City of Dover & a. v. Secretary of State & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0259, City of Dover & a. v. Secretary of
State & a., the court on June 4, 2025, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The
plaintiffs, the Cities of Dover and Rochester, Debra Hackett, Rod Watkins,
Kermit Williams, Eileen Ehlers, Janice Kelble, Erik Johnson, Deborah
Sugerman, Susan Rice, Douglas Bogen, and John Wallace, appeal an order of
the Superior Court (Howard, J.) denying their cross-motion for summary
judgment, and granting summary judgment for the defendants, the State of
New Hampshire and the Secretary of State. The plaintiffs challenge under Part
II, Article 11 of the New Hampshire Constitution the decennial redistricting of
the New Hampshire House of Representatives following the 2020 federal
census. We conclude that the plaintiffs have not met their burden of showing
that the Legislature had no rational or legitimate basis for enacting the
redistricting plan and further conclude that the enacted plan was within the
bounds of the Legislature’s discretion. Accordingly, we affirm.

The following facts are undisputed and are drawn from the trial court
order and the summary judgment record. In 2021, as part of the redistricting
process, House Bill 50 (HB 50) was enacted into law as RSA 662:5. See Laws
2022, 9:1; RSA 662:5 (Supp. 2024). During the legislative process, a non-
partisan group called “Map-a-Thon” submitted a House redistricting plan to the
Legislature. Map-a-Thon’s plan provided dedicated House seats to 15 towns
and wards that did not receive a dedicated House seat in the enacted plan.
Map-a-Thon’s plan also changed the makeup of other districts throughout each
county at issue.

The plaintiffs challenged RSA 662:5, arguing that it violated Part II,
Article 11 of the New Hampshire Constitution, and sought declaratory and
injunctive relief. See N.H. CONST. pt. II, art. 11 (requiring a dedicated district
for each town and ward within a certain population deviation “from the ideal
population”). The defendants moved to dismiss and the trial court denied the
motion. The parties then filed cross-motions for summary judgment. The trial
court granted the defendants’ motion and denied the plaintiffs’ motion. The
trial court concluded that it need not determine what constitutes a violation of
Part II, Article 11 of the New Hampshire Constitution’s “dedicated district
requirement” because the plaintiffs had “failed to meet their burden to
establish the lack of a rational or legitimate basis for the Legislature’s decision
to enact the map codified in RSA 662:5.” This appeal followed.

The plaintiffs’ appeal is limited to the redistricting plan for the counties
in which the trial court found the plaintiffs had standing — Strafford,
Merrimack, and Hillsborough. The Map-a-Thon plan results in a net gain of six
dedicated districts in these counties. However, under the Map-a-Thon plan,
the Town of Durham loses its dedicated district.1 Part II, Article 11 of the New
Hampshire Constitution provides, in relevant part, that:

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.

N.H. CONST. pt. II, art. 11. It is undisputed that neither the Map-a-Thon plan
nor RSA 662:5 creates a dedicated district for every qualifying ward and town
as required by Part II, Article 11 of the New Hampshire Constitution.

Indeed, the parties agree that it is impossible to create a House map that
complies with both the requirements of Part II, Article 11 of the New Hampshire
Constitution and the other state and federal constitutional requirements that
all redistricting plans must satisfy. Additionally, the parties extensively cite
City of Manchester v. Secretary of State, 163 N.H. 689 (2012). In City of
Manchester, 163 N.H. at 694, 702, the petitioners challenged the House
redistricting plan that the Legislature enacted in 2012, arguing that the
Legislature erred by enacting a plan that violated Part II, Article 11 of the State
Constitution because it did not maximize the number of towns and wards with
dedicated districts. We recognized that it was impossible to fully comply with
Part II, Article 11 and also satisfy other state and federal constitutional
requirements. Id. at 706. The redistricting plan at issue in City of Manchester
hewed more closely to equal protection requirements under the State and
Federal Constitutions than alternative plans proposed by the petitioners, but it
did not maximize the number of districts that satisfied the requirements of Part
II, Article 11. See id. at 702. We held that the petitioners failed to meet their
burden of demonstrating that the Legislature lacked a rational or legitimate
basis when it enacted the redistricting plan. See id. at 704.

The plaintiffs, nonetheless, argue that Part II, Article 11 of the New
Hampshire Constitution requires the Legislature to maximize the number of

1 The plaintiffs do not specifically advocate for the Map-a-Thon plan.Rather, they point to it as an
example of what a plan that gives more wards and towns dedicated districts could look like and
argue that any plan the legislature adopts must create dedicated districts for “at least as many
eligible towns and wards as the Map-a-Thon plan does.”
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towns and wards with dedicated districts and that the Legislature lacked a
rational or legitimate basis sufficient to justify enacting RSA 662:5. The
plaintiffs argue that the only rational or legitimate basis for failing to maximize
the number of towns and wards with dedicated districts is compliance with
another constitutional requirement. The defendants counter that legislative
policy preferences can provide a rational or legitimate basis for enacting RSA
662:5, where, as here, the Legislature’s choice was between maps that did not
fully comply with Part II, Article 11. The defendants reason that this was “a
political decision to be made by the Legislature based on policy considerations”
and that the plaintiffs’ legal challenge to RSA 662:5 is a request “for this Court
to substitute its judgment for the political judgment of the Legislature.” We
agree with the defendants.

In reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Guare v. State of N.H., 167 N.H. 658, 661 (2015). If our review
of that evidence discloses no genuine issue of material fact and if the moving
party is entitled to judgment as a matter of law, then we will affirm the grant of
summary judgment. Id. We review the trial court’s application of the law to
the facts de novo. Id.

As with any statute, we must presume that the enacted plan is
constitutional, and we will not declare it invalid except upon inescapable
grounds. City of Manchester, 163 N.H. at 696. This means that we will not
hold the redistricting statute to be unconstitutional unless a clear and
substantial conflict exists between it and the constitution. Id. It also means
that when doubts exist as to the constitutionality of a statute, those doubts
must be resolved in favor of its constitutionality. Id.

Courts generally defer to legislative enactments not only because they
represent the duly enacted and carefully considered decision of a coequal
and representative branch of our Government, but also because the
legislature is far better equipped than the judiciary to amass and
evaluate the vast amounts of data bearing upon legislative questions.

This is particularly so in the redistricting context. Our State
Constitution vests the authority to redistrict with the legislative branch,
and for good reason. A state legislature is the institution that is by far
the best situated to identify and then reconcile traditional state policies
within the constitutionally mandated framework of substantial
population equality. It is primarily the Legislature, not this Court, that
must make the necessary compromises to effectuate state constitutional

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 goals and statutory policies within the limitations imposed by federal
law.

Therefore, we tread lightly in this political arena, lest we materially
impair the legislature’s redistricting power. Judicial relief becomes
appropriate only when a legislature fails to reapportion according to
constitutional requisites in a timely fashion after having had an adequate
opportunity to do so. Both the complexity in delineating state legislative
district boundaries and the political nature of such endeavors necessarily
preempt judicial intervention in the absence of a clear, direct, irrefutable
constitutional violation.

Id. at 696-97 (quotations, brackets, citations, and ellipses omitted).

Because any statute passed by the Legislature is presumed
constitutional, the party challenging it bears the burden of proof. Id. at 698.
We review challenges to redistricting plans that may violate state constitutional
mandates under a standard of review akin to the well-established rational
basis standard. See id. To prevail, the plaintiffs must establish that the plan
was enacted without a rational or legitimate basis. Id. Moreover, we will not
reject a redistricting plan simply because the plaintiffs have developed one that
appears to satisfy constitutional and statutory requirements to a greater degree
than the plan approved by the Legislature. See id. Although proof that such a
plan may be crafted might cast doubt on the legality of the Legislature’s plan,
the plaintiffs’ burden is not to establish that some other more compliant plan
exists, but to demonstrate the absence of a rational or legitimate basis for the
challenged plan’s failure to satisfy constitutional or statutory criteria. See id.

Here, the Legislature had a choice to make. On the one hand, it could
enact a plan, such as RSA 662:5, that does not maximize the number of towns
and wards with dedicated districts. On the other hand, it could enact a plan,
such as the Map-a-Thon plan, that provides dedicated districts to more wards
and towns but would deny Durham, the largest town in Strafford County, its
own dedicated district and dilute the voting power of Madbury residents by
placing Madbury in the same district as Durham. Given that the State
Constitution allocates the primary responsibility for redistricting to the
Legislature, and given the small increase in the number of towns and wards
with dedicated districts in the Map-a-Thon plan, it is not for this court to
decide which noncompliant plan the Legislature should have enacted. See
Brown v. Sec’y of State, 176 N.H. 319, 329 (2023) (“The New Hampshire
Constitution commits the authority to redistrict to the legislature.”). This is a
policy decision reserved to the Legislature. See City of Manchester, 163 N.H. at
704. Here, where the difference in the number of towns and wards receiving
dedicated districts is de minimis and both the plan the plaintiffs provide as an
example of a more compliant plan and RSA 662:5 do not fully comply with Part
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II, Article 11 of the State Constitution, we conclude that the Legislature’s policy
preferences are a rational and legitimate basis for enacting RSA 662:5.

Legislative “[r]edistricting is a difficult and often contentious process.”
Id. at 706 (quotation omitted). “A balance must be drawn.” Id. “Trade-offs”
must be made. Id. (quotation omitted). The plaintiffs have not persuaded us
that the trade-offs the Legislature made in enacting RSA 662:5 were
unreasonable. See id. Accordingly, we conclude that the plaintiffs have not
met their burden of demonstrating that the Legislature had no rational or
legitimate basis for enacting RSA 662:5. We have considered the plaintiffs’
remaining arguments, and have concluded that they do not warrant further
discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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