My December 27, 2011 "Clarification" Letter

additional commentary by Timothy Horrigan; December 27, 2011

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On December 27, 2011, my local newspaper, the Dover (NH) Foster's Daily Democrat published the following letter under the title "Clarification." I was clarifying a December 22, 2011 article by Andrea Bulfinch entitled "Redistricting plan worrisome to some state representatives: Durham won't be moved into Rockingham County"

My letter dealt with one very complicated issue and one relatively simple one. The complicated one is the New Hampshire House's redistricting plan. The simple one is the structure of county government. In New Hampshire, the state representatives from each county also serve on the County Convention, which is the county's legislative body. The counties don't do very much in New Hampshire. They used to run the District and Superior courts, but now they merely operate the county courthouses and lease space to the court system. They still run the county jails and the county nursing homes, as well as the sherriff's and county attorney's offices, and the registries of deeds and probate.

An odd rumor went around in mid-December to the effect that Durham was going to be moved from Strafford County to Rockingham County so it could be joined with Newmarket in a single state representative district which would have (presumably) 7 members — or maybe Newmarket would be moved to Strafford County.

Here is my letter:

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Tuesday, December 27, 2011


To the editor: I should clarify a somewhat confusing indirect quote from Andrea Bulfinch's Dec. 22 article about the proposed redistricting of the New Hampshire House. The article read: "However, while there are no hard laws on representatives crossing county lines, Rep. Tim Horrigan R-Durham, said it is a very remote possibility that would happen due to county conventions." (I am in fact "D-Durham.")

The County Conventions are the legislative bodies for each county. I serve on the Strafford County Convention, whose main function is to set the budget for the county government. Title II, RSA 24:1 of the state law book states "the county convention consists of the state representatives of the representative districts of the county. "

At the time the counties were established (beginning in 1769), each state representative represented exactly one town. Today, we have many multitown districts, but each district is contained within a single county. It is unclear what would happen to the County Conventions if a state representative district included towns from two (or more) different counties. It appears that such a district's representatives would be members of more than one county convention, and one or more county conventions would have members who aren't residents of that county. That would be legally and politically problematic.

I do not favor drawing state representative districts across county lines, and I certainly would be opposed to moving Durham, Newmarket or any other town to a different county just to make the state representative districts conform to an arbitrary mathematical standard. There is actually a case to be made for subdividing Rockingham and Hillsborough counties, both of which are rather unwieldy — and in fact Hillsborough has already been divided into two Superior Court districts. However, creating new counties would involve a large up-front expense for a modest gain in efficiency. It wouldn't be cost-effective, and as far as I know, it is not being seriously considered. Within their current boundaries, both counties have functioned well for two centuries.

State Rep. Timothy Horrigan

I am tempted to quote Bulfinch's whole article, since it will become hard to find in the future, but for now I will just quote a couple of excerpts. I enjoyed talking to her but there was some annoying errors in the piece, e.g., she said the "magic number" ratio for a state representative districts is 32,091 residents/rep when it is in fact 3,291 residents/rep.

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It was rumored Durham may move into Rockingham County following the adoption of the House Republican Leadership plan.

However, while there are no hard laws on representatives crossing county lines, Rep. Tim Horrigan D-Durham, said it is a very remote possibility that would happen due to county conventions.

Rep. Warren Groen, R-Strafford County District One, also said it was highly unlikely the plan would result in the switch and that had been one of many rumors of concern he'd heard.

He said the only way Durham would become part of Rockingham County would be if they were to secede from Strafford County and make a request to Rockingham and then be accepted by the county.

[note: Rep. Groen seems to be making stuff up here: the way I read the applicable statutes, county boundaries can be changed without the towns' direct involvement by simply passing a regular bill.]

Horrigan said he's happy with how his Durham district turned out with this recent change. Having enough of a population to have one or more representatives of its own without sharing, Durham will share its district with Madbury, an "orphan town" as it was not large enough on its own, but shares a border with Durham.

Together, they will have five representatives. Horrigan called this a good pairing considering the two towns share a school district and also because the representative from Madbury grew up in Durham. Lee will get a representative of its own and share a floatorial district with Barrington, giving them a total of four representatives.

"This is what I thought it was going to be all along even before the census numbers came out," he said.

Redistricting is never easy, but the 2010-2012 redistricting plan blatantly ignored the state constitution, especially Part Second, Article 11. The plan is (not too shockingly) being drawn to maximize the number of Republicans in the House. The Republican House leadership, who are not normally known for their deference to the authority of the federal government, are using federal voting rights law as an excuse for their partisan manuvering. The leaders claim "counsel" told them that "case law" forbids them from deviating by more than plus or minus 5% from the ideal 3291 residents/rep ratio. The House Counsel is a friend of the Speaker's who previously specialized in chasing ambulances and the like: he is not a bad lawyer, but he is certainly not an expert on constitutional law. I attended a meeting of the Redistricting Committee where the Counsel weighed in on redistricting law: it was a perfunctory effort on his part. If any outside lawyers with relevant expertise were brought in, no one outside the inner circle of leadership knows about it. The federal case law actually does allow greater deviations, if there is a good reason for it, and this time there is a good reason for it.

Article 11 reads:

[Art.] 11. [Small Towns; Representation by Districts.] 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 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.

Durham and Madbury were placed together in accordance with the third sentence of the article: Madbury didn't have enough population for its own rep, so it had to be combined with one or more towns or wards. Madbury is an "orphan" town which only borders places big enough to have their own reps, so its placement in a district with Durham is uncontroversial.

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