Supreme Court considers challenge to Senate, Executive Council redistricting
May 11—CONCORD — New Hampshire Supreme Court justices pondered Thursday whether courts should get involved in redistricting.
They did so during oral arguments on a case that challenges the reshaping of New Hampshire Senate and Executive Council districts that critics say dilutes the voting strength of Democrats.
Jonathan Hawley, the Seattle lawyer arguing against the new districts, painted a system so out of partisan balance that Republicans would be unaccountable to voters and maintain their power indefinitely. Thus the need for the courts to be involved, he said.
"The problem with partisan gerrymandering is it entrenches one party in power," he said. While some politics is inevitable in redistricting, he said, the redraw in this case went too far.
Last October, Hillsborough County Superior Court-South Judge Jacalyn Colburn threw out the lawsuit, which was brought by former House Speaker Terie Norelli and 11 other Democrats. Colburn ruled that the constitution gave the Legislature exclusive power over once-a-decade redistricting.
At one point, justices seemed to agree.
"We don't want to be entangled in politics. It makes us very nervous; we're not very good at it," said Justice Gary Hicks, an appointee of former Democratic Gov. John Lynch.
But once Solicitor General Anthony Galdieri started to argue that the constitution provided no role for the courts in redistricting, Hicks was just as quick to challenge him.
What if the Legislature passed a law giving registered Democrats and Republicans a single vote apiece but independent voters three-fifths a vote? Hicks asked. Wouldn't that necessitate judicial intervention on constitutional grounds such as equal protection.
"I really don't understand your argument. Will you help me please," Hicks said. "If it's a violation of equal protection, it's a violation of equal protection."
Galdieri cautioned there is no "bright line" for judges to decide the proper partisan balance of districts or house chambers. What would the standard be, he asked.
But the justices said there are never bright lines on constitutional issues. They gave examples of gun possession on the floor of the New Hampshire House and another case in the courts — the definition of an adequate education.
"Courts do that thing all the time. That's what we get paid for as trial judges," Hicks said.
Hawley called for the Supreme Court to find the redistricting a constitutional violation and to remand it to the trial court for new lines to be drawn.
It generally takes two to six months for the Supreme Court to issue a ruling.