By EDWARD MOSCA

Published Oct 26, 2011

Every 10 years, New Hampshire has to redraw voting districts for the House to reflect the federal census. These new districts must comply with both the federal and state constitutions. The federal principle that must be followed is commonly called “one-person-one-vote.” What it means is that districts must be drawn so that everyone’s vote carries approximately the same weight.

New Hampshire must also follow its state constitution when redistricting so long as it complies with this federal one-person-one-vote-principle. One-person-one-vote always takes precedence over state constitutional principles because it is a federal constitutional principle.

New Hampshire passed a state constitutional amendment in 2006, which will have to be applied for the very first time. The amendment was designed to overturn a decision of the New Hampshire Supreme Court called Burling v. Chandler. Following the 2000 census, Gov. Jeanne Shaheen vetoed a plan for redistricting the House. When the Legislature was unable to override the veto, a lawsuit was brought and the New Hampshire Supreme Court took over redistricting. Ultimately, the court divided the state into large, multi-town voting districts, which were inconsistent with New Hampshire’s tradition of keeping representation as local as possible.In response, the Legislature placed an amendment on the ballot in 2006 which provided that towns and city wards would get to elect their own representative or representatives if their populations met the threshold for such representation under the one-person-one-vote-principle. But because the state’s population is unevenly distributed between towns, the one-person-one-vote-principle generally would require most towns and many wards to be represented by a fractional number of representatives. Since it is impossible for a town to elect a fractional number of representatives, the 2006 amendment contemplated creating “floterial” districts.

Essentially, contiguous towns and wards entitled to fractional representation would be grouped together until the number of fractional representatives added to a whole number. In other words, in a floterial district, the member towns elect their own representatives, but also share one or more representatives who “float” across two or more towns.

This 2006 state constitutional amendment must be applied when redistricting from the 2010 census. The key question is whether the use of floterial districts as contemplated by the amendment satisfies the federal constitution’s one-person-one-vote-principle. At the request of House leadership, I have looked into this issue, and I have concluded that most often floterials do not.

Here’s why. There are two methods to determine whether a floterial district complies with the one-person-one-vote-principle. One is called the “aggregate method.” This determines a single deviation for the entire floterial district by comparing the total number of representatives elected in the floterial to the total population of the floterial. The 2006 amendment anticipated that deviation could be calculated based on the “aggregate method.”

The other method is called the “component method.” This computes separate deviations for each town within the floterial. The number of representatives each town directly elects is added to the share of the floterial representative elected by the town, which is determined based on the town’s percentage of the total population in the floterial. This number of representatives is then compared to the town’s population.

Perhaps the easiest way of understanding the difference between the “aggregate method” and the “component method” is that the “component method” does not allow the use of floterial districts, except where each town in a floterial has virtually the same population as the others. Of course, it is almost never the case that adjoining towns have the same populations.

Unfortunately, federal constitutional cases dealing with redistricting clearly hold that compliance with one-person-one-vote must be determined under the “component method.” As a result, the Legislature will be forced in many instances to create districts comprised of multiple towns, even where some of these towns would be entitled to their own representatives under the 2006 amendment. The method of avoiding these large districts — floterials — is just not available under federal law.

The alternative is to risk that the courts will interject themselves into the process and redistrict the state in 2012, as happened in 2002. While many will be disappointed that the 2006 amendment cannot be implemented in the manner they envisioned, they should bear in mind that the alternative, ignoring federal law followed by redistricting through litigation, could be far, far worse.

Edward Mosca is legal counsel to the New Hampshire House of Representatives.