WASHINGTON, D.C. — Today, in a 3-2 decision, the New Hampshire Supreme Court ruled that state courts cannot review claims of extreme partisan gerrymandering under the state constitution.
Today’s decision stems from a 2022 lawsuit filed on behalf of New Hampshire voters alleging that the state Senate and Executive Council districts are unconstitutional partisan gerrymanders that impermissibly favor Republicans.
The lawsuit — which was filed against New Hampshire Secretary of State David Scanlan (R) — argued that even “if more than half of the statewide electorate votes for Democratic candidates, Republicans can still obtain control of both the Senate and Executive Council with large margins.” The plaintiffs contended that the challenged maps “cracked” and “packed” Democratic voters across districts to entrench Republican majorities.
In an October 2022 ruling, a New Hampshire trial court dismissed the case, ruling that partisan gerrymandering claims “present non-justiciable political questions” that cannot be reviewed by courts. The plaintiffs subsequently appealed this ruling to the state Supreme Court, which heard oral argument in May 2022.
Today’s opinion from the New Hampshire Supreme Court Republican-appointed justices affirms the trial court’s decision holding that New Hampshire courts cannot review allegations of partisan gerrymandering.
According to the majority, “[t]he New Hampshire Constitution commits the authority to redistrict to the legislature” and courts can only get involved in the redistricting process when the Legislature fails to comply with express state constitutional requirements. The majority concluded that in this case, the Legislature’s enacted maps did not contravene the state constitution’s redistricting requirements.
With regards to partisan gerrymandering claims, the opinion held that under the New Hampshire Constitution, there are no “discernible and manageable standards to direct judicial decisionmaking in the context of claims of extreme partisan gerrymandering.” In reaching its conclusion, the majority cited at length the U.S. Supreme Court’s 2018 decision in Rucho v. Common Cause in which the Court ruled that federal courts cannot adjudicate partisan gerrymandering claims under the U.S. Constitution.
The opinion further acknowledged that “unlike other states that have codified limits on partisan gerrymandering or amended their state constitutions to limit or prohibit partisan favoritism in redistricting, New Hampshire has not done so.” The majority added that the plaintiffs failed to identify any explicit constitutional provision or state law forbidding partisan gerrymandering in New Hampshire.
“In the absence of established limitations on partisan gerrymandering as adopted by statute or by constitutional amendment, we hold that the issue presented poses a non-justiciable political question,” the opinion concluded.
The New Hampshire Supreme Court’s two Democratic-appointed justices dissented, disagreeing with the majority’s holding that courts cannot resolve claims of partisan gerrymandering.
The dissenting opinion explained that to assess the challenged maps, it would apply the framework utilized by the New Mexico Supreme Court in a July 2023 redistricting decision holding that partisan gerrymandering claims are justiciable under the state constitution. In that decision, the New Mexico Supreme Court employed a three-part test — assessing intent, effect and causation — that was widely relied upon by federal and state courts prior to the Supreme Court’s Rucho decision.
Today’s decision follows recent rulings in other states regarding the justiciability of partisan gerrymandering claims. In April 2023, the Alaska Supreme Court ruled that partisan gerrymandering claims are justiciable, while the North Carolina Supreme Court reversed course and overturned its previous decisions holding that these claims were reviewable. Meanwhile, courts in other states — including Kansas and Kentucky — have ruled in recent years that partisan gerrymandering claims are non-justiciable.