Brown v. Sec'y of State

Docket Number2022-0629
Decision Date29 November 2023
CourtNew Hampshire Supreme Court

Argued: May 11, 2023

Hillsborough-southern judicial district

McLane Middleton, P.A., of Manchester (Steven J. Dutton on the brief), Paul Twomey, of Epsom, on the brief, and Elias Law Group LLP, of Seattle, Washington and Washington, D.C. (Abha Khanna, Jonathan P. Hawley, Daniel C. Osher, and Aaron M Mukerjee on the brief, and Jonathan P. Hawley orally), for the plaintiffs.

John M. Formella, attorney general, and Anthony J. Galdieri solicitor general (Anthony J. Galdieri, Brendan A. O'Donnell, assistant attorney general, and Matthew G. Conley, attorney, on the brief, and Anthony J. Galdieri orally), for the defendant.

American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief) and American Civil Liberties Union Foundation, of New York, New York (Julie A. Ebenstein on the brief), as amici curiae.

Sisti Law Offices, of Portsmouth (Alan Cronheim on the brief), and Campaign Legal Center, of Washington, D.C. (Mark P. Gaber, Hayden Johnson, and Allison Walter on the brief), for Campaign Legal Center, as amicus curiae.



This case presents a question of first impression - whether the plaintiffs' claims of extreme partisan gerrymandering are justiciable under the New Hampshire Constitution. The plaintiffs, Miles Brown, Elizabeth Crooker, Christine Fajardo, Kent Hackmann, Bill Hay, Prescott Herzog, Palana Hunt-Hawkins, Matt Mooshian, Theresa Norelli, Natalie Quevedo, and James Ward, appeal an order of the Superior Court (Colburn, J.) granting the motion filed by the defendant, the New Hampshire Secretary of State, to dismiss their complaint seeking declaratory and injunctive relief. In their complaint, the plaintiffs challenge the constitutionality of Laws 2022, chapter 45 and Laws 2022, chapter 46, which, respectively, establish the current boundaries for state senate and executive council districts. They claim that the legislature violated the New Hampshire Constitution by drawing districts that unfairly benefit one political party at the expense of another. The plaintiffs sought a declaration that the districts violate Part I, Articles 1, 10, 11, 12, 22, and 32 of the New Hampshire Constitution and requested that the trial court "[a]dopt plans for New Hampshire's Senate and Executive Council districts that comply with the New Hampshire Constitution." Because we determine that the issue before us raises a non-justiciable political question, we affirm.


The record includes the following facts. In 2022, following the 2020 federal census, the legislature enacted laws redistricting New Hampshire's senate and executive council districts. See Laws 2022, ch. 45 (apportioning state senate districts); Laws 2022, ch. 46 (apportioning executive council districts). The plaintiffs are registered New Hampshire voters. They seek both a declaration that the redistricting laws violate the State Constitution and preliminary and permanent injunctive relief enjoining the defendant from "implementing, enforcing, or giving any effect" to the laws. They requested that the trial court "[a]dopt plans . . . that comply with the New Hampshire Constitution" and contended that the senate and executive council plans are the products of impermissible partisan gerrymandering. Specifically, the plaintiffs allege that the plans "unjustifiably impose[] irregularly shaped districts carefully tailored to entrench Republican control" of the senate and the executive council.

The plaintiffs' complaint alleges that the senate and executive council districts violate the New Hampshire Constitution "in three independent ways." First, they assert that the plans violate "the Free and Equal Elections Clause of the New Hampshire Constitution," see N.H. CONST. pt. I, art. 11, "because [the plans] were enacted with impermissible partisan intent-specifically, to prevent Democratic voters from fairly and equally participating in the political process-and will achieve their intended effect." They allege that the plans "are partisan gerrymanders that undermine free and equal elections in New Hampshire by effectuating preordained outcomes without regard to the expressed will of the state's voters."

Second, the plaintiffs claim that the plans violate the State Constitution's "guarantee of equal protection" under Part I, Articles 1, 10, and 12, "because [the plans] dilute the voting strength of Democratic voters and deny them their right to substantially equal votes compared to Republican voters." They allege that, "[t]ogether, these provisions provide a constitutional guarantee of equal protection, which ensures that State law treats groups of similarly situated citizens in the same manner." (Quotation and brackets omitted.) The plaintiffs assert that "all New Hampshire voters are similarly situated in their exercise of the franchise" and "by diluting the voting strength of half of the state's electorate, the Challenged Plans single out New Hampshire voters who support Democratic candidates and treat them differently in a manner that harms their voting strength."

Third, the plaintiffs maintain that the plans violate "the New Hampshire Constitution's guarantees of free speech and association" under Part I, Articles 22 and 32, "because, in enacting these plans, the General Court engaged in viewpoint discrimination by retaliating against Democratic voters based on their political views and diluting their ability to band together and elect candidates of their choice." The plaintiffs allege that the legislature "targeted Democratic voters" based upon "their political views and association with other voters who similarly support Democratic candidates."

Regarding the senate plan, the plaintiffs' complaint alleges that the legislature "'packed' Democratic voters tightly into a small number of districts where they form overwhelming majorities, minimizing their impact-and maximizing Republican voters' impact-in neighboring districts," and then "'cracked' the remaining Democratic voters, distributing them among the vast majority of districts in such a way that those districts are dominated by Republican voters."[1] According to the plaintiffs, in doing so "the General Court intentionally subordinated traditional redistricting criteria to the predominant purpose of entrenching Republican control in the Senate." Regarding the executive council plan, the plaintiffs' complaint alleges that the legislature crafted it "to dilute the voting power of Democratic voters and maximize the voting power of Republican voters" by "packing Democratic voters into District 2 and cracking other Democratic voters among the remaining districts . . . such that those districts are more easily winnable by Republican candidates."

The defendant moved to dismiss, arguing that the plaintiffs' claims present non-justiciable political questions "because the text of the State Constitution demonstrably commits the authority to reapportion State Senate and Executive Council districts to the Legislature and the Plaintiffs have not alleged that the Legislature violated any of the mandatory reapportionment requirements set forth in the Constitution." The defendant also argued that the plaintiffs' claims are non-justiciable political questions "because there are no discoverable and manageable standards for judicial intervention."

The trial court granted the motion to dismiss. The court reasoned that the clear language of both Part II, Articles 26 and 65 "demonstrates that our State Constitution commits the authority to draw the boundaries for senate and executive councilor districts to the legislature." (Quotation omitted.) The court noted that the "plaintiffs do not claim that either of the redistricting plans violate any of the mandatory, express requirements of Article 26 and Article 65," and it rejected the plaintiffs' Part I claims because "none of the Part I articles cited by the plaintiffs have any language concerning redistricting." The court determined that "'[i]n the absence of a clear, direct, irrefutable' violation of" the redistricting requirements in Part II, Articles 26 and 65, "'the complexity in delineating state legislative district boundaries and the political nature of such endeavors necessarily preempt judicial intervention.'" (Quoting City of Manchester v. Secretary of State, 163 N.H. 689, 697 (2012)). Accordingly, the court concluded, "the only justiciable issues it can address concerning senate and executive council redistricting are whether the newly-enacted districts meet the express requirements of [Part II,] Articles 26 and 65." Because the trial court found that the districts meet those requirements, the court declined to consider the plaintiffs' challenge to the constitutionality of the districts "based on claims of excessive political gerrymandering as such claims present non-justiciable political questions." This appeal followed.


On appeal, the plaintiffs argue that the trial court "made three fundamental errors" in concluding that partisan-gerrymandering claims are non-justiciable under the State Constitution. First, they assert that the trial court "misconstrued the political-question doctrine conflating ordinary judicial review of enacted legislation for compliance with constitutional rights . . . with judicial usurpation of the legislative process of drawing districts in the first instance." According to the plaintiffs "a court neither usurps the Legislature's redistricting authority nor injects its own political judgments into the process by adjudicating a claim that the party in control of the Legislature has intentionally drawn a plan to distort the democratic...

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