THE STATE OF NEW HAMPSHIRE
SUPREME COURT
CASE NO.
City of Manchester, Hon. Barbara E. Shaw and John R. Rist
V.
William M. Gardner, in his official capacity as Secretary of State of the State of New Hampshire
City of Concord
V.
William M. Gardner, in his official capacity
as Secretary
of State of the State of New Hampshire
Hon. Mary Jane Wallner, Harold Lynde, Hon. Thomas Katsiantonis, Jean Sanders,
Hon. Kate Miller, Patricia Martin, Joe Cicirelli, William Butynski, William Donovan,
Ginny Schneider, Michael Marsh, Peg Fargo, Joy K. Tilton, Roland Hofemann,
Suzanne Gottling, Joseph Jesseman, Ron Geoffrey, Sr., Margaret Small-Porter, Brian T. Stern,
Robyn St. Pierre, Jillian Dubois, Sinda Ullstrup, Hon. Charles Townsend
V.
William M. Gardner, in his official capacity as Secretary of State of the State of New Hampshire
Town of Gilford, Peter Millham and Leo Sanfacon
V.
William M. Gardner, in his official capacity as Secretary of State of the State of New Hampshire
Hon. Marshall E. Quandt, Hon. Tony F. Soltani,Hon. Matthew Quant, Hon. Leo Pepino,
Hon. Julie E. Brown,Hon.Steven Vaillancourt, Hon. Irene Messier, Hon. James Pilliod
Hon, James MacKay, Mary Ellen Moran-Siudut, Hon. Jean-Guy Bergeron
William M. Gardner, in his official capacity as Secretary of State of New Hampshire
INTERLOCUTORY TRANSFER STATEMENT
I.
STATEMENT OF TIIE CASE
This consolidated action involves
against William M. Gardner, in his
a request
official capacity
for declaratory and injunctive relief
as Secretary of the State, based upon the
claimed unconstitutionality of the House of Representatives redistricting plan, House
Blll592
(the "House Redistricting Plan"), enacted as2012 Laws, Chapter 9 and codified into RSA 662:5
(2012). Various petitioners filed five separate actions against the Secretary of State and all
of
those actions have now been consolidated. The House of Representatives, through its Speaker,
intervened. All of the parties to these actions have agreed to an interlocutory transfer without
ruling.
Sup. Ct.
R.9.
The record of this transferred case includes this Interlocutory Transfer Statement,
the Appendix to the Interlocutory Transfer Statement ("Iapp"), and the Certified Record of the
Legislative Record of 2012 Laws, Chapter 9 ("Leg.Rec."). There is no transcript needed to
resolve this case.
II.
AGREED STATEMENT OF FACTS
1.
The Petitioners include cities, torvns, and voters from various parts of New
Hampshire. Many of the individual voters are legislators and prospective candidates for the
House of Representatives.
2.
Each of the Petitioners either is a municipality or lives in a town or ward that is
large enough to constitute a House of Representatives District under Part II, Article 11, of the
New Hampshire Constitution.
3.
The City of Manchester ("Manchester") is a municipality with a total population,
according to the 2010 Decennial Census conducted by the United States Department
of
Commerce Bureau of the Census (the "Census"), of 109,565. Manchester has divided itself into
twelve wards of roughly equal population based on 2010 Census block data. The population of
those wards according to the 2010 Census is as follows:
a. Manchester Ward I - 9,121;
b.
Manchester Ward 2 - 9,219;
c.
Manchester Ward 3 - 9,1I3;
d. Manchester Ward 4 - 9,175;
e. Manchester Ward 5 - 9,250;
4.
f.
Manchester'Ward 6 - 9,260;
g.
Manchester Ward 7 - 9,778;
h.
Manchester'Ward 8 -9,135;
i.
Manchester Ward 9
j.
Manchester Ward I0
-
9,0I2;
k.
Manchester Ward 11
-
8,991;
l.
ManchesterWard 12
-
9,002.
-
9,169;
The Honorable Barbara E. Shaw is an individual who resides at 45 Randall Street
in Ward 9 in Manchester, New Hampshrre.
5.
John R. Rist is an individual who resides at I92 Mammoth Road in Ward 8
in
Manchester, New Hampshire.
6.
The City of Concord ("Concord") is a municipality with a total population
according to the 2010 Census of 42,695. Concord has divided itself into ten wards of roughly
equal population based on 2010 Census block data. The population of those wards according to
the 2010 Census is as follows:
a.
Concord Ward I
b.
Concord Ward 2 - 4,387;
c. Concord'Ward
3
- 4,465;
-4,328;
d.
Concord'Ward 4 - 4,737;
e.
Concord Ward 5
-
4,077;
f.
Concord Ward 6
-
4,165;
g.
Concord'Ward 7 - 4,25I;
h.
Concord Ward 8 - 4,741;
i.
Concord Ward 9
j.
Concord Ward 10
7.
-
4,342;
-
4,408
The Honorable Mary Jane Wallner is an individual who resides at 4 Chestnut
Pasture Road, in Ward 5 in Concord, New Hampshire.
8.
The Honorable Harold V. Lynde, Jr. is an individual who resides at 114 Jeremy
Hill Road, Pelham, New Hampshire.
Census
Pelham has a total population according to the 2010
of 12,897.
9.
The Honorable Thomas Katsiantonis is an individual who resides at 45 Glen
Bloom Drive, in Ward 8 in Manchester, New Hampshire.
10.
Jean Sanders is an individual who resides at 1 Stonewall Terrace, Atkinson, New
Hampshire. Atkinson has a total population according to the 2010 Census of 6,751.
1
1.
The Honorable Kathryn Miller is an individual is an individual who resides at 27
Meredith Center Road, Meredith, New Hampshire. Meredith has a total population according to
the 2010 Census of 6,241.
12.
Patricia Martin is an individual who resides at77 Farrar Road, Rindge, New
Hampshire. Rindge has a total population according to the 2010 Census of 6,014.
13.
Joe Cicirelli is an individual who resides at 144 Back Canaan Road, Strafford,
New Hampshire. Strafford has
14.
a
total population according to the 2010 Census of 3,991.
The Honorable William Butynuski, Ph.D., is an individual who resides at 60
River Road, Hinsdale, New Hampshire. Hinsdale has a total population according to the 2010
Census of 4,046.
15.
William Donovan is an individual who resides at 20 Donovan Road, Gilford, New
Hampshire. Gilford has a total population according to the 2010 Census of 7 ,126.
16.
Ginny Schneider is an individual who resides at25 Park Street, Henniker, New
Hampshire. Henniker has a total population according to the 2010 Census of 4,836.
17.
Michael Marsh is an individual who resides at 90 Depot Road, Greenland, New
Hampshire. Greenland has a total population according to the 2010 Census of 3,549.
18.
Peg Fargo is an individual who resides at 1 Blueberry Lane, Bow, New
Hampshire. Bow has a total population according to the 2010 Census of 7,519.
19.
Joy K. Tilton is an individual who resides at 4
Hill
Street, Northfield, New
Hampshire. Northfield has a total population according to the 2010 Census of 4,829.
20.
Roland Hofemann is an individual who resides at 18 Wellington Avenue, in Ward
6 in Dover, New Hampshire. Dover has a total population according to the 2010 Census
of
29,987. Dover has divided itself into six wards of roughly equal population based on 2010
Census block data. The population of those wards according to the 2010 Census are as follows:
a.
Dover Ward
b.
Dover Ward 2 - 5,074:,
7
-
4,991;
c.
Dover Ward 3
d.
Dover Ward 4 - 5,134;
-
5,028;
e. Dover Ward 5 - 4,773;
f.
21.
Dover'Ward 6-4,987.
Suzanne Gottling is an individual who resides at 173 Lake Avenue, Sunapee, New
Hampshire. Sunapee has
22.
a
total population according to the 2010 Census of 3,365.
Joseph Jesseman is an individual who resides at 99 Silver Lake Road, Tilton, New
Hampshire. Tilton has a total population according to the 2010 Census of 3,567.
23.
Ron Geoffrey, Sr. is an individual who resides at 470 Chester Road in Auburn,
New Hampshire. Auburn has atotal population according to the 2010 federal census of 4,953.
24.
Margaret Small-Porter is an individual who resides at 28 Beech Street,
Newmarket, New Hampshire. Newmarket has a total population according to the 2010 Census
of 8,936.
25.
Brian T. Stem is an individual who resides aL20I Tolend Road, in Ward 5 in
Dover, New Hampshire.
26.
Robyn St. Piene is an individual who resides at29 Lovering Avenue, Loudon,
New Hampshire. Loudon has a total population according to the 2010 Census of 5,317.
27.
Jillian Dubois is an individual who resides at 19 St. Francis Place, Hudson, New
Hampshire. Hudson has a total population according to the 2010 Census of 24,467.
28.
Sinda Ullstrup is an individual who resides at 46 Mary Rowe Drive, Hillsborough,
New Hampshire. Hillsborough has a total population according to the 2010 Census of 6,011.
29.
Charles Townsend is an individual who resides at 49
}lall Road, Canaan, NH
03741-7408. Canaan has a total population according to the 2010 Census of 3,909.
30.
The Town of Gilford is a municipality with a total population according to the
2010 Census of 7,126.
31.
Peter V. Millham is an individual who resides at 426 Belknap Mountain Road,
Gilford, New Hampshire.
32.
Leo B. Sanfacon is an individual who resides at 38 Hawthorne Way, Gilford, New
Hampshire.
33.
The Honorable Marshall E. Quandt is an individual who resides at 45 Franklin
Street, Exeter, New Hampshire. Exeter has a total population according the 2010 Census
of
14,306.
34.
The Honorable Matthew Quandt is an individual who resides at 45 Franklin
Street, Exeter, New Hampshire.
35.
The Honorable Tony F. Soltani is an individual who resides aI1073 Highland
Drive, Epsom, New Hampshire. Epsom has a total population according to the 2010 Census of
4,566.
36.
The Honorable Leo Pepino is an individual who resides at 73 Walnut Street, in
Ward 4 in Manchester, New Hampshire.
37
.
The Honorable Julie E. Brown is an individual who resides at 4I4 Lilac City East,
Rochester, New Hampshire. Rochester has a total population according the 2010 Census
of
29,752. Rochester has divided itself six wards of roughly equal population based on 2010 census
block data. The population of those wards according to the 2010 Census is as follows:
a. Rochester
b.
Ward I
-
4,995;
Rochester Ward 2
-
5,030;
c.
Rochester Ward 3
- 4,91I;
d.
Rochester Ward 4
-
e. Rochester
f.
38.
4,905;
Ward 5 - 4,897;
Rochester Ward 6
-
5,074;
The Honorable Steve Vaillancourt is an individual who resides at 161 Faith Lane,
in Ward 8 in Manchester, New Hampshire.
39.
The Honorable Irene Messier is an individual who resides at 40 New Gate Circle,
in Ward 10 in Manchester, New Hampshire.
40.
The Honorable James Pilliod, M.D., is an individual who resides at 504 Provence
Road, Belmont, New Hampshire. Belmont has a total population according to the 2010 Census
of 7,356.
4I.
The Honorable James MacKay, Ph.D. is an individual who resides at 139 North
State Street, in Ward 4 in Concord, New Hampshire.
42.
Mary Ellen Moran-Siudut is an individual who resides at 28 Mullen Drive,
Pittsfìeld, New Hampshire. Pittsfield has
a
total population according to the 2010 Census
of
4,106.
43.
The Honorable Jean-Guy Bergeron is an individual who resides at 180 Marsh
Road, Pelham, New Hampshire.
44.
The Respondent in all suits is William M. Gardner, in his official capacity as
Secretary of State of the State of New Hampshire.
45.
The Intervenor in all suits is the New Hampshire House of Representatives,
through its Speaker.
Legislative Process
46.
In Spring
z}Il,the
Special Committee on Redistricting began the process
of
reapportioning House districts across the State.
47.
In March 20II, Representative Paul Mirski, Chairman of the Special Committee
on Redistricting, sent a letter to all cities in the State requesting that they change their ward lines
to conform to 2010 census block data and report those new boundaries to the committee by midNovember
20II.
48.
In October
2}ll,
members of the Special Committee on Redistricting traveled to
the counties and held public hearings.
49.
On November 1,
2}II,the
Special Committee on Redistricting adopted
"Guidelines and Legal Principles Applicable to Redistricting the House." Those guidelines were
based upon interpretations of certain federal and state constitutional requirements.
A copy is
attached at Iapp. p. 3.
50.
These guidelines passed by a committee vote
51.
The committee also accepted draft plans created by committee members as well
as members
of 14Io
2.
of the public.
52.
During this process, the committee rejected a number of plans, including those
that did not conform to its adopted guidelines. Specifically, it rejected plans that had a range
of
deviation above l\Yo or that used the aggregate method of deviation for floterial districts. The
committee also rejected plans that relied on a method of "weighted voting" in floterial districts.
53.
The redistricting committee process to develop the final plan included making
political judgments. It culminated in the creation of HB 592.
54.
The redistricting committee recommended and submitted HB 592 to the full
House on January 12,2012. HB 592 was debated and amendments were offered.
55.
The House passed HB 592 on January 78,2072. The Senate passed HB 592 on
March I ,2012. On March 26,2012, Governor John Lynch vetoed HB 592. On March 28,2012,
the Legislature overrode the Governor's veto.
Census and Legislative Process
56.
The 2010 Census determined that the population of New Hampshire was
1,316,470. The Census determined the population of each city and town in New Hampshire
well. The population figures referenced above
be found at Iapp p.
as
and the figures for every other municipality can
6. The 2010 Census population entries in that document for city wards use
the former ward lines in effect at the time of the Census and do not accurately report the 20i0
Census population of those wards as currently constituted for purposes of RSA 662:5. For
reapportionment purposes, New Hampshire cities have adjusted their ward boundaries in
accordance with the Census. A1l of New Hampshire's cities adjusted their ward boundaries such
that the lines corresponded with those of census blocks for which Census population figures are
available. The population figures for the current wards of all New Hampshire cities can also be
found atlapp p. 41 and are derived from the Census.
57.
RSA ó62:5 sets the size of the New Hampshire House of Representatives at 400
members. Based on the constitutional mandate that representatives be apportioned "as equal
circumstances
as
will admit" (N.H.CONST. Part II, Art. 9), the ideal number of inhabitants for each
district amounts to 3,297 people.
58.
The apportionment plan for the House of Representatives in RSA 662:5 relied
upon the 2010 Census figures for municipalities and for city wards set forlh in Iapp. pp. 6 and
41,
59.
Four of the five suits challenging the House Redistricting Plan were filed within a
month of the override vote, with Gilford's suit following shortly thereafter. Manchester filed suit
ApnI23, Concord filed April 24,Wallner et a1., filed Apnl25, Quandt, et al., filed Apnl27, and
Gilford et al filed on April 30.
RSA 662:5 (2012)
60.
RSA 662:5 (2012) is the enacted House redistricting plan. A copy of RSA 662:5
and maps illustrating the House Redistricting Plan are attached at IApp. p.50 and 69.
6l
.
RSA 662:5 (2012) is compose d of 204 districts. A chart showing the number of
single-town, multi-town and floterial districts and seats is attached aIIapp. p. 88.
62.
The deviation in single-member and multi-member districts is computed using the
aggregate method.
63.
Under the aggregate method, the entire population of the district is subtracted by
the ideal population for one or more representatives. The difference is then divided by the ideal
population. The resulting number is the aggregate deviation from the ideal population.
64.
The deviation in floterial districts under RSA 662:5 is computed using the
component method. Under the component method, deviations are measured for each underlying
district individually; the deviation for the entire floterial district is not calculated. The formula
used to calculate component method deviation in floterial districts under RSA 662:5 is attached
at Iapp. p. 107.
65.
RSA 662:5 (2012) has a total statewide range of deviationof 9'9o/o'
66.
RSA 662:5 (2012) preserves the boundaries of towns, wards, and unincorporated
67.
RSA 662:5 (2012) preserves county boundaries.
68.
Regarding the City of Manchester, RSA 662:5,VI (2012) gives each Manchester
places.
ward its own district with its own two representatives. It then places the excess inhabitants
each ward into the
a.
of
following floterial districts:
Manchester Wards
I,2, and 3 - two representatives
(Hillsborough County,
District No. 42);
b.
Manchester Wards
4,5,6,
andT
- three representatives (Hillsborough
County,
District No. 43);
c.
Manchester Wards 8, 9, and Litchfield
- two representatives (Hillsborough
County, District No. 44);
d.
Manchester Wards 10, 11, and 12
-
two representatives (Hillsborough County,
District No. 45).
69.
Regarding the City of Concord, RSA 662:5,YII (2012)joins Hopkinton and
Concord Ward 5 into a multi-member district with three representatives (Merrimack County,
District No. 10). Concord Ward 5 has a total population of 4,077. Hopkinton has a total
population of 5,589. RSA 662:5 (2012) also gives Concord Wards
l, 2, 3, 4, 6, J, 8, 9, and 10
their own districts with their own representative (Merrimack County, District Nos. 11-19). It
then places the excess inhabitants of each ward into the following floterial districts:
a.
Concord Wards 7,2,3, 4, 6, and 7
District No. 27); and
t2
-
two representatives (Merrimack County,
b.
Concord Wards 8, 9, and 10
70.
Regarding Pelham, RSA 662:5,VI (2012)joins Pelham with Hudson into a multi-
-
one representative (Merrimack County, District No.
28).
member district with eleven representatives (Hillsborough County, District No. 37).
71.
Regarding Atkinson, RSA 662:5,
VIII (2012) combines Atkinson with Plaistow
into a multi-member district with four representatives (Merrimack County, District No. 14). It
then places the excess inhabitants of that multi-member district with the excess inhabitants
of
another multi-member district into a floterial district containing one representative seat (District
No.34).
12.
Regarding Gilford, RSA 662:5
,I
(2012) combines Gilford with Meredith into a
multi-member district with 4 representatives (Belknap County, District No. 2). Meredith and
Gilford share a border through Lake Winnipesaukee. The border line "meanders through the
lake, passing by several islands and reaching a point in the lake off South Point on Long Island
in Moultonboro where Meredith and Gilford converge upon the Moultonboro line." (Meredith
Town Line Report 1968, Lines ran in 1975, Report updated in I975.). To travel over land
between Gilford and Meredith, one has to travel either through the Downtown or Lakeport or
Weirs sections of Laconia, a minimum three-mile drive from town line to town line.
73.
a
Regarding Rindge, RSA 662:5
,III
(2012) combines Rindge with Fitzwilliam into
multi-member district with two representatives (Cheshire County, District No. 11). It then
places the excess inhabitants of that multi-member district with the excess inhabitants of another
multi-member district into a floterial district containing one representative seat (Cheshire
County, District No. 14).
74.
Regarding Strafford, RSA 662:5 ,IX(2012) combines Strafford and New Durham
into a multi-member district with two representatives (Strafford County, District No. 3).
Strafford and New Durham touch only at a single geometric point.
75.
Regarding Hinsdale, RSA 662:5
,III (2012)
combines Hinsdale with Chesterfield,
Westmoreland, and V/alpole into a multi-member district with four representatives (Cheshire
County, District No. 1).
76.
Regarding Exeter, RSA 662:5 ,VllrI (2012) gives Exeter its own district with its
own four representatives (Rockingham County, District No. 18). It then places the excess
inhabitants of Exeter with the excess inhabitants of two other districts to form a floterial district
containing one representative seat (Rockingham County, District No. 36).
77.
Regarding Epsom, RSA 662:5 ,YII (2012) combines Epsom and Pittsfield into a
multi-member district with two representatives (Merrimack County, District No. 21). It then
places the excess inhabitants of that district with the excess inhabitants from another district to
form a floterial district containing one representative (Merrimack County, District No. 29).
78.
Regarding the City of Rochester, RSA 662:5,IX(2012) gives each Rochester
ward its own district with its own representative (Strafford County, District Nos. 7-12). It then
places the excess inhabitants of each ward into the following floterial districts:
a.
Rochester Wards 1 and 6 - one representative (Strafford County, District No. 22);
b.
Rochester Wards 2 and 3 - one representative (Strafford County, District No' 23);
and
c. Rochester Wards 4 and 5 - one representative (Strafford County, District No. 24).
79.
Regarding Belmont, RSA 662:5
,I
(2012) gives Belmont its own district with its
own two representatives (Belknap County, District No. 6). It then places the excess inhabitants
of that district with the excess inhabitants from another multi-member district with the city of
Laconia into a floterial district containing one representative (Belknap County, District No. 9)'
80.
Regarding Henniker, RSA 662:5
,VII (2012)
combines Henniker and Bradford
into a multi-member district with two representatives (Merrimack County, District No. 6).
81.
Regarding Greenland, RSA 662:5,YIil.I (2012) combines Greenland with
Newington into
a
multi-member district with one representative (Rockingham County, District
No. 23). It then places the excess inhabitants of that district with the excess inhabitants from two
other districts into a floterial district containing one representative (Rockingham County, District
No.31).
82.
Regarding Bow, RSA 662:5,
VII (2012) combines Bow
and Dunbarton into a
multi-member district with three representatives (Merrimack County, District No. 23).
83.
Regarding Northfield, RSA 662:5
,VII (2012)
combines Northheld and Franklin
Ward 3 into a multi-member district (Merrimack County, District No. 3). It then places the
excess inhabitants of that district
with the excess inhabitants of two other districts into a floterial
district with one representative (Merrimack County, District No. 26)'
84.
Regarding Dover, RSA 662:5,IX(2012) gives Dover Wards 7,2,3, and 4 their
own district with one representative each (Strafford County, District Nos. 13-16). It also
combines Dover Wards 5 and 6 with Somersworth Ward 2 into a multi-member district with
three representatives (Strafford County, District No. 17). It then places the excess inhabitants
those districts (Strafford County, District Nos. 13-17) into the following floterial districts:
a.
Dover Wards 1 and2 (Strafford County, District No. 19) - one representative;
b.
Dover Wards 3 and 4 (Strafford County, District No. 20)
-
one representative;
of
c. Dover Wards 5 and 6 and Somersworth Ward 2with Somersworth Wards 7,3,4,
and 5 and Rollinsford (District No. 21)
85.
Regarding Sunapee, RSA 662:5
,X
-
one representative.
(2012) combines Sunapee and Croydon into a
multi-member district with one representative (Sullivan, District No. 2). It then places the excess
inhabitants of that district with the excess inhabitants of two other multi-member districts into a
floterial district with one representative (Sullivan, District No. 9).
86.
Regarding Tilton, RSA 662:5
,I
(2012) combines Tilton and Sanbornton into a
multi-member district with two representatives (Belknap County, District No. 4).
87.
Regarding Aubum, RSA 662:5,
VIII (2012) combines Auburn with Chester
and
Sandown into a multi-member district with five representatives (Rockingham County, District
No.4).
88.
Newfields into
Regarding Newmarket, RSA 662:5,
a
VIII (2012) combines Newmarket with
multi-member district with three representatives (Rockingham County, District
No. 17) . It then places the excess inhabitants of that district with the excess inhabitants of two
other districts into a floterial district with one representative (Rockingham County, District No.
36).
89.
a
Regarding Loudon, RSA 6ó2:5,VII (2012) combines Loudon and Canterbury into
multi-member district with two representatives (Merrimack County, District No. 9). It then
places the excess inhabitants of that district with the excess of inhabitants of two other districts
into a floterial district with one representative (Merrimack County, District No. 26).
90.
Regarding Hillsborough, RSA 662:5,YI (2012) combines Hillsborough into a
multi-member district with Windsor and Antrim with two representatives (Hillsborough County,
District No. 1). It then places the excess inhabitants of that district with the excess inhabitants of
two other multi-member districts into
a
floterial district with two representatives (Hillsborough
County, District No. 38).
91.
Regarding Canaan, RSA 662: 5,V (2012) combines Canaan into a multi-member
district with Dorchester and Wentworth with one representative (Grafton County, District No.
11). It then places the excess inhabitants of that district with the excess inhabitants of two other
multi-member districts into a floterial district with one representative (Grafton Country, District
No. 16).
92.
The House of Representatives considered and rejected various amendments to HB
592 whichproposed alternative redistricting plans. Those amendments included:
2012-02I8h, Rep. Doherty et al., attached at lapp. p.
2012-0248h, Rep. Cohn et a1., attached at lapp.
lI2;
p.II4;
2012-0246h, Reps. Cohn & Vaillancourt, attached at Iapp. p. 116;
2012-0I56h, Rep. Vaillancourt, attached at lapp. p. 1 18;
2012-0243h, Rep. Leishman, attached aI Iapp. p. 120.
93.
The House also considered and rejected an amendment that would have created a
system of weighted voting in floterial districts. See floor amendment proposed by Rep. Pierce
-
2012-252h, attached at Iapp. p.122,
94.
The House rejected plans that used a range of deviation beyond 10%.
95.
In reviewing reapportionment plans for the House of Representatives, the House
considered the positive or negative percentage deviation of any district from the ideal population
of 3,291per representative. In the end, the Legislature rejected plans that increased the total
range of deviation above 10 percent or that used the aggregate method to calculate the amount
of deviation in floterial districts.
96.
I42 atñ
153
In addition to the plans rejected by the House, Petitioners also submit at lApp. pp.
two altemative redistricting plans, one with an expanded deviation and one with 400
single member districts, that Petitioners may allege constitutes evidence that RSA 662:5 is
unconstitutional. The Respondent and Intervenor disagree with that allegation, but agree that
Petitioners may argue that point on appeal.
97.
as
If the Court determines that the Petitioners have standing to challenge RSA 662:5
unconstitutional, the Petitioners may argue what the appropriate remedy is in this case.
City of Manchester Additional Facts
98.
Using the component method of deviation, and accounting for the floterial seats
shared with Litchfield, Manchester as a whole has a surplus of 3,287 inhabitants above the ideal
of 3,291 inhabitants per representative.
99.
Manchester has found no record of it sharing a representative with a
surrounding town since its incorporation as New Hampshire's ltrst city in 1846.
100.
Demographically, Manchester and Litchfield are different communities. As to
housing, according to the 2010 Census, Manchester has 21,667 owner occupied units (47%)
compared with2,528 for Litchfield (89%). Manchesterhas24,105 renter occupied units (53%)
compared with 300 for Litchfield
20 1 OCensus/index.htm
1
01
.
(11%).
See, http://www.nh.govloeplprograms/DataCenter/
(demographic¡rrofile 7.xls)
According to the 20 1 0 Census, Manchester has 89,893 Non-HispanicA{on-Latino
White inhabitants (52%) compared wtth7,87l (95%) for Litchfield. Manchester has 18,672
Hispanic/Latino and Non-white inhabitants (lS%) compared with 400 for Litchfield (5%). See,
http://www.nh.gov/oep/programs/DataCenter/201OCensus/index.htm
7.xls).
18
(demographiclrofile
I02.
According to the United States Census Bureau American Community Survey (5
year average2006
-
Litchfi eld
1
$
10
0, 0 5
2010), the median household income in Manchester is $53,377 andin
.
S
ee,
ACS/municipal_data.htm
103.
htç //www.
:
(S eq5
3
(
1
nh. gov/o eplpro grams/D ataCentet I
).xls).
According to the New Hampshire Department of Revenue Administration 2011
Property Tax Tables, tax assessment data showed the following values for commercial/industrial
buildings: Statewide:$78,539,417,102; Manchester:$2,36I,516,527 (13% of statewide); and
Litchfield 518p76,200 (.01% of statewide).
See,
http://www.revenue.nh.gov/muncgop/
do cuments/tbc- alpha.pdf.
I04.
According to data maintained by the New Hampshire Department of Education, in
201 1 there were 6780 Manchester students eligible for free or reduced priced meals out
of
14,268 students in grades 1 through 12, or 48o/o. The comparable data for Litchfield show 149
students eligible out
of 1418 students, or
11ol0. See, http://www.education.nh.govl data/
attendance.htm (lunch_school1l_12 (1).xls). Manchester's Bakersville School serves students
in the northem portion of Ward 9. The same data show that for grades 1 through 5,272 out of
256 students (83%) are eligible for free or reduced price meals. Southside Middle School serves
students in Wards 8 and 9 and other areas. For grades 6 through 8, 425 out of 820 students
(52%) are eligible for free or reduced price meals. See, http://www.education.nh.govl data/
attendance.htm (lunch_ schooll l_12 (3).xls) The data also show that for the
20ll -2012yeat,
the maximum income level for a student in a family of four for free meals is $29,055 and for
reduced price meals is $4 1, 3 48. http ://www. education.nh. gov/pro gr am/
nutrition/documents/nslp_app_attach_n.pdf.
105.
as
According to data maintained by the New Hampshire Department of Education,
of October I,2071, the Manchester school enrollment of Hispanic and non-white students
was4,989 out of 15,536 total enrollment (32o/o). The comparable number in Litchfield was 116
out of 1,501 total enrollment (8%). See, http://www.education.nh.govl datalattendance.htm
(racel
I
12 (z).xls) The data for Bakersville School (October 1, 2010) showed that out of 368
students, 222 are Hispanic or non-white, i.e. 60%o. See, hltp:llmy.doe.nh.gov/profiles/
profile.aspx?oid:9099&s:&d:&yea=20I1&tab:student. The data also shows that for
Southside Middle School (October 1, 2010) out of 861 students, 301 are Hispanic or non-white,
i.e.35%.
See,
htlp:llmy.doe.nh.gov/profiles/profile.aspx?oid:9317 &s:&.d:&year:20I1&tab:student.
106.
The New Hampshire Department of Education also maintains data concerning
students eligible to receive services for limited English proficiency services. For Manchester, as
of October 1,2010, there are 1,732 eliglble students out of 15,732 total enrollment (11%)' See,
http:llmy.doe.nh.gov/profiles/profile.aspx?oid:27661&.s:&d:&,year:&tab:student. The
comparable figures for Litchfield are 0 out of 1,580 total enrollment (0%). See,
hltp:llmy.doe.nh.gov/profiles/profile.aspx?oid:27656&s:&.d:&.yea=2011&'tab:student.
Out
of
368 students at Bakersville School, the data showed that there were 115 students eligible to
receive services for limited English proficiency, or 37o/o. See, http://my.doe.nh.gov/profiles/
profile.aspx?oid:9099&.s:&d:&year:2071&tab:student. Out of 861 students at Southside
Middle School, there were 65 students receiving services for limited English proficiency, or
See,
8Yo.
htç://my.doe.nh.gov/profiles/profile.aspx?oid:9317&s:&d: &yea=2071&tab:student.
101.
Manchester and Litchfield do not share municipal services in common.
Manchester is a member of the Southern New Hampshire Regional Planning Commission, which
also serves Londonderry, Derry, Candia, Deerfield, Hooksett, Aubum, Bedford, Goffstown, New
Boston, Rayrnond, Chester and Weare. Litchfield is a member of the Greater Nashua Regional
Planning Commission. Manchester Water Works also serves parts of Hooksett, Auburn,
Goffstown, Auburn, Derry and Londonderry. Manchester Environmental Protection Division
(waste water treatment) also serves parts of Bedford, Goffstown, and Londonderry. Manchester
School District also educates high school students from Auburn, Candia and Hooksett and
provides career training services to students from Goffstown and Londonderry. Litchfield has an
entirely separate school system.
108.
Manchester has specific interests in deaiing with state legislation. Manchester
received from the state this hscal year $56,761,000 of annual education adequacy grants under a
formula that currently targets additional funding based upon the number of English language
learners, special education participants and free and reduced lunch. RSA 198:40-a and 41.
Under the state budget, Manchester received from the state this fiscal year $4,894,000 in revenue
sharing from rooms & meals tax receipts. Since 90o/o of Ihat revenue is obligated to bond
repaynent on the city-owned YenzonWireless Arena, reduction or elimination of that revenue
sharing would cause technical default of the bond covenants. A large portion of Manchester's
budget comes from its receipt of federal contracts that pass through state government agencies,
including public health, human services, education and refugee resettlement.
Cify of Concord Additional Facts
109.
In the prior decade, each Concord ward was its own district and three
representatives were elected atlarge in a floterial district that covered the entire City.
110. The City of Concord has found no record that the New Hampshire
ever reapportioned the City of Concord to share a representative
Legislature has
with another town.
111.
The City of Concord and the Town of Hopkinton are different. Each community,
among other things, raises its own taxes, operates its own schools, and maintains its own roads.
The City of Concord's emergency services include police and fire departments, which are
different in size and scope than Hopkinton's emergency services . The City of Concord's
interests with respect to education funding, the meals and rooms tax, and health and human
services, may not be consistent with the Town of Hopkinton.
III.
QUESTTONS OF LAW
All of the Petitioners
seek a declaration that RSA 662:5 violates the New Hampshire
Constitution, and an order enjoining implementation of RSA 662:5. Therefore, the principle
legal questions are:
1.
Did the trial court err in granting the motions to intervene by the House of
Representatives, through the Speaker of the House?
2.
Do some or all of the Petitioners lack standing to raise their claims of
unconstitutionality?
3.
Is RSA 662:5 unconstitutional under the Federal and State Constitutions? To
question,
this
the Court may address these subsidiary questions:
answer
3-A Does RSA 662:5 fail to adequately provide towns and city wards having a
sufficient number of inhabitants their own districts of one or more representative seats and thus
violate N.H.CONST. Part II, Article 11?
3-B
Does RSA 662:5 fail to properly apply contiguity in the reapportionment of the
House of Representatives and thus violate N.H.CONST. Part I, Articles I, 2 and 1 1 and Part II,
Articles 9 and II?
3-C
Does the New Hampshire Constitution require the Legislature to take into account
community of interest factors in reapportioning the House of Representatives and, if so, does
RSA 662:5 fail to properly account for those factors and thus violate N.H.CONST. Part I,
Articles 1,2 and 11 and Part II, Articles 9 and II?
4.
If
some or all of RS A 662:5 is unconstitutional, is the statute severable?
In its consideration of the constitutionality of RS A 662:5, the Court may be presented
with the following questions of law. If RSA 662:5 is unconstitutional, answers to these
questions may inform the redistricting process going forward.
5.
Must the Legislature use a range of deviation above 10% if doing so would allow
greater compliance with State Constitutional requirements?
6.
Does the New Hampshire Constitution permit use of the "agg\egate method" to
calculate deviations in floterial districts for the purpose of reapportionment of the House of
Representatives; and, if so, must the Legislature use the "aggregate method" if doing so would
allow greater compliance with State and Federal Constitutional requirements?
7.
Does the New Hampshire Constitution permit the use of weighted voting in
floterial districts in reapportioning the House of Representatives and, if so, must the Legislature
use weighted voting in floterial districts if doing so would allow gteater compliance with State
and Federal Constitutional requirements?
8.
Does the federal-state principle of one person, one vote require the Legislature to
disregard all of the other State Constitutional redistricting requirements and divide itself into
single-member districts so as to ensure only the minimal deviations that are required in
Congressional redistricting?
IV.
STATEMENT OF REASONS FOR INTERLOCUTORY TRANSFER
This case is the first to examine reapportionment of the House of Representation under
the requirements of the 2006 amendment to N.H.CONST. Part II, Art.
11.
This case is also the
first to question whether certain community of interest factors, including income, race and
regional connections, must be constitutionally considered in developing a reapportionment plan
for the House of Representatives.
As this Court is well aware,reapportionment is a contentious matter which often results
in litigation at least every ten years. Indeed, New Hampshire saw redistricting litigation in this
Court in2002,2Q04, and again in 2008. Elections are among the most important activities in the
civic life of this state. Because of the approaching filing deadlines for candidates for the House
of Representatives, an interlocutory transfer is the only method to resolve these issues fast
enough so that a legislative remedy may be adopted (if so ordered) in time to allow the Secretary
of State to supervis e the 2012 election process.
23
V. PARTIES AND COUNSEL
The names and addresses of the lawyers involved in this appeal and the names of their
respective clients are as follows:
Thomas J. Donovan, Bar No. 664
MCLANE, GRAF, RAULERSON & MIDDLETON
PROFES SIONAL ASSOCIATION
City HallPlaza,900 Elm Street
P.O. Box 326
Manchester, NH 03105
(603) 62s-6464
Counselþr City of Manchester, Hon. Barbara E.
John R. Rist
Shaw,
Danielle L. Pacik, Bar No. 14924
Deputy City Solicitor,
41 Green Street
Concord, New Hampshire 03301
(603) 22s-8s0s
Counselþr City of Concord
Peter V. Millham, Bar No. 1761
Wescott, Dyer, Fitzgerald & Nichols, PA
28 Bowman St.
Laconia, NH 03826
(603) s24-2166
Counselfor Town of Gilþrd, Peter Millham
and Lee Sanfocon
Martin P. Honigberg, Bar No. 10998
Jay Surdukowski, Bar No. 71163
SULLOWAY & HOLLIS, P.L.L.C
9 Capitol Street, P.O. Box 1256
Concord, NH 03302
Tel: (ó03) 224-2341
Counselfor Hon. Mary Jane Wallner, Harold Lynde,
Hon. Thomas Katsiantonis, Jean Sanders,
Hon. Kate Miller, Patricia Martin, Joe Cicirelli,
William Butynski, William Donovan,
Ginny Schneider, Michael Marsh, Peg Fargo,
24
Joy K. Tilton, Roland Hofemann,
Suzanne Gottling, Joseph Jesseman, Ron Geffiey, Sr.,
Margaret Small-Porter, Brian T. Stern,
Robyn St. Pierue, Jillian Dubois, Sinda Ullstrup,
Hon. Charles Townsend
Tony F. Soltani, Bar No. 8837
Jason B. Dennis, Bar No. 19865
The Munilaw Group
P O Box 300
Epsom, New Hampshire 03234
Counsel
for Hon. Marshall Lee Quant, Hon.
Tony F.
Soltani, Hon. Matthew Quant, Hon. Leo Pepino,
Hon. Julie Brown, Hon. Steven Vaillancourt,
Hon. Irene Messier, Hon. James Pilliod,
Hon. James MacKay, Mary Ellen Moran-Siudut,
Hon. Jean-Guy Bergeron
David A. Vicinanzo,Bar No. 9403
Anthony J, Galdieri, Bar No. 18594
Nixon Peabody LLP
900 Elm Street
Manchester, NH 03101
Counselfor the New Hampshire House
Repres entatives, through its Speaker
of
Michael A. Delaney
Attomey General
Anne M. Edwards, Bar No. 6826
Stephen G. LaBonte, Bar No. 16178
33 Capitol Street
Concord, NH 03302
Counselfor the Secretary of State of the State of New
Hampshire
VI.
TRIAL COURT SIGNATURE
rC,
Dated: }if.ayll,2012
wn, Presiding Justice
25
THE STATE OF NEW HAMPSHIRE
JUDICIAL BRANGH
SUPERIOR COURT
Hillsborough Superior Court Northern
300 Chestnut Street
Manchester NH 03101
District
Telephone: (603) 669-7410
TTY/TDD Relay: (800)735-2964
http://www.courts.state.nh.us
May 1 1,2012
THOMAS J. DONOVAN, ESQ
MCLANE GRAF RAULERSON & MIDDLETON PA
9OO ELM STREET
PO BOX 326
MANCHESTER NH 03105.0326
_Case
Case
Name:
City of Manchester, et al v William M. Gardner, Secretary of State
Number: 216-2012-CV-00366
217-2012-cv-00273;216-2012-cv-00380;211-2012-cv-00139;216-
2012-CV-00412
You are hereby notified that on May 1 1,2012, the following order was entered in the above matter
rE: PLAINTIFF'S ASSENTED-TO MOTION TO JOIN ADDITIONAL PETITIONERS
"Motion granted."
re: INTERLOCUTORY TRANSFER STATEMENT
(Signed Original Fonruarded this date to Attorney Donovan for Filing
with Supreme Court)
(Brown, J.)
John M. Safford
Clerk of Court
(537)
C: Stephen G. LaBonte, ESQ; Anne M. Edwards, ESQ; David Andrew Vicinanzo, ESQ; Anthony J.
Galdieri, ESQ; Martin P. Honigberg, ESQ; Jay Surdukowski, ESQ; Jason B. Dennis, ESQ; Peter V.
Millham, ESe; Danielle L. pacik, ESe; Richard J. Lehmann, ESe
NHJ B-201
2-DFPS (07
t01 t201 1)