New Hampshire Supreme Court Rules Gerrymandering Lawsuit Non-Justiciable Political Question – Rejects Appeal

The New Hampshire Supreme Court (the “Court”) recently dismissed an appeal brought by a group of citizens challenging the State Legislature’s redistricting of the senate and executive council districts. The plaintiffs primarily argued that the redistricting laws enacted by the Legislature were unconstitutional and resulted in impermissible partisan gerrymandering. Specifically, the plaintiffs alleged that the redistricting laws violated the Free and Equal Election Clause and the State Constitution’s guarantee of equal protection and free speech and association. The Secretary of State countered, arguing that the claims were non-justiciable political questions, and therefore not appropriate for judicial review.

In its analysis of the appeal, the Court first summarized the standard by which it reviews the constitutionality of state laws, explaining that challenged statutes are presumed to be constitutional unless a clear and substantial conflict exists between them and the Constitution. See City of Manchester, 163 N.H. at 696. This standard also means that when doubts exist as to the constitutionality of a state law, those doubts must be resolved in favor of constitutionality. Id.

The Court then addressed the jurisdictional parameters concerning political questions, confirming that courts lack jurisdiction to decide political questions. Richard v. Speaker of the House of Representatives, 175 N.H. 262, 267 (2022). The justiciability of a political question is derived from the separation of powers doctrine, which limits judicial review of certain matters within the sole purview of the other two branches of government. Burt v. Speaker, New Hampshire House of Representatives, 173 N.H. at 525. “A controversy in nonjusticiable – i.e. involves a political question – where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department…” Id.

In its opinion, the Court used the recent example of Burt to demonstrate when it will exercise its jurisdiction over seemingly legislative matters - in Burt, the Court concluded that a challenge to the constitutionality of a House rule banning deadly weapons from the chamber was justiciable even though the Constitution clearly provided authority to the House of Representatives to administer its own rules because the case involved a mandatory constitutional right – the right to keep and bear arms. Id. at 524-25 and 528. In contrast, the Court pointed out that the case at present contains no contention that the redistricting plans implicate any mandatory constitutional provision dealing with redistricting. The Court also noted prior case law which holds that the Legislature may take into account political considerations when drawing maps to seek partisan advantage. Below I, 148 N.H. at 11.

Lastly, the Court found that the constitutional provisions at issue contained no discernable and manageable standards by which to direct judicial decision making in the context of these claims. The Court explained that an issue is nonjusticiable when there is no reasonable standard for adjudicating the claim. Unlike other states that have express limits on gerrymandering either in code or constitutional provision, New Hampshire does not. This same standard has also been adopted by the United States Supreme Court in Rucho v. Common Cause, where the U.S. Supreme Court concluded that the U.S. Constitution contained “no plausible grant of authority” for judicial oversight of partisan gerrymandering, and therefore the Court could not adjudicate the case. 139 S. Ct. at 2507. The Rucho Court went onto observe that the solution to gerrymandering can be addressed through constitutional or statutory provisions that provide clear direction and parameters for redistricting, but in the absence of this, courts have no power to adjudicate these types of claims. Id. at 2507-08.

You can contact Alfano Law by calling (603) 856-8411 or at this link.