Governor Lynch Vetoes House Redistricting Plan

Wasn't O'Brien making noises about (0.00 / 0)

the House being able to redistrict itself all on its own - without sending it to the Governor?

Stay tuned...

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by: elwood @ Fri Mar 23, 2012 at 21:47:06 PM UTC

House Concurrent Order (4.00 / 3)

Mirski & O'Bates made up something called "HCO1" which would empower the Secretary of State to proceed as if a plan had been passed, even though no actual law has been enacted.  It is unclear if this is constitutional and it also puts us severely out of compliance with federal voting rights law.


sitting state rep: running for re-election in 2012.

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by: TimothyHorrigan @ Fri Mar 23, 2012 at 21:57:15 PM UTC

[ Parent ]

Adding - the Secretary of State is elected (0.00 / 0)

by the legislature - another quaint aspect of governance here.

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by: elwood @ Fri Mar 23, 2012 at 21:58:46 PM UTC

[ Parent ]

previous HCO1 (4.00 / 1)

This was way before my time as a state rep, but I see that an HCO1 was introduced on June 27, 2002, passed by the full House by a voice vote and then the Senate voted 13-11 in favor of considering it.  (A 2/3 vote was needed, so the order died.)  This was a vehicle for the post-2000 redistricting plan which later had to be done over.


sitting state rep: running for re-election in 2012.

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by: TimothyHorrigan @ Fri Mar 23, 2012 at 22:11:30 PM UTC

[ Parent ]

prolog to previous HCO1 (4.00 / 1)

Here is the prolog to the 2002 HCO1, which was cowriten by (amogst others) the two greatest Constitutional scholars in the entire known universe as well as all unknown universes, Paul Mirski & Dan Itse:

AN ORDER relative to implementing an election pursuant to representative districts established in the order.

Whereas, under Part I, Article 1 of the New Hampshire Constitution, "all government of right originates from the people, is founded in consent, and instituted for the general good"; and

Whereas, under Part I, Article 37 of the New Hampshire Constitution, "the government of this state is composed of 3 essential powers, the legislative, executive, and judicial, and ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit"; and

Whereas, under Part II, Articles 9 and 11-a of the New Hampshire Constitution, "the legislature shall make an apportionment of representatives according to the last general census" and "in making such apportionment, no town, ward or place shall be divided nor the boundaries thereof altered" unless "such town, ward or place, by referendum requests such division"; and

Whereas, "the house of representatives ... shall be judge of the returns, elections, and qualifications, of its members" as directed in Part II, Article 22 of the New Hampshire Constitution; and

Whereas, the New Hampshire Constitution in Part II, Article 9 dictates that only the general court has the constitutional authority to apportion and district, accordingly, separation of powers, as stated in Part I, Article 37, prevents the judicial or the executive from encroaching on that authority and, therefore, the right of the people to local representation; and

Whereas, under Part II, Article 5 of the New Hampshire Constitution, "full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof ..."; now, therefore, be it

Ordered by the House of Representatives, the Senate concurring:

That in order to insure the right of the people and communities of interest to elect representatives who reflect their interests, hereby and for the reasons aforesaid, order the secretary of state to implement an election of representatives according to the representative districts established in this order, and in a manner not affecting constituencies or terms of office of representatives presently in office; and

That the secretary of state shall implement an election of representatives according to the following representative districts:

sitting state rep: running for re-election in 2012.

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by: TimothyHorrigan @ Fri Mar 23, 2012 at 22:17:29 PM UTC

[ Parent ]

History of prior redistricting fight (4.00 / 1)

Written by Steve Winter (currently in the House again as a Rep, was Senate Clerk)

http://www.ncsl.org/print/aslc...

Very good explanation.

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.

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by: SethCohn @ Sat Mar 24, 2012 at 04:14:20 AM UTC

[ Parent ]

What next? (4.00 / 5)

In answer to a query about what will happen next, it seems to me that these are the possibilities:

Here are the possibilities:

The House and Senate could vote to OVERRIDE the Gov's veto, in which case the bill would become law.  Unless...
   Someone goes to court and challenges it successfully.  In which case...
       The court could order the legislature to do redistricting right.  Or...
       The court could do redistricting itself.

Either the House or the Senate could SUSTAIN the Gov's veto, in which case, several things could happen:
   The House and Senate can suspend their rules and try to introduce another bill with a different plan.  Or...
   The House could remove from the table and pass HCO 1 which orders the Secretary of State to create the same districts without the Gov's signature.  
       This is unknown territory, but will undoubtedly lead to some kind of court challenge.
   As happened 10 years ago, the legislature could refuse to pass another plan, and presumably someone will go to court.  In which case...
       The court could order the legislature to do redistricting right.  Or...
       The court could do redistricting itself.

There are probably other things I haven't thought of...

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

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by: Lucy Weber @ Sat Mar 24, 2012 at 00:32:39 AM UTC

Good summary (n/t) (0.00 / 0)

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.

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by: SethCohn @ Sat Mar 24, 2012 at 04:12:21 AM UTC

[ Parent ]

this is farfetched, but... (0.00 / 0)

The House could sustain the veto, and then introduce a new bill with a plan which actually follows the state constitution.  Of course, that would require the leadership to come to its senses.

One risk with a new bill is that David Bates would keep amending it long after the redistricting committee finishes his work.  His close personal friend God only knows what Bate might stick into the bill at the last moment.


sitting state rep: running for re-election in 2012.

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by: TimothyHorrigan @ Sat Mar 24, 2012 at 01:33:27 AM UTC

Once again, 100% compliance is impossible (3.50 / 2)

I've probably spent as much time staring at the numbers as anyone in the House, and it's NOT possible to 100% comply with the poorly thought out constitutional amendment.  As written, due to geography/population, NO plan, not even the plan introduced by Democrats, compiled with the amendment.

The key is to meet as much as possible, and in fact, I built a number of plans which did so.  And mot likely the max is somewhere around the plans debated. (I prefer my Hills, and Merrimack has a few solution, and I dislike Meredith/Gilford in Belknap)

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.

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by: SethCohn @ Sat Mar 24, 2012 at 04:11:22 AM UTC

[ Parent ]

As an exercise to prove my point about it being impossible (4.00 / 2)

I used this multiple times in front of both the committee and mentioned it on the House floor, so it'll be in the permanent Journal as well, to document the problem for those who come later....

Canterbury is not big enough to deserve a Rep of it's own.  Every possible town around it (Loudon, Northfield, Boscawen, Concord Ward 10) is big enough to get one, but if you create each with a district so they're each given the constitutional rep the amendment calls for, Canterbury cannot be in a main district, and the amendment doesn't allow it to only float (my proposed solution for this problem with the amendment)  Given that Canterbury forces one of the other towns to lose it's required dedicated Rep, any plan you can build will be unconstitutional if you consider that a mandatory conditional of constitutionality.  Nor is this the only case of this problem, I believe.

Using the composite math method only made things worse, compared to aggregate, but really both suffer from this, it's merely a matter of degrees of deviation, causing more combinations to fail.

Having suffered for too many hours with these puzzles, I realize people might not believe this, but you can try it yourself.

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.

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by: SethCohn @ Sat Mar 24, 2012 at 04:42:35 AM UTC

[ Parent ]

I'm still not clear on the problem, though (0.00 / 0)

I don't doubt that there is one. Adding section numbers for reference, the Constitutional provision involved is:

[Art.] 11. [Small Towns; Representation by Districts.]
[11.1] When the population of any town or ward, according to the last federal census, is within a reasonable deviation from the ideal population for one or more representative seats, the town or ward shall have its own district of one or more representative seats.
[11.2] The apportionment shall not deny any other town or ward membership in one non-floterial representative district.
[11.3] When any town, ward, or unincorporated place has fewer 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.
[11.4] In forming the districts, the boundaries of towns, wards, and unincorporated places shall be preserved and contiguous.
[11.5] The excess number of inhabitants of district may be added to the excess number of inhabitants of other districts to form at-large or floterial districts conforming to acceptable deviations.
[11.6]  The legislature shall form the representative districts at the regular session following every decennial federal census.

Maybe the problem is:

• 11.3 deals only with "small towns": towns and wards that don't have enough inhabitants to get a dedicated representative seat.
• 11.5 deals only with "remainders": the excess inhabitants (ugly term) of larger towns and wards.
• There is no provision for combining a small town and a remainder to construct a district - which would in the past have been the approach for Canterbury.

Is that the issue, or am I way off base?

(And BTW, despite our political differences, I appreciate your devoting time and effort to this arcane and unappreciated stuff.)

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by: elwood @ Sat Mar 24, 2012 at 10:56:17 AM UTC

[ Parent ]

That is right, Elwood. (4.00 / 1)

The Constitutional amendment requires that EVERY town be in an underlying district before the excess from an underlying district is combined with the excess from other underlying districts to from the floterials.  This means that the resulting floterials are HUGE.  

The second issue is the method of calculating the deviation of each district.  More than most people will want to know on that subject here.  If you use the composite method of calculation, combining one small town with a large excess population  and one large town with a small overage will result onto large deviation.

One approach to this problem is to use weighted voting ie. if my town Walpole, contributes 13% to the floterial, the votes of my town would be multiplies by .13 in the floterial voting.  That approach was rejected by the Republicans on the House Redistricting Committee.  And even using this method, the math is still difficult.

As an example, I did a Cheshire County plan that I thought would be acceptable to most people.  Due to space issues, I did not draw Keene out, but it would have one Rep for each ward, and two Reps citywide, just as the House proposal does.  All but three districts entitles to one or more dedicated Reps get them.  BUT there are still problems.  First, it uses the weighted voting.  Second, because of the corner issues and the issue of small towns having to be added to larger towns in an underlying district, Walpole/Alstead/Marlow are still amalgamated for 2 reps, which at least is smaller than the current seven town, three Reps district.  Jaffrey/Dublin/Rindge keep their current  three town/4 Rep district, which at least some people testified that they liked.  There is a ghastly floterial which covers the whole county other than Keene and the two multi town multiRep districts.  And the deviation on the floterial is still north of 15%, which is pushing it.  All the underlying districts are better.  I can do a better plan if we donate Dublin to Hillsborogh County, but that is not an option.  There are probably better ways to do Cheshire County, but without using weighted voting, I do not see how.  My thinking on this plan was to give each district representation I thought could represent the interests of that district well and without too much conflict, with the one floterial just being tacked on top.

I speak from experience when I say it is difficult to represent the interests of seven towns, all of which have different interests, many of which, especially when it comes to budget time, are conflicting.

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

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by: Lucy Weber @ Sat Mar 24, 2012 at 12:46:32 PM UTC

[ Parent ]

No offense to anyone who worked on or voted for (4.00 / 3)

the 2006 amendment, but I was amazed that it passed - not because I thought it was clearly bad, but because nobody could explain what it did.

Nobody even knew what "floterial" meant.

I thought New Hampshire voters would be more conservative about amending the Constitution.

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by: elwood @ Sat Mar 24, 2012 at 12:51:31 PM UTC

[ Parent ]

plus or minus 5% (4.00 / 1)

The problem is that O'Mirski & O'Bates severely misconstrued federal case law.  (This was, by the way, the first time the O'Brienauts have acknowledged that the feds have any power over the state whatsoever.  It's also the first time that they have respected the authority of either the federal or state judiciary.)  There is a "safe harbor" rule which states that any plan is presumed to be OK if the deviation between the various districts' rep/citizen ratio stays within a band of plus or minus 5%.

New Hampshire is unusual because it has a very large number of state reps, because the municipalities rather than the counties are the fundamental unit of local government, and also because of Art. 11 (as shown above.)  It also has no minority-majority state rep districts.  (Even the diverse cities of Nashua and Manchester lack any majority-minority wards.)

The right thing to do is to come up with the best plan which actually meets the requirements of the state constitution (WITHOUT weighted voting, which was an unnecessary distraction during last year's debate.)  The deviation will be way more than plus or minus 5% but it would probably pass muster.  The plans which were drawn up were drawn up as if the state had already lost a federal court battle which in fact has not even been fought yet--- and that battle is winnable.


sitting state rep: running for re-election in 2012.

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by: TimothyHorrigan @ Sat Mar 24, 2012 at 14:57:19 PM UTC

[ Parent ]

misled by plus or minus 5% (4.00 / 1)

It seems that most who have tried their hand at writing a redistricting plan have been misled by the plus or minus 5% rule.  That rule is, however, nothing more than a legal presumption - readily put aside in the NH context.   In its 1983 Thompson decision, the US Supreme Court approved deviations in Wyoming that reached up to 89% (the average deviation was 16%).  And, in its 1982 Boyer decision, our local federal district court approved floterial district deviations up to 70% as measured by the component method of analysis.  The key is the presence of "legitimate considerations" that justify deviations greater than 10%.  The 1982 Boyer court found such "legitimate considerations" in NH policy and law that required: 400 very small voting districts; maintenance of ward, town & county boundaries; aggregating into single districts only those towns and wards where the boundaries were "reasonably proximate"; and grouping together towns of like size as much as possible.  The 2006 Constitutional Amendment, of course, has greatly reinforced and extended this list of "legitimate considerations," and has fully repudiated the contrary view that was adopted by the NH Supreme Court in its 2002 Burling decision.  By my calculations, the acceptance of reasonable deviations above the 10% presumption enables a calculation of a good Cheshire county plan fully compliant with the state constitution and without either weighted voting or the overlay of huge floterial districts.  I suspect that this could be done across the state as well, although there will be a handful of situations (perhaps Canterbury is one) where exceptions to the usual rule will be necessary and appropriate.

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by: rames14779 @ Sun Mar 25, 2012 at 01:53:55 AM UTC

[ Parent ]

When you come up with the plans, (4.00 / 1)

I hope you will share them.  They may yet be adopted.

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

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by: Lucy Weber @ Sun Mar 25, 2012 at 03:07:40 AM UTC

[ Parent ]

plan was sent on 12/30 (4.00 / 1)

On 12/30/11, I sent my plan to you, to David Pierce, and to some others, along with my views on the constitutional issues.  You wrote a gracious and lengthy reply.  The others did not reply.  Regarding the core constitutional question, you wrote:

I absolutely agree with you that there ought to be some added wiggle room in the deviation numbers.  The court cases just use the 10% number as a presumption that the plan is constitutional.  I would have preferred to argue for some higher deviation number, but the majority flatly refused to depart from the goal of 5% above and 5% below.

 Well, as I have tried to make clear, I think that the refusal to depart from the 10% deviation presumption is flat out wrong. The America Votes plan that you and most Democrats supported is way off the mark, resorting to weighted voting and monstrous floterials, simply because it turned the 10% deviation presumption into an inviolable rule.  I hope that the Democrats in the House will now revisit this question and put forward a new plan fully respectful of both the state and federal constitutional commands.

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by: rames14779 @ Sun Mar 25, 2012 at 11:50:50 AM UTC

[ Parent ]

Thanks for the reminder. (4.00 / 1)

I'll go and look it up.

With so many issues to deal with, I usually empty my brain out at the end of each week, rather like the wastebasket, so there will be enough room for the next week's issues.  

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

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by: Lucy Weber @ Sun Mar 25, 2012 at 13:09:57 PM UTC

[ Parent ]

11.2 is the key to why 11.1 failures are still Constitutional (4.00 / 1)

And yes, Elwood, you got it correct in 2.5 bullet points.  There is no 'in the past', since this was never a requirement before.  But yes, it should be a provision (IMHO) as described.  

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.

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by: SethCohn @ Sat Mar 24, 2012 at 22:50:47 PM UTC

[ Parent ]

don't forget 11.2 (0.00 / 0)

I suggest that 11.2 is the provision that allows resolution of hard cases such as Canterbury's.  Reading the constitutional amendment as an integral whole that gives meaning to each of its parts (that, after all, is the job of constitutional scholars, judges and legislators), large towns must get their own representatives (11.1) and small towns must be grouped to get their own representatives (11.3), but the apportionment dictated by strict application of 11.1 and 11.3 must give way when the result is, per 11.2, to "deny any other town or ward representation in one non-floterial representative district."  Canterbury is in such a situation.  So the solution, explicitly enabled by 11.2 as an exception to 11.1 and 11.3, is to join Canterbury with one of the other adjoining towns to make a two-seat, non-floterial district.

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by: rames14779 @ Mon Mar 26, 2012 at 13:07:16 PM UTC

[ Parent ]

While true... (0.00 / 0)

We agree, that 11.2 can be used to forgive the violations of 11.1, the issue is where and when... and that's the crux of the problem: it's not as simple as 'identify all the places like Canterbury and then join them', I tried that, doesn't work.  Plus which town picked affects other towns, the entire puzzle makes it impossible to solve for a perfect answer for 11.1, 11.2, etc (all parts of the amendment).  Given all of the others 'rules' in play (yes, the 10% deviation limit, the counties being inviolate, the math method [using composite vs. aggregate]), it turns out to be quite a complex issue, and having spent hours and hours, as did Steve V, Spec Bowers, Jim Parison (who struck upon the ingenious and IMHO completely legal "Parison method" of shifting a seat from the main to the float and thus changing the deviations for the better), I submitted what I felt was good as I could get...

My plans weren't perfect, I said multiple times, but they were (to the extent that all of the solvers combined could help it), the best of all possible bad solutions.  Spec and I provided a variety of options for many counties to the subcommittee, and some pieces were used.  Others weren't.  Hillsborough (IMHO) was a mess, so I spent time and provided the committee a replacement... and convinced a majority of the House to go along, causing a rare midsession caucus to push to overturn that back to the committee version.

But I remain convinced that the amendment is fundamentally broken, and that the best 'fixes' (to preserve the intent of the people) would be to allow towns like Canterbury to 'float' entirely, to figure out the math method and deviation for certain, and to (optionally) allow county lines to be crossed.

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.

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by: SethCohn @ Tue Mar 27, 2012 at 02:53:33 AM UTC

[ Parent ]

Will Bates than ask for a non-binding referendum? (4.00 / 3)

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by: Putney Swope @ Sat Mar 24, 2012 at 11:06:51 AM UTC

[ Parent ]

Another Example (0.00 / 0)

This is yet another example of how Bill O'Brien is simply walking in Gene Chandler's shoes. Gene Chandler and crew destroyed any sense of fairness in NH redistricting in 2001-2002. Chandler oversaw an insulting and demeaning process that stunned those who had been around the State House for years. The personal insults spewed at then House Democratic Leader Peter Burling in the official meetings were at the time an all time low.  As bad as O'Brien has been the past year and a half with redistricting Gene Chander would be no better.

Have you told a stranger today about Bill O'Brien and his Tea Party agenda? The people of NH deserve to hear about O'Brien  and his majority committed to destroying New Hampshire and remaking it into a armed survivalist preserve.  

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by: Ray Buckley @ Sat Mar 24, 2012 at 17:59:17 PM UTC

Deviation (0.00 / 0)

I spoke to a Vermont legislator who was very surprised that in NH the speaker was insisting on a 5% rule.  



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

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by: Kathy Sullivan 2 @ Sun Mar 25, 2012 at 16:55:39 PM UTC

NH & VT originally had 1 rep/town (4.00 / 1)

Vermont has a large legislature for such a small state: the House of Representatives has 150 members, which is 1 per approximately 4000 residents.  Districts can cross county lines.  The Senate has 30 members, each named after  a single county (with the exception of "Essex-Orleans") but all of which do include a few towns from other counties.

Originally NH & VT's Houses of Representative were arranged along similar lines: each town had one rep per town.

Well into the 20th century, Vermont stuck to one rep per municipality: Burlington had its one rep, but so did Glastenbury.  I do not know how Vermont arrived at 150 reps in the end, since it has 264 incorporated municipalities (255 towns, and 9 cities.)

New Hampshire has 221 towns (including Sugar Hill which was only founded in 1962) and 13 cities.  New Hampshire traditionally had 1 rep per town and 1 rep per city ward, with bonus reps for places with extra population.  The total of 400 was arrived at only after they began to run out of room in Reps Hall, as the population of certain towns and cities grew.


sitting state rep: running for re-election in 2012.

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by: TimothyHorrigan @ Sun Mar 25, 2012 at 19:51:42 PM UTC

[ Parent ]

Thanks, Tim, (0.00 / 0)

it's good to know the history.

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by: Lucy Edwards @ Sun Mar 25, 2012 at 22:44:40 PM UTC

[ Parent ]