative map is much more complex, and each floterial serves as a component of the larger plan. In calculating the differences between each district’s population, the relative voting strength of each district needs to be compared to the rest of the state, as well as to the neighboring towns in the floterial. Neither Burling nor Morris compels New Hampshire to adopt the component method.

In recommending the rules, the subcommittee hopes to avoid a legal challenge to the new map. Representative Steve Vaillancourt (R-Manchester) writes at NH Insider “we will be required to employ the more onerous method if we wish to avoid either being challenged in court or even worse, of having our plan tossed out by the Justice Department which will have 60 days to review whatever we come up with.”

But in trying to meet the vague requirements of Burling and Morris, the New Hampshire House may violate the explicit requirements of the New Hampshire Constitution, opening itself to a legal challenge from voters in any town large enough to have its own representatives that is denied is own district in the 2012 map.

The House Redistricting Committee convenes Tuesday afternoon at 1:30pm in Room 301 of the Legislative Office Building in Concord to vote on the subcommittee’s recommended rules.

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One Comment For This Post So Far

  1. Eric Davidson
    5:48 pm on November 7th, 2011

    Clearly, another example of how House Counsel Attorney Ed Mosca is a complete waste of taxpayer dollars. He has a track record of misapprehension of relevant law and insufficient legal counsel.

    Eric Davidson

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