2022-0184, Theresa Norelli & a. v. Secretary of State & a.

and Myles B. Matteson orally), for the Secretary of State and John M. Formella, associate attorney general, and Matthew G. Conley, attorney, on the joint brief, general (Myles B. Matteson, assistant attorney general, Anne M. Edwards, John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

plaintiffs. Coie LLP, of Washington, D.C. (John Devaney on the brief and orally), for the Group LLP, of Washington, D.C. (Aaron M. Mukerjee on the brief), and Perkins Washington (Abha Khanna and Jonathan P. Hawley on the brief), Elias Law Paul Twomey, of Epsom, on the brief, Elias Law Group LLP, of Seattle, McLane Middleton, P.A., of Manchester (Steven J. Dutton on the brief),

No. 2022 - 0184 Original

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

congressional districts, see RSA 66 p. 2 2:1. The plaintiffs contend that these superior c ourt challenging the constitutionality of New Hampshire’s current Palana Hunt - Hawkin s, filed a complaint against the Secretary of State in The plaintiffs, Theresa Norelli, Christine Fajardo, Matt Gerding, and

I. Procedural Background

approach. establish a new district plan and, in doing so, we will apply the “least change” determine that, upon a demonstrated legislative impasse, this court must the first question in the affirmative. In answering the second question, we opportunity to do so.” Reynolds v. Sims, 377 U.S. 533, 586 (1964). We answer constitutional requisites in a timely fashion after having had an adequate establish a new district plan i f the legislature fails to do so “accordi ng to f ederal the United States Constitution. Second, if so, whet her this court must two congressional districts, see RSA 66 p. 2 2:1 (2016), violates Article I, Section 2 of whether the current s tatute establishing a district plan for New Hampshire’s PER CURIAM. This case raises two preliminary questions. First,

Henry R. Klementowicz orally), as amicus curiae. Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and American Civil Liberties Union of New H ampshire Foundation, of

Representatives Minority Leader, as amici curiae. Hampshire Senate Minority Leader and the New Hampshire House of Spencer, and Olivia Bensinger on the memorandum of law), for the New Shaheen & Gordon, P.A., of Concord (James J. Armillay, Jr., S. Amy

New Hampshire Senate. and (Richard J. Lehmann on the joint brief and orally), for the President of the and orally), for the Speaker of the New Hampshire House of Representatives Lehmann Major List, PLLC, of Concord (Sean R. List on the joint brief

State of New Hampshire. Garland, senior assistant attorney general, on the joint brief and orally), for the attorney general, and Anthony J. Galdieri, solicitor general (Samuel R.V. p. 3 3

that the court “must take certain preliminary steps in this case now so that, in September 1 p. 3 3, 2022, see RSA 653:8 (2016); RSA 652:5 (2016), we determined 655:14 - c (2016) — and because the primary election will take place on absent any extension of that filing period by the Secretary of State, see RSA runs from June 1 through June 10, 2022, see RSA 655:14 (2016) — Because the filing period for declarations of congressional candidacy

“is validly enacted at any time prior t o the close of this case.” and that we “will terminate this proceeding” if a congressional redistricting plan case in no way precludes the legislature from enacting a redistricting plan,” omitted)). In doing so, w e not ed that “[o]ur invocation of jurisdiction over this controversy. ’” (Quoting Monier v. Gallen, 122 N.H. 474, 476 (1982) (brackets the public need requires, a speedy determination of the i mportant issues in We took such actions “be cause the case is one in which ‘ the parties desire, and and assumed jurisdiction over the case to the exclusion of the superior court. ordered the clerk of the superior court to transfer the record of the proceedings, On April 11, 2022, this court invoked its supervisory jurisdiction,

unconstitutional and requ est that th e court establish a new district plan. declaration tha t the existing congressional district ing statute is larger than the Second Congressional District.” The plaintiffs seek a Congressional District, where [they] live, has a population that is significantly the plaintiffs’ “votes will be unconstitutionally diluted because the First districts is unconstitutionally malapportioned,” and, if used in future elections, plaintiffs a ssert, “the existing configuration of New Hampshire’s congressional Second Congressional District significantly underpopulated.” Thus, t he Hampshire’s First Congressional District significantly overpopulated and the plaintiffs allege that “population shifts since 2010 have rendered New on data contained in the 2010 and 2020 Census Bureau data files, the c ensus reporting that New Hampshire had a population of 1, p. 3 316,470. Relying resident population is 1,377,529 — an increas e over the results of the 2010 containing the ce nsus results. According to the complaint, New Hampshire’s and, in August 2021, delivered to New Hampshire its redistricting data file decennial census required by Article I, Section 2 of the Federal Constitution The complaint states that, in 2020, the Census Bureau conducted the

Court will enact a map that [the Governor] finds acc eptable.” contend, “there is now little reason to believe that the members of the Genera l interested in compromising with the Governor on this issue.” T herefore, they that he will veto the bill, and “there is no indication the General Court is congressional district plan. According to the plaintiffs, the Governor has stated of Repres entatives passed House Bill 52, which would codify a new T he complaint alleges that, in January 2022, the New Hampshire House

population shifts reported by the U nited States Census Bureau ’s 2020 census. districts have been rendered unconstitutionally malapportio ned due to p. 4 4

(196 p. 4 4). a plaintiff’s vote is justiciable. S ee Wesberry v. Sande rs, 376 U.S. 1, 5 - 7 population disparity between congressional distr icts unconstitutionally dilutes judiciary.” (Capitalizations and bolding omitted.) We disagree. A claim that a function that is incompatible with the independent and neutral role of the this court lacks authority to act because “redistricting is an inherently political the President of the New Hampshire Senate (the intervenors) first argue that jurisdiction. The Speaker of the New Hampshire House of Representatives and We begin our analysis by addressing challenges to our subject matter

A. Subject Matter Jurisdiction

II. Analysis

follows. After con sideration of the written submissions and oral arguments, w e rule as On May p. 4 4, 2022, we heard oral argument on the prelimin ary issues.

entries contain ed in the table. The Sta te notified the court that it does not dispute a ny of the numerical

2010 and 2020.” “generated from the P.L. 9 p. 4 4 - 171 data files provided by the Census Bureau in The plaintiffs’ complaint alleges that the information contained in the table is entries in the table contained in the plaintiffs’ complaint and reproduced below. and ordered it to inform this court as to whether it disputes the numerical On April 21, 2022, we joined the State of New Hampshire as a defendant

court - ordered congressional redistricting plan. “least change” approach is the correct approach for the court to apply to any the constitutionality of the existing congressional districts and whether the intervenor or amicus curiae file briefs addressi ng preliminary issues, including April 2 p. 5 5, 2022, interested parties and any person seeking to participate a s an thorough and efficient manner.” Accordingl y, we ordered that, no later than congressional redistricting plan, we will be prepared to resolve the case in a the event that the legislative process fails t o produce a fully enacted 5

congressional redistricting plan and permanently enjoin ing any state judicial or the parties, the federal district court issued an order ad opting its own days after the state court held hearings on the redistricting plans submitted by a process to develop its own redistricting plan. Id. at 29 - 30. In February, two valid congressional redistricting plan and the Min nesota Supreme Court initiated Id. at 28. By January 1992, the Minnesota legislature had not enacted a lawfully federal district court, raising a similar challenge to the congressional districts. to preside over the case. Id. at 27 - 2 8. In March, different plaintiffs sued in February, t he Minnesota Supreme Court appointed a special redistricting panel congressional districts unconstitutionally malapportioned. Id. at 27. In part, that the 1990 federal census results rendered the then - existing group of plaintiffs sued in state court in Minnesota in January 1991, claiming, in role in [congressiona l] redistricting.” Growe, p. 5 507 U.S. at 33, 34. In Growe, a The Growe Court unanimously held that “state courts have a significant

(q uotation and brackets omitted)). controls, leaving to this Court the prerogative of overruling its own decisions.” other line of decisions, [lower courts] should follow the case which directly has direct application in a case, yet appears to rest on reasons rejected in some Felton, p. 5 521 U.S. 203, 237 (1997) (“We reaffirm that if a precedent of this Court obligated to follow the contro lling authority established in Growe. See Ag ostini v. support of state court jurisdiction in congressional redistricting cases. We are opinion in Growe v. Emison, 507 U.S. 25 (1993), which is controlling authority in argument. T heir argument is contrary to the Supreme Court’s unanimous We are not persuaded by the State and the intervenors’ jurisdictional

conduct of federal elections,” id. at 1091. actions taken by state legislatures when they are prescribing rules for the “there must be some limit on the authority of state courts to countermand conducting federal el ections,” i d. at 1 089 (emphasis added), and maintained that court’s authority to reject rules adopted by a state legislature for use in Gorsuch, urged the Court to grant certiorari to determ ine “the extent of a state application for stay). In that case, Justice Alito, joined by Justices Thomas and v. Harper, 142 S. Ct. 1089 (2022) (Alito, J., dissenting from Court’s denial of State claim to find support for that propositi on in Ju stice Alito’s dissent in Moore the state legislature’s congressional districting plan. The intervenors and the having exclusive jurisdiction over any lawsuit involvin g the constitutionality of redistricting process exclusively in the state legislature, with federal courts that provision of the Federal Constitution vests authority over the congressional Regulations, except as to the Places of chusing Senators.”). Under their view, Legislature thereof; but the Congress may at any time by Law make or alter such Senators and Representatives, shall be prescribed in each State by the CONST. a rt. I, § 4 (“The Times, Places and Manner of holding Elections for Constitution from any role in the congressional redistricting process. See U.S. precluded by the “times, places, and manner” provision of the Federal The intervenors, together with the State, further argue that this court is p. 6 6

Wisconsin Legislature v. Wisconsin Elections Comm’n, 142 S. Ct. 1245 (2022) stay as to congressional redistricting), rev’d in part on other grounds sub nom. Co mm’n, 142 S. Ct. 1410 (2022) (order in no. 21A490 denying application for N.W.2d 402 (Wis.), stay denied sub nom. Grothman v. Wisconsin Elections efforts were unsuccessful. See Johnson v. Wisconsin Elections Comm’n, 971 supreme courts have decided congressional redistricting cases after legislative Rio, p. 6 67 S.W.3d 85, 88 (Tex. 2001). Within the past year, at least five state v. Butterworth, 831 So. 2d 683, 688 - 89 (Fla. Dist. Ct. App. 2002); Perry v. Del Ct. App. 2004); Alexander v. Taylor, 51 P.3d 1204, 1207 - 10 (Okla. 2002); Brown 813 N.W.2d 391, 395 (Minn. 2012); Perrin v. Kitzhaber, 83 P.3d 368, 3 7 0 n.2 (Or. decisions addressing c ongressional redistricting. See, e.g., Hippert v. Ritchie, Our interpretation of Growe is consistent with numerous state court

and is just as binding on courts — federal or state — as it is on legislatures”). statutory language] is as readily enforced by courts as it is by state legislatures, action has not been forthcoming.” Id. at 272 (concluding that, “[i] n sum, [the embraces action by state and federal courts when the prescribed legislative the federal statutory language “assuredly envisions legislative action, it also 538 U.S. at 2 p. 6 67 (quoting 2 U.S.C. § 2c). The Branch Court explained that while to the number of Representatives to which such State is so entitled.’” Branch, power — providing for the “‘ establish[ment] by law [of] a number of districts equal a still - effective federal statute — enacted under Congress’ s Article I, Section 4 which endorsed the role of st ate courts in congressional redistricting pursuant to Supreme Court’s post - Growe decision in Branch v. Smith, 538 U.S. 254 (2003), from any party.”). The intervenors’ argument also fails to account for the wheth er subject - matter jurisdiction exists, even in the absence of a challenge (“[C] ourts, including this Court, have an independent obligation to determine basic jurisdictional tenet. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) we cannot conclude that the unanimous Supreme Court in Growe overlooked a simply assumed, not decided. We are unpersuaded by tha t argument because state court’s jurisdiction over the congressional redistricting case there was The intervenors attempt to counter the force of Growe by arguing that the

been specifically e ncouraged.” Id. at 33 (quotation omitted). recognized by this Court but appropriate action by the States in such cases has reapportionment or to formulate a valid redistricting plan has not only been explained that “[t]he power of the judiciary of a State to require valid timely consideration of congressional reapportionment.” Id. at 37. The Court elections, the federal district court “erred in not deferring to the state court’s court was “fully prepared” to adopt a congressional plan in time for the primary On appeal, t he United States Supreme Court ruled that, because the state

omitted). that the federal injunction prevented it from doing so.” Id. at 31 (quotation court “indicated that it was fully prepared to release a congressional plan b ut legislative interference with that plan. Id. at 30 - 31. In early March, the state p. 7 7

2, are violated when a state court holds that a state constitutional prov ision Electors Clauses of the United States Constitution, Art. I, § 4, cl. 1; Art. II, § 1, cl. S. Ct. at 1089 - 90, indicate, there is some debate as to “whether the Elections or First, as the citations in the dissenting position articulated in Moore, 142

from that approach here. approach to decision - making, but the following reasons persuade us to depart protection”). We acknowledge that Ball generally counsels in favor of a different examine the Federal Constitution to determine whether it provides great er Constitution and only then, if we find no protected rights thereunder, will we are implicated in a particular case, “we will first examine the New Hampshire (when it is undisputed that the protections of the New Hampshire Constitution under the Federal Constitution. Cf. State v. Ball, 124 N.H. 226, 231 - 33 (1983) Constitution. In this case, we will analyze and decide the preliminary questions congressional districting is a matte r governed exclusively by the United States established in RSA 662:1. T he State and the intervenors contend that United States Constitution in challenging the congressional districts as T he plaintiffs ’ complaint rel ies upon both the State Constitution and the

B. Constitutionality of RSA 662:1

from legislative destruction.” Wesberry, 3 p. 7 76 U.S. at 6 - 7. to vote from the power of courts to protect the constitutional rights of individuals imm unize state congressional apportionment laws which debase a citizen’s right “nothing in the language of Art. I, § 4 gives support to a construction that would Connecticut, 479 U.S. 208, 217 (1986). As the Court reasoned in Wesberry, fundamental ri ghts, such as the right to vote.” Tashjian v. Republican Party of manner of elections does not ju stify, without more, the abridg ment of determined that the state legislature’s “power to regulate the time, place, and coordinate res ponsibility to enforce that law. . . .” Id. The Supreme Court has makes those laws ‘the s upreme Law of the Land, ’ and charges state courts with a legislature.” Howlett v. Rose, 496 U.S. 356, 367 (1990). “The Supremacy Clause pursuant to it are as much laws in the States as laws passed by the state law is enforceable in state courts . . . because the Constitution and laws passed Federal Constitution. See Branch, 538 U.S. at 266 - 67, 272. Indeed, “Federal legislature. Our involvement is not foreclosed by Article I, Section 4 of the statute is unconstitutional and no redistricting plan is timely enacted by the RSA 662:1, and to formulate a remedy if the current congressional districting W e hold that this court has jurisdiction to rule on the constitutionality of

visited May 11, 2022). https://www.vacourts.gov/courts/scv/districting/redistricting_final.pdf (last curiam); In re Decennial Redistricting, (Va. decided Dec. 2 p. 8 8, 2021, available at 2022); In re Reapportionment Comm’n, 268 A.3d 1185 (C onn. 20 2 2) (per Chapman, 2 p. 7 70 A.3d 444 (Pa. 2022); Wattson v. Simon, 970 N.W.2d 56 (Minn. (per curiam) (reversing a s to redistricting of state legislature only); Carter v. 8

standard. See id. at 730 - 31. Fi r st, the parties challenging the plan bear the state’s congressional districting plan meets the “as nearly as practicable” The Supreme Court employs a two - prong test to determine wh ether a

representation.” Id. at 731 (citation omitted). best census data available, would subtly erode the Constitution’s ideal o f equal omitted). “Adopting any standard other than population equality, using the achieve absolute equality, or for which justification is shown.” Id. (quotation population variances which are unavoidable despi te a good - faith effort to (q uotation omitted). Article I, S ection 2, therefore, “permits only the limited such effort, the State must justify each variance, no matter how small.” Id. variances among congressio nal districts are shown to have resulted despite 462 U.S. at 730 (quotation and brackets omitted). “Unless population make a good - faith effort to achieve precise mathematical equality.” Karcher, objective”). “The ‘as nearly as practicable’ standard requires that the State (19 p. 8 83) (explaining that “absolute population equali ty [is] the paramou nt Abbott, 578 U.S. 54, 59 (2016); see K archer v. Daggett, 462 U.S. 725, 732 districts with populations as close to perfect equality as possible.” Evenwel v. To comply with that high standard, “S tates must draw congressional

numbers of people.” Id. at 1 p. 8 8. apportionment of congressional districts: “equal representation for equal establishes a “high standard of justice and common sense” for the much as another’s.” Wesberry, 376 U.S. at 7 - 8, 17 - 18. Article I, Se ction 2 practicable, one [person’s] vote in a congressional election is to be worth as States Supreme Court interprets that provision to mean that, “as nearly as is according to their respective Numbers.” U.S. CO NST. a rt. I, § 2. The United that such Representatives “shall be apportioned among the several States . . . Members chosen every second Year by the Peop le of the several States,” and provides that the United States House of Representatives “shall be composed of constitutionality of RSA 662:1. Article I, Section 2 of t he Federal Co nstitution Constitution, we now set forth the relevant legal principles bearing on the Having determined that we will decide this case solely under the Federal

760, 766 - 67 (1 p. 9 9 p. 8 84) (Souter, J., concurring). Bertrand, 133 N.H. 843, 850 (1991); see also State v. Kellenbeck, 124 N.H. Constitution provides the protections sought by the plaintiffs. See State v. under the State Constitution is unnecessary because the United States determination of federal constitutional law. Second, an independent analysis constitutional ana lysis here because it would otherwise involve us in a threshold 141 N.H. 262, 264 (1996) (quotation omitted), we do not engage in a State nature unless absolutely necessary to a decision of the case,” State v. Berrocales, ke eping with our long - standing policy not to decide questions of a constitutional 738 (2021) (Alito, J., dissenting from denial of certiorari) (emphasis added). “In conducted.” Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732, overrides a state statute governing the manner in which a federal election is to be 9

2.6%. Thus, t hey contend, there “is no justification” for the resulting deviatio n of the current district lines that might have existed 10 years ago is obsolete.” using decade - old census data,” the plaintiffs assert that “any justification for person, one - vote principle. Given that the “current dist rict lines were drawn congressional districting statute unconstitutional in violation of the one occurred in New Hampshire since the 2010 census render the current In this case, t he plaintiffs assert that the population shifts which have

two decennial censuses). challenge to a court - ordered congressional redistricting plan mid - way between omitted); cf. Abrams v. Johnson, 521 U.S. 74, 100 - 01 (1 p. 9 997) (rejecting a population equality.” Karch er, 462 U.S. at 73 2, 73 8 (quotation and citation population data available, it is the only basis for good - faith attempts to achieve long before they are completed,” b ecause “the census count represents the best Despite the reali ty that “population counts for particular localities are outdated the United States House of Representatives. See U. S. CONST. a rt. I, § 2, c l. 3. A census must be taken every ten years for the purpose of apportioning

deviations were not supported by the evidence). using the best available census data and the state’s attempts to justify the because the plan was not a good - faith effort to achieve population equality congressional districting plan with population deviations of approximately 0.7% contests between incumbents); Karcher, 462 U.S. at 732, 744 (striking down a splitting counties, preserving the core of existing districts, and preventi ng population deviations were necessary to achieve the legitimate objectives of not variance of 0.7 p. 9 9% because the state met its burden of demonstrating that the (per curiam) (upholding a congressional redistricting plan with a populati on 734; see Tennant v. Jefferson County Co m m’n, 567 U.S. 758, 762 - 6 5 (2012) which nonetheless meet the standa rd of Art. I, § 2, without justification.” Id. at “no de minimis population variations, which could pra cticably be avoided, but contests between incumbent Representatives.” Id. at 740. However, t here are municipal boundaries, preserving the cores of prior districts, and avoiding minor population deviations, including “making districts compact, respecting “Any number of consistently applied legislative policies might justify”

deviations are justified requires case - by - case attention to these factors.” Id. a pproximate population more closely.” Id. at 741. “By necessity, whether availability of alternatives that might substantially vindicate those interests yet the consistency with which the plan as a whole reflects those interests, and the “depend[s] on the size of the deviations, the importance of the State’s interests, legitimate state objective.” Id. at 7 40 - 41. This burden is a “flexible” one, which specificity” that the population differences are “necessary to achieve some 31, 734. If they do so, the burden shifts to the State t o “show with some practic abl y be avoided” by “a good - faith effort to achieve equality.” I d. at 730 burden of proving the existence of population differences which “could p. 10 10

federal and state constitutional obligations to legislate a congressional act too soon, and should give the legislature “every opportunity to complete its 740 - 41. Here, t he “interes t” asserted by the State is that this court should not differences are “necessary to achieve some legitimate state objective.” I d. at burden shifts to the State to “show with some specificity” that the population differences that “could practica b ly be avoided.” Id. at 734. Therefore, t he the plaintiffs have met their burden of proving the existence of population Accordingly, we determine that, under the first prong of the Karcher test,

530 - 31. p. 10 105 N.H. at 450; see Karcher, 462 U.S. at 73 0 - 32; Kirkpatrick, 394 U.S. at redistricting is not held to a “strict[er] standard” is no longer correct. Levitt, a 2.6% deviation to stand, the Levitt C ourt’s statement that congressional the State asserts that Levitt v. Maynard, 105 N.H. 4 4 7 (1964), justifies allowing Kirkpatrick v. Preisler, 394 U.S. 526, 530 - 31 (1969). Additionally, t o the extent population equality [is] the paramount objective.” Karcher, 462 U.S. at 732; latitude simply does not apply to congressional districts, where “absolute 377 U.S. at 579; Voinovich v. Quilter, 507 U.S. 146, 161 (1993). T h is broader 322 (1973); s ee also White v. Regester, 412 U.S. 755, 763 (1973); Reynolds, Clause in state legislative redistri cting. . . .” Mahan v. Howell, 410 U.S. 315, broader latitude has been afforded the States under the Equal Protection criterion of constitutionality in congressional redistricting under Art. I, § 2, Fou rteenth Amendment. “[W]hereas population alone has been the sole re districting under Article I, Section 2, and state senate re districting under the fundamental differences between the standards that apply to congressional the doctrine of one [per son], one vote.” This argument disregards the a 4.96% deviation,” a deviation of 2.6% in this case “is n ot facially offensive to State, 148 N.H. 1 (2002) (Below I), this court “drew State Senate Districts with Nonetheless, t he intervenors argue that because, in Below v. Secretary of

congressional district to another.” of political subdivisions — and perhaps only one — be moved from one population equality in this case “would likely require that only a small number census. Karcher, 462 U.S. at 738. I ndeed, the S tate asserts that achieving by redistrict ing the current congress ional districts based upon the 2020 or significantly reduced with a good - faith effort to achieve population equality” difference[] [between] the districts,” it is clear that the deviation can be “avoided Given that t he current census - based population deviation reflect s a “real

congressional district plan. districts]... is within [the] constitutionally acceptable margin” for a holding that a 2.6 percent deviation [in populat ion equality between D istrict. In addition, t he State concedes that it “can identify no precedent the First Congressional District as compared to the Second Congressional districts is 2.6%, and that the deviation equates to 17,945 additional people in The State does not dispute that the current deviation between the p. 11 11

Democratic Nat. Comm., 140 S. Ct. 1205, 1206 - 07 (2020) (per curiam) (staying confusion will incre ase as an election draws closer); Republican Nat. Comm. v. contested” factual disputes in the underlying case; noting that the risk of voter imminence of the election and the inadequate time to resolve” the “hotly enjoining operation of Arizona voter identification procedures given “the curiam) (vacating an order — issued “just weeks before an election” — election process. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4 - 6 (2006) (per case in a timely and efficient manner so as not to disrupt the upcoming maps.” T he cases cited by the State, however, advise in favor of resolving this directive” that this court “not intervene to alter New Hampshire’s congressional the present case.” According to the State, this principle “delivers a clear laws in the days preceding an election “warns against judicial intervention in the principle that federal courts should not ord inarily enjoin a state’s election a new plan if the legislature fails to do so. At the outset, t he State argues that unconstitutional, see RSA 662:1, we address whether this court must establish Having determined that the current congressional districting statute is

C. Remedy

United States Constitution. congressional district ing statute, RSA 662:1, violates Article I, Section 2 of the objective.” Karcher, 462 U.S. at 740. Thus, we hold that the existing existing congressional districts are “necessary to achieve some legitimate sta te test, the State has failed to show that the population differences between the Accordingly, we determine that, under the second prong of the Karcher

and 2020 censuses. result of population growth and movement within the state between the 2010 no legislative purpose to the current population deviation — it is simply the deviating in population equality between the districts by 2.6%. H ere, there is can it, that the legislature has made a consider ed judgment in affirmatively lines, and avoidance of contests between incumbents,” it does not assert, nor preservation of political subdivision boundaries, conservation of prior district implicate the signific ant state interests of consistency, compactness, Although the State notes in passing that “the present congressional maps the 2.6% deviation is necessary to achieve some legitimate state objective. Moreover, the State’s asserted interest does not answer the question why

election laws. Scott v. Germano, 381 U.S. 407, 409 (1965) (per curiam). the [upcoming] election,” in accordance with the provisions of the state’s court, must be adopted “within ample time to permit such plan to be utilized in a constitutional redistricting plan, i ncluding one drawn by a state supreme prior to the close of this case.” However, as the Supreme Court has recognized, proceeding” if a congressional redistricting plan “is validly enacted at any time legislature continues to have that opportunity and that we “will terminate this reapportionment.” Our April p. 11 11, 2022 order expressly acknowledges that the p. 12 12

policy in the face of substantial population inequalities is correspondingly legislatures, and the burden of articulating special reasons for following a sta te “considerab ly narrower than that accorded apportionments devised by state “[t]he latitude in court - ordered plans to depart from population equality” is are held to a higher standard of achieving population equality, explaining that We also noted that, unlike legislatures, courts engaged in redistricting

omitted). taint of arbitrariness or discrimination.” Below I, 148 N.H. at 5, 9 (quotatio ns we must accomplish our task “circumspectly, and in a manner free from any apportionment policies in the people’s name,” and concluded that, therefore, we “possess no distinctive mandate to compromise so metimes conflicting state in the legislature’s stead” to draw new state senate districts, we observed that T hus, in Below I, when we undertook the “unwelcome obligation of performing Below I, 148 N.H. at 5 (quoting Connor v. Finch, 431 U.S. 407, 414 - 15 (1977)). constitutionally mandated framework of substantial population equality.’” situated to identify and then reconcile traditional state policies within the 377 U.S. at 5 86. “‘ A state legislature is the institution that is by far the best determination.” Below I, 148 N.H. at 5 (quotation omitted); see also Reynolds, “[r]eapportionment is primarily a matter of legislative consideration and In the context of state legislative redistricting, we have observed that

we will take in formulating a new district plan. law. See Growe, 507 U.S. at 37. Accordingly, we next address what approach . . . manner” to ensure that the upcoming election proceeds in conformity with 549 U.S. at 5, w e are “fully prepared to adopt a congressional plan in [a] timely Given “the necessity for clear guidance to” the State of New Hampshire, Purcell, period that commences on that date, absent an extension. See RSA 655:14. congressional district plan needs to be in place by June 1, 2022 for the filing Counsel for the Se cretary of State informs the court that any n ew

487 (1940); see Howlett, 496 U.S. at 367. the Constitution itself rests.” Trustees & c. Academy v. Exeter, 90 N.H. 472, constit utional rights and, in doing so, “to support the fundamentals on which populous parts” of the state). It is the duty of the judiciary to protect weighted at two or three times the value of the votes of people living in more despite the fact that the votes of citizens of some parts of a state would “be would be extraordinary to suggest that” statewide elections o ught to proceed United States Constitution. See Wesberry, 376 U.S. at 8 (observing that “[i]t is more important than protecting the voters’ fundamental rights under the current congressional district ing statute, judicial non - intervention in this case We reject the State’s position that, despite the unconstitutionality of the

day). state law requiring absentee voters to return their ballots no later than election a court order, issued five days before the scheduled election, t hat enjoined p. 13 13

“least change” approach in devising its own congressional redistricting plan. question. For example, the Wisconsin Supreme Court recen tly applied the accord with those of several other jurisdictions that have addressed this We note that our decision to apply the “least change” approach is in

existing congressional districts. the least change nec essary to remedy the constitutional deficiencies in the Accordingly, any congressional redistricting plan that we may adopt will reflect which nonetheless meet the standard of Art. I, § 2, without justification”). no de minimis population variations, which co uld practicably be avoided, but districts for representatives to state and local legislatures,” and that “there are outweighs the local interests that a State may deem relevant in apportioning (explaining that “the command of Art. I, § 2, as regards the National L egislature congressio nal redistricting, we likewise agree. See Karcher, 462 U.S. at 732 - 34 legislative districts — apply with as much, if not more, force in the context of the foregoing princ iples — describing our limited judicial role in drawing state this court to apply in devising a congressional redistricting plan. Given that Here, the parties agree that “least change” is the correct approach for

(emphasis omitted). necessary t o correct the population deviations.” Below I, 148 N.H. at p. 13 13 be maintained, while contiguous populations [be] added or subtracted as deviations in existing districts, it [was] preferable that the core of those districts validly enacted plan,” and determined that, “to remedy the population each senatorial district contain[ed] roughly the same constitue nts as the last 2002). Therefore, we sought to ensure, “to the greatest extent practicable, that Colleton C oun ty Council v. McConnell, 201 F. Supp. 2d 618, 649 (D.S.C. intent,” and “the best evidence of State redi stricting policy.” Id. at 13; see also “the last validly enacted plan,” “the clearest expression of the legislature’s benchmark the existing senate districts” because the existing district plan was constitutional principle of one - person, one - vote, and that we would “use as our defect”). In doing so, we stated that we would be guided primarily by the plans “are limited to those necessary to cure any constitutional or statutory 43 (1982) (per curiam) (observing that courts’ modifications to redistricting districts.” Below I, 148 N.H. at 13 - 14; see also Upham v. Seamon, 456 U.S. 37, simply to “remedy the constitutional deficiencies in the existing senate devising new court - drawn state senate districts, and held that our task was Accordingly, we expressly adopted the “least change” approach in

brackets omitted)). population equality with little more than de minimis variation” (quotation s and ones,” and that “[a] court - ordered plan should ordinarily achieve the goal of districts are held to higher standards of popul ation equality than legislative “absolute population equali ty is the paramount objective,” that “[c]ourt - ordered 521 U.S. at 98 (observing, in the context of congressional redistricting, that higher.” Id. at 8 (quotations, e llipses, and brackets omitted); see also Abrams, p. 14 14

congressional redistricting plan that will remedy the existin g constitutional “least change” is the best approach for this court to take in devising a congressional districts may have political ramifications. How ever, that is why acknowledge, as the intervenor s assert, that any change to the existing “free from any taint of arbitrariness or discrimination” (quotation omitted)). We Connor, 431 U.S. at 415 (observing that court - drawn redistricting must be [redistricting] plan.” Below I, p. 14 148 N.H. at 11; Burling, 148 N.H. at 156; see also Pol itical considerations “have no place in a court - ordered remedial

U.S. at 98; Karcher, 462 U.S. at 730 - 33. to perfect equality as possible. See Evenwel, 578 U.S. at 59 - 60; Abrams, 521 change” approach to achieving congressional districts with populations as close the greatest extent practicable so long as they are consistent with the “least Accordingly, any plan we adopt will reflect such historic redistricting policies to census); Laws 1992, 15:1 (congressi onal redistricting following 1990 census). 2010 census); Laws 2002, 32:1 (congressi onal redistricting following 2000 redistricting. See, e.g., Laws 2012, 18:1 (congressio nal redistricting following same policies in prior legislative enactments governing congressional of these policies in the state legislative redistricting context). We di scern the 152 (2002); N.H. CONST. pt. II, arts. 9, 11, 11 - a, 26 (mandating the application divided by referendum. See id.; Burling v. Speaker of the House, p. 14 148 N.H. 143, wards, or unincorporated places unless they have previ ously requested to be Additionally, New Ha mpshir e has historically avoided dividing towns, city

or subtracted as necessary to correct the population deviations. See id. the core of the districts be m aintained, while contiguous populations are added same constituents as the last validly enacted plan, and that it is preferable that that, to the greatest extent practicable, each district should contain roughly the (quotation omitted). Further, we will a dhere to the “least change” principles “the best evidence of State redistricting policy.” Below I, p. 14 148 N.H. at 13 validly enacted plan,” “the clearest expression of the legislature’s intent,” and congressional districts because the district plan enacted in 2012 is “the last of one - person, one - vote, and we will use as our benchmark the existing As in Below I, we will be guided primarily by the constitutional principle

98; Alexander, 51 P.3d at 1211 - 12. r e Reapportionment Comm’n, 268 A.3d at 1185; Hippert, 813 N.W.2d at 397 accept[ed] among reasonable jurists.” Id.; see, e.g., Carter, 270 A.3d at 464; In novel idea,” has been “applied in numerous cases,” and is “general[ly] “least change” approach — or “minimum change doctrine” — is “far from a requirements.” Id. at 490 (quotation omitted). The court observed that the least change necessary for the maps to comport with relevant legal redistricting,” and determined that any court - ordered plan “should reflect the than a conven ient way to describe the judiciary’s properly limited role in 2021). The court explained that “[a] least - change approach is nothing more See Johnson v. Wisconsin Elections Comm’n, 967 N.W.2d 469, 488 - 92 (Wis. p. 15 15

DONOVAN, JJ., concurred. M AC DONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and

valid congressional district plan at any time pr ior to the close of this case. voters. We reiterate that the legislature is not precluded from en acting a legally applicable laws in order to protect the fundamental rights of New Hampshire the necessary steps to f ormulate a district plan that complies with all Article I, Section 2 of the United States Constitution. Accordingly, we will take congressional districting statute, RSA 662:1, unconstitutional in violation of 2020 census and undisputed by the parties, have rendered the existing We conclude that changes in New Hampshire’s population, as reflected in the upcoming election proceeds under a legally valid congressional district plan. This court has both the authority and the obligation to ensure that the

III. Con clusion

omitted). in a timely fashion.” Petition o f Below, p. 15 151 N.H. 135, 137 (2004) (quotation that the legislature did not “reapportion according to constitutional requisites political ramifications that may result w ould be the consequence of the fact not place our thumb on any partisan scale....”). Here, any incidental neutral standards inevitably benefits one side or the other in any case, it does deficiencies. See, e.g., Johnson, 967 N.W.2d at 492 (“While the application of