2008-391, TOWN OF CANAAN & a. v. SECRETARY OF STATE

The petitioners, who are various towns, legislators,

general, on the memorandum of law and orally), for the respondent. Kelly A. Ayotte, attorney general (James W. Kennedy, assistant attorney

O'Brien on the brief and orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: New Hampshire Legal Rights Foundation, of Mont Vernon (William L.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-391 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

landscape. As the voter guide explained:

stability and continuity in . . . the legislative system.”

redistricting legislation] at a future session.”

began considering the new scheme after our holdings in legislature. CACR 41 reintroduced “floterial” districts to the legislative to New Hampshire voters on November 7, p. 2 2006, following its adoption by the Constitutional Amendment Concurrent Resolution 41 (CACR 41) was put

another apportionment until after the next federal census.” Id. at 148. one or two years following the next census [which] would impair the need for upon the decennial census figures, it has no constitutional authority to make state.” the legislature has fulfilled its constitutional obligation to reapportion based

intimated that the legislature “might well have been precluded from [enacting prior to the p. 2 2004 election. Id. at 149. Had it waited until the next session, we legislative districts guided by the “one person/one vote” standard. Below and Burling and exercised and discharged,” constitutional reapportionment authority, however, because the legislature to act under [Part II, Articles 9, 11 and 26] continue until the power is The legislation reviewed in Below II was a permissible exercise of

omitted).

“redistrict nine years after one federal decennial census . . . [and] again in only to delay post-census redistricting. Taken to the extreme, the legislature could of the inhabitants of the state taken by authority of the United States or of this 147. Nevertheless, we cautioned that the legislature lacked absolute discretion . . . to ensure substantially equal representation based upon population,” id. at omitted), given “the purpose and intent of requiring decennial reapportionment reapportionment schemes into constitutional compliance, we developed Below II, 151 N.H. at 148 (quotation and ellipsis

to the court-ordered p. 2 2002 plan because “the [legislature’s] duty and the power 2000 census. In Below II, we upheld reapportionment legislation enacted subsequent

15 p. 2 2. Below, 148 N.H. at 10 (quotation omitted); see also Burling, 148 N.H. at

census because the sole constitutional “yardstick [was] the last general census N.H. at 5-9; Burling, 148 N.H. at 146-50. We did so based upon the p. 2 2000

of House Bill 4 p. 2 20 regarding house redistricting). In order to bring the regarding senate redistricting); Burling, 148 N.H. at 145 (failure to override veto

See Below, 148 N.H. at 4 (failure to override veto of Senate Bill 1

legislature’s failure to discharge its constitutional duty to do so based upon the New Hampshire’s Senate and House of Representatives following the In Below and Burling, we undertook, albeit reluctantly, redistricting for

action seeks a third redistricting. plan. See Petition of Below, 151 N.H. 135, 137 ( p. 2 2004) (Below II). The instant form those towns, wards, or unincorporated places into

p. 3 representatives. combined to allow for additional at-large or floterial Excess population in one or more contiguous districts may be

necessary to entitle it to one representative, the legislature shall

ward districts, to qualify for one or more representative seats.

or unincorporated place has fewer than the number of inhabitants in one non-floterial representative district. When any town, ward, apportionment shall not deny any other town or ward membership

representative seat, the Legislature shall form multi-town or multi- 3 place does not have enough inhabitants necessary for a part of a floterial district. Where a town, ward or unincorporated

shall have its own district of one or more representative seats. The

from being included in a single-representative district before it is

enough inhabitants to form a district. representative seat in those towns and wards that do not have large districts using excess inhabitants from one district to create a represented by a member of their own community. population for one or more representative seats the town or ward increase the probability that the people of a town will be federal census, is within a reasonable deviation from the ideal to 2002. It will increase the total number of districts and therefore When the population of any town or ward, according to the last

II, Article 11 of the State Constitution now reads: ordered reapportionment. The voters adopted CACR 41 and, as a result, Part declined to employ “floterial” redistricting schemes within the 2002 court- representatives, unless such action prevented a neighboring town CACR 41 is likely a response to our decision in guaranteed its own district for the purposes of electing one or more Burling, where we one or more representative seats in the Legislature shall be

permit or prohibit the Legislature to form so-called “floterial” or at-

create districts in the same manner that districts were drawn prior

Each town or ward having enough inhabitants to entitle it to

districts for electing state representatives, but does not expressly permits the Legislature to form multi-town and multi-ward the Legislature shall have its own district. The Constitution [If adopted, t]his amendment will allow the legislature to

. . . .

having enough inhabitants to entitle it to one representative seat in The Constitution does not guarantee that each town or ward petitioners’ requests for declaratory and injunctive relief. p. 4 Representatives undergo immediate redistricting. The trial court denied the and that these impingements require an immediate remedy. passage of CACR 41 requires that the New Hampshire House of [p]etitioners[’] . . . fundamental rights of voting, representation and candidacy” They assert that the trial court’s order results in a “complete denial [of] the

census.

petitioners also sought to enjoin the 2008 elections. They contend that the census.” II, Article 11, voters expressed a clear intent to require immediate redistricting. place at the regular legislative session following the next [federal] decennial

upon the federal census.”

in immediate reapportionment. Finally, the trial court reasoned that our decision one legislator’s post-adoption comments explaining that CACR 41 required no

districts at the regular session following every decennial federal acceptable deviations. The legislature shall form the representative representative districts prior to the 2008 primary and general elections. The districts to form at-large or floterial districts conforming to On appeal, the petitioners argue that by adopting the amendment to Part “plainly and unambiguously establish[es] that the mandated redistricting take

Hampshire has been to create legislative districts once every ten years based Below II supported its conclusion given that “[t]he policy and practice in New

for redistricting upon passage but that Part II, Article 11 does not. It also cited The court noted that past constitutional amendments expressly provided

Part II, Article 11 as amended requires the legislature to redistrict the state’s district may be added to the excess number of inhabitants of other for the New Hampshire House of Representatives, is unconstitutional because that RSA 662:5 (2008), the statute currently governing district apportionment language of Part II, Article 11. It concluded, however, that Part II, Article 11 redistricting scheme within RSA 662:5 does not comply with the amended In reaching its disposition, the trial court assumed that the statutory

preserved and contiguous. The excess number of inhabitants of a boundaries of towns, wards, and unincorporated places shall be On May 5, 2008, the petitioners filed this action seeking a declaration representatives for the entire district. In forming the districts, the

N.H. CONST. pt. II, art. 11.

inhabitants to entitle each district so formed to one or more representative districts which contain a sufficient number of census.

p. 5 language. Article 11, as amended, is a clear mandate and a grant of authority,

representation,”

petitioners’ construction of Part II, Article 11 is belied by the provision’s plain

conducted until 2010.

census.” N.H. CONST. pt. II, art. 11. The plain meaning requires with such an approach . . . clearly meet[s] the minimal requirements for

Reynolds v. Sims, 377 U.S. 533, 583 (1964), and “compliance and the laws were adopted.” reapportionment is a “rational approach to readjustment of legislative adoption legislative statements. explained in that sense in which it was used at the time when the constitution right to vote freely for the candidate of one’s choice.” Decennial

the language of prior constitutional amendments and relying upon post- immediate reapportionment following its adoption by voters. Rather, the We reject the contention that our construction “violate[s] the essential amended language and unreasonably ascertained voter intent by considering

therefore unnecessary because the next federal decennial census will not be the language of the constitutional text itself.

See id.; cf. Below II, 151 N.H. at 146. Immediate reapportionment is

“representative districts at the regular session following every decennial federal see Below II, 151 N.H. at 146-47, which requires the legislature to form

controls the legislature as well as the people, is to be always understood and We are not persuaded that CACR 41 was intended to compel an that the trial court impermissibly read words into the final sentence of the presumed to have had to the electorate when the vote was cast.”

legislature would conduct the next reapportionment. Accordingly, we turn to proposed new constitutional text, the voter guide is silent as to when the explanation of CACR 41 that assists us in deciding the issue. Apart from the Contrary to the parties’ assertions, we find nothing in the voter guide’s

omitted). “The language used by the people in the great paramount law which

amendment was adopted . . . but only . . . years later.” They further contend “In so doing, we will give the words in question the meaning they must be . . assumed that their constitutional direction . . . was not effective when the Opinion of the Justices (Voting Age In Primaries), 157 N.H. 265, 268 (2008). existing districts upon adoption means that voters “would not have known or . the meaning of [a constitutional] provision, we examine its purpose and intent.” at 139; see also State v. MacElman, 154 N.H. 304, 307 (2006). “To interpret novo as “the final arbiter of State constitutional disputes.” Below II, 151 N.H. We review the trial court’s construction of constitutional provisions de

guide’s failure to inform voters that the amendment would not be applied to In support of their argument, the petitioners maintain that the voter p. 6 6

concurred.

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

the trial court. upon the issues presented. For the foregoing reasons, we affirm the order of U.S. 399 (200 p. 6 6), relied upon by the petitioners, reveals nothing instructive Our review of League of United Latin American Citizens v. Perry, 548

omitted). organization of the legislative system,” Below II, 151 N.H. at 148 (quotation 583-84, while recognizing “the need for stability and continuity in the maintaining a reasonably current scheme of legislative representation,” id. at