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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2012-338 CITY OF MANCHESTER & a. v. SECRETARY OF STATE Argued: June 6, 2012 Opinion Issued: June 19, 2012 McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Thomas J. Donovan on the brief and orally), for petitioners City of Manchester, Barbara E. Shaw, and John R. Rist. Sulloway & Hollis, P.L.L.C., of Concord (Martin P. Honigberg and Jay Surdukowski on the brief, and Mr. Honigberg orally), for petitioners Mary Jane Wallner, Harold V. Lynde, Jr., Thomas Katsiantonis, Jean Sanders, Kathryn Miller, Patricia Martin, Joe Cicirelli, William Butynuski, Ph.D., 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, and Charles Townsend.

City Solicitor's Office, of Concord (James Kennedy and Danielle L. Pacik on the brief), for petitioner City of Concord. The MuniLaw Group, of Epsom (Jason B. Dennis and Tony F. Soltani on the brief), for petitioners Marshall Lee Quandt, Tony F. Soltani, Matthew Quandt, Leo Pepino, Julie Brown, Steve Vaillancourt, Irene Messier, James Pilliod, M.D., James MacKay, Ph.D., Mary Ellen Moran-Siudut, M.S., David Pierce, Peter Leishman, Nicholas J. Lavasseur, Shaun Doherty, and Peter Schmidt. Wescott, Dyer, Fitzgerald & Nichols, P.A., of Laconia (Peter V. Millham and Matthew D. Huot on the brief), for petitioners Town of Gilford, Peter V. Millham, and Leo B. Sanfacon. Michael A. Delaney, attorney general (Anne M. Edwards, associate attorney general, and Stephen G. LaBonte, assistant attorney general, on the brief), for the attorney general. Nixon Peabody LLP, of Manchester (David A. Vicinanzo and Anthony J. Galdieri on the brief, and Mr. Vicinanzo orally), for the intervenor, the New Hampshire House of Representatives, through its Speaker. J. Miller & Associates, PLLC, of Concord (Christopher C. Buck on the brief), Allan B. Krans, Sr., of Dover, by brief, and Philip T. McLaughlin, of Laconia, by brief, for the City of Dover and Town of Meredith, as amici curiae. PER CURIAM. These consolidated cases are before us on interlocutory transfer without ruling from the Superior Court (Brown, J.). See Sup. Ct. R. 9. The petitioners, New Hampshire voters and the towns and municipalities in which some of them live, seek a declaration that Laws 2012, chapter 9, the law redistricting the New Hampshire House of Representatives (the Plan), violates the State Constitution. We conclude that such a declaration is unwarranted.

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I. Background The Plan redistricts the House based upon the 2010 census. It was passed by the House on January 18, 2012, and by the Senate on March 7, 2012. Appendix A to this opinion is a chart setting forth the Plan, which the court compiled from evidence in the record on appeal. According to its statement of intent, the Plan represents "the culmination of months of research, public input, and discussion concerning how to appropriately apportion New Hampshire House seats [under] . . . the 2010 census while complying with federal and state constitutional requirements." Although the Governor vetoed the legislation, the legislature overrode his veto on March 28, 2012. Consistent with Part II, Article 9 of the State Constitution, the Plan sets the size of the House at 400 members. These representatives are divided among 204 legislative districts. Of these districts, ninety-one are single-town districts and seventy are multi-town districts. The remaining fortythree districts are "floterial" districts. A floterial district is a district that "floats above" several distinct single- or multi-member districts. Burling v. Speaker of the House, 148 N.H. 143, 150 (2002) (quotation omitted). In a single-member district, one representative is elected by the district's voters; in a multi-member district, voters elect more than one representative. Id. This is not the first redistricting dispute we have been required to decide. In 2002, we were called upon to establish new district plans for both the House and Senate. See Below v. Secretary of State, 148 N.H. 1 (2002); Burling, 148 N.H. 143. "This task fell to the court because . . . the New Hampshire legislature was unsuccessful in its efforts to reapportion the house and senate during the session following the 2000 census." Petition of Below, 151 N.H. 135, 136 (2004). "We did so reluctantly because we understood that redistricting is an inherently political process." Id. "Unlike the legislature, courts have no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people's name." Id. (quotation omitted); see Connor v. Finch, 431 U.S. 407, 414-15 (1977). Two years later, in 2004, the legislature amended the court's plan. Petition of Below, 151 N.H. at 137. We were then asked whether the legislature had the authority to amend the court's redistricting plan, and we concluded that it did. Id. In 2008, we were asked whether a 2006 amendment to Part II, Article 11 of the State Constitution mandated that the House be redistricted before the next decennial census. Town of Canaan v. Sec'y of State, 157 N.H. 795, 799-800 (2008). The amendment, Constitutional Amendment Concurrent Resolution 41 (CACR 41), was likely a response to the redistricting plan we created in Burling, id. at 797, which included numerous large multi-member at-large districts, but did not include "floterial" districts. Burling, 148 N.H. at

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157, 159. We ruled that CACR 41 did not compel immediate reapportionment. Sec'y of State, 157 N.H. at 799-800. As amended in 2006, Part II, Article 11 of the State Constitution now reads: 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. The apportionment shall not deny any other town or ward membership in one non-floterial representative district. When any town, ward, or unincorporated place has fewer than the number of inhabitants necessary to entitle it to one representative, the legislature shall form those towns, wards, or unincorporated places into representative districts which contain a sufficient number of inhabitants to entitle each district so formed to one or more representatives for the entire district. In forming the districts, the boundaries of towns, wards, and unincorporated places shall be preserved and contiguous. The excess number of inhabitants of a district may be added to the excess number of inhabitants of other districts to form at-large or floterial districts conforming to acceptable deviations. The legislature shall form the representative districts at the regular session following every decennial federal census. N.H. CONST. pt. II, art. 11. In the instant case, we have been asked to decide whether the Plan violates Part II, Article 11, as amended in 2006, because it: (1) fails to provide approximately sixty-two towns, wards, and places with their own representatives; (2) divides certain cities, towns, and wards; and (3) devises multi-member districts comprised of towns, wards, and places that are not contiguous. We have also been asked whether the Plan is unconstitutional because it does not take into account "community of interest" factors. Although some of the petitioners purport to raise claims under the Federal Constitution, their federal constitutional arguments are not sufficiently developed to warrant our review. Because the petitioners have articulated claims only under the State Constitution, to the extent that we rely upon federal law, we do so solely to aid our analysis. See State v. Ball, 124 N.H. 226, 233 (1983). II. Standard of Review We first address the standard by which we review the Plan. As with any statute, we must presume that the Plan is constitutional, and we will not declare it invalid "except upon inescapable grounds." New Hampshire Health 4

Care Assoc. v. Governor, 161 N.H. 378, 385 (2011) (quotation omitted). This means that "we will not hold [the] statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution." Id. (quotation omitted). "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. (quotation and brackets omitted). 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," Walters v. Nat. Assn. of Radiation Survivors, 473 U.S. 305, 319 (1985), 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." Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195-96 (1997) (quotations omitted). This is particularly so in the redistricting context. "Our State Constitution vests the authority to redistrict with the legislative branch, and for good reason." Petition of Below, 151 N.H. at 150. "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." Id. (quotation and brackets omitted); Connor, 431 U.S. at 414-15. "[I]t is primarily the Legislature, not this Court, that must make the necessary compromises to effectuate state constitutional goals and statutory policies within the limitations imposed by federal law." In re Town of Woodbury, 861 A.2d 1117, 1120 (Vt. 2004) (quotation omitted). Therefore, "we tread lightly in this political arena, lest we materially impair the legislature's redistricting power." Petition of Below, 151 N.H. at 150. "[J]udicial 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." Reynolds v. Sims, 377 U.S. 533, 586 (1964) (brackets omitted). "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." State ex rel. Cooper v. Tennant, Nos. 111405, 11-1447, 11-1516, 11-1517, 11-1525, 2012 WL 517520, at *__ (W. Va. Feb. 13, 2012). Some of the petitioners argue, unpersuasively, that because, in their view, the Plan is unconstitutional, it is not entitled to a presumption of constitutionality. This assertion has no support in our jurisprudence. If the presumption of constitutionality could be overcome merely by challenging a statute, the presumption would be rendered meaningless.

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To the extent that these petitioners rely upon Holt v. 2011 Reapportionment Commission, Nos. 7 MM 2012, 1 WM 2012, 2 MM 2012, 3 MM 2012, 4 MM 2012, 5 MM 2012, 6 MM 2012, 8 MM 2012, 9 MM 2012, 10 MM 2012, 17 MM 2012, 4 WM 2012, 2012 WL 375298, at *17 (Pa. Feb. 3, 2012), for this proposition, their reliance is misplaced. The redistricting plan at issue in Holt was not enacted by the legislature as a whole, but was created by a commission "composed of four leaders of the [Pennsylvania] General Assembly." Id. at *16. Because the plan was not a legislative enactment, the Pennsylvania Supreme Court ruled that it was not entitled to the same presumption of constitutionality that is accorded to statutes. Id. at *17. Here, by contrast, the Plan is a statute, and is entitled to the same presumption of constitutionality as any other statute. See Arizona Coalition v. Redistricting Com'n, 208 P.3d 676, 684 (Ariz. 2009) ("A redistricting plan receives the same deference as we afford to other legislation."). III. Burden of Proof Because any statute passed by the legislature is presumed constitutional, the party challenging it bears the burden of proof. See New Hampshire Health Care Assoc., 161 N.H. at 385. "Most challenges to redistricting plans question whether a plan violates the Equal Protection Clause." Arizona Coalition, 208 P.3d at 684-85; see U.S. CONST. amend. XIV. "Whether asserting vote dilution or racial gerrymandering, these equal protection claims generally involve the alleged deprivation of fundamental rights." Arizona Coalition, 208 P.3d at 685 (citations omitted). When reviewing such claims, courts "apply an elevated level of judicial scrutiny." Id. The petitioners in this case, however, do not allege an equal protection violation. Rather, they contend that the Plan violates other state constitutional mandates to which we apply a standard of review akin to the well-established rational basis standard. To prevail, the petitioners must establish that the Plan was enacted "without a rational or legitimate basis." Parella v. Montalbano, 899 A.2d 1226, 1232 (R.I. 2006) (quotation omitted); see In re Town of Woodbury, 861 A.2d at 1120 ("If a plan is consistent with the fundamental constitutional requirement that districts be drawn to afford equality of representation, we will return it to the Legislature only when there is no rational or legitimate basis for any deviations from other constitutional or statutory criteria." (quotation omitted)). Moreover, "[w]e will not reject a redistricting plan simply because the petitioners have devised one that appears to satisfy constitutional and statutory requirements to a greater degree than the plan approved by the Legislature." In re Reapportionment of Town of Hartland, 624 A.2d 323, 327 (Vt. 1993); see Gaffney v. Cummings, 412 U.S. 735, 750-51 (1973) (redistricting plan is not unconstitutional simply because some "resourceful mind" has come up with a better one). Although proof of such a plan "may cast doubt on the legality of the Legislature's plan[,] [t]he 6

petitioners' burden . . . is not to establish that some other preferable 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." In re Reapportionment of Town of Hartland, 624 A.2d at 327 (citation omitted). In reviewing the petitioners' arguments, "we must consider not only the specific violations claimed, but also those claims within the context of the entire plan, keeping in mind the difficulties in satisfying the various legal requirements statewide." Id. The burden at all times rests with the petitioners to establish that the legislature acted without a rational basis in enacting the Plan. See Parella, 899 A.2d at 1232-33. IV. Governing Principles The "overriding objective" of any legislatively-adopted redistricting plan for a state legislature "must be substantial equality of population among the various [legislative] districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." Reynolds, 377 U.S. at 579. This principle is often referred to as the one person/one vote standard. See Burling, 148 N.H. at 146-47. With respect to the House, the primacy of this principle is secured by both the Equal Protection Clause of the Federal Constitution, U.S. CONST. amend. XIV, and Part II, Article 9 of the State Constitution. See id. Part II, Article 9, as amended in 1964, requires that the House be "founded on principles of equality" and that representation in the House "be as equal as circumstances will admit." N.H. CONST. pt. II, art. 9. In Burling, we held that this provision was at least as protective of a citizen's right to vote as the federal constitutional standard of one person/one vote. Burling, 148 N.H. at 149. The established method to determine whether a redistricting plan affords citizens an equal right to vote is to calculate the extent to which it deviates from the ideal district population. Id. at 152; see New York City Bd. of Estimate v. Morris, 489 U.S. 688, 700, 700-01 n.7 (1989). The first step is to determine the ideal population. Burling, 148 N.H. at 152. To calculate the ideal population of a single-member district, the state population is divided by the total number of state representatives. Id. at 152-53. In New Hampshire, assuming that the House contains 400 members, the ideal population for a single-member district is 3,291 (1,316,470 people divided by 400 representatives). The ideal population for a multi-member district is expressed as a multiple of the ideal population for a single-member district. Id. Thus, in New Hampshire, the ideal population for a district with three representatives, for example, is 3,291 multiplied by 3, or 9,873. Once the ideal population is calculated, it is then possible to determine the extent to which a given district population deviates from the ideal. Id. Relative deviation is the most commonly used measure and is derived by 7

dividing the difference between the district's population and the ideal population by the ideal population. Id. For example, the relative deviation for a single-member district in New Hampshire with a population of 4,000 is calculated by subtracting 3,291 from 4,000 and dividing the difference (+709) by 3,291. See id. The relative deviation is +21.54%. See id. For a multi-member district, the relative deviation is calculated using the "aggregate method," which aggregates the total number of representatives and the total population in the district to calculate deviation. Id. Thus, for a district with a population of 8,000 and three representatives, the difference between 8,000 and 9,873 (3 x 3,291)

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