On Friday, October 6, after a weeks long trial, State District Judge Fred Van Soelen of the 9th Judicial District based in Clovis, ruled in a 14 page decision to strike down a lawsuit file by State Republicans alleging Democratic lawmakers gerrymandered New Mexico’s three congressional districts to favor and elect Democrats, especially in the southern congressional district. Judge Van Soelen in siding with Democrats ruled Republicans’ votes were diluted, but it did not rise to an “egregious gerrymander” and upheld the legislature’s approved redistricting maps. Republicans have vowed to appeal to the New Mexico Supreme Court.
JUDGE VAN SOELEN’S RULING
In his ruling, District Judge Fred T. Van Soelen wrote in part:
“[The] predominant purpose of redrawing CD 2 [the southern district] in Senate Bill 1 was to entrench the Democratic Party in power by diluting the votes of citizens favoring Republicans. … Because ‘entrenchment’ is the touchstone of an egregious partisan gerrymander which the New Mexico Constitution prohibits, the court finds that the congressional redistricting map enacted under Senate Bill 1 does not violate the plaintiff’s equal protection rights.”
Van Soelen wrote that there is sufficient evidence to say Republicans were “cracked.” In other words, the evidence showed the maps split up Republican voters into multiple districts in order to dilute their voting power. As an example Van Soelen noted Lea and Eddy Counties were split into two separate congressional districts.
During the trial, Democrats argued the contrary and said the boundaries in the map approved were meant to allow the oil industry in the southern portion of the state to have multiple voices in Washington, D.C. To accomplish this, the map adds land from southeast New Mexico to both Congressional District 1 and Congressional District 3. Judge Van Soelen wrote that the defendants didn’t prove that splitting up that land was beneficial for residents.
Judge Van Soelen pointed to the 2022 congressional election, the only one held since the boundaries were redrawn, as evidence that Democratic and Republican candidates have a competitive chance to win in Congressional District 2. In the 2022 race for the District 2 U.S. congressional seat, Democrat Gabe Vasquez defeated Yvette Herrell, a first-term Republican incumbent, by the slim margin of 0.7% The Republican Party countered that Herrell’s “very high name recognition” makes that race an unfair test of District 2’s competitiveness.
Judge Van Soelen wrote that while the case shows evidence of partisan political vote dilution, the dilution itself “does not rise to the level of gerrymandering that violates the rights of voters.” Van Soelen wrote that while the maps were intended on “intrenching” Democratic power, there was not sufficient evidence to prove that they were actually successful in entrenching their power. Judge Van Soelen concluded that the legislative approve map does not violate residents’ equal protection rights under the state’s constitution.
REVISITING LAWSUIT ALLEGATIONS
The lawsuit was filed back in 2021 when the New Mexico legislature redrew all 3 of New Mexico’s political boundaries in the process know as redistricting. The process of congressional redistricting occurs every 10 years to keep political voting boundaries relatively fair as local populations change.
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.
In 2020, the state asked an independent redistricting committee to recommend new maps to the legislature. After considering 3 maps for redrawn congressional districts, New Mexico’s Democratically controlled legislature was not satisfied with what was submitted and approved a fourth map instead, one drawn up by the lawmakers.
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 centered 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.
REACTIONS TO RULING
Steve Pearce, chairman of the Republican Party of New Mexico, said the Republican Party will appeal its case to the New Mexico Supreme Court. Pearce said the gerrymandered districts disenfranchise the votes of all conservative voters, regardless of their party affiliation Pearce said this:
“Judge Van Soelen agreed that there was partisan gerrymandering in the district map for CD2, but we disagree with his ruling that it was not an egregious gerrymander.”
Las Cruces area Democrat State Senator Joseph Cervantes, the primary sponsor of the senate bill that changed congressional district boundaries had this to say:
“I’ve maintained that we met every legal and constitutional requirement and the court has affirmed the exceptional legal work that goes into lawmaking done right. … We clearly got it right. … With more competitive districts, we will send to Washington representatives more closely aligned with all New Mexicans, not just party loyalists.”
Governor Michelle Lujan Grisham’s Office released the following statement statement in reaction to the Court’s verdict:
The governor signed these maps with full belief in their constitutionality, and we are pleased to see the court’s decision today.
New Mexico Secretary of State Maggie Toulouse Oliver’s Office released the following statement:
“Our interest in this case is that we needed clarity about the map in order to properly plan for the 2024 elections. We’re pleased that the issue has now been decided so we can continue planning for the 2024 elections.”
The Republican Party of New Mexico issued the following statement:
“Today’s decision was bigger than Republican or Democrat. It struck at the heart of our Republic, the form of government that allows all beliefs to have a voice.
Judge Van Soelen agreed that there was partisan gerrymandering in the district map for CD2, but we disagree with his ruling that it was not an egregious gerrymander. Our legal team presented a clear case that the legislature intended to and, in fact, did egregiously gerrymander the congressional maps to shift the second district by 18 points in favor of Democrats.
Text messages provided during discovery from Senate President Pro Tempore Mimi Stewart reveal her bragging, ‘The People’s Map was 51.8%. That’s not enough for a mid term (sic) election.’ In order to get a big enough Democratic swing, she claims, ‘we adjusted some edges, scooped up more of abq and are now at 53%.’
The Democrat expert witness also testified that the Democrat lawyers instructed him to design 1,000 maps that resembled the gerrymandered map that the legislature drew.
The legislative redistricting map and all 1,000 of his so-called “random” maps split Lea and Eddy counties, thereby “cracking” the conservative vote in the southeast part of the state. The witness admitted under oath that he had never been instructed to divide a state in the fashion he had been directed to in New Mexico.
The gerrymandered districts disenfranchise the votes of all conservative voters: Hispanic, Native American, Black and all other pro-family, pro-parent, pro-gun, pro-life voters, farmers, and oil and gas workers. Democrat, Republican, and Independents alike have lost their voice. New Mexico’s primary industry is undermined, and jobs are at stake.
The Republican Party of New Mexico believes the fight is too important to accept this setback without contest.
On behalf of all disenfranchised voters in the state of New Mexico, RPNM will be appealing our case to the New Mexico Supreme Court.”
The Democratic Party of New Mexico also provided the following statement:
“It is no surprise that the New Mexico Republican Party lost its bogus lawsuit attempting to throw out competitive, fairly-drawn maps. Steve Pearce’s defunct New Mexico Republican Party is merely looking to place blame somewhere for their recent election losses.
“Crafting of the current maps followed a non-partisan, deliberative process that was informed by and invited expert and public input from communities across the state and subsequently went through the complete legislative process in committees and both chambers. In fact, these districts were intentionally crafted to be less partisan and more competitive than the previous ones.
“Unfortunately for New Mexicans, the GOP in our state has become so beholden to the conspiratorial far-right that they continue to try to discredit the electoral process when they lose instead of running candidates who work to improve the lives of everyday New Mexicans.”
Links to quoted news sources are here:
https://apnews.com/article/new-mexico-congressional-redistricting-e411438a6988774c1a531a447a288c93
COMMENTARY AND ANALYSIS
It is more likely than not that Republican efforts to appeal State District Judge Fred Van Soelen’s decision will fail and the appeal will fail miserably all because of a previous ruling by the New Mexico Supreme Court.
It was in February, 2022 that a Motion to Dismiss the case was filed by attorneys for Defendants Governor Lujan Grisham and Lt. Governor Howie Morales. The New Mexico’s Supreme Court denied the Motion To Dismiss and the case was remanded back to Judge Van Soelen for a trial on the merits. 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 New Mexico Supreme Court acknowledged the “inherently political nature of redistricting” and said some partisan gerrymandering is permissible. The New Mexico Supreme Court ruled the three-part test outlined by U.S. Supreme Court Justice Elena Kagan in her dissenting opinion in the US Supreme Court case of RUCHO V. COMMON CAUSE should be used in the case to determine whether the map goes too far and violates the law. This means the Republican plaintiffs had 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.”
Judge Van Soelen has now applied the three-part Kagan test and other criteria and he evaluated the maps and has made a decision that there was no “egregious in intent and effect.” .
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.
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POSTSCRIPT
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:
https://slate.com/news-and-politics/2019/09/partisan-gerrymander-kagan-state-courts.html