Brown v. Secretary of State (Amicus)

In the November 2022 elections, Democratic candidates for the New Hampshire Executive Council received more votes statewide than the Republican candidates, and yet the Republican candidates won four of the five seats. New Hampshire Democratic candidates similarly won more votes in state Senate races than Republican candidates, but Republicans took 14 of the 24 state senate seats.

Recognizing this as a stark partisan gerrymander, a group of New Hampshire voters challenged the state’s 2022 senate and executive council districts as violative of the state’s Constitution. Plaintiffs argued that the plans violated the state’s Free and Equal Elections Clause, Equal Protection Clause, and Free Speech and Association Clauses by packing Democratic voters into a small number of districts they could easily win and dispersing the rest into a larger number of districts, diluting their ability to influence elections. The trial court granted the state defendant’s motion to dismiss, holding that partisan gerrymandering claims are nonjusticiable under the New Hampshire Constitution.

On appeal to the New Hampshire Supreme Court, ACLU and ACLU of New Hampshire filed an amicus brief in support of plaintiffs arguing that the trial court erred in finding that such claims are nonjusticiable and that the New Hampshire Constitution prohibits partisan gerrymandering. ACLU argued that partisan gerrymandering claims are justiciable because, under New Hampshire precedent, the Court can hear claims involving fundamental rights even where certain matters are vested in a co-equal branch by the state Constitution. Further, we argued that the excessive partisanship in the districting violated the New Hampshire Constitution’s Free and Fair Elections Clause.

In December 2023, the New Hampshire Supreme Court ruled against the plaintiffs, holding that partisan gerrymandering were nonjusticiable political questions in the absence of established limitations adopted by statute or constitutional amendment.