THE STATE OF NEW HAMPSHIRE

SUPREME COURT

 

In Case No. 2002-0210, Petition of Representative Peter Burling & a., the court on June 26, 2002, issued the following order:

Part II, Article 9 of the New Hampshire Constitution mandates that any apportionment plan for the New Hampshire House of Representatives be based upon "the last general census of the inhabitants of the state taken by authority of the United States or of this state." N.H. CONST., pt. II, art. 9; see also McGovern v. Secretary of State, 138 N.H. 128, 131 (1993); N.H. CONST., pt. II, art. 26 (regarding apportionment of senate). Accordingly, when the court issued an order on May 28, 2002 describing the criteria to which any redistricting plan submitted by the parties must conform, these criteria included the requirement that the plan use PL 94-171 census data and that it be provided as a census block equivalency file.

The Speaker of the House requested that the court modify its May 28, 2002 order to state that plans be based on ward lines drawn as a result of the 2000 federal census, rather than on census blocks. On June 4, 2002, the court modified its May 28, 2002 order to permit, but not require, parties to submit plans based on ward lines drawn as a result of the 2000 federal census. The court expressed no opinion as to whether any such plan would satisfy the federal and state constitutional principle of one person/one vote, or whether the court would adopt such a plan. The court invited the parties to address these issues in their pleadings and at the time of oral argument.

The court received the plans submitted by the parties on or before June 6, 2002. The plans submitted by the parties indicated that they were based upon ward boundaries drawn after the 2000 federal census was conducted. None of the plans submitted by the parties identified the ward boundaries changed after the 2000 census was conducted, the location of the new ward boundaries, or the data from which the changed ward boundaries were derived.

Thus, on June 10, 2002, the court ordered the House of Representatives to provide to the court "in written and electronic form, the [census] block equivalency files showing ward changes made by any city based on the 2000 federal census figures." The House of Representative responded that it was unable to comply with this request before oral argument on June 11, 2002.

At oral argument, the court told the parties that "we need the [census] block equivalency files to show what census blocks were shifted from ward to ward . . . in order for us to construct a plan. . . . We just have to know what pieces of the census data have been changed as a result of these ward changes" and asked who had this information. To give the parties time to answer this question, the court recessed oral argument briefly. During the recess, the Clerk of Court asked counsel for the Secretary of State to provide the court with information about any ward boundary changes made after the 2000 census was conducted and, specifically, to identify the census blocks affected by the ward boundary changes. Counsel for the Secretary of State said that the Secretary of State did not have this information.

Following the recess, counsel for the House of Representatives informed the court that "only one city . . . uses census blocks [to change its ward boundaries], and that’s Dover." Counsel further informed the court that while the cities of Manchester and Nashua had both changed their ward boundaries after the 2000 census was conducted, neither city used census block data to make these changes; both cities "used streets" to make changes to their ward boundaries.

Because our State Constitution requires that any apportionment plan be based upon the last federal decennial census, see N.H. CONST., part II, arts. 9, 11, 26, the court then informed the parties that "in the absence of the data, hearing that most of the cities haven’t used the census data, and to expedite the process we’re in, we’re going to have to rely upon the unadjusted PL 94-171 census data for those wards."

Since oral argument, no party has provided the court with the requisite data. In the opinion the court issued on June 24, 2002, in case no. 2002-0243, Petition of Senator Clifton Below & a., the court relied upon the unadjusted PL 94-171 census data for the entire State, including those cities that adjusted their ward boundaries after the 2000 census was conducted. The court stated that wherever changes to ward boundaries had been made after the 2000 census was conducted, "it will be the responsibility of the appropriate officials to conform the ward lines to the PL 94-171 data or to make internal election process accommodations." (Emphasis added). For instance, RSA 656:1 (1996) makes the Secretary of State responsible for preparing and delivering the ballots for all State elections, which might include preparing and delivering separate ballots for voters in wards with changed boundaries.

In this case, the court also intends to use the PL 94-171 census data, and to rely upon the ward boundaries submitted to the United States Census Bureau for the 2000 census instead of upon the ward boundaries that changed after the 2000 census was conducted. It will again "be the responsibility of the appropriate officials to conform the ward lines to the PL 94-171 data or to make internal election process accommodations." See RSA 656:1.

Should the parties wish the court to consider, in this case, using ward boundaries that were changed after the 2000 census was conducted, they shall submit the following information to the court by 12:00 p.m. on Monday, July 1, 2002:

1. A list of the cities that changed their ward boundaries after the State submitted ward boundaries to the United States Census Bureau to enable the 2000 federal decennial census to be conducted.

2. Certified copies of the city charters of those cities that changed their ward boundaries after the ward boundaries were submitted to the United States Census Bureau for the 2000 census.

3. The maps of the ward boundaries in cities that changed their boundaries after the ward boundaries were submitted to the United States Census Bureau for the 2000 census.

4. An affidavit from the person responsible in each city that changed its ward boundaries after the ward boundaries were submitted to the United States Census Bureau for the 2000 census explaining how the changes to ward population were calculated (i.e., were census block equivalency files used and, if so, how were they used; if census block equivalency files were not used, how did they determine how many people lived in each portion of a ward, etc.)

5. A stipulation, signed by all of the parties, indicating that the proposals submitted to the court relied upon ward boundaries that had been changed after the ward boundaries were submitted to the United States Census Bureau for the 2000 census.

6. A brief memorandum addressing the issue of whether the State Constitution permits the court to adopt an apportionment plan that relies upon ward boundaries changed after the 2000 census was conducted, without using the census block equivalency files.

Brock, C.J., and Nadeau and Dalianis, JJ., concurred.

 

 

Eileen Fox,

Clerk