Capital Beat: After veto, unclear path for redistricting reform

Monitor staff
Published: 8/17/2019 9:13:11 PM

When Gov. Chris Sununu vetoed a bill to create an “independent redistricting commission,” he framed it in part as pushback against several left-leaning groups who have advocated for the reforms.

“While I do not question the sincerity of the legislators who support House Bill 706, one of the partisan out-of-state organizations pushing for this legislation states that its mission is to ‘favorably position Democrats for the redistricting process,’ ” he wrote, making apparent reference to a group helmed by former Obama administration Attorney General Eric Holder and calling it “very concerning.” 

But in striking down the proposal, Sununu also bucked what had been a bipartisan effort – a bill that left the Senate unanimously after struggling to amass cross-party support in the House. The latest amendment to the bill had even been spearheaded by Republican senators.

Now, with a compromise bill vetoed, supporters on both sides of the aisle are unsure of how to proceed. Some of them are still surprised. 

“The governor’s office did call me prior to their announcement,” said Sen. James Gray, a Rochester Republican who helped craft the final language. “I did not speak to the governor, but people on the staff, and told them what I thought of the veto. That I was disappointed because of all the work that went in.

“But again, I still think that there’s things that we can improve in the bill.”

Yurij Rudensky, a lawyer at the Brennan Center for Justice, a voting rights organization that pushed for the bill, was more forthright. 

“To say it’s disappointing is an understatement. I would say it’s a pretty unprincipled veto, given that the very people that are impacted by redistricting were the ones that supported it,” he said, referring to senators. 

For others, though, the governor made an easy call.

“(It) was poorly thought out, terribly crafted, and fraught with constitutional issues,” said Paul Mirski, the former House Republican from Enfield who chaired that chamber’s redistricting effort in 2011 under then-Speaker Bill O’Brien. 

The bill, Mirski added, would create unnecessary time pressures on the Legislature and open itself to court challenges by unnecessarily bringing in the Supreme Court. 

House Bill 706 was meant to provide a procedure of district drawing to please all parties, one that would force bipartisanship in the name of – if nothing else – getting something passed. 

Every 10 years, the New Hampshire Legislature is charged with redrawing districts to account for population shifts measured by the Census, an immensely important consideration. HB 706 would have kept that power in the House and Senate. But it would have tasked an outside committee with coming up with a first draft, one not comprised of elected officials. 

The bill set up a commission of 15 people, winnowed down from selections by legislative leaders. Five would be chosen by Republicans; five from Democrats, and the final five from the members themselves.

Add to that the requirement that the committee agree to the proposed plans – likely by majority vote, though the manner is not specified – and the bill creates a system that supporters argue requires working across lines.

After all, to get to yes in the five months before its December 2021 deadline, advocates for one particular map would have to win over at least eight votes, including some from the “moderate” final five consensus picks. That, supporters say, means that a less partisan, less tilted, more pragmatic map would have the best chance of making it across. 

“The key to the legislation is that it’s a balanced commission,” said Rudensky. “It doesn’t allow one party to turn an electoral advantage into an advantage in the redistricting process.” 

Not everyone agrees with that though. In his veto message, Sununu argued that the creation of the commission itself would be problematic. The scheme would allow majority and minority parties to submit 10 choices each and then allow the other to strike out five. 

To Sununu, that creates conditions for partisan panel members with no direct accountability to voters. 

Mirski agrees. From his perspective, the proposed process is inherently subject to partisanship. Even with the five consensus picks, the battle for control would be over converting three of them to join one party’s five-person vision, he said.

Despite its intentions, the commission would be populated by members who would only “fight like dogs” to serve the parties that had appointed them. 

Mirski has some experience with that. As the head of the House’s redistricting effort in 2011 – he chaired the House special redistricting commission under a Republican-dominated House – Mirski sees no reason in dressing up the process: It was intensely partisan. And Mirski, as a Republican, was trying to help his party. 

“My feeling is this: this is politics,” he said. “It’s partisan. If you’re a Democrat and the Republicans are redistricting, then you’re going to be extremely unhappy through the whole process because you’re not going to get your way, period. And if you’re a Republican and you’re in the minority and the Democrats are doing it, you’re going to be extremely unhappy because you’re not getting your way, period. And that’s just the way it is.”

That approach is a feature of the state’s constitution, not a bug, Mirski argued. Voters elect representatives to fight for power; changing the district lines is one way of doing that. Doing it on a House and Senate committee allows those carrying it out to face the consequences, he said.

“I would rather have it out in the open with people slugging at it where everybody – you the reporters and people who want to go to these commission hearings and want to see it – they get to see what’s going on,” ” he said. “It’s out in the open. Everyone can see who’s who. And the struggle can be exposed.”

“Politics is war,” he added. “People gotta get that in their head.”

He continued: “When you get into this subject, where you’re re-framing the Legislature, and determining where power is ultimately going to lie in the future, do you honestly think that anyone who is a partisan … is going to somehow just decide to think angelically? It’s not going to happen.” 

To advocates of reform, though, that’s the exact process to avoid, “and one they say that voters are increasingly objecting to. 

“Politicians should be chosen by the voters, not the other way around,” said Henry Klementowicz, a staff attorney at the American Civil Liberties Union of New Hampshire, repeating an oft-used phrase for advocates.

Now, moving forward, the paths for advocates are unclear. 

Option one: An override. The vote will come before the House for a veto override attempt next month, but the House already didn’t have the two-thirds’ necessary override support when it appeared there earlier this year. And amid a string of other override attempts and likely atmosphere of intense partisanship come “Veto Day,” it is entirely possible that the bill could lose some of the Republican support it picked up before. 

Option two: A new bill. Both Sen. Gray and Sen. Regina Birdsell – the two Republican senators on the election law committee who helped shepherd HB 706 to a biparitsan vote – say they are interested in trying again next year. That would mean submitting a different bill in the hopes it could withstand a future veto – and getting it all done by June next year.

“It gives us a base for something to work on next year,” Birdsell said of the veto in an interview. Birdsell said that she was concerned that partisanship could still leak into the commission, despite supporting it. A bill next year that addressed that could come closer to earning the governor’s support. 

Gray agreed, arguing that the selection of the commissioners could be an area of further tweaking. 

Sununu’s veto message seems clear: The process should be wholly in the hands of the Legislature. But in a statement, a spokesman for Sununu, Ben Vihstadt, left the slightest suggestion of wiggle room.

“Governor Sununu believes the current system works well and cases of gerrymandering are very rare, but is always willing to keep an open mind and work with the Legislature to address important issues,” Vihstadt said. 

Option three: A constitutional amendment.  The strategic benefits: The thresholds for getting the question on the ballot are lower than for overriding a vetoed bill – 60% of the total House and Senate instead of 66% – and the governor does not get a veto option. And if the question were posed to voters on the 2020 ballot, polls suggest it might get support. 

But approaching it this way could extinguish Republican support in the Senate. GOP senators had made it clear on the floor earlier this year that their support for HB 706 rested on the fact that it took pains to not eliminate the Legislature’s final constitutional say over redistricting. Changing the constitution itself could prove a nonstarter for those same senators.  

Option four: Nothing happens. The constitutional process holds. The majority parties in the Senate and House both convene special redistricting committees. Hearings are held across the state. Representatives and senators give input, both publicly and privately. The governor watches distantly, veto pen nearby. And the Supreme Court watches even more distantly, wary of potential involvement. 

To some, any outcome along this outcome could invite a lawsuit. To others, it’s the fairest and purest approach. But few of the voting rights groups – from the American Civil Liberties Union to the Brennan Center – would speculate on what would happen without the proposed reforms.

For Sen. Melanie Levesque, the Democratic Brookline senator who chairs the Election Law Committee, one thing was clear: the issue of redistricting reform should stay front and center into 2020.

“It’s something that can benefit both parties, really,” she said. “A bad redistricting can go either way.”


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