On Monday, November 26, the New Mexico Supreme Court affirmed a State District Court’ s ruling that the congressional voting district maps drawn by the 2021 NM Legislature do not rise to the level of “egregious” gerrymandering. The New Mexico Supreme Court ruled congressional districts drawn up by state lawmakers in 2021 are not gerrymandered, even though there is evidence the new boundaries diluted votes between political opponents. This blog article is an in depth legal analysis of the decision.
SOUTHERN NEW MEXICO DISTRICT GROUND ZERO
It was the redrawing of the Sothern New Mexico District that was ground zero to insure the election of a Republican to congress. Republican and Democratic lawmakers argued in court primarily over the map that set the boundaries for the southernmost congressional district in New Mexico. The Democratic-drawn congressional map divvied up a conservative, oil-producing region and reshaped a swing district along the U.S. border with Mexico . The lower court found that the Democratic lawmakers did purposely choose the map in order to try to entrench power, but that the map didn’t violate voters’ constitutional rights under the Equal Protection Clause of the state’s constitution.
The Republican Party challenged the maps in court. District 2 is typically a battleground between Democrats and Republicans every two years, but GOP leaders argued the Democrats gave themselves an unfair advantage in the last election. They argued that the Democratic lawmakers essentially violated voters’ rights by choosing a gerrymandered map.
The Republican Party argued unsuccessfully that the new district boundaries would entrench Democratic officials in power, highlighting the 2022 defeat of incumbent GOP Congresswoman Yvette Herrell by Democratic U.S. Rep. Gabe Vasquez. Democratic state lawmakers argued that the 2nd District in southern New Mexico remains competitive, with just a 0.7% margin of victory in the 2022 election. The two are squaring off once again in 2024
All 5 of New Mexico Supreme Court justices signed a shortly worded order affirming the lower District Court decision that the redistricting plan enacted by Democratic state lawmakers in 2021 succeeded in substantially diluting votes of their political opponents but that the changes fell short of “egregious” gerrymandering.
DISTICT IN NATIONAL SPOTLIGHT
The district is one of about a dozen in the national spotlight as Republicans campaign to keep their slim U.S. House majority in 2024. Courts ruled recently in Alabama, Louisiana and Florida that Republican-led legislatures had unfairly diluted the voting power of Black residents. Legal challenges to congressional districts are also ongoing in Arkansas, Kentucky, South Carolina, Tennessee, Texas and Utah.
New Mexico was among several states to use a citizen’s advisory board with the aim of tempering political inclinations without taking redistricting powers away from state lawmakers. Groups, including Common Cause, said the process resulted in fairer maps. But Republicans in the state’s legislative minority argued that they were effectively shut out of the final legislative process amid conversations beyond legislative hearings via email and text messages that were subpoenaed at trial. Democrats gained a 12% advantage in voter registrations over Republicans in the newly drawn 2nd District, where major party registration previously was roughly evenly split.
PARTIES REACTION TO RULING
State Republican Party Chairman Steve Pearce said the legal outcome in New Mexico “leaned heavily on the closeness of the previous election” in which a “popular Republican incumbent” was defeated by a lesser-known rival.
The New Mexico Republican Party in a statement said this:
“We are disappointed in the NM Supreme Court’s ruling to uphold the gerrymandered map that disenfranchises the voices of conservative Democrats, Republicans, and Independents alike and divides up vital industries.”
The Democratic Party of New Mexico said in a statement
“We are glad that the State Supreme Court ordered that the District Court’s redistricting decision will be upheld, hopefully putting to rest months of frivolous distractions”.
Democrats hold every statewide elected office in New Mexico, along with its three House and two Senate seats. Though Republicans won control of the U.S. House from Democrats in the 2022 election, the closely divided chamber more accurately reflects the ratio of Republicans to Democrats among voters nationally than at any time in recent years.
Links to quoted news sources are here:
https://www.koat.com/article/nm-supreme-court-upholds-democratic-congressional-map/45966673
https://www.kob.com/new-mexico/new-mexico-supreme-court-upholds-decision-on-redistricting-case/
https://nmpoliticalreport.com/2023/11/28/state-supreme-court-upholds-congressional-maps/
https://www.sfreporter.com/news/morningword/2023/11/28/nm-supreme-court-affirms-democrats-congressional-map/
REVISTING 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 known 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
MOTION TO DISMISS
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 meant 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.”
REVISITING JUDGE VAN SOELEN’S RULING
On 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.
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 “entrenching” 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.
Judge Van Soelen 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.
FINAL COMMENTARY AND ANALYSIS
It is more likely than not that any effort to appeal the New Mexico Supreme Court’s ruling to the United States Supreme Court will fail miserably with the US Supreme Court denying certiorari with a one sentence order affirming the decision and denying any further hearings. At this point, efforts would be better served trying to seek the creation of a congressional, non-partisan redistricting committee with final say that would be convened every 10 years to coincide with the United States Census to redraw districts for final approval of the courts.
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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, gerrymandered 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