Parties began making their cases Wednesday in a trial over whether New Mexico’s Democratic-led Legislature in 2021 illegally drew the boundaries of the state’s congressional map, as the state Republican Party and other plaintiffs allege.
The plaintiffs are on the hook to prove that Democrats drew the map to intentionally dilute GOP votes and that those efforts worked.
In their opening statement, attorneys for the plaintiffs alleged that GOP lawmakers had no say in the map, that the Democrats moved voters around unnecessarily, and that statistical analysis shows the map wasn’t drawn fairly.
They also presented text messages from Senate President Pro Tem Mimi Stewart sent during the redistricting session, which they argue illustrate lawmakers’ intent.
In reference to a concept map that had Democrats getting 51% of likely votes in the 2nd Congressional District, an exhibit showed Stewart wrote, “That’s not enough for a mid term (sic) election so we adjusted some edges, scooped up more of abq [Albuquerque] and are now at 53%.”
“What’s so remarkable about these texts is that Sen. Stewart not only admits that gerrymandering was happening, but explains how and why,” said attorney Misha Tseytlin.
In the defense’s opening statement, attorney Richard Olsen said, “The stray comments by a few Legislators are irrelevant and certainly aren’t determinative of legislative intent.”
Did Democrats make the 2nd Congressional District a sure thing?
The state Supreme Court ruled earlier this year that some partisan gerrymandering is acceptable in redistricting, as long as it is not “egregious.” Olsen argued that, to hit that threshold, the map would have had to entrench Democrats so deeply in the southern 2nd Congressional District that a GOP candidate wouldn’t be able to win.
“If the intent was to entrench, the parties who were allegedly entrenching did a pretty sorry job,” he said, referencing how narrowly Democratic Rep. Gabe Vasquez beat Republican incumbent Yvette Herrell in 2022. He also cited polls for their upcoming 2024 rematch showing Herrell with a slight edge.
However, expert witness for the plaintiffs Sean Trende testified that his statistical analysis of the map showed Democrats are entrenched in the district.
“At a certain point — and it’s not 100% Democratic — it’s just a Democratic district,” he said, referring to partisan performance measures. “A district that leans toward the opposing party by more than three or four points — it’s going to be very difficult for the party to pick it up no matter what.”
The 2nd Congressional District has about a six point advantage for the Democrats, according to Legislative analysis.
Trende’s analysis included creating over two million politically-neutral, computer-generated maps and comparing them to the one New Mexico lawmakers enacted. He concluded that the congressional map “was constructed with the intent of disadvantaging the Republican Party and, in fact, did so.”
“It’s almost inconceivable that these maps were not drawn with heavy political considerations behind them,” he testified.
Democratic defendants have also hired an expert witness who performed his own statistical map analysis, Jowei Chen, who concluded the map could have resulted from a nonpartisan effort.
Are there plausible nonpartisan reasons for the new map?
To counter arguments that Democrats purposely entrenched their party, the defense will need to show that Democratic lawmakers had nonpartisan reasons for drawing the boundaries where they did.
Olsen said numerous Democratic lawmakers made those points during the redistricting process. He pointed to rationales like having both urban and rural constituencies in each district, responding to calls from certain tribes to be in multiple districts, and, “the importance of the oil and gas industry, and maximizing its representation in Congress so that it had multiple advocates.”
The oil-rich southeastern corner of New Mexico used to be entirely in Congressional District 2, but the new map splits it into each of the state’s three districts.
Republican Rep. Jim Townsend of Artesia testified that splitting the industry into multiple districts is not in its best interest, because there’s power in numbers.
“If you have a small segment of the industry, and a [U.S.] representative has more of Albuquerque than of Lea County, who are they going to listen to?” he asked. “They’re going to listen to where the votes are — in Albuquerque.”
Republican state Sen. David Gallegos, who is a plaintiff in the case and represents Lea and Eddy county in the state’s oil patch, reiterated that point. He said his constituents and family in the area, “don’t feel like they’re being cared for.”
All three GOP lawmakers who testified Wednesday, including Bill Sharer of San Juan County, said Democrats blocked members of their party from having any say in what the map looked like.
Governor dismissed as a defendant
As the first day of the trial got underway Wednesday, the state Supreme Court had two petitions before it that Democratic defendants submitted just the day before.
Gov. Michelle Lujan Grisham and Lt. Gov. Howie Morales filed an emergency petition to be dismissed as defendants, arguing in part that participating would stifle the governor’s capacity to defend herself against “myriad litigation challenging recent declaration of public health emergencies.”
Over lunch, the Supreme Court granted that petition. Democratic legislative leaders and Sec. of State Maggie Tolouse Oliver remain defendants in the case.
The other issue before the Supreme Court was a decision District Judge Fred Van Soelen had issued Tuesday. While lawmakers are generally shielded from testifying about their work, he determined that legislative privilege in this case "cannot be held as absolute."
While lawmakers still cannot be forced to testify about their thoughts and deliberation while drafting the map under his rule, any statements they made to members of the public during the process could be used as evidence.
Legislative defendants on Tuesday asked the high court to assess that call, writing that the harm of disclosing privileged matters would be “irreparable and severe.”
The Supreme Court denied the Democrats’ motion around midday. That means subpoenas for communication like emails from lawmakers to advocates or members of the public during the 2021 redistricting process will need to be honored.
Attorneys for legislative defendants argued there isn’t sufficient time to gather all of those documents in a few short days. The matter is expected to be taken back up Thursday morning.
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