New Hampshire Supreme Court Holds That Partisan Gerrymandering Is a Nonjusticiable Political Question Under the State Constitution
By: Phillip M. Gordon, Daniel Bruce, and Mateo Forero
On November 29, 2023, the Supreme Court of New Hampshire decided Brown v. Secretary of State, a 3–2 decision that held that partisan gerrymandering (the act of drawing voting districts in a way that favors one political party over another) is a nonjusticiable political question under the State constitution. In other words, New Hampshire state courts cannot hear partisan gerrymandering claims because the State constitution does not prescribe manageable standards to adjudicate such claims. This decision follows in the footsteps of the U.S. Supreme Court’s 2018 decision that such claims are nonjusticiable political questions under the U.S. Constitution.
The case involved a group of voters who sued the New Hampshire Secretary of State, claiming that the state Legislature drew state senate and executive council districts to overwhelmingly benefit one political party at the expense of another. According to the voters, the Free Elections, Free Speech, and Equal Protection clauses of the State constitution all prohibited such extreme partisan gerrymandering. However, the trial court dismissed the voters’ claims and held that “the complexity in delineating state legislative districts and the political nature of such endeavors necessarily preempt judicial intervention.”[i]
On appeal, the Supreme Court of New Hampshire agreed. The Court began by noting that the political question doctrine “prevents judicial violation of the separation of powers by limiting judicial review of certain matters that lie within the province of the other two branches of government.”[ii] A controversy is a nonjusticiable political question “where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable or manageable standards for resolving it.”[iii] According to the Court, partisan gerrymandering meets both of these tests.
First, the Court held that the state constitution expressly commits the redistricting authority to the state legislature. As the Court noted, this is because “the give-and-take of the political process” is the most preferable avenue for making the political and policy decisions involved in redistricting.[iv]
Second, the Court held that the constitutional provisions relied on by the voters “neither expressly address partisan gerrymandering nor articulate discernable and manageable standards for adjudicating claims related to partisan gerrymandering.”[v] The Court relied heavily on the U.S. Supreme Court’s analysis in Rucho v. Common Cause on this point. In that case, the Supreme Court held that partisan gerrymandering claims present nonjusticiable political questions under the federal constitution because no manageable legal standards exist to guide a federal court’s decisions in adjudicating partisan gerrymandering claims. Without such manageable standards, courts are left to make political judgments that are more appropriately addressed by, and expressly committed to, the people’s elected representatives.
According to the New Hampshire Supreme Court, the same is true under the State constitution: “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.”[vi] The Court’s ruling comes after the Supreme Court of North Carolina recently held—in a surprise about-face—that partisan gerrymandering claims present nonjusticiable political questions under its State constitution. And while other courts like the Supreme Court of Pennsylvania have reached the opposite conclusion, the New Hampshire Supreme Court expressly rejected the relevance of those decisions to its own analysis. It observed that while other states “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.”[vii]
After the U.S. Supreme Court’s decision in Rucho precluded federal review of partisan gerrymandering claims, more state courts are being called upon to address this issue. For example, both the Utah and Kentucky Supreme Courts are set to weigh in on the justiciability of partisan gerrymandering claims under their respective state constitutions. It remains to be seen how those cases will be decided, but the analysis from the New Hampshire Supreme Court’s ruling may very well end up as persuasive authority in those pending cases.
[i] Brown v. Secretary of State, No. 2022-0629, slip op. at 4 (N.H. Nov. 29, 2023).
[ii] Id. at 7.
[iii] Id. at 7 (quoting Burt v. Speaker, N.H. House of Representatives, 173 N.H. 522, 525 (2020)).
[iv] See id. at 9 (quoting In re Below, 151 N.H. 135, 150 (2004)).
[v] Id. at 11.
[vi] Id. at 24.
[vii] Id. at 11–12. That said, the Pennsylvania decision relied upon its state constitution’s Free and Equal Elections Clause—not a specific textual provision expressly prohibiting partisan gerrymandering—to find that partisan gerrymandering was prohibited under its own constitution and reversed a decision that reached the opposite conclusion just a few years earlier. League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018).
