New Mexico Supreme Court Chief Justice Shannon Bacon, left, and Justice David Thomson question attorney Carter Harrison, representing the Republican Party of New Mexico, during oral arguments of an appeal for the redrawn borders of New Mexico’s Congressional District 2. The New Mexico Supreme Court heard but side of the case Monday, November 20, 2023. (Photo by Eddie Moore / Albuquerque Journal, Pool)
The New Mexico Supreme Court on Monday heard arguments from the state’s Republican Party and the Legislature about whether to overturn a lower court’s decision that upholds the state’s redrawn congressional map.
Ninth Judicial District Judge Fred Van Soelen ruled in September that lawmakers did not violate the state’s constitution when it redrew the map for congressional elections and broke apart a Republican voting bloc in the southeastern part of the state in 2021.
While some degree of a partisan gerrymander is permissible, Van Soelen wrote in his ruling, constitutional protections only kick in when a gerrymander is “egregious.”
Carter Harrison appealed the lower court’s ruling on behalf of the Republican Party of New Mexico before the state Supreme Court on Monday.
He argued the Democratic majority in the Legislature co-opted the legislative process to further its own electoral goals by “subverting and subordinating legitimate nonpartisan redistricting factors to the politically ideal spreading of a state’s partisan performance numbers.”
If successful, he said, it counts as “egregious.”
Sara Sanchez, the attorney representing the Legislature, said Van Soelen correctly found the New Mexico GOP failed to prove the new map entrenches the Democratic Party in power, and therefore it does not violate the state Constitution.
Sanchez asked the justices to affirm the lower court’s ruling.
Arguments ended Monday morning without a ruling. Chief Justice Shannon Bacon said the court would publish a decision as soon as it can.
It could take weeks or even months for the justices to reach a final decision.
Arguments in the case have centered on how competitive New Mexico’s 2nd Congressional District is under the new map. In less than a year, incumbent Democrat Gabe Vasquez will take on a Republican challenger. Yvette Herrell, who held the seat from 2020 to 2022, could be his likely competitor.
‘Substantial dilution’ versus ‘entrenchment’
N.M. Supreme Court Justice Julie Vargas asked Sanchez how the court should reconcile the GOP’s argument that Van Soelen did find substantial dilution of votes, but no entrenchment.
She asked if Van Soelen made a mistake or said something he didn’t mean to.
There is no inconsistency or mistake at all, Sanchez said.
Van Soelen correctly followed the Supreme Court’s guidance on the law, she said, and the new map diluted votes in the 2nd congressional district, it just wasn’t enough to be an “egregious” gerrymander.
“What we have to look at is: what is the outcome of that substantial dilution?” Sanchez told the justices. “When the outcome is, as it is here, a highly competitive district that either party can win, that is not entrenchment.”
Harrison said the new map produces undemocratic results because it is “overwhelmingly likely” to result in, over the course of the next 10 years, “a congressional delegation that is dramatically out of step with the composition of the state overall.”
Harrison asked the justices to find the map unconstitutional because it substantially dilutes Republican votes in the 2nd congressional district..
Justice Bacon said she thinks the New Mexico GOP is asking the justices to lower the standard they laid out in their previous opinion, which requires not just that there was substantial dilution of votes, but that a gerrymander was “egregious” and entrenched one party in power.
She said any change to the political maps will result in vote dilution.
“We focused on egregious because we don’t want the courts to become the deciding factor in every single case,” Bacon said. “If we don’t focus on the word egregious, and we take your focus on substantial dilution, don’t we render every single redistricting map something that the court is going to weigh in on?”
Harrison said the New Mexico GOP doesn’t agree, and all three of the maps put forward by the Citizens Redistricting Commission were “acceptable” because they were created in an entirely nonpartisan process.
But the law doesn’t support going for a nonpartisan solution, Bacon said. By definition, politics are allowed to be part of the redistricting process, she said.
“I know that right now, being in the minority position, your clients want it to be politically neutral,” Bacon told Harrison. “But that’s simply not the system that we have for political gerrymandering, and none of the law supports you on creating something that is politically neutral.”
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