My April 4, 2012 "Truth Behind Rush to Redistrict" commentary

additional commentary by Rep. Timothy Horrigan; April 4, 2012

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On April Fools Day 2012, I sent out a very serious commentary (though it has some humor in it.) I gave my view of a disgraceful incident where the Republican leadership of the New Hampshire House passed a grossly unconstitutional redistricting plan. Even the vote itself was unconstitutional. The commentary is reasonably self-explanatory, but you may not know what Part Second Article 11 of the State Constitution says. Since it was amended in 2006, it has read:

The Republicans decided that the amended article merely required them to create more districts this time than they did last time. Previously, the state was divided into 103 districts, now it has 204. This is almost twice as many, but those 204 districts do not meet the requirements of the constitution.

I sent this op-ed in slightly different versions out to several newspapers, and my local paper, the Dover, NH Foster's Daily Democrat (also known as the Daily Misnomer because it's a rightwing paper) was the first to run it. It may turn up elsewhere. There is at least one error: I got the number of cities wrong.

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Truth behind rush to redistrict


Wednesday, April 4, 2012


Just before April Fools' Day, Speaker William O'Brien, Speaker Pro Tempore Gene Chandler, and Majority Leader DJ Bettencourt sent out an op-ed piece to this and other newspapers which contained so many untrue and/or misleading statements, I hardly know where to begin responding.

O'Brien et al accused the governor of unnecessarily delaying his veto message, thus allegedly creating a "time crunch." It is true that he waited a few days to write up his veto message. The Senate vetoed HB 592 on Wednesday, March 7, but the House leadership did not "enroll" the veto until Thursday, March 15. The official paperwork did not make it from the Secretary of State's office to the Governor's desk until Monday, March 19.

The constitution gives Governor Lynch five business days to decide whether or not to veto the bill: he used up only four days before vetoing the bill on Friday, March 23. There was ample time to print an addendum to the House calendar before the next session day, as required by the state constitution (and also by House rules and state right-to-know law.) No such addendum was ever printed, and in fact the Democratic caucus was not officially notified in any way until after the Wednesday, March 28 session was suddenly interrupted by a Republican caucus. The House Democrats and the general public were locked out of Representatives Hall for about half an hour, while the Speaker met secretly with his own caucus only. The House Democrats didn't know for certain what was happening until the minority caucus was allowed back into the hall, and the Speaker announced that the veto was the next item of business.

This veto followed a very long legislative process, which resulted in a plan which denies 62 communities the representation they are entitled to under Part First Article 11 of the state constitution. From March 1, 2011 (when there was a public hearing) until mid-October 2011, no meaningful work was done by the Special Committee on Redistricting, except on an ad hoc basis by individual legislators.

A few cities did have to redraw their ward boundaries, which made it impossible to adopt a final plan until January 2012, but there was no reason to put off the rest of the committee's work for seven months. The ward boundaries would have been less of a problem were it not for the fact that the committee proved to be eager to combine city wards with neighboring communities. For example, Dover's Ward 6 and Somersworth's Ward 2 are combined in one district. Only four of the state's ten cities remained whole, and that included one (Berlin) which outsmarted the committee by eliminating its wards in 2011.

Once the committee belatedly got down to business in the late fall, the chair, Rep. Paul Mirski, set a constraint which made it impossible for the committee to come up with a plan which obeys the state constitution. Although the House leadership usually never misses any chance to defy Washington, D.C., in this case they became absurdly subservient to the "feds." At O'Brien's urging, Mirski blatantly misinterpreted federal voting-rights law to claim that the population deviation of reps per capita could never be more than plus or minus 5% off of the ideal ratio (which is 3291 reps per capita.) Mirski also claimed that federal law automatically trumps the state constitution.

One of the few true things O'Brien et al said in their op-ed was that our plan has to be pre-cleared by the U.S. Department of Justice, thanks to a provision of the 1965 Voting Rights Law which singles out ten New Hampshire municipalities for special scrutiny. Newington is one of those places. The federal pre-clearance should not be — and in the past never has been — a major problem since New Hampshire is a relatively racially homogenous state with no "majority-minority" communities.

O'Brien et al correctly pointed out that the filing deadline for the Sept. 11 primary is not far away: by state law, the filing period begins on Wednesday, June 6, leaving the feds just 60 days to pre-clear the plan. That is no excuse for sending an illegal and unconstitutional plan to the feds. Even now, there is enough time to create a plan which obeys both state and federal law, and there would have been even more time if the House leadership had acted responsibly in the first place.

In the past, Speaker O'Brien has not always been so respectful of the election schedule. In May 2008, a certain Attorney William O'Brien was the lead counsel for the complainants in a lawsuit called "Town of Canaan et al. vs. Secretary of State." He was not a state representative at the time: he was (and still is) the Executive Director of a somewhat mysterious entity called the "New Hampshire Legal Rights Foundation."

O'Brien literally demanded that the 2008 election process be stopped. The rationale for this suit (which failed) was that the New Hampshire House redistricting plan in place at the time did not obey Part First Article 11 of the state constitution, as amended in 2006. The Merrimack Superior Court and the New Hampshire Supreme Court both ruled that the election should be held as scheduled and that the House didn't need to be redistricted until 2011, after the next decennial census was completed. It is now 2012, and the House has finally been redistricted — but O'Brien's plan does not obey Part First Article 11, which has not been amended since 2006.

State Rep. Timothy Horrigan
D-Durham


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Here is what I was responding to. This piece of nonsense ran in many New Hampshire papers. I am also attaching links to several documents which the Speaker provided belatedly to all members of the House. The most interesting one was a memo justifying the Speaker's actions on Wednesday March 28: it was written on or before the previous Sunday. The timing proves O'Brien never had any intention of formally publishing the veto override message before he called for the vote:

Redistricting veto override done properly


Saturday, March 31, 2012


Now that the redistricting plan for the House of Representatives has become law, there are some who opposed the map who have raised a number of procedural red herrings to distract from the law. It's time to bring a little reality to the table.


People may be unaware of the time crunch the Legislature faced under the redistricting process. New Hampshire has the rather odd distinction of being the only state in the North that, as a whole, is subject to the Voting Rights Act of 1965. As a result, we need to receive pre-clearance from the U.S. Department of Justice (DOJ) for our redistricting plans. This procedure can take up to 60 days. Given that the filing period for office is currently set to begin on June 6, to give time for pre-clearance means that New Hampshire must get our redistricting plans to U.S. DOJ by April 6 for review.



Because March 28 was the only scheduled day for sessions in both the House and Senate between now and April 6, that day was the only opportunity to get the House redistricting plan into law before this deadline.



The Legislature worked diligently to get our plans to the Governor in time to meet all of these deadlines and allow notice of the veto override in our House calendar. However, the Governor chose to use up all the time given him, and by doing so removed the chance to put the veto message into the calendar for the public to review, while at the same time saying that the Legislature should consider the veto "quickly." Because of the deadlines for filing the plan with U.S. DOJ, he was right in the necessity for speed.



But was the procedure of overriding the Governor's veto, which did not appear in the House calendar prior to a vote, constitutional? Absolutely.

Some who don't understand the Constitution well have portrayed the vote as "unscheduled" and said it didn't meet requirements to be printed in the House Journal before the vote. They ought to spend some time studying our Founding Fathers words more carefully.



First, no veto override vote is ever "scheduled." The Speaker brings up veto messages at any time. The Senate obviously shares this same knowledge of the New Hampshire Constitution as they promptly took up the veto vote "unscheduled" the same day.



The New Hampshire Constitution states, in Part 2, Article 44, that the House "shall enter the [Governor's] objections at large on their journal, and proceed to reconsider it." In 1792, when this was added to the Constitution, there was no printed calendar, so the House Calendar is not the House Journal. The journal, according to Part 2, Article 24, is produced after, not before, the House proceedings: "The journals of the proceedings, and all public acts of both houses, of the legislature, shall be printed and published immediately after every adjournment or prorogation."



Further, the historical practice of the House was to take up vetoes as soon as they were issued with no notice period. Accordingly, the constitutional purpose of the requirement to put the governor's veto message into the journal is to create a permanent record of the veto message for history, not to require publication prior to a veto override vote. To say otherwise shows an ignorance of our state's history.



Now that the House redistricting plan is law, it is considered presumptively constitutional by the courts. While there certainly may be those who will challenge the law — indeed Democrats promised to challenge it even before it came into existence — the present situation is vastly different than from 2002, in which there was no House redistricting plan in place, and the courts drew the map. 



Before the Special Committee on Redistricting began the process of developing a map for redistricting the state, the members went through a meticulous and extensive process to understand the legal framework for a legally defensible plan. This work involved a significant review of federal and state case law, and represents a very strong legal argument to retain this plan. Any suggestion that the court would not approve this plan is political, not legal, and therefore highly unlikely. This redistricting plan dramatically increases the number of districts across New Hampshire, from 103 to 204 districts, and restores true local representation to our citizens. One has to question why the opponents of this plan would prefer a court-drawn map that would make it harder for our citizens to get access to their legislators.



State Rep. William O'Brien

Speaker
N.H. House of Representatives. 


State Rep. Gene Chandler

Speaker Pro Tempore
Chairman 
Public Works and Recreation Committee


State Rep. D.J. Bettencourt

Majority Leader

N.H. House of Representatives. 


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And finally, the Governor's veto message:

 

By the authority vested in me, pursuant to part II, Article 44 of the New Hampshire Constitution, on March 23, 2012, I vetoed HB 592.

 

The New Hampshire Constitution provides that the House of Representatives shall be "founded on the principles of equality, and representation therein shall be as equal as circumstances will admit."  Consistent with this provision, in 2006, the citizens of New Hampshire overwhelmingly adopted a constitutional amendment that further enshrined the principle of equal representation by providing each town and city ward a representative with sufficient population to warrant one.

 The right to vote is central to our democratic government.   But that right is meaningless unless equal representation is assured when citizens vote.  I am vetoing HB 592 because it violates the constitutional principle for equal representation and local representation; it is inconsistent in its treatment of similarly situated towns and wards, and it unnecessarily changes the boundaries of existing districts.

 

The population of New Hampshire based on the 2010 census is 1,316,470.  A straight division into 400 districts yields an ideal population per district of 3,291.  Under federal and state law, towns and wards that equal or are within 5 percent of this ideal population are entitled to their own representative.  Based on the 2010 census, there are 152 towns and wards in New Hampshire that qualify for their own representative.

 HB 592 denies a total of 62 New Hampshire towns and wards their own seats in the House.  For example, the towns of Atkinson, Hudson, Meredith, and Pelham all have sufficient population under state and federal constitutional standards to have their own representative, but all are denied their own representative under the House-approved plan.  This is completely contrary to what the citizens of New Hampshire called for in the state constitutional amendment adopted in 2006. 

 

Another significant flaw with the House-approved redistricting plan is that it unnecessarily breaks-up cities and wards.

 For example, in Manchester, the state's largest city, HB 592 combines Wards 8 and 9 with the town of Litchfield.  Pelham will again share its representatives with Hudson.  Strafford will share a representative with New Durham.  And Concord's Ward 5 will now be made part of a district that includes the Town of Hopkinton.  The leaders and governing bodies of each of these communities have expressed their strong opposition to HB 592, noting that it unnecessarily and unconstitutionally dilutes local representation, and have asked me to veto this bill.

 As the Board of Mayor and Alderman in Manchester has expressed, "this is not a partisan issue."  "Local municipal budgets are separate, schools are in different districts, police officers and firefighters . . . belong to different departments and station houses."  The same is true in Pelham, Concord, Strafford and all of the towns and wards affected in this manner by HB 592.

 

Supporters of HB 592 have argued that in crafting a redistricting plan, the legislature must balance the one-person-one-vote principle enshrined in the federal constitution with the requirements for local representation as required by the state constitution.  But satisfaction of federal requirements does not require abandonment of the principles of the New Hampshire Constitution.  The House-passed plan unnecessarily breaks-up towns and wards.

 

One of the unique advantages to living in New Hampshire is the ability of citizens to encounter his or her state representative in their daily activities – at the grocery store, in a house of worship, or walking main street.  HB 592 undermines that very special quality of life in New Hampshire and the critical component of representative local democracy that is expressed in a commonality of interest among a community's citizens.  For all of these reasons, I have vetoed HB 592. 

 

I urge the House to take up my veto quickly in order to allow time for alternative plans to be brought forward, or for litigation in the event of the absence of agreement on a constitutional plan.  The House was presented with alternative plans by members of both political parties that would go further to satisfy the requirement for equal representation and fairness.  There is still time before the candidate filing period to enact redistricting legislation that will assure equal voting rights of all New Hampshire citizens.

 

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