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At New Hampshire Supreme Court, a debate over what constitutes a fair political map

Lawyers on the steps of the New Hampshire Supreme Court.
Todd Bookman

Every 10 years following the census, the New Hampshire Legislature redraws the state’s political districts. So when Republicans captured the majority in the 2020 election, it was no secret they’d craft the new maps in their favor.

But just how far the party went is now before the state Supreme Court.

“These maps represent a systematic, intentional and deliberate effort to shut one party group of voters out of the political process,” Jonathan Hawley, a lawyer representing a group of Democratic voters, told the justices during oral arguments Thursday.

The Legislature, represented in the case by the New Hampshire Attorney General’s office, countered that the state constitution squarely places the power to draw maps in lawmakers’ hands, and that political considerations are perfectly acceptable, even if it tilts districts in one direction or another.

“There is no bright line here that you are entitled to a certain level of competitiveness,” Solicitor General Anthony Galdieri told the court.

The lawsuit focuses on the state’s 24 Senate districts and five Executive Council districts, new maps for which were signed into law by Gov. Chris Sununu after clearing the Republican-controlled House and Senate last year.

Democrats contend the maps were so gerrymandered that, despite Democratic candidates receiving more total votes statewide, the GOP secured a 14-10 majority in the Senate, and 4-1 majority in the Council.

Essentially, Hawley said, the GOP has entrenched itself in power.

Justice James Bassett during oral arguments.
Todd Bookman/NHPR
Justice James Bassett during oral arguments

“Elections conducted under partisan gerrymandered maps are not free, because the electoral results are pre-determined,” he told the court. “And they are not equal, because not all voters have the same opportunity to elect their representatives.”

The question before justices in this case is two-fold: What role should the court play, if any, in reviewing maps? And if there is a role, what exactly would it be?

“Is it your position that partisan considerations are part of the process and acceptable? It’s just that at some point they go too far?” Justice James Bassett asked Hawley during arguments.

Hawley responded: “Yes, and where that line is is where this court says it is. It is when the maps systematically devalue and dilute the voting strength of certain New Hampshire voters.”

In this case that’s Democratic voters, who are now facing a decade of uphill election battles under the current maps.

But from the Legislature’s perspective, the district maps are theirs and theirs alone to draw, with only minor rules they must follow. Those rules, laid out in the state constitution, are that the districts need to have basically equal populations, and that lines can’t be drawn through towns or city wards.

Galdieri said with no direction from the framers of the constitution about what political fairness in maps should look like, how could the courts be expected to rule on it? Should all 24 Senate races be competitive, Galdieri asked, or the balance of power overall be up for grabs?

With no clear answer to that, and with the U.S. Supreme Court having issued previous rulings that political considerations are legal in map drawing, he said the court is best to wash its hands of the matter.

“Redistricting goes to the core of the legislative function. It is putting the Legislature in charge of its districts,” he said.

Other states, faced with the same questions of who gets to draw maps – and whether they should be fair – have turned to outside experts or independent commissions to draw maps.

Galdieri said that New Hampshire lawmakers are free to pass a bill to do just that, should they wish to reform their own procedures. That drew a response from Justice Bassett: “The problem here is you have a circular problem once you have an entrenched group, they are not going to give up power, and so to say that the solution is at the ballot box overlooks that reality.”

And the reality is, no political party is likely to pass a law that hamstrings its own ability to win elections.

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.
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