New Mexico Supreme Court hears arguments on whether it can weigh redistricting lawsuit

SANTA FE — The New Mexico Supreme Court heard arguments on Monday afternoon about whether the state’s courts have the power to weigh in when someone challenges the constitutionality of political maps drawn by the Legislature.

The case centers on whether the justices have the authority to entertain claims by the New Mexico Republican Party that the congressional map signed into law in 2021 is a partisan gerrymander, and therefore violates the 14th Amendment of the U.S. Constitution and its equivalent in the New Mexico Constitution.

The U.S. Supreme Court has found that the federal constitution “guarantees the opportunity for equal participation by all voters in the election” of lawmakers.

The state GOP is arguing that the new map “cracked” a Republican voting bloc in the southeastern part of the state, making it harder for a Republican candidate to win the Congressional District 2 seat in the U.S. House of Representatives. 

In 2022, under the redrawn maps, southern New Mexico Democrat Gabe Vasquez won the congressional district by 1,346 votes. All three of the state’s federal delegates in the U.S. House are Democrats. 

Sara Sanchez, one of the two attorneys representing the Legislature in the case, said redistricting is inherently political, and even in extreme cases of egregious partisan gerrymandering, courts cannot weigh in “unless and until New Mexico” adopts a constitutional amendment or state law that provides a check on the process.

“This is a political problem that has a political solution,” Sanchez said at the podium in front of the five justices, gesturing in the direction of the state capitol located right next door.

Dylan Lange, counsel for the New Mexico Secretary of State’s Office, was present for the hearing but did not speak. In November he filed a brief saying the office needs to hand out nominating petitions to political candidates by October.

“Having this issue resolved to ensure finality in the federal congressional districts by October 2023, will guarantee both voters and candidates are prepared for the 2024 primary election,” Lange wrote.

The Supreme Court in October granted a request by the Legislature and the governor to halt proceedings in the case until it can resolve these legal questions, called a “stay.”

At the end of the hearing, Chief Justice Shannon Bacon said the justices would not reach a decision on Monday because the issue is so important, and they want to be deliberate.

They do not feel the need to as quickly as they would otherwise because there is a stay in place in the case and “we’re a little ways out from the next electoral process,” Bacon said.

“We will get you the outcome as soon as practicable,” Bacon said.

The arguments

Sanchez and Richard Olsen, another attorney representing the Legislature, repeatedly said there are no standards to apply the claims from the New Mexico GOP in the state constitution, the state’s laws, nor in the way the courts have interpreted them.

If the court does rule in the Legislature’s favor by saying it cannot weigh in on this question, then it would tell voters and lawmakers “that there is a potentially a problem, and a potential solution. It’s just that this court doesn’t have it,” said Holly Agajanian, chief general counsel to Gov. Michelle Lujan Grisham.

“I am cringing at the idea of being the one to tell you guys you can’t do it,” Agajanian said. “But you can’t, and I’m sorry, but that is sort of our position in this. Even if there’s an individualized alleged harm, the court still doesn’t have any manageable standard to adjudicate it.”

Bacon asked why the court cannot apply the test found in U.S. Supreme Court Justice Elena Kagan’s dissent in Rucho v. Common Cause.

In that case, the court’s conservative majority found that claims of excessive partisanship are beyond the capacity of federal courts to resolve.

Kagan wrote that it is unconstitutional to dilute a person’s vote by redrawing voting districts with very different populations. She argued that partisan gerrymanders deprive citizens of “the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”

Bacon said the court could follow Kagan’s dissent in Rucho, and that case does not necessarily prohibit the state’s Supreme Court from entertaining a claim under the Equal Protection Clause in the New Mexico Constitution.

“We are imbued with the power to create that test,” she said. “I can’t help but note that if the shoe was on the other foot here, each side would be making the exact opposite argument they are today.”

Sanchez argued that the state Republican Party and the other plaintiffs in the case have “suffered no constitutional harm.”

But Justice David Thomson pointed out that they have not yet had a chance to go through the discovery process or a trial to show whether or not they have suffered that harm.

He said the Supreme Court isn’t used to making decisions where they don’t have a lot of facts.

“I don’t see why that process shouldn’t be allowed to play out,” Thomson said.