To safeguard the equal voting rights of the New Hampshire electorate, this court, in 2002, was called upon to establish new district plans for the house and senate. See Below v. Secretary of State,
“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims,
The parties in Below and Burling agreed that, absent a new district plan, the existing districts, formed in 1992, violated the constitutional imperative of one person/one vote. Below,
We did so reluctantly because we understood that redistricting is an inherently political process. See Jensen v. Wisconsin Elections Bd.,
In 2004, two years after the court’s redistricting plan became effective but before the next statewide election, the legislature passed two bills amending it: House Bill (HB) 1292 and HB 264. HB 1292 partially redistricts the New Hampshire House of Representatives; HB 264 partially redistricts the New Hampshire Senate. In this case, we have been asked whether the legislature had the authority to amend the court’s redistricting plan. We conclude that it did.
The New Hampshire Constitution directs the legislature to reapportion the house and the senate at its regular session following the federal decennial census. See N.H. CONST. pt. II, arts. 9, 11 and 26. When the legislature Mis to enact a new redistricting plan at that session, it is neithеr deprived of its authority nor relieved of its obligation to redistrict. “The Constitution does not contemplate that the Legislature, by failing to act when it should, can impose on the people for ten years an apportionment which changes in population have made unequal and hence constitutionally inappropriate.” Lamson v. Secretary of Commonwealth,
Although, in 2002, the court was “left with the unwelcome obligation of performing in the legislature’s stead,” the court’s redistricting plan did not deprive the legislature of its authority to enact a rеdistricting plan. Connor v. Finch,
The petitioners assert that the new districts created by HB 1292 and HB 264 violate the Federal and State Constitutions and the Federal Voting Rights Act. See U.S. CONST. amend. XIV; N.H. CONST. pt. II, arts. 9 and 26; 42 U.S.C. § 1973c (2003). We express no opinion as to whether the legislature’s reapportionment plan complies with one person/one vote
7. Background and Procedural History
Before we decided Below and Burling in 2002, the house and senate were last reapportioned in 1992, following the 1990 federal decennial census. Below,
In the winter of 2002, the Republican leadership of the house and senate introduced legislation to create new legislative districts based upon the 2000 census. Below,
In April 2002, the court was petitioned to declare the existing legislative districts unconstitutional. Below,
The legislature sought to amend the court’s plan at its next regular session following the Below and Burling decisions. In January 2003, it began considering HB 264. The parties agree that this bill changes nine of the twenty-four senate districts the court formed in Below. HB 1292 was introduced in September 2003. The parties agree that this bill changes twenty-one of the eighty-eight house districts the court created in Burling. The petitioners allege that these bills affect an additional thirty-two house districts.
The court’s jurisdiction in this matter was invoked on May 27, 2004, when the petitioners, members of the minority leadership in the house and senate, filed a petition for original jurisdiсtion. The petition alleged that HB 1292 and HB 264, which at that point were not yet effective, would create an unconstitutional legislative apportionment scheme in New Hampshire. Given the imminence of the June 2, 2004 statutory filing period for house and senate candidates, the court endeavored to act quickly. See RSA 655:14 (1996). On May 28, 2004, it accepted the first question in the petition, which asked whether the legislature was barred
On May 28, the court also stayed the statutory filing period for all house and senate candidates, and on Junе 1, lifted the stay of the filing period for candidates in the senate districts that HB 1292 and HB 264 did not affect. On June 4, the court lifted the stay of the filing period for candidates in the house districts that none of the parties asserted were affected by HB 1292 and HB 264.
II. Relevant State Constitutional Provisions
To determine whether the legislature had the constitutional authority to enact HB 1292 and HB 264, we must first examine the language of the relevant constitutional provisions. See N.H. CONST, pt. II, arts. 9, 11 and 26. “It is the role of this court in our co-equal, tripartite form of government to interpret the Constitution and to resolve disputes arising under it.” Monier,
When interpreting a constitutional provision, “we will look to its purpose and intent, bearing in mind that we will give the words in question the mеaning they must be presumed to have had to the electorate when the vote was cast.” Opinion of the Justices,
Three provisions of the New Hampshire Constitution govern thе legislature’s power to apportion: Part II, Articles 9, 11 and 26. Part II, Articles 9 and 11 concern legislative authority to apportion the house; Part II, Article 26 concerns its authority to apportion the senate. All three provisions were last amended in 1964. See Below,
There shall be in the legislature of this state a house of representatives, biennially elected and founded on principles of equality, and representation therein shall be as equal as circumstances will admit. The whole number of representatives to be chosen from the towns, wards, places, and representative districts thereof established hereunder, shall be not less than three hundred seventy-five or more than four hundred. As soon as possible aftеr the convening of the next regular session of the legislature, and at the session in 1971, and every ten years thereafter, the legislature shall make an apportionment of representatives according to the last general census of the inhabitants of the state taken by authority of the United States or of this state. In making such apportionment, no town, ward or place shall be divided nor the boundaries thereof altered.
N.H. Const, pt. II, art. 9 (emphasis added).
Part II, Article 11, entitled “Small Towns; Representation by Districts,” provides in pertinent part:
When any town, ward, or unincorporated place, according to the last federal decennial census, has less than the number of inhabitants necessary to entitle it to one representative, thе 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____The legislature shall form the representative districts at its next session after approval of this article by the voters of the state, and thereafter at the regular session following every decennial federal census.
N.H. Const, pt. II, art. 11 (emphasis added).
Part II, Article 26 provides:
And that the state may be equally represented in the senate, the legislature shall divide the state into single-member districts, as nearly equal as may be in population, each consisting of contiguous towns, city wards and unincorporated placеs, without dividing any town, city ward or unincorporated place. The legislature shall form the single-member districts at its next session after approval of this article by the voters of the state and thereafter at the regular session following each decennial federal census.
To understand the meaning of these provisions, we examine their history, as well as their purpose and intent. See N.H. Motor Transport Assoc.,
A. History of Part II, Articles 9 & 11
When Part II, Articles 9 and 11 were first enacted in 1784, “rateable polls” were the basis for representation; 150 rateable polls were required for the first representative and 300 were required for each additional representative. Levitt v. Attorney General,
“By 1876 increases in the size of the House from 91 to 393 members, coupled with abuses in the determination of the numbers of ‘rateable polls,’ made a change in these provisions imperative.” Id. (citation omitted). The 1876 constitutional convention thus substituted inhabitants for polls and made population the basis for apportioning the house. Id.; see also Journal of Constitutional Convention 230-31 (1876) (1876 JOURNAL). Pursuant to the amendments from that convention, 600 inhabitants were required for the first representative and 1,200 were required for each additional representative. 1876 JOURNAL at 263; see also Opinion of the Justices,
Part II, Article 10 was repealed in 1889. Levitt,
Part II, Articles 9 and 11 were next amended following the 1941 constitutional convention. Because the house had grown substantially to an expected 443 members according to the 1940 census, the 1941 constitutional convention was charged with making the house smaller. See 1941 JOURNAL at 64-65. Several resolutions were introduced to achieve
As amended by the 1941 convention, Part II, Article 9 provided:
There shall be in the legislature of this state a house of rеpresentatives, biennially elected and founded on principles of equality, and representation therein shall be as equal as circumstances will admit. The whole number of representatives to be chosen from the towns and wards shall be not less than three hundred seventy-five or more than four hundred. At the next session of the legislature, and at the session in 1951, and every ten years thereafter, the legislature shall make an apportionment of representatives according to the last general census of the inhabitants of the state taken by the authority of the United States or of this state. The number of inhabitants necessary to entitle any town or ward to representatives additional to the first shall be for eаch additional representative twice the number of inhabitants required for the first representative, so that the mean increasing number for every additional representative shall be twice the number required for the first or one representative. In making such apportionment no town shall be divided, or the boundaries of the wards of any city so altered, as to increase the number of representatives to which such town or city may be entitled by the last preceding census.
N.H. CONST. pt. II, art. 9 (amended 1964), reprinted in 1 N.H. Rev. STAT. ANN. 97 (1955).
Also as amended by the 1941 convention, Part II, Article 11 provided:
Whenever any town or ward shall have less than the number of inhabitants necessary to entitle such town or ward to one representative the legislature shall authorize such town or ward to elect and send a representative such proportionate part of the time as the number of its inhabitants shall bear to the requisite number established for one representative and without such authority no town or ward shall send a representative; provided,*143 however, that each town and ward shall be entitled to representation in at least one session in every ten years.
N.H. CONST. pt. II, art. 11 (amended 1964), reprinted in 1 N.H. Rev. STAT. Ann. 98 (1955).
These provisions were amended again in 1964. The 1964 constitutional convention was informed that Part II, Article 9 was likely unconstitutional because it required towns and wards to have twice as many people for each additional representative as they needed for the first representative. Burling,
Before adjourning on June 10, 1964, the convention successfully amended Part II, Article 11 to allow citizens of small towns and wards full-time representation. Id. As amended, Part II, Article 11 permitted the legislature to create legislative districts by joining towns, wards and unincorporated places that were too small to be entitled to one full-time representative. Id. It required the legislature to form these districts “at its next session after approval of this article by the voters of the state, and thereafter at the regular session following every decennial federal census.” N.H. Const. pt. II, art. 11.
Although the convention delegates debated, at length, whether to retain the requirement that a town or ward have twice as many citizens for each additional representative as it needed for the first, they were unable to resolve this issue before adjourning. See JOURNAL OF CONSTITUTIONAL Convention 221-50 (1964) (1964 Journal). Some delegates believed that it was appropriate to retain the current apportionment method for the house because it represented “an intricate balance ... between representation of town and of population.” Id. at 243. Others recognized that requiring towns and wards to have twice as much population for each additional represеntative violated the principle of one person/one vote:
Now the Constitutional issue, the Constitutional problem which is posed by our present representation system, is made clear by a series of decisions that have come forth with the following maxim: equal numbers must have equal representation. There isn't any way that we can get around it. This is the maxim that has been proposed by the Supreme Court, and it is put in language that is just that simple____ We must follow the proposition that equal representation is given to equal numbers.
Id. at 233-34.
Five days after the convention adjourned, the United States Supreme Court decided Reynolds. See Opinion of the Justices,
In Reynolds, the Court also “held that a decennial reapportionment would clearly meet the requirements for maintaining a reasonably current scheme of legislative representation.” Opinion of the Justices,
The convention’s amendments to the language governing when the legislature must reapportion were technical, not substantive. For instance, while the 1941 amendments to Part II, Article 9 required the legislature to apportion “[a]t [its] next session,” 1941 JOURNAL at 95, the 1964 amendments required it to apportion “[a]s soon as possible after the convening of [its] next regular session,” 1964 JOURNAL at 358. While the 1941 amendments required the legislature to reapportion “at the session in 1951, and every ten years thereafter,” 1941 JOURNAL at 95, the 1964 amendments required the legislature to reapportion “at the session in 1971, and every ten years thereafter,” 1964 JOURNAL at 358.
B. History of Part II, Article 26
Before Part II, Article 26 was amended in 1964, senate districts were apportioned on the basis of taxes, not population. Below,
*145 And that the state may be equally represented in the senate, the legislature shall, from time to time divide the state into twenty-four districts, as nearly equal as may be without dividing towns and unincorporated places; and in making this division, they shall govern themselves by the proportion of direct taxes paid by the said districts, and timely make known to the inhabitants of the state the limits of each district.
Id. (quotation omitted). Although this provision required the legislature to redistrict the senate “from time to time,” the legislature failed to redistrict the senate at all between 1915 and 1961. Id.
When the 1964 constitutional convention convened, the delegates understood that it was “only a matter of time” before the New Hampshire system of apportioning the senate according to taxable property was declared unconstitutional. Id. (quotation omitted). Accordingly, when the delegates were unable to agreе upon changes to Part II, Article 9, they turned their attention to Part II, Article 26. Id. at 7. “The convention thus resolved to amend Part II, Article 26 to make clear that senate districts would be apportioned based upon population equality and would be redrawn every ten years, following the decennial census.” Id. As amended, Part II, Article 26 required the legislature to reapportion “at its next session after approval of this article by the voters of the state and thereafter at the regular session following each decennial federal census.” N.H. CONST. pt. II, art. 26. This language is similar to the language added to Part II, Article 11 by the same constitutional convention. See N.H. Const, pt. II, art. 11.
The delegates did not debate how frequently the legislature should reapportion the senate. Rather, their debates centered upon whether the size of the senate should remain at twenty-four or be increased to thirty or thirty-six members. 1964 JOURNAL at 266-76.
C. Interpretation of Part II, Articles 9,11 & 26
From the history described above we reach the following conclusions. The policy and practice in New Hampshire has been to create legislative districts once every ten years based upon the federal census. This policy and practice began in 1876, when, for the first time, population became the basis of apportioning the house. See Opinion of the Justices,
This language makes clear the intent that the legislature reapportion once in a ten-year period: in 1943 (following the 1942 amendments), again in 1951 (following the 1950 census), and every ten years after the last decennial federal census (e.g., in 1961, 1971, 1981, 1991, 2001, etc.). As soon as the legislature has fulfilled its constitutional duty to reapportion once based upon the last federal census, it may not reapportion again until the next federal census. See Opinion of the Justices,
As we explained in Opinion of the Justices:
Article 9th provides that apportionment shall be made “every ten years” commencing in 1951, and “according to the last general census.”
. It seems clear to us that the constitutional mandate establishes only one yardstick as a legislative guide in making an apportionment, and that is “the last general census of the inhabitants of the state taken by authority of the United States or of this state.” There being no provision for a state census, the Federal census must be used. Since the Constitution provides for no reapportionment during the ten-year period following 1961, it is not “constitutionally competent” for the General Court to authorize an election of a representative by [a town that came into existence after the 1960 census] in the year 1966.
Opinion of the Justices,
Once population became the basis for providing representation to residents of small towns and wards in the house and for apportioning the senate, it became necessary for Part II, Articles 11 and 26, like Part II, Article 9, to require decennial reapportionment. Thus, in 1964, these articles were amended to require the legislature to form house districts from small towns and wards and single-member senate districts at its next session after approval by the voters of the State and thereafter at the regular session following each decennial federal census. N.H. CONST, pt. II, arts. 11,26. Although the language used in these articles differs slightly from that in Article 9, the import is the same — the legislature must reapportion once every ten years, following each federal census.
III. Petitioners’ Arguments
A. When Legislature Must Apportion
The petitioners first argue that the legislature was precluded from enacting a reapportionment plan in 2004 because it failed to do so at its regular session following the 2000 census. They observe that Part II, Article 9 requires the legislature to reapportion at “the session,” and Part II, Articles 11 and 26 require it to reapportion “at the regular session,” following each federal census. They conclude that the plain meaning of this language prohibits the legislature from apportioning at any session other than the one immediately following the federal census.
While we acknowledge that a literal reading of Part II, Articles 9, 11 and 26 supports the petitioners’ argument, it ignores the purpose and intent of requiring decennial reapportionment, which is to ensure substantially equal representation based upon population. See Reynolds,
Thus, in addition to requiring that both houses of a state legislature be apportioned оn a population basis, so that “the vote of any citizen is approximately equal in weight to that of any other citizen,” the Court ruled that decennial reapportionment “would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation.” Id. at 579, 583-84. Failure to reapportion at least once every ten years “would assuredly be constitutionally suspect.” Id. at 584.
The requirement of decennial reapportionment cannot mean that a State may ignore the results of a federal census and use patently malapportioned districts. Farnum v. Burns,
By the same token, “[t]he right to an equal vote and to equal representation is [also] too important to allow a state ... absolute discretion in delaying post-census redistricting.” Cardona v. Oakland Unified School Dist., Cal.,
Moreover, once the legislature has fulfilled its constitutional obligation to reapportion based upon the decennial census figures, it has no constitutional authority to make another apportionment until after the next federal census. See Certification of a Question of Law,
The framers of our Constitution did not, we think, have in mind the possibility that a Legislature might disobey the constitutional mandate, and might fail to make an apportionment at the time*149 when that duty was affirmatively imposed upon them by the Constitution. It seems quite apparent that the framers of the Constitution in providing for apportionment “at its first regular session, after each enumeration ... but at no other time,” meant to say only this and nothing more: That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until after another enumeration.
In other words, when a Legislature once makes an apportionment following an enumeration no Legislature can make another until after the next enumeration.
Id. at 594 (quotation omitted).
In this case, the legislature began considering HB 1292 and HB 264 at its session following the court’s decisions in Below and Burling, before the 2004 election. Had the legislature not enacted its own redistricting plan during this session, however, it might well have been precluded from doing so at a future session. See Cardona,
B. Court’s Role in Redistricting
Relying primarily upon the Colorado Supreme Court’s dеcision in Salazar, the petitioners next argue that the court’s 2002 reapportionment plan supplanted the legislature’s authority to enact redistricting legislation in 2004.
The issue in Salazar was whether the Colorado legislature had violated the Colorado Constitution by redrawing boundaries of congressional districts in 2003 after the court had done so in 2002. Salazar,
Separation of the three co-equal branches of government is essential to protect against a seizure of control by one branch that would threaten the ability of our citizens to remain a free and sovereign people. Petition of the Governor and Executive Counsel,
Our State Constitution vests the authority to redistrict with the legislative branch, and for good reason. “[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.” Connor,
As the Wisconsin Supreme Court has explained:
[R]edistricting remains an inherently political and legislative— not judicial — task. Courts called upon to perform redistricting are, of course, judicially legislating, that is, writing the law rather than interpreting it, which is not their usual — and usually not their proper — role. Redistricting determines the political landscape for the ensuing decade and thus public policy for years beyond. The framers in their wisdom entrusted this decennial exercise to-the legislative branch bécause the give-and-take of the legislative process, involving -as it does representatives elected by the people to make precisely these sorts of political and policy decisions, is preferable to any other.
Jensen,
In the Below and Burling cases, it was undisputed that the existing districts were unconstitutional and that the legislature had failed to reapportion after having had an adequate opportunity to do so. Judicial relief was therefore not only appropriate, but required. See Monier,
TV. Conclusion
For all of the above reasons, we conclude that the legislature had the authority to enact HB 1292 and HB 264. With this legislation, the legislature has fulfilled its constitutional obligation to reapportion the house and senate based upon the 2000 census. Pursuant to Part II, Articles 9, 11 and 26, the legislature may not reapportion again until its regular session following the next decennial federal census. In accordance with our ruling, the injunctions we issued against the filing period for house and senate candidates in districts affected by HB 1292 and HB 264 are dissolved. This opinion is effective immediately. Unless otherwise ordered by the court, the filing of any motion to reconsider shall not stay the effective date of this opinion.
So ordered.