Committee Report CONSENT CALENDAR

February 27, 2018

HOUSE OF REPRESENTATIVES

REPORT OF COMMITTEE

The Committee on Election Law to which was referred

HB 1666,

AN ACT relative to redistricting. Having considered the

same, report the same with the following resolution:

RESOLVED, that it is INEXPEDIENT TO LEGISLATE.

R p Michael Harrington

FOR THE COMMITTEE

Original: House Clerk Cc: Committee Bill File COMMITTEE REPORT

Committee: Election Law Bill Numbdr: HB 1666 Title: relative to redistricting. Date: February 27 Consent Calendar: CONSENT Recommendation: INEXPEDIENT TO LEGISLATE

STATEMENT OF INTENT

The bill would create a new metric for evaluating redistricting proposals based on a computer model that attempts to measure the "efficiency gap" in votes cast. There are many unresolved issues with this bill. It establishes a commission made up of only Democrats and Republicans and does not include the third party with ballot status in NH. There is also confusion over how the results of an election determined to have an efficiency gap exceeding the allowed limit are to be handled. Would the loser have solid grounds to challenge the results in court? This bill would completely change the way we redistrict and needs more work before it should be considered for passage.

Vote 20-0.

Rep. Michael Harrington FOR THE COMMITTEE

Original: House Clerk Cc: Committee Bill File CONSENT CALENDAR

Election Law HB 1666, relative to redistricting. INEXPEDIENT TO LEGISLATE. Rep. Michael Harrington for Election Law. The bill would create a new metric for evaluating redistricting proposals based on a computer model that attempts to measure the "efficiency gap" in votes cast. There are many unresolved issues with this bill. It establishes a commission made up of only Democrats and Republicans and does not include the third party with ballot status in NH. There is also confusion over how the results of an election determined to have an efficiency gap exceeding the allowed limit are to be handled. Would the loser have solid grounds to challenge the results in court? This bill would completely change the way we redistrict and needs more work before it should be considered for passage. Vote 20-0.

Original: House Clerk Cc: Committee Bill File Simmons, Miriam

From: Barbara Griffin Sent: Wednesday, February 21, 2018 9:43 AM To: Simmons, Miriam Subject: Fwd: RE: blurbs

Sent from my Verizon 4G LTE Droid Forwarded message From: Harrington Date: Feb 21, 2018 8:23 AM Subject: RE: blurbs To: `Bgriffinlo' Cc:

HB 1666 The committee voted ITL, on this bill 20 to 0. The bill would create a new metric for evaluating redistricting proposals based on a computer model. That attempts to measure the "efficiency gap" in votes cast There are many unresolved issues with this bill. It establishes a commission made up of only Democrats and Republicans but we have a third party with ballot status in NH and they are not included. There is also confusion over how the results of an election that is found to have an efficiency cap exceeding the allowed limit, are to be handled. Would the looser hove solid grounds to challenge the results in Court?

This bill would completely change the way we redistrict and needs more work before it should be considered for passage

From: Bgriffinlo imailto:bgriffinloaol.corn1 Sent: Tuesday, February 20, 2018 3:31 PM To: [email protected]; harringt@metrocastnet; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Subject: blurbs

Republican Members Voting Sheets HOUSE COMMITTEE ON ELECTION LAW

EXECUTIVE SESSION on HB 1666

BILL TITLE: relative to redistricting.

DATE: February 13, 2018

LOB ROOM: 308

MOTIONS: INEXPEDIENT TO LEGISLATE

Moved by Rep. Harrington Seconded by Rep. Negron Vote: 20-0

CONSENT CALENDAR: YES

Statement of Intent: Refer to Committee Report

Respectfully submitted,

APP

Rep Lisa Freeman, Clerk

HOUSE COMMITTEE ON ELECTION LAW

EXECUTIVE SESSION on HB 1666

BILL TITLE: relative to redistricting.

DATE: )[3

LOB ROOM: 308

MOTION: (Please check one box)

❑ OTP ❑ Retain (Pt year) ❑ Adoption of Amendment # ❑ Interim Study (2nd year) (if offered)

Moved by Rep. .40.-t—r- e C i Seconded by Rep. i\c, rgLiki Vote: ar)

MOTION: (Please check one box)

❑ OTP ❑ OTP/A ❑ ITL ❑ Retain (Pt year) ❑ Adoption of Amendment # ❑ Interim Study (2nd year) (if offered)

Moved by Rep. Seconded by Rep. Vote:

MOTION: (Please check one box)

❑ OTP ❑ OTP/A ❑ ITL ❑ Retain (Pt year) ❑ Adoption of Amendment # ❑ Interim Study (2nd year) (if offered)

Moved by Rep. Seconded by Rep. Vote:

MOTION: (Please check one box)

❑ OTP ❑ OTP/A ❑ ITL ❑ Retain (Pt year) ❑ Adoption of Amendment # ❑ Interim Study (2nd year) (if offered)

Moved by Rep. Seconded by Rep. Vote:

CONSENT CALENDAR: YES NO

Minority Report? Yes No If yes, author, Rep: Motion

Respectfully submitted: Rep Betty Gay, Clerk

STATE OF NEW HAMPSHIRE 1/5/2018 10:28:09 AM OFFICE OF THE HOUSE CLERK Roll Call Committee Registers Report 2018 SESSION

ELEC LAW Bill #: 6e6 Title: _e_tect4\44 PH Date: Exec Session Date: 0c), / / / Motion: }-114 -- Amendment #: MEMBER YEAS NAYS

Griffin, Barbara J. Chariman V ? Dean-Bailey, Yvonne M. Vice Chairman k/ Souza, Kathleen F. '7 HI, GrergarY )40,E-12..-4232 V Harrington, Michael D. V Hellwig, Steve D. V Freeman, Lisa M. Clerk i Gay, Betty I. /. Negron, Steve V Silber, Norman , / Wells, Natalie 1, V. Cote, David E, . V Ward, Gerald W.R. / Moynihan, Wayne T. \/- Bennett, Travis 1./ fleaFsen-,-Wtittarn A. Kecui4-12- V- Huot, David a ‘,/ White, Andrew A. /. Porter, Marjorie A. .,/, DesMarais, Edith M. V' TOTAL VOTE: a()

Page: 1 of 1 Hearing Minutes

HOUSE COMMITTEE ON ELECTION LAW

PUBLIC HEARING ON HB 1666

BILL TITLE: relative to redistricting.

DATE: January 18, 2018

LOB ROOM: 308 Time Public Hearing Called to Order: 10:00 .M.

Time Adjourned: 11:10 p.m.

Committee Members: Reps. B. Griffin, Hill, Freeman, Souza, Harrington, Gay, Negron, Silber, Wells, Cote, Ward, Moynihan, W. Pearson, Huot, White, Porter and DesMarais

Bill Sponsors: Rep. Knirk Rep. Read Rep. Somssich Rep. Rand Sen. Woodburn

TESTIMONY

Rep. Jerry Knirk, Bill Sponsor — introduces Bill. Not same as last year. This is to evaluate. Reviewed written testimony submitted. Don't do the independent commission until gerrymandering found by applying efficiency gap analysis.

Question from Rep. Harrington — Is this an automatic challenge? Can rewrite, and if so why, is the redo? You get info from records of proceedings. Question from Rep. Moynihan — There is no ruling in Gill, no ruling yet so why would we use this as a basis. Maybe bill needs to be held. Question from Rep. Porter — Did you know NPR did an analysis of efficiency gap? ANS: Had no knowledge of that. Question from Rep. Gay — Wouldn't you expect skews? ANS: - Yes; so you do outlier analysis. Question from Rep. Griffin — How often theoretically could be doing after every election.

Daryl W. Perry, Liberty Lobby LLC — Opposed. Not an independent commission, more like bipartisan, and it leaves out libertarians to the California system, they have timely independent commission who are elected members. Fourteen (14) total votes for approval required are majority of each subgroup must approve. Question from Rep. Porter — If we amended to call bipartisan would you support? ANS: Inclined perhaps, need to know more. Support a truly independent commission. Question from Rep. Pearson — Given no court ruling, is it possible to use it? ANS: I think so.

*Olivia Zink, Concord NH, Open Democracy — written testimony submitted. Supports Bill. Voters should pick politicians not other way around. Brennan Center for Justice article "How the Efficiency Gap Works".

*Liz Tentarelli, Newbury NH, League of Women Voters NH - Supports Bill, written testimony submitted. You tend to vote more if don't want candidate. Voting is a lost benefit analysis for the voter, risk vote. 45% (forty-five percent) of people vote nationally and may be why they don't think they have an impact, so don't vote. Some work already done (see handout last 5 pages), that shows we have a problem. Question from Rep. Pearson — concerned about constitutionality. ANS: nothing invalidates elections. Question from Rep. Gay - Were these questions subjected to outlier analysis? ANS: Don't know. Question from Rep. Dean-Bailey — don't numbers say fair? ANS: so with same population seats are changing. Efficiency Gap doesn't make sense. Question from Rep. Hill — don't we have fairly high turnout so is it possible efficiency gap doesn't matter? ANS: but people say it's important.

Rep. Steven Rand, Grafton District 8, bill co-sponsor — Supports Bill, gives verbal testimony. Districts are not gerrymandered. It is across all districts that this phenomenon occurs. Redistricting happens once in ten years. Cannot find study from Associated Press from the Princeton Gerrymandering group. Look at Wisconsin State currently in Supreme Court.

*Rick Bourdon, Lvme NH, Open Democracy Action — written testimony submitted. Supports Bill. Legal and technical.

Question from Rep. Sousa — mentioned other measure likely to come to same conclusions? ANS: I do not have them. Question from Rep. Pearson — Concern enacting decision comes down from Supreme Court, this Bill would be unconstitutional. ANS: I do not know if that occurs if it is unconstitutional. Question from Rep. Gay - Trying to understand statistics, sounds as though this includes outlier analysis? ANS: True, still needs to be outlier analysis. Question from Rep. Huot — assuming these systems used to determine gerrymandering still supports one man — one vote? ANS: That is correct. Question from Rep. Harrington — Would not eliminate standards for boundaries around state Reps? ANS: Yes. Question from Rep. Negron — Any thought of cusp outliners ANS: Yes, more comfortable with use of curve.

David Scanlan, Deputy Secretary of State — Comment of, "No position on this Bill."

Respectfully submitted,

Rep. Lisa Freeman' ommittee Clerk House Election Law Committee

HS 1666 1/18/18 Election Law

HB 1666 PUBLIC HEARING MINUTES

January 18, 2018-Public Hearing HB 1666 - relative to redistricting.

10:00 a.m.

iitep. Jerry Knirk, Bill Sponsor - introduces B' Not same as last year. This is to evaluate. Reviewed written testimony submitted, n't do the independent commission until gerrymp6ric) erik10 found by applying efficiency gap anal s. rt, t'-• c>/ik' i Question from Rep. arringt - Is this an automatic ? 0.,-----_ ., .n rewrite? Wh_y,.t s is the BoSslment [SM ]: Please confirm words fnr -11•11111110. nscriptIon - edo? _._. et inf ro records of pro ___....____...... _ Comment [SM2J: Please confirm word -- Qiiestion from Rep. Moynihan ru in4. in Gill, no uling yet so why w Id we e this as a basis. transcribed Maybe bill wvild-treetl-terl:re-neet 1 A-0 , Question f fficiency gap. No,I ,iothigt 44PLIN...,1_,LS ' Comment (SM3): Please confirm worth transcribed. stion from Rep. Gay - W uldn u expect ANS: - Yes; so you do outlier analysis 44eritepbrt= Comment [SM4]: Is thls the Answer? uestion from Rep. Griffin - ow,...... , often!, ', ..- — - '- r . -: a•fter-eysy election

Comment fin Please confirm words D. GPerry, Liberty Lobby LLC - Opposed. anscrl d independent commission, more like bipartisan, and it leaves te--rjlki-aliforma syster Commen ]: Please coo rrn words y have timely independent commission who are elected members. Fourteen (14) tot Vot4 transcribed required are majority of each subgroup m st approve. pmt P Question from Rep. Porter - If we amend d to call bipartisan you Weald support? ANSI I lined, ) Comment [SM7]: check word transcribed. perhaps n ed to know more. Support 4t ty independent commission. Comment [5M13]: Confirm word ending Voted rr I Votes? Question rom Rep, Pearson Given H. T. ruling is it possible to use it? ANS: I think so. Comment [Shin Confirm words transcribed. 0 U *Olivia Zink, Concord NH, Open Democracy - written testimony submitted. Supports Bill. Voters should pick politicians not other way around. Brennan Center for Justice article "How the Efficiency Gap Works".

*LiZ)-entarelli, Newbury NH, League of Women Voters NH - Supports Bill. Written tes' ony CoMmen6.[$MI.0]; Confirm words transcribed please -submitted. You tend to vote more if don't want candidate. Voting is a lost benefit analysis a r the voter, Comment [$M11]: Confirm words transcribed. Wit- 45% (forty-five percent) of people vote nationally and may be whyldon't think have a Comment [s-mix]: Confirm words impact, so don't vote. Some go rejalready done ksee handout last 52a_g_e, that shows weave a

problem. ow ,1 'comment [sm1.3]: Please fill in words Question from Rep, Pearson - concerned about I constitutionality. ANS: ted lelections. Question from Rep. Gay - Were these subjected to! NS: Don't know, Comment [SM14]: Confirm the speaker? Question (from YDB [- don't numbers sa fair? ANS: so wi population !seats are changing. Comment [SM15]: Please confirm words transcribed, Efficiency Gap doesn't make sense. Sit* [Type text] Page 1

6 IA

HB 1666 1/18/18 Election Law

Question from Rep. Hill — don't we have Ifairly high so is it possible efficiency gap doesn't Comment [SM16]: Please confirm wording transcribed matter? ANS: but people say it's important.

Rep. Steven Rand, Grafton District 8, bill co-sponsor — Supports Bill, gives verbal testimony. Districts are not gerrymandered, It is across all districts that this phenomenon occurs. Redistricting v/01 /4, GL.:1 -e.A 0 re happens once in ten years. Cannot find study froml AP from the Princeton Gerrymandering group. Look _.—f Comment [Sm17]: AP? means? at Wisconsin State currently in Suprem

McGuire -IseetniTroneL j96mment ISM 18]: Confirm transcribed words \•, __,----- (11`gitk Bourdon, Lyme NH, Open Democracy Action — written testimony submitted. Supports . Legal and technical.

Question from Rep. Sousa — mentioned other measure likely to come to same conclusions? ANS: I do not have them. Question from Rep. Pearson — Concern enacting decision comes down from Supreme Court, this Bill would be unconstitutional. ANS: I do not know if that occurs if it is unconstitutional. Question from Rep. Gay - Trying to understand statistics, sounds as though this includes outlier analysis? ANS: True, still needs to be outlier analysis. Question from Rep. Huot — assuming these systems used to determine gerrymandering still supports one man — one vote? ANS: That is correct. Question from Rep. Harrington — Would not eliminate standards for boundaries around state Reps? ANS: Yes.

Question from Rep. Negron — Any thought of loutp?? ,outlierl? ANS: Yes, more comfortable with an use Comment [9419]: Please confirm transcribed words? of curve. C: Ls_ j Ak.-66) 00-111412g3

David Scanlan, Deputy Secretary of State — Comment of No position on this Bill.

Adjourned kit 11:10_k. Comment [sH20]1 Time adjourned?? 51:10 Respectfully submitted, A.M.

Rep. Lisa Freeman, Committee Clerk House Election Law Committee

[Type text] Page 2

HOUSE COMMITTEE ON ELECTION LAW

PUBLIC HEARING ON HB 1666

BILL TITLE: relative to redistricting. DATE: p f a_or

(y.c0 141/M ROOM: 308 Time Public Hearing Called to Order:

Time Adjourned:

(please circle if present)

Committee Members: Reps. B. Griffin, Dean-Bailey; Souza, Hill, Harrington, Hclfwig, Freeman, Negron, Silber, Wells, Cote, Ward, Moynihan, Beett, W. Pearson, Huot, White, Porter, DesMarais and Gay

Bill Sponsors: Rep. Knirk Rep. Read Rep. Somssieh Rep. Rand Sen. Woodburn

TESTIMONY

Use asterisk if written testimony and/or amendments are submitted.

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Name Address Phone Representing Pro Con :I.R. , TA w 0,, .pecann 0 e: ‘,(1.) .,f,\ %\nc•c-,,r'crl) H "Z.:),--4--- RIT Thyl_i-tirldn• ++0 u,c--e Mad n-i-i-li Of--f-to / v c..,/t_ze SA vmese , e s'a 4/ b/5` Lovesive Ledb au 7er-44.75-,e) 4644 osc 0 d t/ 1-- (L viesf • e - C / 7) (1' )(ay\ 11""'-/ (.lc.-4

.,___ A r • c---&.--„retz. v Q3 Al4r /Id 'Per/7 6fq,,,Tir;A') 7--.P-- V-Q-t41) Pka-f-kts\) IiiqrS I . T C.:VI/e1/1,ArviI ni,,u0h1. V P 'r'Iirl Testimony HB 1666 January 18, 2018

Rep. Jerry Knirk, Carroll 3

Redistricting reform is a bipartisan issue. Partisan gerrymandering decreases competitiveness in the districts leading to disagreements and lawsuits every ten years. The lawsuits are costly and the partisan appearance erodes voter's faith in the process. This is a bipartisan problem with both Republicans and Democrats guilty when they are in power. It is important to realize that we do not know which party will actually be in power in 2021 when the next redistricting occurs. That is why we should pass a plan to prevent partisan gerrymandering now when it is in the interest of both Democrats and Republicans.

HB1666 is a bill to evaluate redistricting plans to determine if they are gerrymandered using efficiency gap analysis. The efficiency gap is the basis of the Whitford v. Gill gerrymandering case from Wisconsin which was heard by the Supreme Court this session. The efficiency gap is a measure of "wasted votes" which occur when districts are gerrymandered. It must be used retroactively, not proactively.

In the interest of time and because many of you probably have knowledge of the efficiency gap, I will not describe the calculation in detail. The efficiency gap takes into account wasted votes due to both packing and cracking of districts. There are two types of wasted votes, all of the votes cast for the losing candidate and all of the "extra" votes for the winning candidate which were in excess of the number needed to win. The efficiency gap equals the difference between the wasted vote counts for each party as a percentage of total votes cast. It measures a party's relative "efficiency" of converting votes into legislative seats.

The simplest explanation which I have found for the efficiency gap is from the Brennan Center for Justice at New York University School of Law which at: https:ftww.brennancenter.org/sites/default/files/legal-work/ How the Efficiency Gap Standard Works.pdf

The proposed threshold for a probable gerrymandered redistricting plan would be 8% or more. However, a large efficiency gap alone is not sufficient to prove gerrymandering as geography can influence the outcome. It is for that reason that outlier analysis was used in Gill v Whitford to assess if the high efficiency gap is a result of geography or intentional gerrymandering. Outlier analysis is performed by calculating the efficiency gap for a computer simulation of the possible districts which could be drawn and determining the range of efficiency gaps which would occur if the districts were drawn randomly. In the Wisconsin case, the randomly generated districts had efficiency gaps ranging from 6% for Republicans to 2% for Democrats while the legislature's plan was at 15% for the Republicans, a clear outlier and not due to geographical chance. A fairly simple description of this whole process by Stephanopoulos, who developed the concept, with links to his paper about the efficiency gap (click on article in the second paragraph, then "open PDF in browser"--it is 70 pages long) and the outlier analysis by Chen (click on computer algorithm about 3/4 of the way in the article) is at: https://www.vox.com/the-big-idea/2017/7/11/15949750/resewch-gerrymandering- wisconsin-supreme-court-partisanship

HB 1666 calls for the efficiency gap to be calculated following the first general election following redistricting. If the efficiency gap exceeds 8%, then the redistricting plan will be submitted to an outlier analysis and if it exceeds 50% more than the highest efficiency gap of the simulated districts, then the redistricting plan will be deemed to be not valid and a new redistricting plan will be drawn up by an independent commission and then used at the next general election. The bill stipulates the composition of the commission and the method of approval by the legislature.

The goal of this is to force the party in power to not flagrantly gerrymander the districts as they will lose the right to draw the districts. _0,,k69,_D4-70-nra,c},( January 18, 2018 p

Re: HB 1666 Before: NH House Election Law Committee

Chairperson Griffin and Members of the Committee,

I would like to add a little legal and technological history to today's discussion.

Partisan gerrymandering, the process by which electoral districts are drawn with the intent of favoring the party in power, has been around in this country since at least the early 19th century. It's a tactic with a long tradition within both Republican and Democratic parties.

The courts have long ruled other forms of gerrymandering to be unconstitutional. In the 1993 North Carolina case, Shaw v. Reno, The Supreme Court found racial gerrymandering, the drawing of district boundaries to minimize the electoral power of a particular racial group, in violation of the equal protection clause of the Fourteenth Amendment.

The Supreme Court has maintained that partisan gerrymandering should be unconstitutional as well, but has never struck down an electoral map on that basis. Why? Because (1) the Court, as a rule, is reluctant to wade into political/partisan matters, and, more importantly, (2) there had been as yet no available measure of gerrymandering that justices could agree distinguished between a truly partisan map and one that was simply poorly conceived. The Court put out a call to political scientists and mathematicians to come up with such a measure.

Then along comes Gill v. Whitford in 2017. The case deals with the map of State Assembly districts drawn by Wisconsin Republicans in 2011. In the newly redistricted 2012 election, Republicans won over 60% of Assembly seats despite receiving less than half the popular vote. A lower court, using the newly conceived "efficiency gap" metric, concluded that partisan gerrymandering had indeed taken place, and called for a new, unbiased map to be drawn. Armed with a viable measure of partisan gerrymandering, the Supreme court has taken up the case, hearing arguments last fall and scheduled to render a decision in June of this year.

The efficiency gap appears to be the metric of choice at the moment, though there are competing statistics. The efficiency gap can tell us whether a redistricting process favors one party over another, but it cannot tell us whether that result is intentional on the part of those drawing the map, or whether it is simply a consequence of political geography—say, for example, when those likely to vote for the disfavored party just happen to be clustered in a small area. That's where computer simulations come in. Today's redistricting algorithms are powerful. They can be (and are) used to maximize partisan advantage. Or they can be used to draw sensible, fair maps—lots of them. We can compare the efficiency gap produced by a legislatively drawn map with efficiency gaps produced from simulated election results using many unbiased, computer-drawn maps. And if the efficiency gap from the legislatively drawn map is an outlier with respect to the simulation results, we know we have conclusively identified intentional, partisan gerrymandering.

HB 1666 is an attempt to harness the power of modern technology to solve the gerrymandering problem. It mandates redistricting when the currently used electoral map has been proven to be intentionally biased. The lovely irony of HB 1666 is that, if it is enacted, re-redistricting will likely not be necessary. Why? Because those drawing the maps will know that the technology will catch them if they engage in partisan gerrymandering.

I strongly encourage the Committee to vote Ought to Pass on HB 1666.

Thank you for considering my testimony,

Rick Bourdon, Open Democracy Action co-chair BRENNAN CENTER. FOR JUSTICE

Brennan Center for Justice TWENTY Nrip nrk Unir,ent S,.•hmol qf

YEARS 161 Avenue of tIn. Americas 12rh Floor New York, NY icon (1 .292.8311) thaN 212.4617308 brennancentmorg

How the Efficiency Gap Works Eric Petry

The efficiency gap is a standard for measuring partisan gerrymandering that is currently at the heart of the Wisconsin gerrymandering case, Whitford v. Nichol.'

Developed by Nicholas Stephanopoulos, Professor at the University of Chicago Law School, and

Eric McGhee, Research Fellow at the Public Policy Institute of California, the efficiency gap counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats.' Any vote cast for a losing candidate is considered wasted, as are all the votes cast for a winning candidate in excess of the number needed to win.

Hypothetical Scenario To understand how the efficiency gap works, consider a hypothetical state with 500 residents that is divided into five legislative districts, each with 100 voters. In the most recent election cycle, Democrats won Districts 1 and 2 by wide margins, while Republicans won Districts 3, 4, and 5 in closer races. Overall, Democratic candidates received 55 percent of the statewide vote but won just 40 percent of the legislative seats, while Republican candidates received 45 percent and won 60 percent of the seats. The table below shows the election results for each district.

District D Votes R Votes Result 1 75 25 D wins 2 60 40 D wins 3 43 57 R wins 4 48 52 R wins 5 49 51 R wins Total 275 225

I Whitford v. Nichol, No. 15-cv-421 M.D. Wis. filed July 8,2015). 2 Nicholas 0. Stephanopoulos & Eric M. McGhee, Partisan Genymaaderi trg and the Efficieng. Gap, 82 U. CM. L. REV, 831 (2015). BRENNAN CENTER FOR JUSTICE

Calculating the Efficiency Gap Calculating the efficiency gap involves three steps.

Step 1: The first step is to determine the total number of votes each party wasted in the election. Again, any votes cast for a losing candidate are considered wasted. Likewise, any vote cast for a winning candidate in excess of the number needed to win is also wasted. In our scenario, a candidate needs 51 votes to win since there are 100 voters in each district, so any votes above that threshold are wasted. The table below shows the election results in each district, as well as the number of wasted votes.

D Wasted R Wasted Net Wasted District D Votes R Votes Votes Votes Votes 1 75 25 24 25 1 R 2 60 40 9 40 31 R 3 43 57 43 6 37 D 4 48 • 52 48 1 47 D 5 49 51 49 0 49 D Total 275 225 173 72 101 D

Since the Democratic candidate in District 1 received 75 votes but only needed 51 to win, 24 Democratic votes were wasted (75 — 51 = 24). Likewise, all 25 Republican votes in District 1 were wasted since the Republican candidate lost.

Repeating this process for the other districts shows that in District 2 Democrats wasted 9 votes and Republicans wasted 40 votes, in District 3 Democrats wasted 43 votes and Republicans wasted 6 votes, in District 4 Democrats wasted 48 votes and Republicans wasted 1 vote, and in District 5 Democrats wasted 49 votes and Republicans wasted 0 votes.

Step 2: Next, the process requires calculating the total number of votes wasted by each party and finding the net wasted votes. In this scenario, Democrats wasted 173 votes (24 + 9 + 43 + 48 + 49 = 173) and Republicans wasted 72 votes (25 + 40 + 6 + 1 + 0 = 72). Thus, Democrats had a net waste of 101 votes (173 — 72 =101), meaning they wasted 101 more votes than Republicans.

Step 3: The final step in calculating the efficiency gap is to divide the net wasted votes by the total number of votes cast in the election. The net number of wasted votes was 101 and there were 500 total votes, which produces an efficiency gap of 20 percent (101 + 500 = .202).

In other words, Republicans were better able to convert their votes into legislative seats. As a result, they won 20 percent more seats (which translates to one additional seat since 20 percent of five equals one) than they would have if both parties had wasted an equal number of votes.

2 RREN NAN CENTER FOR JUSTICE

In their paper, Stephanopoulos and McGhee propose efficiency gap thresholds above which a district plan would be presumptively unconstitutional. For congressional plans, an efficiency gap of two or more seats indicates a constitutional problem. For state legislative plans, the threshold is an efficiency gap of 8 percent or greater.

Efficiency Gap Equation As an equation, the efficiency gap looks like this:

Efficiency Gap = (Total Democratic Wasted Votes — Total Republican Wasted Votes) ÷ Total Votes

Simplified Efficiency Gap Calculation If either party's seat margin and vote margin for a given election are known, then the efficiency gap can also be calculated using the following formula:

Efficiency Gap = (Seat Margin — 50%) — 2 (Vote Margin — 50%)

Applying this formula to the hypothetical yields the following algebraic process:

Efficiency Gap = (Republican Seat Margin — 50%) — 2 (Republican Vote Margin — 50%)

Efficiency Gap = (60% — 500/G) — 2 (45% — 50%)

Efficiency Gap = (10%) — 2 (-5%)

Efficiency Gap = (10%) — (-10%)

Efficiency Gap = 20%

Alternatively, using the Democratic seat and vote margins, the formula yields:

Efficiency Gap = (Democratic Seat Margin — 50%) — 2 (Democratic Vote Margin — 50%)

Efficiency Gap = (40% — 50%) — 2 (55% — 50%)

Efficiency Gap = (-10%) —2 (5%)

Efficiency Gap = (-10%) — (10%)

Efficiency Gap = -20%

3 BRENNAN CENTER FOR JUSTICE

When calculated using the margins for Republicans, who were better able to turn votes into seats, the efficiency gap is positive, indicating an electoral advantage. The converse is true when using the Democratic margins.

The simplified method for calculating the efficiency gap can be much faster than the district-by- district method, but note that the results are only exactly equal when voter turnout is equal in every district, as it is in this hypothetical.

4 f ® LEAGUE OF WOMEN VOTERS 4 Park St Room 200 NEW HAMPSHIRE Concord, NH 03301

www.LWVNH.org

Jan. 18, 2018

To Chair Representative Griffin and House Election Law committee members

Re: HB 1666 relative to redistricting.

The League of Women Voters is a non-partisan political organization with 98 years of history of protecting the rights of voters. One of those rights, of course, is knowing that every vote counts. When districts have been drawn so that a particular party will dominate specific districts, even a conscientious voter sees little point in casting a ballot—whether for the candidate almost pre-ordained to win or for the candidate who almost surely will lose. We urge the committee to vote Ought to Pass on HB 1666.

The League admits that no districting plan can be perfect. In NH we need to take into account municipal boundaries, contiguity, and statistically small margins and actual numbers of disparity in House seats. Floterial districts came about because of these issues and create their own confusion.

The process described in HB 1666 of testing the actual results of an election following redistricting is a logical way to admit that the districting plan may need improvement. It implies no blame on the legislature nor anyone else. Rather it allows for repair of a problem. That seems like a good thing.

We don't know—in spite of currently drawn districts that may favor one party—which party will be in power in the 2021 General Court charged with redistricting. Therefore this should not be a partisan discussion. Rather it should focus on restoring confidence in the election process, often discussed in other bills last year and this year. Voters need to know that every ballot matters. Potential candidates from either major party need to believe they have a chance of winning in their district if they file and run.

The Concord Monitor published an analysis over a year ago, following the 2016 election, that showed that the NH Senate would have a Democrat majority if the boundaries in place in 2011 had been there instead of those drawn and used to create a Republican majority. (1) In other words, more Democrat votes cast for the Senate candidates did NOT add up to more Democrat Senate seats.

A study by NI-I Public Radio in December 2016 (2) reinforced the analysis. In the 2016 election, Republicans just barely edged out Democrats for NH Senate seats, 50.4% to 49.6%. But Republicans won 14 districts, Democrats 10. If districts had been drawn without granting an edge to one party, the split would more likely have been 12 to 12, or possibly 13 to 11. But 14 to 10? Where did the Democrat votes go, those 207,000 "wasted votes" cast that didn't influence the outcome?

The Brennan Center for Justice at NYU School of Law (3) has a number of studies on gerrymandering. That isn't a word I want to use at this time, but one of their articles recently made the point that when districts are drawn to benefit one party, "the result is a political system where most electoral battles are fought in primaries and elected officials more and more seem to cater to the partisan extremes that dominate those contests. It's no wonder then that citizens are left feeling increasingly that their votes — and voices — do not matter." Statistics are available nationwide that I intend to track down—I've read them, just can't find them right now—that show in districts that are heavily slanted to one party often the seats have only one party's candidates filing. The primary becomes the only election that matters, with resultant voter apathy in November.

A post-election statistical analysis compared with computer simulations as described by Jowei Chen (4) would tell us very quickly—in time to change the situation for future state elections—whether the goals of representative democracy have been met by the 2021 redistricting plan. The League of Women Voters New Hampshire strongly urges this committee and the legislature to look beyond partisan interests and vote Ought to Pass on FIB 1666.

Respectfully submitted,

Liz Tentarelli, president League of Women Voters N home address: 27 Bowles Rd., Newbury 03255 email: [email protected] home phone: 603-763-9296)

Sources: (1) "Mapping Out a Winning Strategy" Concord Monitor Dec. 4, 2016 by Allie Morris. Copy attached.

(2) "How Much Did the Shape of NH's State Senate District Shape the Outcome in 2016?" by Casey McDermott for NHPR, Dec. 7, 2016 http://nhpr.org/post/how-much-did-shape-nhs-state-senate- districts-shape-outcome-2016#stream/0 I have attached a copy of that article with the colored-coded sections indicated by highlighting: sorry, I don't have a colored printer.

(3) http://www.brennancenter.org/issues/redistricting Brennan Center for Justice, NY School of Law

(4) http://www-personal.umich.edu/—jowei/Political Geography Wisconsin Redistricting._pdf This is the method of Jowei Chen cited in the bill. The abstract at least is fairly easy to understand. http ://www.nes I org/re searchiredi stricting/redi stricting- commission-bills.aspx Research from the National Conference of State Legislatures on ways that states deal with redistricting. I could find in the list of 2017 redistricting bills no reference to a plan like this, but obviously the situation in Wisconsin could have benefited before now from efficiency gap analysis. Have other states done this? I don't know. Mapping out a winning strategy Concord Monitor Dec. 4, 2016 Republican-led redistricting in 2012 helped set the table for GOP majority in N.H. Senate Democrats predicted major gains in the state Senate ahead of Election Day, and even held a reception in October for the "next Senate president" Jeff Woodburn. So when results came in and Republicans held onto a 14-10 majority in the chamber, Democrats cast blame on redistricting. It turns out the claim has some merit, a Monitor analysis has found. Democrats would have likely seized control of the state Senate this year had an older version of the district map been in place. The Monitor recalculated the 2016 Senate results using 2008 districts — and in that scenario, the results would have been reversed in five senate races. Using the 2008 districts, Democrats would have picked up four additional seats, and Republicans would have picked up one. Under that scenario, Democrats would control the senate with 13 seats to the Republicans' 11. It's not a perfect estimate, and removes the candidates entirely from the equation. But the exercise does show how district boundaries can influence election outcomes. The current map was drawn by a Republican controlled Legislature in 2012, while the courts helped craft the previous one. In the most recent election, Republican state Senate candidates all together drew just 5,500 more votes than their Democratic competitors — less than one percentage point — but the GOP picked up 60 percent of the chamber's 24 seats. "The [districts] are drawn purposefully to provide advantage to Republicans," Democratic Sen. Donna Soucy said last week on NHPR during a segment focused on the party's state level losses. GOP operatives call the claim "sour grapes." "All fall long, all [the Democrats] would talk to anybody about was how they were going to take over the majority, and that didn't materialize," said Rich Killion, a Republican strategist who advised the state Senate Majority PAC. "They have been trying to come up with excuses." New Hampshire's House, Senate and Executive Council districts are redrawn once every decade to reflect population changes captured by the U.S. Census Bureau. Worries over a party's ability to draw boundaries in its favor, known as gerrymandering, have led some advocates to propose handing over the entire redistricting process to an independent commission, whose members aren't elected officials and have nothing to gain from the process. Nashua Rep. David Cote, a Democrat, has already filed draft legislation this year to create such a commission. "Redistricting is at the heart of a lot of partisan issues in the state," said Rep..Karen Ebel, a New London Democrat who has signed onto the proposal. "I think it would be much better if you had an independent body to be able to make those sorts of decisions." But if history is any guide, the proposal may not have much luck. The Republican led House and Senate effectively killed two bills earlier this year that would have set up an independent body to oversee redistricting. Republican Rep. William Gannon called the proposal unconstitutional and said it was independent "in name only," given that House members would appoint commission members. "This House may not delegate its duties," said Gannon, of Sandown, on the House floor in February. The next round of redistricting is set to begin after the 2020 Census. And unless something changes, the party in control will have the task of carving up the state into new districts. The Legislature doesn't have total control — like most bills, the governor has final say. Democrat John Lynch signed the Republican Senate's most recent redistricting plan into law, after it passed the chamber on a party line vote. A decade earlier, however, Democratic Gov. Jeanne Shaheen vetoed the GOP-crafted plan. The courts had to step in to draw up the districts. The differences between the 2008 and 2016 Senate maps are stark. To do the analysis, the Monitor input 2016 town election results over the 2008 district map. The reconstruction shows that two Seacoast Democrats, Tom Sherman and Alexis Simpson, would have defeated the Republican winners under the old district map. When the state was redistricted in 2012, Democratic-leaning areas Portsmouth and Newmarket were pulled out of their districts and lumped into District2l, now considered a stronghold for the left. Martha Fuller Clark defeated her Republican challenger there bymore than 10,000 votes. District 4, which now encompasses Dover and Somersworth, and is considered a liberal seat, was in 2008 a Lakes Region district that would have produced aRepublican win. Six districts remain the same, including both Manchester districts held by Democrats and three along the Southern tier controlled by Republicans. District 16, where Scott McGilvray flipped the only seat for Democrats, is the same now as it was in 2008. Others are completely new. Neither Republican Harold French nor Democrat Andrew Hosmer could have faced-off in District 7 this year had the 2008 map been in place because the old district doesn't include either of their hometowns. Many candidates would have won under the 2016 and 2008 maps. Woodburn, Senate Minority Leader, would have kept his seat in both scenarios, as would have Senate Majority Leader Jeb Bradley, Concord Democrat Dan Feltes and Bedford Republican Andy Sanborn. The map switch would have changed some local outcomes, however. A 2008 map would have favored Democrat John Garvey over Republican winner Ruth Ward. Similarly, an older district drawing would have given a leg up to Nashua Democrat Peggy Gilmour over Republican incumbent and 2016 winner Kevin Avard. But it's not all a tale of what could have been — some outcomes wouldn't have budged. French's margin over Hosmer in the 2008 district would increase from just 17 votes to a couple thousand. Find a spreadsheet showing the comparison at cone ordmonitor.com. (Allie Morris can be reached at 369-3307 or amorris@cmonitorcom.) How Much Did the Shape of N.H.'s State Senate Districts Shape the Outcome in 2016? By Casey McDermott • Dec 7, 2016 NHPR

In 2016, Republicans again ended up with a disproportionate share of state senate seats than they would have if the districts were more evenly drawn, according to a measure meant to analyze the partisan tilt

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Heading into November, New Hampshire Democrats talked a big game when it came to their hopes for retaking control of the state Senate.

But when the Republicans ended up maintaining the same 14-10 margin they've held for the past two years, Democrats placed at least part of the blame for their losses on gerrymandered district lines.

As it turns out, they might have a point. It can be hard to quantify just how much of a role redistricting really plays in any given state election. Individual races are also shaped by the policy debates of the day, the tailwinds of national politics and, obviously, the candidates themselves.

But there is at least one way to look at how much of a partisan advantage is baked into a given map: It's called "The Efficiency Gap."

"That single number tells us how severe the gerrymander is, and who's benefited and who's hurt by it," says its creator, Nicholas Stephanopolous, an attorney and redistricting expert at the University of Chicago.

Earlier this year, NHPR used the "efficiency gap" method to gauge the effect of redistricting on state Senate races for the past 30 years. Here's how it works, as we explained at the time:

"The metric hinges on what researchers call 'wasted votes.' A vote is wasted if it had no impact on the outcome of a given election. So, any vote for a winning candidate that's in excess of the number needed to win that race is counted as wasted, since the candidate didn't need it to secure victory. And any vote for a losing candidate is also considered wasted, since it had no impact on the result. Some number of wasted votes are inevitable in any contested election. In a truly neutral legislative map, Republicans and Democrats will have roughly the same amount of wasted votes...

...So, if you count up each parry's wasted votes and divide that figure by the total number of votes cast, that number is the 'efficiency gap.' It tells you how much of a disproportionate boost a party got in an election. What that number measures: How much larger a share of seats did a party receive, above what it would have gotten from a neutral legislative map?"

Using this "efficiency gap" formula, we found that the New Hampshire state Senate map has, with a few exceptions, consistently given a boost to Republicans in recent election cycles. This year, based on the results from November's state Senate elections, that trend seems to have continued.

(Read more: How a Few Lines on a Map Hold So Much Power in N.H. Politics /As New Hampshire Shifts to a Swing State, Why Do Legislative Lines Still Favor Republicans?) New Hampshire's state Senate districts have undergone considerable shifts over the past few decades. One constant: In the majority of elections, Republicans have enjoyed disproportionately favorable terrain and election outcomes. Credit Sara Plourde, NHPR

When it comes to the overall popular vote i 2016 cross New Hampshire's 24 state Senate races, the partisan split tilted just barely to the right: Republicans picked up 50.4 percent to Democrats' 49.6 percent of the roughly 689,000 votes cast for the two major parties. (Only about 870 votes went to third-party or write-in candidates statewide, and nowhere were those scattered votes enough to swing any of the individual races.)

When you account for how the overall votes were spread out across all of the Senate district races, Democrats ended up with about 207,000 "wasted votes," while Republicans had about 137,500. Based on those figures, Republicans ended up with a 10 percent advantage in the number of state Senate seats they picked up, compared to what they might've won if the race aligned more closely with the popular vote.

Put another way: Republicans picked up two more seats than they likely would have if the districts were more evenly competitive across the board. So if the state Senate map were truly neutral, we might've ended up with a perfectly divided state senate: 12 seats for Republicans and 12 for Democrats.

And when you consider the added boost that this year's map offered to Republicans, it's also important to remember that they were in charge of drawing that map during the last round of redistricting — a perk afforded to whichever party's in power at the time.

Redistricting takes place every 10 years, in conjunction with the release of new Census data, so the next opportunity to reassess the state Senate map won't happen again until 2020.

In the meantime, some have tried to push for an alternative to the current process: Instead of allowing the party in power to take the lead in drawing the map, a process that naturally works in that party's favor, this would give that power to an "independent redistricting commission."

At least a dozen other states already delegate primary political-map-drawing responsibilities to independent commissions, while some others give these boards at least an "advisory" role in the redistricting process.

This year, lawmakers are on track to consider whether to put an independent redistricting commission in charge here in New Hampshire — but it won't be the first time. Two proposals to create such a commission already went before the Legislature last year: One was rejected by the House, the other was tabled by the senate.

In the state Senate, the vote fell perfectly among party lines: Democrats wanted to get lawmakers out of the redistricting business; Republicans didn't want to hand over the pen.

Looking at this year's outcome, it's not hard to understand why. How Many Votes Are Going to Waste in New Hampshire?*

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Note: To account for uncontested races (Le. those in which one party did not field a candidate) we allocated percentages based on the party vote in that district from the most recent presidential election, as a stand-in for partisan break-down. In other words, in a district where no Democrat appeared on the ballot, and the Republican candidate thus received close to 100 percent of the vote, we gave each party the same vote share as it received in the most recent presidential election. Political scientists who study gerrymandering recommend this approach to account for the potentially distorting impact of uncontested races. Bill as Introduced 1-113 1666 - AS INTRODUCED

2018 SESSION 18-2700 03/01

HOUSE BILL 1666

AN ACT relative to redistricting.

SPONSORS: Rep. Knirk, Carr. 3; Rep. Read, Rock. 17; Rep. Somssich, Rock. 27; Rep. Rand, Graf. 8; Sen. Woodburn, Dist 1

COMMITTEE: Election Law

ANALYSIS

This bill requires additional redistricting if election results exceed a specified efficiency gap.

Explanation: Matter added to current law appears in bold italics. Matter removed from current law appears [in bracket,. and ctruekthroug-hl Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

HB 1666 -AS INTRODUCED 18-2700 03/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eighteen AN ACT relative to redistricting.

Be it Enacted by the Senate and House of Representatives in General Court convened.-

1 1 New Chapter; Fairness in Redistricting. Amend RSA by inserting after chapter 662-A the 2 following new chapter: 3 CHAPTER 662-B 4 FAIRNESS IN REDISTRICTING 5 662-B:1 Fairness in Redistricting. Within one month following the first election following 6 decennial redistricting or any other redistricting, the efficiency gap, cited in Whitford v. Gill, 218 F. 7 Supp. 3d 837 (W.D. Wis. 2016), shall be calculated for the New Hampshire house of representatives, 8 the New Hampshire senate, the executive council, and the congressional districts. If the efficiency 9 gap exceeds 8 percent for the New Hampshire house of representatives, the New Hampshire senate, 10 the executive council, or the congressional districts, the redistricting plan of the elected body in 11 question shall be submitted to the computer simulation using the method of Jowei Chen, The 12 Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin's Act 43 13 Assembly Districting Plan, 16 Election L.J. (forthcoming 2017). If the efficiency gap of the 14 redistricting plan exceeds 50 percent more than the highest efficiency gap in the simulations, the 15 redistricting for that elected body shall be deemed to be gerrymandered and therefore not valid and 16 the following actions shall be taken: 17 I. The districts shall be redrawn for the gerrymandered body under RSA 662-B:2. 18 H. The new districts drawn by the commission shall be used at the next general election. 19 III. The same process of testing with the efficiency gap shall be performed after the next 20 election with the same actions to be taken if the efficiency gap demonstrates gerrymandering. If 21 these redrawn districts again fail the efficiency gap metric, the districts shall again be redrawn by 22 the independent commission. 23 662-B:2 Redrawing Gerrymandered Districts. 24 I. Districts deemed gerrymandered under RSA 662-B:1 shall be redrawn for by an 25 independent commission composed of the following: 26 (a) The speaker of the house of representatives. 27 (b) The minority leader of the house of representatives. 28 (c) The senate majority leader. 29 (d) The senate minority leader. 30 (e) The chairperson of the house standing committee with jurisdiction over election law. 31 (1) The ranking minority party member of the house standing committee with

HB 1666 - AS INTRODUCED - Page 2 - 1 jurisdiction over election law. 2 (g) The chairperson of the senate standing committee with jurisdiction over election 3 law. 4 (h) The ranking minority party member of the senate standing committee with 5 jurisdiction over election law. 6 II. The commission shall forward a plan containing the redrawn districts to the speaker of 7 the house of representatives and the president of the senate before April 1 of the year following the 8 general election for which the redistricting was declared to be invalid. It is the intent of this 9 chapter that the general court shall vote on the plan in either the house of representatives or the 10 senate expeditiously, but not less than 7 days after the plan is received and made available to the 11 members of the general court, under a procedure or rule permitting no amendments except those of 12 a purely corrective nature. It is further the intent of this chapter that if the bill is approved by the 13 first house in which it is considered, it shall expeditiously be brought to a vote in the second house 14 under a similar procedure or rule. 15 III. If the plan fails to be approved by a constitutional majority in either the house of 16 representatives or the senate, the clerk of the house of representatives or the senate, as the case 17 may be, shall at once transmit to the commission reasons why the plan was not approved. The 18 commission shall then prepare a second plan taking into account the reasons cited by the house of 19 representatives or senate for its failure to approve the plan insofar as it is possible to do so. The 20 second plan shall be delivered to the speaker of the house of representatives and the president of 21 the senate not later than May 1 of the year following the general election for which the redistricting 22 was declared to be invalid, or 21 days after the date of the vote by which the house of 23 representatives or the senate fails to approve the plan submitted under paragraph II, whichever 24 date is later. It is the intent of this chapter that, if a second plan is necessary, it shall be brought to 25 a vote not less than 7 days after the plan is made available to the members of the general court, in 26 the same manner as prescribed for the plan under paragraph II. 27 IV. If the second plan submitted by the commission fails to be approved by a constitutional 28 majority in either the house of representatives or the senate, the same procedure as prescribed by 29 paragraph III shall be followed. If a third plan is required, it shall be delivered to the speaker of the 30 house of representatives and the president of the senate not later than June 1 of the year following 31 the general election for which the redistricting was declared to be invalid, or 21 days after the date 32 of the vote by which the house of representatives or the senate fails to approve the second plan 33 submitted under paragraph III, whichever date is later. It is the intent of this chapter that, if it is 34 necessary to submit a plan under this paragraph, the plan be brought to a vote within the same 35 time period after its delivery to the speaker of the house of representatives and the president of the 36 senate as is prescribed for the plan submitted under paragraph III, but shall be subject to 37 amendment in the same manner as other bills. 38 2 Effective Date. This act shall take effect upon its passage.