The House, Thursday, January 15, 2004

Rep. Michael Whalley (R - Belk 5)Thank You, Mr. Speaker. Mr. Speaker, my floor amendment is virtually the same as the committee amendment with one small change. The effort of the committee was to create smaller districts wherever possible by subdividing the existing districts that we all ran under almost two years ago. The other change the committee has made is that we have renumbered the districts by county, which is the way we are most familiar with that and that is how it will be reflected in statutes. So when we come to register, if we file again to run for re-election, we will run from our county and a district number. But the small change in my floor amendment to the committee amendment is one in Cheshire County. It is one that we overlooked as a committee, but it certainly follows the parameters that we established in having as many smaller districts as possible. If you will look on page 198 under Cheshire County, you will see that there is District 1 and District 2. In the committee amendment those ten towns form a district and that is what is existing today. In my floor amendment I have subdivided Gilsum, Surry and Westmoreland from the other seven remaining towns. There would be one seat for the three towns I just mentioned. There would be three seats for the seven remaining towns, thereby creating another district which would bring us from the 88 districts that we know presently to 98 districts that you would find in the floor amendment. Thank you, Mr. Speaker.

Rep. Roger Berube (D - Straf 18)Mr. Speaker, Honorable members of the House, I rise in favor and support of HB 264. The reason for it is, I think it's the right thing to do. If we look at the numbers, for instance, District 67, I represent the City of Rochester, the City of Somersworth and the Town of Rollinsford, which is almost 40,000 people. It makes it very difficult, very difficult to represent that many people. If we believe in direct representation in this House which a majority of the people do, than I ask that you support this piece of legislation. There was a lot of work done, I've attended the committee meetings, I gave testimony. Some people may be in disagreement but I would like to point out that when the courts, their reason for creating such a large district, such as District 67, was that the boundaries were not set up properly. So, I urge all of you to support this legislation. I would like to thank you, and thank you, Mr. Speaker. Debate on floor amendment (0099h)

Rep. Raymond Buckley (D - Hills 56)Thank you, Mr. Speaker. During this morning's prayer, I was doing an extra prayer. I was praying that God would bless me with the ability that the chair of the Judiciary Committee has to explain in some pithy way something that is very complicated and difficult for the House to understand in a way to clarify it in a manner that makes it so simple those who aren't really listening get it. Unfortunately, He hasn't answered my call yet, so please bear with me. I authored this amendment along with the other four, as a way of subdividing HB 264. HB 264 could not have been divided. I want to first start off by setting aside the issue whether or not you believe that we should actually even be dealing with the issue of redistricting. You are going to hear that later on in this debate. So let's set aside the issue of whether or not we should be dealing with redistricting and whether it's even constitutional. Why I subdivided HB 264 into five amendments was so that we could actually have specific votes on specific districts. The point is we could not divide, we could not have a vote in any other way. So simply what happened is we took the bill apart, and made it into separate amendments. The amendments are exactly the same as the what the committee amendment said. So in an attempt to not complicate things, it in a round-about way made it even more complicated. The point is, there are some people who so strongly oppose the specific in some of these changes that they wanted to have a specific vote. As luck would have it, the first vote we have is the most egregious. Now, just a few moments ago we took a vote on the committee amendment that the Deputy Speaker moved. What was interesting about that is that there was no actual committee action on that, that was not part of the package that we discussed for the months that we were here this fall working on it. What happened is a member of this House ran into the sponsor of the amendment and had a casual conversation. That is essentially is how this whole process on "re- redistricting" has worked. It has been a very frustrating process where their were specific districts for specific purposes that people wanted to have divided. We did not do a comprehensive statewide assessment of how these districts worked. Once again, set aside the issue of whether or not we should even be involved in redistricting but what we have before us is a very arbitrary piece-meal redistricting process. But there was one guiding theory that was supposed to have governed the committee action. That's what the majority voted on in this amendment 0099 with HB 264 and why I think it is so critical that this be specifically a roll call vote, Mr. Speaker. I am going to ask for a roll call on this. In no other section of HB 264 does the committee amendment specifically target a sitting member of the House. One of the things we heard over and over again at every hearing and at every meeting throughout the fall is that if we are going to try to fix this let's make sure that we do not disrupt the incumbent members. So we bent over backwards, we even set aside some districts, the committee did, because this person or that person would not be able to get reelected because they would be eliminated. What happens in 0099 is in Grafton County, it takes 5 members who represent one town and creates a four member district. So five members who represent a certain area are now being replaced by four. So we are essentially eliminating a member of this body, even though that was supposed to be one of our guiding theories as we looked at this piece-meal process, that let's not go after any incumbent member of this House. Some people did not think that was an appropriate guideline to have but that was something we had reached some consensus on in committee. So, Mr. Speaker, I stand here with the confusing motion of, "I offer this amendment but I urge the House to vote `no'", in an effort to communicate to our constituents, to the people of New Hampshire and, hopefully, to the committee that we object to what occurs in 0099. So I want to urge you to vote "NO".

Rep. Michael Whalley (R - Belk 5)Thank you, Mr. Speaker. I must suggest to you that I am confused.

Speaker ChandlerI offer this help to you,. Just in case other people are. Rep. Buckley offered floor amendment (0099h) and has urged members to vote in opposition to that and spoke in opposition.

Rep. Michael Whalley (R - Belk 5)And I will ask a parliamentary inquiry of the chair when I finish. But I need to address a couple of things. Number one when we went through this last fall we really put months of work into this. We had real consensus within our committee as to how we should approach this and that was to establish smaller districts as best as we can without the use of floterials. Although we were certainly concerned that we didn't create a musical chair situation, that was not one of the conditions of what we did. In fact, if Rep. J.D.Colcord had not resigned to run for county commissioner in Merrimack County, he, as a Republican, would have tripped us into a situation where we would have potentially had incumbents running against incumbents in another district and at this moment and time, because we didn't pay enough attention to that, I can't even tell you if we would have had Republicans running against Republicans or not. But I can suggest to you that there have been three additional redistricting bills heard before the Election Law Committee and you may see me back here again or you may see others and we may be proposing to you again to subdivide some existing districts with the proper deviation and it may impact members of one party or another. Although I'm the first to admit I would not like to create districts that would force incumbents to run against incumbents. The most important principle that our committee adopted in its look at HB 264 was to create smaller districts and to bring the representation closer to the people of New Hampshire and we always put the people of New Hampshire first and not the incumbents that are sitting in this House even if it impacted some of us who are on the Election Law Committee. The other thing I would like to suggest to you is this was not a request of a member of the chair of the Election Law Committee, temporary acting as I may be. It was a situation where somebody brought to light something that we had overlooked and we had a committee caucus, I guess I would call it, we polled the committee, it was an 11 to 3 vote to support this particular amendment and that is why we are here today with the Whalley floor amendment. It follows the trend and the established parameters that this committee followed in the fall. It does not deviate from that one bit and when I finish if there are no questions I would like to make a parliamentary inquiry. Debate on floor amendment (0101h)

Rep. Raymond Buckley (D - Hills 56)Thank you, Mr. Speaker and members of the House. I would once again apologize for having to go through this process and just remind the House that we were told that HB 264 could not be divided, so we could not have separate bills on the separate components of the committee amendment to HB 264. So I apologize for the vast confusion on this but it is a way of creating a record, it is a way of people being able to have their votes heard. At this time, I would like to move adoption of floor amendment (0101h). I am still waiting for God to give me Rep. Mock's ability to explain the difficult in the most simplistic terms. Once again, setting aside the issue of whether or not it is even constitutional or appropriate for us to redistrict in a piece meal manner and also in an annual manner. This particular issue specifically deals with the redistricting of the City of Manchester which the Manchester delegation supports. So I would encourage a "yes" vote on this.

Rep. Michael Whalley (R - Belk 5)Just to be consistent, I would urge you all to vote "no". Thank you, Mr. Speaker. Debate on floor amendment (0102h)

Rep. Raymond Buckley (D - Hills 56)Thank you, Mr. Speaker. I think if there was any one district that created heartache last year when we saw the report from the Supreme Court, it was that district over in Strafford County. There is great consensus that something needs to be done to divide that 14 member district that currently includes the entire City of Rochester, Rollinsford and Somersworth. Although once again, setting aside of the issue whether or not we should even be doing redistricting, I do wish to be recorded in favor of this particular component and Mr. Speaker, I encourage the House to vote "yes'. Debate on floor amendment (0103h)

Rep. Raymond Buckley (D - Hills 56)Thank you, Mr. Speaker. In lieu of the member from Epsom's question, I want to begin once again with the explanation. The reason we are in this very complicated situation is because the committee amendment to 264 cannot be divided. Specific members of the House wanted a specific vote on a piece. The only way parliamentarily, that we could find a way to allow those members to either vote "yes" or "no" and then a "yes" or "no" on the final passage of 264 as amended, was to come forward with separate amendments, piece by piece, because we could not divide, it was melded together because of the renumbering and redistricting. So it was very complicated, but for those who wish to have a vote on record in favor or opposed to a specific portion of this, that's why this is coming up piece by piece. Mr. Speaker, I rise in opposition to the amendment I have offered, amendment (0103h) and I think it goes without saying, that for many of us we found this particular piece not something we could support and we wished the committee had divided, subdivided up the districts in a more appropriate manner. So I wish to be recorded in opposition to this specific piece. I encourage the House to vote "no" on the passage of amendment (0103h).

Rep. Steve Vaillancourt (R - Hills 15)Thank you, Mr. Chairman. This whole thing is an exercise in futility it seems to me, but you've mentioned that this was the only way it could done. Is it not true, however, that back on the Hanover section of the bill you could have introduced your amendment which would have kept Hanover and the towns together, therefore it would have offered a clear difference to the committee proposal. Then we would have had something to vote on that was a differentiation, whereas now we don't have that? Could you not have done that?

Rep. Raymond Buckley (D - Hills 56)Well, my colleague from Manchester, you certainly know that I've got about six file drawers full of redistricting information. I could have brought up enough information to keep us here until next New Years. In a manner of making it as simplistic and as easy as possible where members of this House requested the ability to vote "yes" or "no" on specific portions of the committee amendment, this was the cleanest and easiest way. Instead of trying to replace it and trying to make it more complicated where people would sit there with their calculators trying to figure out the deviation, trying to figure out how does it affect this person, how does it affect that person; we simply wanted a vote recorded in favor or in opposition to specific pieces of the committee amendment to House Bill 264 and this was the only way we felt was available in a cleaner way instead of bringing forward very complicated, we understand the House does not wish to debate redistricting on and on, we just simply wanted to be able to have an up or down vote on specific pieces to the committee amendment to HB 264.

Speaker ChandlerRep. Vaillancourt has a question of Rep. Buckley.

Rep. Steve Vaillancourt (R - Hills 15)No, it's of you, Mr. Speaker. I realize that every member has a right to propose amendments but I would ask that since these amendments are already part of the amendment that is already passed and that nothing can change of this, that the Speaker would be entitled to rule that amendments which simply affirm a part of another amendment are out of order.

Speaker ChandlerYou are absolutely correct and had I realized we were going to enter this process, I probably would have done that. However, we were under the impression that only one amendment was going to be adopted and then the others came along. Where that mistake arose I'm not sure so there was just going to be an effort to deal with the first one and that was it. Then it was decided.... So we kind of got into the middle of the game... so here we are at the end of the game. Your thought is duly noted. Debate on adoption of majority report.

Rep. Peter Burling (D - Sull 19)Thank you, Mr. Speaker. Let me apologize at the start, my colleagues, I have the head cold from hell and I'm going to try and get this clear and clean, but frankly there's a lot of fuzziness going on. There are a couple of points I want to make. Believe it or not, in a legislature like ours there are two broad, and maybe more than two, broad views or opinions, and we work back and forth, majority leadership and minority leadership trying to get a clear record so our people can have a chance to vote as best they can. That's what we've been about so far. I wanted to give the membership of the minority caucus a chance to vote clearly on their preferences. When, if you care, you look at my record, you'll see that I have voted "no" on each of the votes to this point and I do so for a very important reason. I believe, and I can say this with an absolutely clear frame of mind, that everything that we have done to this point on this bill is unconstitutional. I believe that when the appropriate review takes place on the passage of this bill, and I have every reason to expect that you're going to pass it, you have an overwhelming majority and you intend to do this; but when that action is reviewed at the appropriate time and place, people will look to our founding document and they will say "This doesn't pass muster." Why does it not pass muster? It doesn't pass muster because our constitution speaks of decennial redistricting. We do it once every decade. If this bill passes and becomes law, we will have adopted a dramatic, and I would submit very anxiety provoking, new standard. That standard will be that the majority of this House, whoever that may be, will have the power to redistrict every year. I ask you to just think about that for a minute. It is the kind of concern that the minority leader would focus on. But you know something, it is the kind of concern that everybody else in this legislature ought to focus on, too. Because political fracture lines do not always follow the Democrat, Republican, Libertarian distinction. If it is possible that a majority of this House can redistrict this House every year, then it's also possible to think of a circumstance in which some subgroup of the majority party will have taken a position so unpopular with its majority leadership, that the majority leadership may say in a moment of anger, "Listen, you either tow the mark on this or we're going to find some new district lines." Anybody familiar with our history as a nation knows that that's what used to go on early in our history when redistricting did in fact take place every year and sometimes even in a fragment of a year when the majority leadership decided that it had a need to get rid of somebody or a need to get somebody else in. Let me talk about the prospect of getting somebody else in. This is the first redistricting effort that I've been familiar with in which a clear effort is underway to substitute somebody who isn't in here for somebody who is in here. District 17 is a personal effort. It is about somebody who is not here. I think it is wrong to do redistricting that way. I think it's a mistake. I think it ought to tell each and every one of you who's a member of the majority party that when you wake up one morning at 2:30 having a nightmare about your legislative future in the New Hampshire House, you ought to remember that on this day a step was taken that established the principle that you can redistrict for the purpose of substituting reps. It's not a good idea. Redistricting, as difficult, as cumbersome, and as brutal a process as it is, and I think it's all those things, is a process which ought to serve a higher purpose. The purpose ought to be to give the citizens of this state the best possible series of districts, so that the best possible result reflecting their votes can appear in the membership of the House. Put simply, it ought to be about fundamental fairness and direct competition over opposing ideas and ideologies. If we change the standard, and if we go to an annual redistricting proposal which is what passage of this bill will create, we'll be making a big mistake and we will regret it at some point in the future. How many of us will find our way out of this institution before we regret it, I can't tell you. But it is a serious concern on my part. I make this argument, I hope and pray that some of you have heard what I've had to say. I have no doubt about your power to do it, but the power you're about to exercise, I'll say it one more time and then I'll take questions, is a power to do to each other. As the minority party since 1857, you all remember my comment about we lost the majority because that man backed the extension of slavery to the Kansas territories, what you're about to do to each other is create the power to bump each other out of this legislature year in and year out. I think if you really think about that, you won't be thrilled with the prospect. I thank you, Mr. Speaker. I particularly thank you, Mr. Speaker, for allowing us the privilege of trying to get our votes clear on the record. I know it was cumbersome. We would have preferred a bill that was subdivisible so that we could have had our individual votes but we were not given that opportunity. Rep. Hagan: Thank you, Mr. Speaker. Thank you, Representative for taking my question.

Rep. Barbara Hagan (R - Hills 17)I'm new in this chamber and so I just want to understand your explanation of our setting a precedent to do a redistricting vote. It is my understanding that the last redistricting was done by the court of this state. So I'm just wondering if this vote by the legislature is now our opportunity to set the record straight as to how the people would like to see the districts be formed?

Rep. Peter Burling (D - Sull 19)Well, Ma'am, I will say that I think that is an argument and it is an argument that I'm sure I will hear made at the right forum. My answer to it is: what happened last year was essentially a default exercise of a legislative function. I don't want to go through the bad feelings and rancor that last year's redistricting effort generated. The fact of the matter is that ultimately the court, in order to get a redistricting plan in place that met the deviation requirements of our own constitution, exercised our power. I believe in so doing they simply substituted themselves for us. I don't think that changes the New Hampshire Constitution's requirement that redistricting take place once a decade. In making that argument, I would simply like to point out, if this happens, this bill becomes law, in the year 2004 we will have made a substantive redistricting of the State of New Hampshire for the second time in the decade based on numbers that were taken in 2000. Some of them were actually numbers taken in 1999. Those numbers are midway through the process of change and I think it's a mistake to keep doing this. Thank you for your question.

Rep. Barbara Hagan (R - Hills 17)I just have a follow-up question. I'm sorry and again I'm new and so I'm trying to understand this process. Is it not true that this House has on perhaps thirteen other occasions taken an opportunity to have a redistricting vote?

Rep. Peter Burling (D - Sull 19)I believe the answer to your question is, "Yes, but..." I believe the history of redistricting voting in this state would show that from time to time the legislature has moved boundaries or made other truly minor adjustments to individual districts. This is a redistricting bill, particularly in its consolidated form 264, which is a comprehensive but incomplete redistricting of the entire state. And it is a redistricting plan in which for the first time we take five incumbents, put them in a district where only four can run again, and we substantially readjust the power of the majority party relative to the minority party. I don't believe that's a good idea.

Rep. Harriet Cady (R - Rock 1)Rep. Burling, there is probably no one that cares more about our constitution than I do. But the constitution clearly states that the legislature shall redistrict, and the legislature has not redistricted in that ten years. They were not allowed to by a court decision. It further states ...... Would you believe that it states that also it will be by the commonality of the towns and the, in the original statements, that those towns would be represented as closely as possible. In fact, do you not know that at one time, the constitution stated every town would have a legislator? So we have not redistrict, have we? The legislature has not redistrict.

Rep. Peter Burling (D - Sull 19)Representative, I would profoundly disagree as elegantly as I can with you on that point. You and I just utterly disagree about the legal effect and impact of what happened last year. I understand your argument, I expect to see that argument made before the appropriate forum, but I do not agree with it. Thank you for asking it.

Rep. Howard Dickinson (R - Carr 1)Thank you, Mr. Speaker. Mr. Speaker, I rise in support of the motion of Ought to Pass as Amended on House Bill 264. What we've tried to do in the Election Law Committee is to examine what the court had done. The court had clearly overlooked five or six different districts where they could have made a division and chose not to. Could have made a division and still the parts of which would have been within acceptable deviations. So we had a long conversation within the committee and we agreed that it would make sense to make whatever corrections we could to the court ruling. And the intent was, if we could do this without using floterials and still remain within the accepted deviations thereby creating more districts. And we achieved, with your help this morning, the creation of ten more districts. Now we have just heard from the Honorable Minority Leader that this is a terrible thing to do in "mid-decade," I guess that is the way to put it. But I would like to remind the members and the previous speaker that in the last, well, since 1970, I suppose, we have redistricted midterm or mid-decade five or six times. And in fact, in 1997, the honorable member from Manchester who sits behind the minority leader filed House Bill 374 which sought to redistrict the whole state. I don't know why we are taking such a odd view of this at the moment because what we have tried to do, or why some people are, is tried to improve on what the court did. The court didn't do too bad a job in a way, although I wished they'd used floterials but they didn't. And now we just been able to achieve the creation of ten more districts thereby bringing the whole process a little bit closer to the people. We do not feel that we have crossed any lines and I hope you will support the committee report and the floor amendment, and the motion of Ought to Pass as Amended by pressing the green button at the appropriate time. Thank you.

Rep. Raymond Buckley (D - Hills 56)Thank you, Mr. Speaker. My colleague on Election Law, a two-part question. In fact, those redistricting plans that have come before this House that have passed this House and become enacted law over the last couple decades were they not, in fact, consensus plans that were brought forward together and the reason that they stood is that nobody brought them to the court to question their constitutionality? So to suggest that well, the House has redistricted in the past and so therefore it must be legal, that part of the constitution has never been brought forward. And the second part, not to try to confuse the House even further, my bill that you referenced in 1997 did not change a single physical boundary of a district, it was internal. Is that not true?

Rep. Howard Dickinson (R - Carr 1)Excuse me, Rep. Buckley, I did not hear the last words you said before you said "Is that not true?"

Rep. Raymond Buckley (D - Hills 56)Thank you, Mr. Speaker. Rep. Dickinson, in an attempt to try to suggest that I have participated in redistricting, you brought forward a bill that I sponsored in 1997. The bill that I sponsored, Rep. Dickinson, in 1997 did not change a single district's physical boundaries. It was an attempt to create one-on-one districts within the single member districts. It's very complicated, we're not going to get into it, but I think it was unfair for you to bring forward to this House information that would in some way confuse the House members that I was attempting to change the boundaries of districts.

Rep. Howard Dickinson (R - Carr 1)Thank you. All I can say is that to the first part of your question was that it didn't go to court because nobody chose to take it to court. I don't recall, and I don't have the details of every bill, I have merely a summary before me and I don't think that changes my argument at all. Thank you. REGULAR CALENDAR (CONT'D.) HB 359, establishing a procedure for apportioning state senate and representative districts. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE. Rep. Howard C. Dickinson for the Majority of Election Law: This bill, as amended, states that redistricting of the House and Senate shall be accomplished by concurrent resolutions developed by each body. The original bill stated that this should be done simply by a Senate and House resolution, but the majority of the committee strongly supports the idea that this should be accomplished by concurrent resolutions, not only because each body is then a check on the other, but also to enable last-minute changes to be made in the second body. The approach is consistent with Articles 9 (second part) and 26 (second part) of the New Hampshire Constitution, which states that the Legislature shall redistrict itself. Vote 9-5. Rep. James R. Splaine for the Minority of Election Law: The minority believes that each House member has to answer one question before voting on this bill: Do we really need yet another procedure for apportioning state Senate and Representative districts? Even worse, this bill essentially excludes the Executive Branch from redistricting, and that further increases the chances of political games and personal retribution. Why are we doing this to ourselves, and to future Legislatures? Let's be fair to one another, and stop playing an annual game of political paint-by-numbers mapmaking. Majority Amendment (2438h) Amend the bill by replacing all after the enacting clause with the following: 1 State Senate Districts. RSA 662:3 is repealed and reenacted to read as follows: 662:3 State Senate Districts. The senate shall divide the state into 24 districts for the choosing of state senators, each of which may elect one senator. The districts shall be adopted by senate concurrent resolution, which shall be forwarded by the senate to the secretary of state for implementation at the next biennial election. 2 State Representative Districts. RSA 662:5 is repealed and reenacted to read as follows: 662:5 State Representative Districts. The house of representatives shall divide the state into districts for the choosing of state representatives, each of which may elect the number of representatives designated by the house for the district. The districts shall be adopted by house concurrent resolution, which shall be forwarded by the house of representatives to the secretary of state for implementation at the next biennial election. 3 Effective Date. This act shall take effect 60 days after its passage.