On Wednesday, July 5, in a unanimous decision, the New Mexico Supreme Court ruled and remanded back to a State District Court Judge the case of Republican claims of illegal partisan gerrymandering by Democrats involving the 3rd Congressional District. At issue is the new congressional map that splits Albuquerque in two and creates 3 Democrat leaning congressional districts.
The plaintiffs in the case include the New Mexico Republican Party, Republican State Senator David Gallegos and Roswell Democrat Mayor Tim Jennings. It was filed against Governor Michell Lujan Grisham, Lt. Gov. Howie Morales and all Democrat State Senate and House legislative leaders.
For decades, New Mexico has had 3 congressional districts. The First Congressional District (CD1) was based almost entirely in Albuquerque. The 2nd Southern Congressional District (CD2) was the entire southern portion of New Mexico. The 3rd Northern Congressional District (CD3) covered Santa Fe and entire northern New Mexico. The Albuquerque and Northern New Mexico Districts have been decidedly Democrat leaning while the Southern-most district has been decidedly Republican. The new congressional map for District 3 moves southern parts of Albuquerque into the Southern Congressional District, creating a Democratic leaning district. Following its adoption, Republican Yvette Herrell lost her reelection bid in 2021.
The lawsuit controversy centers primarily around the new Congressional District 2 approved by state officials and signed into law by Lujan Grisham in 2021 during a special session of the Democrat-controlled Legislature. The map divides Lea County in half. Lea County now straddles the border between the Second and Third congressional districts and adds parts of Albuquerque to the southern Second Congressional District (CD2).
Republicans argued this change to Congressional District 2 was the cause of former U.S. Representative Yvette Harrell losing the seat to U.S. Rep Gabe Vasquez in 2022. Herrell had previously won the seat in 2020 against former-U.S. Rep. Xochitl Torres Small, who defeated Herrell in 2018 after Republican Party of New Mexico Chairman Steve Pearce vacated the seat in a losing bid for the governorship.
The Republican Party argued that the map was developed to intentionally curb Republican influence. The map once approved drew immediate backlash from the state Republican Party and Republican local officials in southeast New Mexico who argued that its conservative stronghold was being diluted.
MOTION TO DISMISS FILED
In February, 2022 a Motion to Dismiss the case was filed by attorneys for Defendants Governor Lujan Grisham and Lt. Governor Howie Morales. They argued the new district map was intended to combine rural and urban voters in each district. According to the motion, this was intended to ensure congressional members represented both urban and rural constituencies. The defendants also argued there was “no substantial way to determine if illegal gerrymandering had occurred in drawing the maps.” The Motion to Dismiss reads in part:
“In sum, New Mexico law does not provide any standards necessary for the Court to determine the question plaintiffs essentially raise: ‘how much partisan dominance is too much? … Without such standards, the courts should refrain from diving into the political thicket.”
NEW MEXICO SUPREME COURT RULES
The New Mexico’s Supreme Court denied the Motion To Dismiss and the case was remanded back to the lower court to decide. The New Mexico Supreme Court ruled the equal protection clause of the New Mexico Constitution allows the state courts to take up claims of illegal partisan gerrymandering. The New Mexico Supreme Court rejected the arguments made by Governor Michelle Lujan Grisham and other high-ranking Democrats who said the courts had no way to determine what constitutes illegal “partisan” gerrymandering.
The justices acknowledged the “inherently political nature of redistricting” and said some partisan gerrymandering is permissible. The New Mexico Supreme Court said the three-part test outlined by U.S. Supreme Court Justice Elena Kagan in her dissenting opinon in the US Supreme Court case of RUCHO V. COMMON CAUSE could be used in the case to determine whether the map goes too far and violates the law. This means the Republican plaintiffs will have to prove Democrats redrew the map to keep them in power, and that they achieved what they wanted to degree that was “egregious in intent and effect.”
EDITOR’S NOTE: The postscript to this blog article provides a report on the Supreme Court ruling in the case of RUCHO V. COMMON CAUSE and provides an explanation of the Kagan 3 part test.
The New Mexico Supreme court ruling sends the redistricting lawsuit back to District Judge Fred Van Soelen in Clovis. Last year, Judge Van Soelen he refused to toss out the map just before ballots went in the mail ahead of the primary election. However, he also said in a ruling that the state Republican Party and other plaintiffs had made a “strong, well-developed case that [the new congressional map for District 2] is a partisan gerrymander created in an attempt to dilute Republican votes in Congressional races in New Mexico.”
DEMOCRATS DEFEND CONGRESSIONAL REDISTRICTING
Democrats told the Supreme Court that their redistricting motives were not partisan. Democrats argued the new maps ensured each district has a mix of urban and rural areas creating more competitive districts across the board. Democrats also argued that there were times Democrats have won the 2nd Congressional District under the former District 2 mapping. In particular Democrats Harry Teageu and Xochitle Torrez Small both prevailed over Republicans, served one term and both were defeated for reelection to a second term.
Las Cruces area State Senator Joseph Cervantes, co-sponsor of the new map, said the legislative process creating the new districts met every legal and constitutional requirement. Cervantes said this:
“Any partisan considerations were secondary to creating truly competitive and diverse districts. …My goal was to get away from past decades, and the national norm, where the districts were divided between the major political parties and drawn to preserve incumbents above all else.”
REACTION TO REMAND
Ash Soular, a spokeswoman for Republican Party of New Mexico, said the Republican Party was encouraged by the Supreme Court ruling and looks forward to the case proceeding in District Court. Soular called the new congressional map “one of the nation’s most egregious cases of partisan gerrymandering.”
Eunice area Republican State Senator David Gallegos is a named plaintiff in the case. He said the Republican goal is to get the congressional map redrawn for the 2024 noting the differences in populations. He pointed to the redrawn CD3 that placed some of the voters in Hobbs in a district shared by Las Vegas, almost 300 miles north. Gallegos said the districts should be consistent in representing the different regions and needs throughout New Mexico. Gallegos explained it this way:
“Before, we had more cohesive areas. … When you have population growth, you have to expand. But not like this. They’re breaking up Eddy and Lea counties to dilute Republican votes. … If we can get this done relatively soon, then we might be able to have this in place before the next election cycle. … They’re just totally different populations. … It would be hard for me to believe that they would agree on any point.”
Senator Gallegos said he was surprised the State Supreme Court agreed to proceed with the case. Gallegos contended the court tends to side with Democrats in Santa Fe over the rural communities of southern New Mexico and he said this:
“I think we have a really good game plan. I look forward to that day in court, and seeing what we can do with these maps. … I think we need to put them back to what they were. When they separated Hobbs, they took it to a whole ‘nother level.”
Governor Lujan Grisham for her part said through her spokeswoman Caroline Sweeney the decision simply “provided guidance on what should happen next at the district court level. [The Governor] believes the court will find that the maps at-issue meet appropriate legal scrutiny.”
Links to the quoted news sources are here:
CALLS FOR INDEPENDENT REDISTRCTIG COMMISSION
In the wake of the New Mexico Supreme Courts decision, calls for an independent redistricting commission have been renewed with advocates proclaiming the need for such a commission is underscored by the Supreme Court ruling.
On July 7, Albquerquerqu Democrat State Representative Natalie Figueroa said she will continue to seek support for a constitutional amendment that would establish an outside commission to draw political boundaries believing it is necessary to draw legally sound districts. According to Figueroa, such a commission would help protect against having a map overturned in court. Figueroa said this:
“There’s not a process that’s nonpolitical. … We need to remove as much partisanship as we can. … [The court decision] will draw attention to the issue and it highlights the importance of why we need an independent process.”
Common Cause New Mexico praised the NM Supreme Court ruling but said it doesn’t end the need for an independent commission. Common Cause pointed out the redistricting litigation is likely to continue into next year as another election cycle plays out with one party or the other appealing whatever the district judge decides. Mason Graham of Common Cause New Mexico said this:
“While this [Supreme Court] decision allows an important new legal tool, only the legislature can permanently end the conflict of interest allowing politicians to draw our voting maps by passing a constitutional amendment.”
In 2021 New Mexico did take a step toward independent redistricting when under a bipartisan new law the state established a citizen commission. The commission was led by retired state Supreme Court Justice Edward Chávez with hearings held and proposed new boundaries were formulated. The commission did not have the final say. Lawmakers ultimately had to approve the new legislative and congressional maps. The legislature was free to adopt amendments to the redistricting maps which it did.
During a special session, Democratic lawmakers opted to substantially reshape the proposals for congressional districts, approving a new map that established three Democratic-leaning districts. Democrats defended it as a way to make all three districts competitive and give each one a mix of urban and rural voters. Republicans called it a blatant attempt to dilute their voting strength and damage the reelection prospects of the state’s only Republican congresswoman at the time, Yvette Herrell.
The link to news source quotes is here:
FAST PACED TRIAL CALENDAR
On July 17, a presentation was made to a key legislative committee from the attorneys who are representing legislators in the case. Legislators were told to expect a breakneck pace of hearings in the case given the Supreme Court’s order that the District Court should rule on the case by October 1. The deadline of October 1 means a fast-paced schedule ahead of the 2024 election cycle when New Mexico’s three congressional districts are on the ballot.
Lucas Williams, a Roswell-based lawyer who is defending the Legislature, told lawmakers this:
” [The decision creates] a somewhat blank slate. It will be litigated vigorously. … There will be lots of sleepless nights for a lot of attorneys across New Mexico.”
During Monday’s meeting, Alamogordo Republican State Rep. John Block said Democrats should have just accepted one of the maps recommended by the state’s nonpartisan citizen redistricting committee, which meet in 2021 after the census. He said Democratic lawmakers instead amended one of the recommendations to dilute Republican votes. Block noted under the map, Lovington in conservative southeastern New Mexico now shares a district with Democratic-leaning Española north of Santa Fe. Block said this:
“There is no way anyone can make a case this wasn’t partisan. .. It was absolutely partisan.”
Las Cruces Democrat Sen. Joseph Cervantes, who co-sponsored the redistricting plan, said his motive was actually the opposite. He said the goal was to create competitive districts that neither party could take for granted. Cervantes said each congressional district has a mix of community and political interests intended as a contrast to the safe seats enjoyed by many in Congress across the county. Cervantes said
“Our democracy is terribly ill … and we can set an example of how you fix that.”
The link to news source is here:
COMMENTARY AND ANALYSIS
With the Supreme Court remanding the case back to Judge Van Soelen, he will apply the three-part Kagan test and other criteria when he evaluates the map and makes a decision. Republican opponents of New Mexico’s new congressional map can succeed if they demonstrate the predominant purpose of the map was to entrench Democrats in power.
Republicans must also show the lines had the desired effect by substantially diluting the votes of Republicans. If the Republican plaintiffs succeed on those two points, Democrats can still save their redistricting plans by pointing to a legitimate, nonpartisan justification for the districts. No matter what District Judge Fred Van Soelen decides, it is likely the losing side will again appeal to the New Mexico Supreme Court.
During the upcoming 2024 New Mexico Legislative session, a constitutional amendment that would establish an outside commission to draw political boundaries with real authority is in order. Otherwise, every 10 years with a new US census, the state can look forward to court actions to settle boundary disputes.
RUCHO V. COMMON CAUSE
In 2019, the United States Supreme Court in a 5-4 vote in the case of Rucho v. Common Cause ruled that partisan gerrymandering claims cannot be brought under the U.S. Constitution. The Ruch decision was a major set back for voting right advocates but in her dissent Justice Elena Kagan’s outlined and provided a blueprint on how state judges can set aside and kill the practice of gerrymandering by legislatures under their own constitutions. Every state constitution protects the right to vote or participate equally in elections, and the Kagan dissent shows how state courts can enforce those protections under state law.
In her dissent, Justice Kagan annunciates the precise harms inflicted by partisan gerrymandering and explains how they can be measured and remedied. Kagan identified two distinct but intertwined constitutional violations. First, gerymandered maps “reduce the weight of certain citizens’ votes,” depriving them of the ability to participate equally in elections. Second, they also punish voters for their political expression and association. Kagan concluded that these dual injuries, implicate fundamental principles of both equal protection and freedom of speech. Kagan illustrated the ease with which courts can address them.
In his Rucho majority opinion, Chief Justice John Roberts insisted that federal courts were unable to determine when a partisan gerrymander goes “too far.” Kagan pointed out that, in fact, plenty of lower courts have already done exactly that. These courts deployed a three-part test. First, they ask whether mapmakers intended to entrench their party’s power by diluting votes for their opponents. Second, they ask whether the scheme succeeded. Third, they ask if mapmakers have any legitimate, nonpartisan explanation for their machinations. If they do not, the gerrymander must be set aside and declared void.
Justice Kagan wrote:
“If you are a lawyer … you know that this test looks utterly ordinary. It is the sort of thing courts work with every day.”
In practice, the most important part of the test is its evaluation of a gerrymander’s severity and that boils down to an analysis and hard look at the data. The North Carolina’s congressional map contained 10 Republican seats and 3 Democratic ones. Experts ran 24,518 simulations of the map that used traditional, nonpartisan redistricting criteria. More than 99% of them produced at least one more Democratic seat. The exercise verified that North Carolina’s map isn’t just an outlier but “an out-out-out-outlier.”
Chief Justice Roberts rejected Kagan’s reasoning and asserted that her test was “indeterminate and arbitrary.” But the North Carolina Superior Court rested its decision precisely on the three-part test that Kagan proposed. The North Carolina court adopted Kagan’s methods to demonstrate that North Carolina’s legislative gerrymander was indeed an “out-out-out-outlier.” Experts ran thousands of simulations to gauge the severity of the map’s partisanship and found that the current gerrymander is more favorable to Republicans than about 99.99 percent of maps drawn using nonpartisan redistricting factors.
This fact would not matter if North Carolina courts were powerless to stop partisan gerrymandering. But state courts are free to interpret their constitutions differently from the United States Supreme Court and are not bound by the Rucho decision. The North Carolina Superior Court therefore refused to adopt Roberts’ rejection toward the judiciary’s competence to defend voting rights.
The North Carolina Court agreed that Kagan’s view of gerrymandering is an assault on equal protection and free speech. The North Carolina Court wrote the state constitution safeguards “the fundamental right of each North Carolinian to substantially equal voting power.” The Northe Carolina court also found that the state constitution protects citizens’ ability to engage in “core means of political expression,” including “voting for the candidate of one’s choice and associating with the political party” without retaliation. Partisan gerrymandering infringes upon these freedoms, diluting citizens’ vote on the basis of their political expression. In short, the court ruled the North Carolina constitution contains the same protections that Kagan sought under the First and 14th Amendments to the U.S. Constitution.
The North Carolina court took a step further than Kagan, because unlike the U.S. Constitution, the North Carolina constitution declares that “all elections shall be free.” This clause, the court held, means “that elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” Partisan gerrymandering violates that guarantee by “specifically and systematically designing the contours of the election districts for partisan purposes and a desire to preserve power.”
The link to quoted new source material is here: