Burling v. Speaker of the House
| Citation | 148 N.H. 143,804 A.2d 471 |
| Decision Date | 11 June 2002 |
| Docket Number | No. 2002-210.,2002-210. |
| Parties | REPRESENTATIVE PETER BURLING & a. v. GENE CHANDLER, SPEAKER OF THE HOUSE & a. |
| Court | Supreme Court of New Hampshire |
Hatem & Donovan, P.C., of Salem (Michael D. Hatem and Bonnie J. Boulanger on the memorandum, and Mr. Hatem orally), for the petitioners.
Hinckley, Allen & Snyder, LLP, of Concord (Michael J. Connolly and Christopher H.M. Carter on the memorandum, and Mr. Carter orally) for the Speaker of the New Hampshire House of Representatives.
Betsy B. Miller, house legal counsel, by memorandum and orally, for the New Hampshire House of Representatives.
John M. Pratt & a., by memorandum, and Mr. Pratt orally, pro se, as amici curiae.
Barry J. Glennon, staff attorney, of Concord, filed no memorandum, for the Secretary of State.
Daniel Webster once said, "[T]he right to choose a representative is every man's portion of sovereign power." Luther v. Borden, 48 U.S. (7 How.) 1, 30 (1849) (statement of counsel).
For the first time in the history of this State, the supreme court is required to scrutinize the process of apportioning the people's right to vote in the election of representatives. That scrutiny has revealed significant anomalies, perpetuated for many years in the legislative redistricting process, which have undermined the principles of equality upon which the New Hampshire House of Representatives was founded. See N.H. CONST. pt. II, art. 9. Rather than protecting the people's constitutional right to "one person/one vote," a system has evolved that falls far short of that ideal. We hold, therefore, that the current method of creating districts fails to insure that "every voter is equal to every other voter" in this State. Gray v. Sanders, 372 U.S. 368, 380 (1963).
This court has been drawn reluctantly into what is primarily a legislative task. "It is not our function to decide the peculiarly political questions involved in reapportionment, but it is our duty to insure the electorate equal protection of the laws." Silver v. Brown, 405 P.2d 132, 140 (Cal. 1965). Therefore, when the legislature has failed to act, it is the judiciary's duty to devise a constitutionally valid reapportionment plan. See Scott v. Germano, 381 U.S. 407, 409 (1965) (per curiam)
.
In furtherance of that duty, we establish a plan for new house districts. Accordingly, RSA 662:5 (1996) is no longer applicable. This plan corrects the constitutional deficiencies in the existing districts and eliminates the present inequities. We are primarily governed by the constitutional requirement of "one person/one vote." In addition, in this case, we are able to adhere to other New Hampshire constitutional requirements and traditional State redistricting policies. We are indifferent to political considerations, such as incumbency or party affiliation. The plan we establish restores as nearly equal weight as possible to the votes of the people of New Hampshire. We do this by eliminating floterials and creating as many single-member districts as possible, with as few multi-member districts as necessary.
The New Hampshire Constitution requires the legislature to redraw each representative district "as equal as circumstances will admit" every ten years, based upon the decennial census. N.H. CONST. pt. II, art. 9; see N.H. CONST. pt. II, art. 11. In anticipation of the results of the 2000 census, the house began the reapportionment process in January 2001 with the introduction of House Bill (HB) 420.
According to the 2000 census, between 1990 and 2000, New Hampshire's population grew more than 10%, increasing from 1,109,252 citizens in 1990 to 1,235,786 citizens in 2000. This growth was unevenly distributed between the northern and southern portions of the State, however, with the largest population growth occurring in the south. As a result, it is undisputed that following the 2000 census, the existing representative districts, established in 1992 pursuant to the 1990 census, violate both the State and Federal Constitutions. See N.H. CONST. pt. I, art. 11; N.H. CONST. pt. II, art. 9; U.S. CONST. amend. XIV; RSA 662:5.
In the winter of 2002, after a series of public hearings on proposed reapportionment plans, HB 420, containing a new apportionment plan for the house, was passed by both the house and the senate along party lines. The Governor vetoed the bill, however, on April 3, 2002. The house considered the Governor's veto on May 22, 2002, but was unable to achieve the two-thirds vote necessary to override it. As a result, HB 420 did not become law. See N.H. CONST. pt. II, art. 44.
In April 2002, the eleven petitioners, all incumbents, filed a petition for original jurisdiction requesting the court to declare the existing representative districts unconstitutional and to impose a deadline for the legislature to enact a valid reapportionment plan for the house. Given the imperative to establish a redistricting plan consistent with constitutional requisites before the 2002 elections, the court accepted jurisdiction. See Monier v. Gallen, 122 N.H. 474, 476 (1982)
.
Because the senate and house recessed on May 22, 2002, without enacting a house reapportionment plan, the court determined that it must establish a constitutional reapportionment plan for the house before a 2002 election could be held. See Reynolds v. Sims, 377 U.S. 533, 585 (1964)
; Connor v. Finch, 431 U.S. 407, 415 (1977).
The court has endeavored to reapportion the house as fairly, as efficiently and as quickly as possible. It ordered the parties to submit constitutional reapportionment proposals by June 6, 2002. The court further required that any proposal submitted be based upon the 2000 census data and comply with the constitutional principle of one person/one vote. Oral argument was held on June 11, 2002. It was not until July 16, 2002, that the parties finally provided the court with all necessary information. This decision follows ten days later.
The court informed the parties of its intent to appoint Bobby Bowers, Director of the South Carolina Budget and Control Board Office of Research and Statistics, as its technical advisor in this case because it is an "extraordinary [one] where the introduction of outside skills and expertise, not possessed by the judge, will hasten the just adjudication of a dispute without dislodging the delicate balance of the juristic role." Reilly v. United States, 863 F.2d 149, 156 (1st Cir. 1988). Without objection, the court appointed him pursuant to its inherent authority. See id. See generally State v. Coon, 974 P.2d 386, 395-96 (Alaska 1999)
(). Bowers was appointed to serve the same role in this case as he was appointed to serve in Below v. Secretary of State, 148 N.H. 1 (2002).
We have reviewed, in detail, each plan filed in accordance with court deadlines and have also considered the written and oral submissions of the parties.
The New Hampshire Constitution is the supreme law of this State. See Merrill v. Sherburne, 1 N.H. 199, 217 (1818). The oath we took to honor that constitution makes it our duty to apply the State Constitution when it does not conflict with the United States Constitution. See State v. LaFrance, 124 N.H. 171, 177 (1983)
.
We begin with a discussion of the one person/one vote standard under our own constitution. The New Hampshire Constitution guarantees that each citizen's vote will have equal weight. N.H. CONST. pt. I, art. 11. With respect to the house of representatives, this right is assured by Part II, Articles 9 and 11 of the State Constitution.
Part II, Article 9, as amended in 1964, requires that the house of representatives be "founded on principles of equality" and that representation in the house of representatives "be as equal as circumstances will admit." N.H. CONST. pt. II, art. 9. Part II, Article 11, as amended in 1964, states, in pertinent part:
When any town, ward, or unincorporated place, according to the last federal decennial census, has less than the number of inhabitants necessary to entitle it to one representative, the legislature shall form those towns, wards, or unincorporated places into representative districts which contain a sufficient number of inhabitants to entitle each district so formed to one or more representatives for the entire district. In forming the districts, the boundaries of towns, wards and unincorporated places shall be preserved and the towns, wards and unincorporated places forming one district shall be reasonably proximate to one another.
Both articles were last amended as a result of the Constitutional Convention in 1964. See JOURNAL OF CONSTITUTIONAL CONVENTION 334, 358 (1964). Before 1964, Part II, Article 9 required the legislature to reapportion the house of representatives every ten years, following the taking of the national census. See Levitt v. Stark, 233 F. Supp. 566, 567 (D.N.H. 1964)
. It further provided:
The number of inhabitants necessary to entitle any town or ward to representatives additional to the first shall be for each additional representative twice the number of inhabitants required for the first representative, so that the mean increasing number for every additional representative shall be twice the number required for the first or one representative.
Id. (quotation omitted).
Before 1964, Part II, Article 11 required the legislature to provide representation for towns or wards having fewer than the number of inhabitants to entitle them to a representative "in at least one session in every ten years." Id. at 567-68 (quotation omitted). These towns or wards elected a representative "such proportionate part of the time as the number of its inhabitants shall bear to the requisite number established for one...
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Maestas v. Hall, Opinion Number: 2012-NMSC-006
...673. Although some courts are indifferent to political considerations such as incumbency or party affiliation, Burling v. Chandler, 804 A.2d 471, 474 (N.H. 2002) (per curiam), other courts question the wisdom of such indifference, Gaffney, 412 U.S. at 753 ("It may be suggested that those wh......