ALBUQUERQUE (N.M.) — A three-day New Mexico trial over the state’s federal map will begin Wednesday. In New Mexico, unlike in other states where redistricting is a hot topic, the Democratic legislators are being accused of creating illegal district boundaries.
In New Mexico, the state Republican Party and other plaintiffs argue the Democratic-controlled Legislature diluted GOP votes when it split the conservative southeastern corner of the state into three districts. Democratic leaders say redistricting is an inherently political process, and lawmakers acted appropriately in drawing a set of vetted, competitive districts.
New Mexico Democratic Rep. Gabe Vasquez eked out a win over incumbent Yvette Herrell last year in the state’s 2nd Congressional District. The map that was used for the race is being challenged in anticipation of a possible rematch in 2024. New Mexico is currently one of several states that are litigating over congressional maps. The U.S. Supreme Court rejected Alabama’s bold attempt to maintain its GOP drawn districts on Tuesday. This could set the stage for other states to resolve legal battles over the Voting Right Act. The outcome of the various redistricting lawsuits could have an important impact on the election results in 2024, given the slim Republican majority of the U.S. House.
Previously, New Mexico’s 2nd district included the entire southern portion of the state. This included a large area of oil-rich Permian Basin as well as vast agricultural land. Is the gerrymandering in New Mexico “egregious?”
In January, the New Mexico Supreme Court ruled that the case would be heard by state courts, but did not comment on the constitutionality of the map. The high court ruled that some partisan gerrymandering was acceptable under state law and the 14th Amendment of the U.S. Constitution, so long as it wasn’t “egregious.” It will be up the lower court to determine where this line is.
Attorney for the plaintiffs Daniel Gallegos argued in that hearing that the Democratic-controlled Legislature’s actions amounted to a “constitutional harm” to GOP voters by violating the state’s Equal Protection Clause. “Our claim is excessive redistricting,” he said to the state’s judges. “That this is a blatant example of gerrymandering.” Attorney for Democratic Leadership Sara Sanchez said that the plaintiffs are pushing back against a district where it is now harder for Republicans than before to win. “There is no constitutional right for your district to perform the same way it did before,” she stated. State District Judge Fred Van Soelen, who ruled in the last year, said that plaintiffs’ arguments were strong, but allowed the map to still be used for midterm elections. These elections are fast approaching. The New Mexico Supreme Court asked Van Soelen last year to expedite this case in order to prevent disruptions of the election next year. The test was first laid out by U.S. Supreme Court Justice Elena Kagan in her dissenting opinion in
Rucho v. Common Cause
, a notable case on partisan gerrymandering
It asks whether lawmakers intentionally tried to dilute the votes of their opponents, whether they succeeded and whether they have any nonpartisan justifications for where they drew the lines.
How much can lawmakers talk about their deliberations?
The evidence the court will use to determine lawmakers’ intent has already been a point of argument. According to court documents, the plaintiffs have subpoenaed a number of current and former legislators in order to take depositions about this issue. Democratic defendants, however, filed for a protective court order in August, claiming that the state constitution grants lawmakers legislative privilege and protects them from giving testimony about the legislative process. On Tuesday, the morning of the trial, Van Soelen, a judge, issued a ruling that the legislative privilege in the case “cannot… be held to be absolute.” In a letter sent to the two parties, he stated that “there must be limited ways” in which the intent of a legislator can be used to decide cases in court. The judge said that lawmakers cannot be called to give testimony about their decisions regarding the map. Any statements made by individuals who were not directly involved in legislative processes before the map’s enactment will be permitted. It could be made by the media, the public, or members of the state’s delegation to Congress. Van Soelen said that the court will use the map and its effects to gauge the intent of Democratic lawmakers behind the drawing of the lines. The bench trial will likely last until Friday. The case must be resolved by the court no later than October 6.