In split ruling, NH Supreme Court says it can’t review partisan gerrymandering claims

By JOSH ROGERS

New Hampshire Public Radio

Published: 11-30-2023 6:53 PM

In a 3-2 decision, New Hampshire’s Supreme Court has found that the state constitution gives lawmakers broad authority to control the redistricting process, and that state courts can’t rely on it to review claims of partisan gerrymandering.

The decision resolves a 2022 lawsuit that alleged that current district maps for the New Hampshire Senate and Executive Council unconstitutionally advantage Republicans.

The suit, dismissed by a trial judge in 2022, alleged that GOP-drawn political maps “cracked” and “packed” Democratic voters across districts in ways that allow Republicans to claim Council and Senate majorities regardless of receiving fewer overall votes.

Wednesday’s ruling affirms the trial court’s finding that political gerrymandering hinges on “non-justiciable political questions.”

The majority option, written by Justice Patrick Donovan and supported by Chief Justice Gordon MacDonald, and Justice Anna Barbara Hantz Marconi, noted that New Hampshire has never codified limits on gerrymandering to permit a redistricting challenge on partisan grounds.

“The plaintiff has failed to identify any express mandatory conditional provision of state statute addressing partisan gerrymandering in New Hampshire. Further, we are not persuaded that a discernable standard for adjudicating partisan gerrymandering claims exists,” Donovan wrote.

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In a dissent, Justices Gary Hicks and James Bassett, argued that partisan gerrymandering can be assessed under the state constitution, citing Part 1, Article 11, which asserts that all voters have an “equal” right to vote.

“All elections are to be free, and every inhabitant of the state of 18 years and upwards shall have an equal right to vote…Every inhabitant of the state, having the proper qualifications, has the equal right to be elected into office.”

The dissent argued that to judge challenged maps, courts could adopt the approach taken by New Mexico’s Supreme Court in a 2023 redistricting case.

“A three-part test (intent, effects and causation) to identify the kind of vote-dilution harm that had previously been recognized as a conditionally-cognizable injury,” the justices wrote.

The ruling is of a piece with several recent decisions in other states, finding that partisan gerrymandering is not a matter courts can consider.

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.