NM Supreme Court justices hear redistricting challenge

ROSWELL — New Mexico Supreme Court Justices heard arguments but declined to rule Jan. 9 on a challenge to the state’s new congressional map, and whether New Mexico courts can weigh in on claims of partisan gerrymandering.

Chief Justice Shannon Bacon said given the seriousness of the issues presented and the fact the next congressional elections are not until 2024, the justices did not feel the need to immediately reach a decision.

“This is an issue of significant importance and we want to be deliberative,” Bacon said to attorneys following roughly an hour of opening arguments in Santa Fe. She added a decision on the matter would come “as soon as is practicable.”

The arguments heard by the five justices were part of a lawsuit filed in District Court last year by the Republican Party of New Mexico and other plaintiffs against Gov. Michelle Lujan Grisham, Secretary of State Maggie Toulouse Oliver and leading Democrats in the Legislature.

The suit alleges the state’s newly reconfigured congressional districts were redrawn in such a way that they dilute Republican votes, especially in the state’s southeast corner, and therefore represent a partisan gerrymander.

In December 2021 New Mexico’s majority Democratic legislature crafted and passed the maps, and Lujan Grisham, also a Democrat, approved them as part of the once-a-decade redistricting process.

The new maps readjusted the boundaries, shifting Democratic-leaning populations in west Albuquerque into the Second Congressional District, while, splitting communities in the heavily Republican southeast among each of the state’s congressional districts.

Attorneys for Lujan Grisham and the Legislature petitioned Clovis Judge Fred Van Soelen to dismiss the case.

In April, Van Soelen rejected the motion to dismiss the case, but he also denied a motion by plaintiffs for a preliminary injunction that would have kept the maps from being used in the 2022 election.

In July, respondents asked the New Mexico Supreme Court to rule on whether the state Constitution provides a remedy for claims of partisan gerrymandering, whether such claims are justiciable, meaning state courts can intervene in the matter.

Respondent argument

Representing the Legislature, attorney Sara Sanchez argued the claim of partisan gerrymandering is not justiciable and should be dismissed.

The maps, she said, did not harm individual constitutional rights to vote through racial discrimination nor did they violate the principle of one person one vote.

Instead, Sanchez said the plaintiff’s real complaint is a political one, that the Republican performance is not as strong in the new districts as they were under the previous map.

“There is no constitutional right to the same political performance that your district had before,” she said.

Sanchez also described redistricting as an inherently political question and a responsibility that the state Constitution and law do not assign to the judiciary.

By intervening, it could cause the courts to wade into a “political thicket.”

“The plaintiffs in this case are demanding that the judiciary take on responsibility for deciding an inherently political question involving nothing less than the reallocation of political power between the two political parties, with no constitutional directive to do so, and no legal standard to apply,” Sanchez said.

Unlike some other states where redistricting is handled by nonpartisan panels or other arrangements, Sanchez argued in New Mexico it is a task delegated to the Legislature and governor, with no binding limits on how much politics in redistricting is too much.

Resolutions to questions over politics and redistricting fall to the political branches — legislative and executive — and should be addressed through amending the state constitution or passage of legislation.

Justices though were wary of the position that the court cannot intervene in any case of alleged partisan gerrymandering.

“Much of what is being presented here is we have no jurisdiction, period, ever, in this arena and frankly I am troubled by that broad approach,” Bacon said.

Justices asked Sanchez if under cases involving claims of the most egregious kind of partisan gerrymandering, the court could weigh in.

Sanchez answered that even claims in the most extreme scenarios of partisan gerrymandering would not be justiciable, unless a state constitutional amendment or legislation is passed to provide such limits on politics in redistricting.

“I am concerned with barring forever, assuming there is no statutory or constitutional amendment, claims of this nature, even in the most egregious cases,” Justice Briana Zamora said.

Plaintiffs argument

Daniel Gallegos Jr., an attorney for the plaintiffs, countered the argument that the courts lack the authority to hear the cases of partisan gerrymandering.

He notes laws and other legislative activities are frequently subject to review by the judiciary and redistricting should not be exempt.

“I don’t understand, what makes the map making so special that it should be... immune from judicial review the way other pieces of legislation are,” Gallegos said.

He also contended individual rights were harmed under the state constitution’s Equal Protections Clause.

The new maps, Gallegos said, split or “crack” communities of interest, weakening the power of Republican votes. Cracking, he explained, is when one party’s supporters are dispersed among different districts in a way that prevents them from getting a majority in any one district.

“So the allegation is that this cracking that occurred down in the southeast portion of the state imposed a constitutional harm on individuals, including the plaintiffs in this case in violation of the Equal Protection Clause,” he said.

Justice Michael Vigil asked Gallegos if he believes the last election in New Mexico’s Second Congressional District, where Democrat Gabe Vasquez unseated Republican U.S. Rep. Yvette Herrell by 1,350 votes, was not competitive. Gallegos said it was competitive.

At what point does a lack of competitiveness rise to the point of being a constitutional violation, Vigil asked.

Such a determination, Gallegos argued, can be made using a variety of data, one being Herrell’s loss after the new maps took effect.

Vigil said Herrell’s loss may not have been the result of new district borders, but could be attributed to other factors.

“How do we know that she lost because the unregistered voters (those not registered with a political party) voted for her competitor?” Vigil asked.

Gallegos said the question would have to be studied along with other measurements and evidence, such as statements made by legislators about the effect of the redistricting.

Plaintiffs, he argued, should have the chance to make such a case in court, and therefore justices should have it be sent back down to district court to be heard.

“We want it remanded. We want the opportunity to prove our claim,” Gallegos said.

The court’s ability to intervene, Gallegos said, is important in such cases because it is the legislative and executive branches who in cases of alleged partisan gerrymanders have caused the harm, and whose interests are diametrically opposed to addressing it.

“Our only option at that point would be to go back to them and expect that the political process is going to work out. The only place where the plaintiffs can vindicate their individual constitutional rights is in the New Mexico Court,” Gallegos said.