Theresa Norelli & a. v. Secretary of State & a. ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Original
No. 2022-0184
THERESA NORELLI & a.
v.
SECRETARY OF STATE & a.
Argued: May 4, 2022
Opinion Issued: May 12, 2022
McLane Middleton, P.A., of Manchester (Steven J. Dutton on the brief),
Paul Twomey, of Epsom, on the brief, Elias Law Group LLP, of Seattle,
Washington (Abha Khanna and Jonathan P. Hawley on the brief), Elias Law
Group LLP, of Washington, D.C. (Aaron M. Mukerjee on the brief), and Perkins
Coie LLP, of Washington, D.C. (John Devaney on the brief and orally), for the
plaintiffs.
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Myles B. Matteson, assistant attorney general, Anne M. Edwards,
associate attorney general, and Matthew G. Conley, attorney, on the joint brief,
and Myles B. Matteson orally), for the Secretary of State and John M. Formella,
attorney general, and Anthony J. Galdieri, solicitor general (Samuel R.V.
Garland, senior assistant attorney general, on the joint brief and orally), for the
State of New Hampshire.
Lehmann Major List, PLLC, of Concord (Sean R. List on the joint brief
and orally), for the Speaker of the New Hampshire House of Representatives
and (Richard J. Lehmann on the joint brief and orally), for the President of the
New Hampshire Senate.
Shaheen & Gordon, P.A., of Concord (James J. Armillay, Jr., S. Amy
Spencer, and Olivia Bensinger on the memorandum of law), for the New
Hampshire Senate Minority Leader and the New Hampshire House of
Representatives Minority Leader, as amici curiae.
American Civil Liberties Union of New Hampshire Foundation, of
Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and
Henry R. Klementowicz orally), as amicus curiae.
PER CURIAM. This case raises two preliminary questions. First,
whether the current statute establishing a district plan for New Hampshire’s
two congressional districts, see RSA 662:1 (2016), violates Article I, Section 2 of
the United States Constitution. Second, if so, whether this court must
establish a new district plan if the legislature fails to do so “according to federal
constitutional requisites in a timely fashion after having had an adequate
opportunity to do so.” Reynolds v. Sims, 377 U.S. 533, 586 (1964). We answer
the first question in the affirmative. In answering the second question, we
determine 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.
I. Procedural Background
The plaintiffs, Theresa Norelli, Christine Fajardo, Matt Gerding, and
Palana Hunt-Hawkins, filed a complaint against the Secretary of State in
superior court challenging the constitutionality of New Hampshire’s current
congressional districts, see RSA 662:1. The plaintiffs contend that these
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districts have been rendered unconstitutionally malapportioned due to
population shifts reported by the United States Census Bureau’s 2020 census.
The complaint alleges that, in January 2022, the New Hampshire House
of Representatives passed House Bill 52, which would codify a new
congressional district plan. According to the plaintiffs, the Governor has stated
that he will veto the bill, and “there is no indication the General Court is
interested in compromising with the Governor on this issue.” Therefore, they
contend, “there is now little reason to believe that the members of the General
Court will enact a map that [the Governor] finds acceptable.”
The complaint states that, in 2020, the Census Bureau conducted the
decennial census required by Article I, Section 2 of the Federal Constitution
and, in August 2021, delivered to New Hampshire its redistricting data file
containing the census results. According to the complaint, New Hampshire’s
resident population is 1,377,529 — an increase over the results of the 2010
census reporting that New Hampshire had a population of 1,316,470. Relying
on data contained in the 2010 and 2020 Census Bureau data files, the
plaintiffs allege that “population shifts since 2010 have rendered New
Hampshire’s First Congressional District significantly overpopulated and the
Second Congressional District significantly underpopulated.” Thus, the
plaintiffs assert, “the existing configuration of New Hampshire’s congressional
districts is unconstitutionally malapportioned,” and, if used in future elections,
the plaintiffs’ “votes will be unconstitutionally diluted because the First
Congressional District, where [they] live, has a population that is significantly
larger than the Second Congressional District.” The plaintiffs seek a
declaration that the existing congressional districting statute is
unconstitutional and request that the court establish a new district plan.
On April 11, 2022, this court invoked its supervisory jurisdiction,
ordered the clerk of the superior court to transfer the record of the proceedings,
and assumed jurisdiction over the case to the exclusion of the superior court.
We took such actions “because the case is one in which ‘the parties desire, and
the public need requires, a speedy determination of the important issues in
controversy.’” (Quoting Monier v. Gallen, 122 N.H. 474, 476 (1982) (brackets
omitted)). In doing so, we noted that “[o]ur invocation of jurisdiction over this
case in no way precludes the legislature from enacting a redistricting plan,”
and that we “will terminate this proceeding” if a congressional redistricting plan
“is validly enacted at any time prior to the close of this case.”
Because the filing period for declarations of congressional candidacy
runs from June 1 through June 10, 2022, see RSA 655:14 (2016) —
absent any extension of that filing period by the Secretary of State, see RSA
655:14-c (2016) — and because the primary election will take place on
September 13, 2022, see RSA 653:8 (2016); RSA 652:5 (2016), we determined
that the court “must take certain preliminary steps in this case now so that, in
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the event that the legislative process fails to produce a fully enacted
congressional redistricting plan, we will be prepared to resolve the case in a
thorough and efficient manner.” Accordingly, we ordered that, no later than
April 25, 2022, interested parties and any person seeking to participate as an
intervenor or amicus curiae file briefs addressing preliminary issues, including
the constitutionality of the existing congressional districts and whether the
“least change” approach is the correct approach for the court to apply to any
court-ordered congressional redistricting plan.
On April 21, 2022, we joined the State of New Hampshire as a defendant
and ordered it to inform this court as to whether it disputes the numerical
entries in the table contained in the plaintiffs’ complaint and reproduced below.
The plaintiffs’ complaint alleges that the information contained in the table is
“generated from the P.L. 94-171 data files provided by the Census Bureau in
2010 and 2020.”
The State notified the court that it does not dispute any of the numerical
entries contained in the table.
On May 4, 2022, we heard oral argument on the preliminary issues.
After consideration of the written submissions and oral arguments, we rule as
follows.
II. Analysis
A. Subject Matter Jurisdiction
We begin our analysis by addressing challenges to our subject matter
jurisdiction. The Speaker of the New Hampshire House of Representatives and
the President of the New Hampshire Senate (the intervenors) first argue that
this court lacks authority to act because “redistricting is an inherently political
function that is incompatible with the independent and neutral role of the
judiciary.” (Capitalizations and bolding omitted.) We disagree. A claim that a
population disparity between congressional districts unconstitutionally dilutes
a plaintiff’s vote is justiciable. See Wesberry v. Sanders, 376 U.S. 1, 5-7
(1964).
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The intervenors, together with the State, further argue that this court is
precluded by the “times, places, and manner” provision of the Federal
Constitution from any role in the congressional redistricting process. See U.S.
CONST. art. I, § 4 (“The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.”). Under their view,
that provision of the Federal Constitution vests authority over the congressional
redistricting process exclusively in the state legislature, with federal courts
having exclusive jurisdiction over any lawsuit involving the constitutionality of
the state legislature’s congressional districting plan. The intervenors and the
State claim to find support for that proposition in Justice Alito’s dissent in Moore
v. Harper, 142 S. Ct. 1089 (2022) (Alito, J., dissenting from Court’s denial of
application for stay). In that case, Justice Alito, joined by Justices Thomas and
Gorsuch, urged the Court to grant certiorari to determine “the extent of a state
court’s authority to reject rules adopted by a state legislature for use in
conducting federal elections,” id. at 1089 (emphasis added), and maintained that
“there must be some limit on the authority of state courts to countermand
actions taken by state legislatures when they are prescribing rules for the
conduct of federal elections,” id. at 1091.
We are not persuaded by the State and the intervenors’ jurisdictional
argument. Their argument is contrary to the Supreme Court’s unanimous
opinion in Growe v. Emison, 507 U.S. 25 (1993), which is controlling authority in
support of state court jurisdiction in congressional redistricting cases. We are
obligated to follow the controlling authority established in Growe. See Agostini v.
Felton, 521 U.S. 203, 237 (1997) (“We reaffirm that if a precedent of this Court
has direct application in a case, yet appears to rest on reasons rejected in some
other line of decisions, [lower courts] should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decisions.”
(quotation and brackets omitted)).
The Growe Court unanimously held that “state courts have a significant
role in [congressional] redistricting.” Growe, 507 U.S. at 33, 34. In Growe, a
group of plaintiffs sued in state court in Minnesota in January 1991, claiming, in
part, that the 1990 federal census results rendered the then-existing
congressional districts unconstitutionally malapportioned. Id. at 27. In
February, the Minnesota Supreme Court appointed a special redistricting panel
to preside over the case. Id. at 27-28. In March, different plaintiffs sued in
federal district court, raising a similar challenge to the congressional districts.
Id. at 28. By January 1992, the Minnesota legislature had not enacted a lawfully
valid congressional redistricting plan and the Minnesota Supreme Court initiated
a process to develop its own redistricting plan. Id. at 29-30. In February, two
days after the state court held hearings on the redistricting plans submitted by
the parties, the federal district court issued an order adopting its own
congressional redistricting plan and permanently enjoining any state judicial or
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legislative interference with that plan. Id. at 30-31. In early March, the state
court “indicated that it was fully prepared to release a congressional plan but
that the federal injunction prevented it from doing so.” Id. at 31 (quotation
omitted).
On appeal, the United States Supreme Court ruled that, because the state
court was “fully prepared” to adopt a congressional plan in time for the primary
elections, the federal district court “erred in not deferring to the state court’s
timely consideration of congressional reapportionment.” Id. at 37. The Court
explained that “[t]he power of the judiciary of a State to require valid
reapportionment or to formulate a valid redistricting plan has not only been
recognized by this Court but appropriate action by the States in such cases has
been specifically encouraged.” Id. at 33 (quotation omitted).
The intervenors attempt to counter the force of Growe by arguing that the
state court’s jurisdiction over the congressional redistricting case there was
simply assumed, not decided. We are unpersuaded by that argument because
we cannot conclude that the unanimous Supreme Court in Growe overlooked a
basic jurisdictional tenet. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)
(“[C]ourts, including this Court, have an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a challenge
from any party.”). The intervenors’ argument also fails to account for the
Supreme Court’s post-Growe decision in Branch v. Smith, 538 U.S. 254 (2003),
which endorsed the role of state courts in congressional redistricting pursuant to
a still-effective federal statute — enacted under Congress’s Article I, Section 4
power — providing for the “‘establish[ment] by law [of] a number of districts equal
to the number of Representatives to which such State is so entitled.’” Branch,
538 U.S. at 267 (quoting 2 U.S.C. § 2c). The Branch Court explained that while
the federal statutory language “assuredly envisions legislative action, it also
embraces action by state and federal courts when the prescribed legislative
action has not been forthcoming.” Id. at 272 (concluding that, “[i]n sum, [the
statutory language] is as readily enforced by courts as it is by state legislatures,
and is just as binding on courts—federal or state—as it is on legislatures”).
Our interpretation of Growe is consistent with numerous state court
decisions addressing congressional redistricting. See, e.g., Hippert v. Ritchie,
813 N.W.2d 391, 395 (Minn. 2012); Perrin v. Kitzhaber, 83 P.3d 368, 370 n.2 (Or.
Ct. App. 2004); Alexander v. Taylor, 51 P.3d 1204, 1207-10 (Okla. 2002); Brown
v. Butterworth, 831 So. 2d 683, 688-89 (Fla. Dist. Ct. App. 2002); Perry v. Del
Rio, 67 S.W.3d 85, 88 (Tex. 2001). Within the past year, at least five state
supreme courts have decided congressional redistricting cases after legislative
efforts were unsuccessful. See Johnson v. Wisconsin Elections Comm’n, 971
N.W.2d 402 (Wis.), stay denied sub nom. Grothman v. Wisconsin Elections
Comm’n, 142 S. Ct. 1410 (2022) (order in no. 21A490 denying application for
stay as to congressional redistricting), rev’d in part on other grounds sub nom.
Wisconsin Legislature v. Wisconsin Elections Comm’n, 142 S. Ct. 1245 (2022)
6
(per curiam) (reversing as to redistricting of state legislature only); Carter v.
Chapman, 270 A.3d 444 (Pa. 2022); Wattson v. Simon, 970 N.W.2d 56 (Minn.
2022); In re Reapportionment Comm’n, 268 A.3d 1185 (Conn. 2022) (per
curiam); In re Decennial Redistricting, (Va. decided Dec. 28, 2021, available at
https://www.vacourts.gov/courts/scv/districting/redistricting_final.pdf (last
visited May 11, 2022).
We hold that this court has jurisdiction to rule on the constitutionality of
RSA 662:1, and to formulate a remedy if the current congressional districting
statute is unconstitutional and no redistricting plan is timely enacted by the
legislature. Our involvement is not foreclosed by Article I, Section 4 of the
Federal Constitution. See Branch, 538 U.S. at 266-67, 272. Indeed, “Federal
law is enforceable in state courts . . . because the Constitution and laws passed
pursuant to it are as much laws in the States as laws passed by the state
legislature.” Howlett v. Rose, 496 U.S. 356, 367 (1990). “The Supremacy Clause
makes those laws ‘the supreme Law of the Land,’ and charges state courts with a
coordinate responsibility to enforce that law . . . .” Id. The Supreme Court has
determined that the state legislature’s “power to regulate the time, place, and
manner of elections does not justify, without more, the abridgment of
fundamental rights, such as the right to vote.” Tashjian v. Republican Party of
Connecticut, 479 U.S. 208, 217 (1986). As the Court reasoned in Wesberry,
“nothing in the language of Art. I, § 4 gives support to a construction that would
immunize state congressional apportionment laws which debase a citizen’s right
to vote from the power of courts to protect the constitutional rights of individuals
from legislative destruction.” Wesberry, 376 U.S. at 6-7.
B. Constitutionality of RSA 662:1
The plaintiffs’ complaint relies upon both the State Constitution and the
United States Constitution in challenging the congressional districts as
established in RSA 662:1. The State and the intervenors contend that
congressional districting is a matter governed exclusively by the United States
Constitution. In this case, we will analyze and decide the preliminary questions
under the Federal Constitution. Cf. State v. Ball, 124 N.H. 226, 231-33 (1983)
(when it is undisputed that the protections of the New Hampshire Constitution
are implicated in a particular case, “we will first examine the New Hampshire
Constitution and only then, if we find no protected rights thereunder, will we
examine the Federal Constitution to determine whether it provides greater
protection”). We acknowledge that Ball generally counsels in favor of a different
approach to decision-making, but the following reasons persuade us to depart
from that approach here.
First, as the citations in the dissenting position articulated in Moore, 142
S. Ct. at 1089-90, indicate, there is some debate as to “whether the Elections or
Electors Clauses of the United States Constitution, Art. I, § 4, cl. 1; Art. II, § 1, cl.
2, are violated when a state court holds that a state constitutional provision
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overrides a state statute governing the manner in which a federal election is to be
conducted.” Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732,
738 (2021) (Alito, J., dissenting from denial of certiorari) (emphasis added). “In
keeping with our long-standing policy not to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case,” State v. Berrocales,
141 N.H. 262, 264 (1996) (quotation omitted), we do not engage in a State
constitutional analysis here because it would otherwise involve us in a threshold
determination of federal constitutional law. Second, an independent analysis
under the State Constitution is unnecessary because the United States
Constitution provides the protections sought by the plaintiffs. See State v.
Bertrand, 133 N.H. 843, 850 (1991); see also State v. Kellenbeck, 124 N.H.
760, 766-67 (1984) (Souter, J., concurring).
Having determined that we will decide this case solely under the Federal
Constitution, we now set forth the relevant legal principles bearing on the
constitutionality of RSA 662:1. Article I, Section 2 of the Federal Constitution
provides that the United States House of Representatives “shall be composed of
Members chosen every second Year by the People of the several States,” and
that such Representatives “shall be apportioned among the several States . . .
according to their respective Numbers.” U.S. CONST. art. I, § 2. The United
States Supreme Court interprets that provision to mean that, “as nearly as is
practicable, one [person’s] vote in a congressional election is to be worth as
much as another’s.” Wesberry, 376 U.S. at 7-8, 17-18. Article I, Section 2
establishes a “high standard of justice and common sense” for the
apportionment of congressional districts: “equal representation for equal
numbers of people.” Id. at 18.
To comply with that high standard, “States must draw congressional
districts with populations as close to perfect equality as possible.” Evenwel v.
Abbott, 578 U.S. 54, 59 (2016); see Karcher v. Daggett, 462 U.S. 725, 732
(1983) (explaining that “absolute population equality [is] the paramount
objective”). “The ‘as nearly as practicable’ standard requires that the State
make a good-faith effort to achieve precise mathematical equality.” Karcher,
462 U.S. at 730 (quotation and brackets omitted). “Unless population
variances among congressional districts are shown to have resulted despite
such effort, the State must justify each variance, no matter how small.” Id.(quotation omitted). Article I, Section 2, therefore, “permits only the limited
population variances which are unavoidable despite a good-faith effort to
achieve absolute equality, or for which justification is shown.” Id. (quotation
omitted). “Adopting any standard other than population equality, using the
best census data available, would subtly erode the Constitution’s ideal of equal
representation.” Id. at 731 (citation omitted).
The Supreme Court employs a two-prong test to determine whether a
state’s congressional districting plan meets the “as nearly as practicable”
standard. See id. at 730-31. First, the parties challenging the plan bear the
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burden of proving the existence of population differences which “could
practicably be avoided” by “a good-faith effort to achieve equality.” Id. at 730-
31, 734. If they do so, the burden shifts to the State to “show with some
specificity” that the population differences are “necessary to achieve some
legitimate state objective.” Id. at 740-41. This burden is a “flexible” one, which
“depend[s] on the size of the deviations, the importance of the State’s interests,
the consistency with which the plan as a whole reflects those interests, and the
availability of alternatives that might substantially vindicate those interests yet
approximate population more closely.” Id. at 741. “By necessity, whether
deviations are justified requires case-by-case attention to these factors.” Id.“Any number of consistently applied legislative policies might justify”
minor population deviations, including “making districts compact, respecting
municipal boundaries, preserving the cores of prior districts, and avoiding
contests between incumbent Representatives.” Id. at 740. However, there are
“no de minimis population variations, which could practicably be avoided, but
which nonetheless meet the standard of Art. I, § 2, without justification.” Id. at
734; see Tennant v. Jefferson County Comm’n, 567 U.S. 758, 762-65 (2012)
(per curiam) (upholding a congressional redistricting plan with a population
variance of 0.79% because the state met its burden of demonstrating that the
population deviations were necessary to achieve the legitimate objectives of not
splitting counties, preserving the core of existing districts, and preventing
contests between incumbents); Karcher, 462 U.S. at 732, 744 (striking down a
congressional districting plan with population deviations of approximately 0.7%
because the plan was not a good-faith effort to achieve population equality
using the best available census data and the state’s attempts to justify the
deviations were not supported by the evidence).
A census must be taken every ten years for the purpose of apportioning
the United States House of Representatives. See U.S. CONST. art. I, § 2, cl. 3.
Despite the reality that “population counts for particular localities are outdated
long before they are completed,” because “the census count represents the best
population data available, it is the only basis for good-faith attempts to achieve
population equality.” Karcher, 462 U.S. at 732, 738 (quotation and citation
omitted); cf. Abrams v. Johnson, 521 U.S. 74, 100-01 (1997) (rejecting a
challenge to a court-ordered congressional redistricting plan mid-way between
two decennial censuses).
In this case, the plaintiffs assert that the population shifts which have
occurred in New Hampshire since the 2010 census render the current
congressional districting statute unconstitutional in violation of the one-
person, one-vote principle. Given that the “current district lines were drawn
using decade-old census data,” the plaintiffs assert that “any justification for
the current district lines that might have existed 10 years ago is obsolete.”
Thus, they contend, there “is no justification” for the resulting deviation of
2.6%.
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The State does not dispute that the current deviation between the
districts is 2.6%, and that the deviation equates to 17,945 additional people in
the First Congressional District as compared to the Second Congressional
District. In addition, the State concedes that it “can identify no precedent
holding that a 2.6 percent deviation [in population equality between
districts] . . . is within [the] constitutionally acceptable margin” for a
congressional district plan.
Given that the current census-based population deviation reflects a “real
difference[] [between] the districts,” it is clear that the deviation can be “avoided
or significantly reduced with a good-faith effort to achieve population equality”
by redistricting the current congressional districts based upon the 2020
census. Karcher, 462 U.S. at 738. Indeed, the State asserts that achieving
population equality in this case “would likely require that only a small number
of political subdivisions—and perhaps only one—be moved from one
congressional district to another.”
Nonetheless, the intervenors argue that because, in Below v. Secretary of
State, 148 N.H. 1 (2002) (Below I), this court “drew State Senate Districts with
a 4.96% deviation,” a deviation of 2.6% in this case “is not facially offensive to
the doctrine of one [person], one vote.” This argument disregards the
fundamental differences between the standards that apply to congressional
redistricting under Article I, Section 2, and state senate redistricting under the
Fourteenth Amendment. “[W]hereas population alone has been the sole
criterion of constitutionality in congressional redistricting under Art. I, § 2,
broader latitude has been afforded the States under the Equal Protection
Clause in state legislative redistricting . . . .” Mahan v. Howell, 410 U.S. 315,
322 (1973); see also White v. Regester, 412 U.S. 755, 763 (1973); Reynolds,
377 U.S. at 579; Voinovich v. Quilter, 507 U.S. 146, 161 (1993). This broader
latitude simply does not apply to congressional districts, where “absolute
population equality [is] the paramount objective.” Karcher, 462 U.S. at 732;
Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969). Additionally, to the extent
the State asserts that Levitt v. Maynard, 105 N.H. 447 (1964), justifies allowing
a 2.6% deviation to stand, the Levitt Court’s statement that congressional
redistricting is not held to a “strict[er] standard” is no longer correct. Levitt,
105 N.H. at 450; see Karcher, 462 U.S. at 730-32; Kirkpatrick, 394 U.S. at
530-31.
Accordingly, we determine that, under the first prong of the Karcher test,
the plaintiffs have met their burden of proving the existence of population
differences that “could practicably be avoided.” Id. at 734. Therefore, the
burden shifts to the State to “show with some specificity” that the population
differences are “necessary to achieve some legitimate state objective.” Id. at
740-41. Here, the “interest” asserted by the State is that this court should not
act too soon, and should give the legislature “every opportunity to complete its
federal and state constitutional obligations to legislate a congressional
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reapportionment.” Our April 11, 2022 order expressly acknowledges that the
legislature continues to have that opportunity and that we “will terminate this
proceeding” if a congressional redistricting plan “is validly enacted at any time
prior to the close of this case.” However, as the Supreme Court has recognized,
a constitutional redistricting plan, including one drawn by a state supreme
court, must be adopted “within ample time to permit such plan to be utilized in
the [upcoming] election,” in accordance with the provisions of the state’s
election laws. Scott v. Germano, 381 U.S. 407, 409 (1965) (per curiam).
Moreover, the State’s asserted interest does not answer the question why
the 2.6% deviation is necessary to achieve some legitimate state objective.
Although the State notes in passing that “the present congressional maps
implicate the significant state interests of consistency, compactness,
preservation of political subdivision boundaries, conservation of prior district
lines, and avoidance of contests between incumbents,” it does not assert, nor
can it, that the legislature has made a considered judgment in affirmatively
deviating in population equality between the districts by 2.6%. Here, there is
no legislative purpose to the current population deviation — it is simply the
result of population growth and movement within the state between the 2010
and 2020 censuses.
Accordingly, we determine that, under the second prong of the Karcher
test, the State has failed to show that the population differences between the
existing congressional districts are “necessary to achieve some legitimate state
objective.” Karcher, 462 U.S. at 740. Thus, we hold that the existing
congressional districting statute, RSA 662:1, violates Article I, Section 2 of the
United States Constitution.
C. Remedy
Having determined that the current congressional districting statute is
unconstitutional, see RSA 662:1, we address whether this court must establish
a new plan if the legislature fails to do so. At the outset, the State argues that
the principle that federal courts should not ordinarily enjoin a state’s election
laws in the days preceding an election “warns against judicial intervention in
the present case.” According to the State, this principle “delivers a clear
directive” that this court “not intervene to alter New Hampshire’s congressional
maps.” The cases cited by the State, however, advise in favor of resolving this
case in a timely and efficient manner so as not to disrupt the upcoming
election process. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4-6 (2006) (per
curiam) (vacating an order — issued “just weeks before an election” —
enjoining operation of Arizona voter identification procedures given “the
imminence of the election and the inadequate time to resolve” the “hotly
contested” factual disputes in the underlying case; noting that the risk of voter
confusion will increase as an election draws closer); Republican Nat. Comm. v.
Democratic Nat. Comm., 140 S. Ct. 1205, 1206-07 (2020) (per curiam) (staying
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a court order, issued five days before the scheduled election, that enjoined
state law requiring absentee voters to return their ballots no later than election
day).
We reject the State’s position that, despite the unconstitutionality of the
current congressional districting statute, judicial non-intervention in this case
is more important than protecting the voters’ fundamental rights under the
United States Constitution. See Wesberry, 376 U.S. at 8 (observing that “[i]t
would be extraordinary to suggest that” statewide elections ought to proceed
despite the fact that the votes of citizens of some parts of a state would “be
weighted at two or three times the value of the votes of people living in more
populous parts” of the state). It is the duty of the judiciary to protect
constitutional rights and, in doing so, “to support the fundamentals on which
the Constitution itself rests.” Trustees & c. Academy v. Exeter, 90 N.H. 472,
487 (1940); see Howlett, 496 U.S. at 367.
Counsel for the Secretary of State informs the court that any new
congressional district plan needs to be in place by June 1, 2022 for the filing
period that commences on that date, absent an extension. See RSA 655:14.
Given “the necessity for clear guidance to” the State of New Hampshire, Purcell,
549 U.S. at 5, we are “fully prepared to adopt a congressional plan in [a] timely
. . . manner” to ensure that the upcoming election proceeds in conformity with
law. See Growe, 507 U.S. at 37. Accordingly, we next address what approach
we will take in formulating a new district plan.
In the context of state legislative redistricting, we have observed that
“[r]eapportionment is primarily a matter of legislative consideration and
determination.” Below I, 148 N.H. at 5 (quotation omitted); see also Reynolds,
377 U.S. at 586. “‘A state legislature is the institution that is by far the best
situated to identify and then reconcile traditional state policies within the
constitutionally mandated framework of substantial population equality.’”
Below I, 148 N.H. at 5 (quoting Connor v. Finch, 431 U.S. 407, 414-15 (1977)).
Thus, in Below I, when we undertook the “unwelcome obligation of performing
in the legislature’s stead” to draw new state senate districts, we observed that
we “possess no distinctive mandate to compromise sometimes conflicting state
apportionment policies in the people’s name,” and concluded that, therefore,
we must accomplish our task “circumspectly, and in a manner free from any
taint of arbitrariness or discrimination.” Below I, 148 N.H. at 5, 9 (quotations
omitted).
We also noted that, unlike legislatures, courts engaged in redistricting
are held to a higher standard of achieving population equality, explaining that
“[t]he latitude in court-ordered plans to depart from population equality” is
“considerably narrower than that accorded apportionments devised by state
legislatures, and the burden of articulating special reasons for following a state
policy in the face of substantial population inequalities is correspondingly
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higher.” Id. at 8 (quotations, ellipses, and brackets omitted); see also Abrams,
521 U.S. at 98 (observing, in the context of congressional redistricting, that
“absolute population equality is the paramount objective,” that “[c]ourt-ordered
districts are held to higher standards of population equality than legislative
ones,” and that “[a] court-ordered plan should ordinarily achieve the goal of
population equality with little more than de minimis variation” (quotations and
brackets omitted)).
Accordingly, we expressly adopted the “least change” approach in
devising new court-drawn state senate districts, and held that our task was
simply to “remedy the constitutional deficiencies in the existing senate
districts.” Below I, 148 N.H. at 13-14; see also Upham v. Seamon, 456 U.S. 37,
43 (1982) (per curiam) (observing that courts’ modifications to redistricting
plans “are limited to those necessary to cure any constitutional or statutory
defect”). In doing so, we stated that we would be guided primarily by the
constitutional principle of one-person, one-vote, and that we would “use as our
benchmark the existing senate districts” because the existing district plan was
“the last validly enacted plan,” “the clearest expression of the legislature’s
intent,” and “the best evidence of State redistricting policy.” Id. at 13; see also
Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 649 (D.S.C.
2002). Therefore, we sought to ensure, “to the greatest extent practicable, that
each senatorial district contain[ed] roughly the same constituents as the last
validly enacted plan,” and determined that, “to remedy the population
deviations in existing districts, it [was] preferable that the core of those districts
be maintained, while contiguous populations [be] added or subtracted as
necessary to correct the population deviations.” Below I, 148 N.H. at 13
(emphasis omitted).
Here, the parties agree that “least change” is the correct approach for
this court to apply in devising a congressional redistricting plan. Given that
the foregoing principles — describing our limited judicial role in drawing state
legislative districts — apply with as much, if not more, force in the context of
congressional redistricting, we likewise agree. See Karcher, 462 U.S. at 732-34(explaining that “the command of Art. I, § 2, as regards the National Legislature
outweighs the local interests that a State may deem relevant in apportioning
districts for representatives to state and local legislatures,” and that “there are
no de minimis population variations, which could practicably be avoided, but
which nonetheless meet the standard of Art. I, § 2, without justification”).
Accordingly, any congressional redistricting plan that we may adopt will reflect
the least change necessary to remedy the constitutional deficiencies in the
existing congressional districts.
We note that our decision to apply the “least change” approach is in
accord with those of several other jurisdictions that have addressed this
question. For example, the Wisconsin Supreme Court recently applied the
“least change” approach in devising its own congressional redistricting plan.
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See Johnson v. Wisconsin Elections Comm’n, 967 N.W.2d 469, 488-92 (Wis.
2021). The court explained that “[a] least-change approach is nothing more
than a convenient way to describe the judiciary’s properly limited role in
redistricting,” and determined that any court-ordered plan “should reflect the
least change necessary for the maps to comport with relevant legal
requirements.” Id. at 490 (quotation omitted). The court observed that the
“least change” approach — or “minimum change doctrine” — is “far from a
novel idea,” has been “applied in numerous cases,” and is “general[ly]
accept[ed] among reasonable jurists.” Id.; see, e.g., Carter, 270 A.3d at 464; In
re Reapportionment Comm’n, 268 A.3d at 1185; Hippert, 813 N.W.2d at 397-
98; Alexander, 51 P.3d at 1211-12.
As in Below I, we will be guided primarily by the constitutional principle
of one-person, one-vote, and we will use as our benchmark the existing
congressional districts because the district plan enacted in 2012 is “the last
validly enacted plan,” “the clearest expression of the legislature’s intent,” and
“the best evidence of State redistricting policy.” Below I, 148 N.H. at 13
(quotation omitted). Further, we will adhere to the “least change” principles
that, to the greatest extent practicable, each district should contain roughly the
same constituents as the last validly enacted plan, and that it is preferable that
the core of the districts be maintained, while contiguous populations are added
or subtracted as necessary to correct the population deviations. See id.
Additionally, New Hampshire has historically avoided dividing towns, city
wards, or unincorporated places unless they have previously requested to be
divided by referendum. See id.; Burling v. Speaker of the House, 148 N.H. 143,
152 (2002); N.H. CONST. pt. II, arts. 9, 11, 11-a, 26 (mandating the application
of these policies in the state legislative redistricting context). We discern the
same policies in prior legislative enactments governing congressional
redistricting. See, e.g., Laws 2012, 18:1 (congressional redistricting following
2010 census); Laws 2002, 32:1 (congressional redistricting following 2000
census); Laws 1992, 15:1 (congressional redistricting following 1990 census).
Accordingly, any plan we adopt will reflect such historic redistricting policies to
the greatest extent practicable so long as they are consistent with the “least
change” approach to achieving congressional districts with populations as close
to perfect equality as possible. See Evenwel, 578 U.S. at 59-60; Abrams, 521
U.S. at 98; Karcher, 462 U.S. at 730-33.
Political considerations “have no place in a court-ordered remedial
[redistricting] plan.” Below I, 148 N.H. at 11; Burling, 148 N.H. at 156; see also
Connor, 431 U.S. at 415 (observing that court-drawn redistricting must be
“free from any taint of arbitrariness or discrimination” (quotation omitted)). We
acknowledge, as the intervenors assert, that any change to the existing
congressional districts may have political ramifications. However, that is why
“least change” is the best approach for this court to take in devising a
congressional redistricting plan that will remedy the existing constitutional
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deficiencies. See, e.g., Johnson, 967 N.W.2d at 492 (“While the application of
neutral standards inevitably benefits one side or the other in any case, it does
not place our thumb on any partisan scale . . . .”). Here, any incidental
political ramifications that may result would be the consequence of the fact
that the legislature did not “reapportion according to constitutional requisites
in a timely fashion.” Petition of Below, 151 N.H. 135, 137 (2004) (quotation
omitted).
III. Conclusion
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.
So ordered.
MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.
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