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Partisan gerrymandering decision splits N.H. Supreme Court, defers to lawmakers

The judges disagreed on whether a provision in the New Hampshire Constitution is like the “free and equal” elections clause found in other states

Sandra Schofield, of Hinsdale, N.H., walks out of the voting booth at the Hinsdale polling station, at Millstream Community Center, on Tuesday, March 8, 2022.Kristopher Radder Brattleboro Reformer/Associated Press

CONCORD, N.H. — Even in extreme cases, New Hampshire judges must refrain from intervening in political disputes over allegations of partisan gerrymandering, the state Supreme Court ruled Wednesday in a 3-2 decision that could inspire a fresh push for reform.

The judges in the majority — who were all nominated to the bench by Governor Christopher T. Sununu, a Republican — found no constitutional or statutory basis to grant any relief to the Democratic voters who complained the state’s 2022 redistricting process had systematically diluted their power in the New Hampshire Senate and on the Executive Council.

The decision affirmed a lower court ruling that found the case presents “a non-justiciable political question.”


“Given that redistricting is a ‘purely political, legislative process,’ … the circumstances under which we have intervened in that process have been assiduously limited,” Justice Patrick E. Donovan wrote for the majority, with Justice Anna Barbara Hantz Marconi and Chief Justice Gordon J. MacDonald concurring.

The decision noted examples of when the court has intervened to address “clear, direct, irrefutable” violations of the Constitution, including in 2022 when the justices stepped in to resolve an impasse over the state’s congressional maps. But it rejected the notion that judges have the authority to scrutinize the redistricting process for evidence of partisan bias.

Attorney General John M. Formella lauded the decision and said political questions should remain in the state legislature, “where they belong.”

Democrats, however, howled. Paul J. Twomey, an Epsom-based attorney who helped represent plaintiffs in the case, said Wednesday was “a very bad day for democracy” in New Hampshire. He said the court parsed language in shocking and absurd ways to justify a “disingenuous” decision tailor-made for a desired political result.

Twomey said the legal proceeding has come to a close, but he hopes Granite Staters will urge state senators to support a constitutional amendment to ban partisan gerrymandering. Any senator who votes against such an amendment should pay a price at the polls, he said.


“It’s very much an uphill battle, but that’s what’s left. The voters have to impose accountability on people that don’t believe in democracy,” he added.

The two dissenting judges, Senior Associate Justice Gary E. Hicks and Justice James P. Bassett — who were nominated in 2006 and 2012 by then-Governor John Lynch, a Democrat — wrote that partisan gerrymandering “threatens the democratic process” and warrants judicial scrutiny, particularly in egregious cases.

This dispute isn’t about ensuring proportionality in partisan representation, Hicks and Bassett wrote. Rather, it’s about ensuring the rights of individual voters to participate fully in the political process.

“To our mind, there is a critical difference between taking politics ‘into account,’ … which is constitutionally permissible, and entrenching a political party in power by substantially diluting the votes of citizens favoring the party’s rival,” they wrote.

Republicans won four of the five Executive Council seats in 2022, even though they received only about half of the votes across all five races. That, the lawsuit alleged, was the predictable result of Republicans “packing” Democratic voters into District 2 and “cracking” other Democratic-leaning areas into multiple districts to create safe Republican seats.

Similarly, the GOP won a 14-10 majority in the New Hampshire Senate in 2022, even though Republicans won a combined total of less than half of the vote across all Senate districts. (The GOP hasn’t won a combined majority of the votes across all Senate districts in more than a decade, according to analysis conducted by New Hampshire Public Radio and the New Hampshire Bulletin.)


Still, some GOP leaders, including Sununu, deny that partisan gerrymandering is a factor in these districts. The governor told reporters Wednesday that he believes neither the Executive Council nor the Senate districts are gerrymandered.

Sununu said the state doesn’t need to take any action in light of the court’s decision.

“I don’t see anything that needs to be done,” he said. “I think you have real serious gerrymandering issues in other parts of the country. I don’t think we have them here. I know we don’t have them here.”

Sununu said gerrymandering drives polarization in Washington, so he’s proud that he rejected the congressional maps the GOP-controlled legislature had proposed in 2022.

“I’ve always said gerrymandering is a horrible problem across America,” he said, “because it’s one of those problems where once the genie is out of the bottle, it’s really hard to put her back in, put him back in. … It’s really hard to undo it.”

At the same time, Sununu said the way districts are drawn doesn’t necessarily determine electoral outcomes.

“You can never predict anything that is likely going to happen,” he said. “At the end of the day, it’s up to having good candidates that represent the people.”


In their dissent, Hicks and Bassett concluded the New Hampshire Supreme Court has a duty to ensure elections are “free and equal.” They cited Part 1, Article 11 of the New Hampshire Constitution, which says, “All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election.”

Hicks and Bassett likened this provision to a line in the Pennsylvania Constitution that says elections “shall be free and equal.” But the majority opinion expressly rejected that analogy.

Providing for “free” elections and “an equal right to vote,” as New Hampshire does, isn’t analogous to Pennsylvania’s “free and equal” elections clause, the majority ruled.

That distinction is consequential because it cuts to the heart of the dispute over what exactly the New Hampshire Constitution requires.

Hicks turned 70, the state’s mandatory retirement age for judges, so Thursday was his last day on the court.

Sununu has nominated Melissa Beth Countway to fill Hicks’ seat. Countway, 52, is currently a New Hampshire Circuit Court judge.

Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter.