The New Hampshire legislature has the legal authority to redistrict the state’s two congressional seats in the upcoming session and send those maps to the governor. That’s the finding of a legal memo written by a prominent Granite State Republican attorney and obtained by NHJournal.
“Yes, the New Hampshire legislature retains the authority to engage in congressional redistricting in 2025,” according to the memo, from attorney Richard Lehmann to Republicans close to the redistricting process. “Federal constitutional law governs congressional redistricting, and the United States Supreme Court has held that it does not prohibit mid-decade redistricting.”
After the 2020 U.S. Census, the GOP-controlled legislature sent Gov. Chris Sununu new maps in 2022 and 2024, but he vetoed both efforts. As a result, the state Supreme Court drew its own map using the “least change” approach.
And because the representatives of the people have not had the final say, Lehmann says, the legislature still has the legal right to pass a map through the democratic process.
“The United States Constitution grants the States primary responsibility for apportionment of their federal congressional districts,” Lehmann wrote. “Engaging in redistricting in 2025 would align with constitutional principles and ensure that New Hampshire’s districts accurately reconcile state policy as viewed by the legislative body of the state.”
Democrats adamantly oppose a new map, claiming the Republicans’ goal is gerrymandering a GOP district in a state where Democrats have won every U.S. House and Senate race in the past five cycles. In fact, since the 2010 red wave, Republicans have only won one federal election in the Granite State.
Republican leaders in the New Hampshire House have made no secret of their interest in passing a new map, and after adding another 25 seats to their majority, they believe they have the votes. After last Tuesday’s election, the GOP has a supermajority (16-8) in the state Senate.
Assuming Gov.-elect Kelly Ayotte would sign off on a new map, Democrats would almost certainly turn to the courts in an attempt to stop the process. According to Lehmann, there is very little chance they would succeed.
For example, opponents of the legislature redistricting argue the court has already drawn a map and passing a new one at at this point isn’t allowed. Not true, according to the memo.
“The Supreme Court’s decision in League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)(‘LULAC v. Perry’), confirms that mid-decade redistricting is constitutionally permissible, providing further support for the New Hampshire legislature’s authority to redistrict in 2025,” Lehmann wrote. “In LULAC v. Perry, the Court reviewed a Texas mid-decade redistricting plan that replaced a court ordered map based on the 2000 census data. The Court held that states are not constitutionally barred from redrawing congressional districts mid-decade if circumstances warrant.”
As for claims of partisanship, both the U.S. and New Hampshire Supreme Courts have ruled they do not have the authority to intervene based on accusations of partisan gerrymandering.
“The New Hampshire Supreme Court has repeatedly held that in both state legislative and congressional redistricting that ‘a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutional mandated framework of substantial population equality,'” the memo notes.
Again quoting the state’s highest court, it adds: “The framers in their wisdom entrusted [redistricting] to the legislative branch because the give-and-take of the legislative process, involving…representatives elected by the people to make precisely these sorts of political and policy decision, is preferable to any other.”
