Commentary: The unresolved constitutional issues in redistricting

October 25, 2021 5:45 am
Hall of Flags in the N.H. State House

The House Health, Human Services, and Elderly Affairs Committee passed an amended version of the bill that eliminated the exceptions and made clear that an ultrasound is required only if a physician believes a woman is 24-weeks pregnant or close to it. (Dana Wormald | New Hampshire Bulletin)

It was encouraging to watch the New Hampshire House Special Committee on Redistricting finally discussing draft maps at their recent work session on Wednesday, Oct. 20.

Rep. Carol McGuire presented N.H. House maps that she had developed for three counties: Belknap, Grafton, and Merrimack. She had clearly put significant effort into developing the maps, the other committee members listened attentively, and party affiliation did not seem to be a factor in either the development or discussion of the maps. In fact, McGuire made it clear that her intent was to construct small districts that would keep representatives close to their constituents, a worthy goal to be sure.

But, the problem is: Does the New Hampshire Constitution actually support that goal?

The N.H. Constitution states that the representation in the House “shall be as equal as circumstances will admit” (Part 2, Article 9). McGuire was clearly cognizant of this requirement, often described as “one person, one vote.” She displayed districts that she said were within, or nearly within, the population deviations deemed acceptable by the courts.

However, the N.H. Constitution also states: “When the population of any town or ward, according to the last federal census, is within a reasonable deviation from the ideal population for one or more representative seats, the town or ward shall have its own district of one or more representative seats” (Part 2, Article 11). McGuire was also cognizant of this requirement but seemed much less concerned about it, seeming to indicate that she felt that the need to construct small districts was more important.

Unfortunately, the state constitution is silent on the size of districts. It explicitly allows at-large and floterial districts, but it puts no constraints on their size. Should we be building maps with districts of smaller size if that causes eligible towns to not receive their own representatives? Are we allowed to ignore a constitutional requirement in order to satisfy a goal not guaranteed by the constitution, even if that goal is popular?

Confusing the matter is that the current House maps, as implemented in 2011, have many violations of the requirement that towns with sufficient population should have their own dedicated representatives. And it is generally agreed that it is impossible to give all eligible towns their own representatives due to the constraints of “one person, one vote.” But doesn’t the constitution call for us to do the best job we can in giving towns their own representatives?

The 2011 maps were upheld in 2012 by the state Supreme Court, so many might think that gives an implicit blessing to slighting eligible towns. But, in fact, the court was not asked to rule on the issue. The petitioners argued that more towns could be given dedicated representatives by loosening the maximum deviation allowed to satisfy “one person, one vote.” The court ruled that “one person, one vote” had primacy and therefore the maps could not be challenged on this point. But the court said nothing about whether the maps could be challenged if the number of violations could be reduced without loosening the allowable deviation. This remains an open question.

The committee has not had any discussion on this difficult constitutional question, and it was disappointing no member of the committee brought it up during the discussion of McGuire’s draft maps. This issue could have been discussed and possibly resolved during the summer, prior to the release of the census data. Yet it remains unresolved and undiscussed with less than a month to go until the deadline for the committee to finalize the maps to send to the full House.

Moreover, there are additional open issues.

Even if there is a general agreement that small districts are better, how do you measure the size of a district? By the number of towns in the district? By the total population? By geographic compactness? And once you decide on a metric, what is the threshold for being sufficiently small?

The state constitution requires that the towns placed in a district must be contiguous (Part 2, Article 11). The dictionary definition of contiguous says, “sharing a common border; touching.” Does this include touching only at a point? The 2011 maps include districts with towns that meet only at a point. Petitioners in the 2012 court case raised this issue, but the state Supreme Court ruled that they did not have standing on this point, so the court made no ruling on the general issue. And the issue is relevant now because, using the 2020 census data, maps can be drawn for Strafford County that join New Durham and Strafford into a district, even though they meet only at a point, and which will provide more eligible towns in the county to be given dedicated representatives than if you do not allow the two towns to form a district.

Many members of the public at the recent redistricting listening sessions asked for city wards to be kept together, and not joined in districts with other towns or wards of other cities. They feel this would result in more effective representation. But, again, the N.H. Constitution is silent on this matter. And this goal again potentially conflicts with the constitutional requirements.

The committee should discuss and agree on an approach to handling these conflicting goals and requirements. In an ideal world this would have occurred earlier. There was no need to wait for the 2020 census data. These are general issues, and are not specific to particular population numbers. This discussion also would have educated the public on these complicated matters, perhaps helping to improve the public perception and acceptance of the maps that will be ultimately approved by the Legislature and the governor. In addition, resolving these issues would perhaps reduce the amount of litigation that seems to inevitably follow the finalization of the maps.

I hasten to state that I am not a lawyer, so this commentary was informed by a layman’s reading of the constitution and the court cases. I would welcome a lawyer weighing in on these issues as well. My opinions were informed by my participation in the Open Democracy Map-A-Thon project, as a member of the technical team responsible for generating and evaluating possible maps. However, I speak only for myself, and the opinions expressed in this commentary are not necessarily shared by others in the Map-A-Thon project.

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Phil Hatcher
Phil Hatcher

Phil Hatcher retired from UNH after 33 years as a computer science professor, including 10 years as department head. He is a 35-year resident of Dover.