What was scheduled to be a three-day bench trial to determine whether New Mexico Democrats illegally drew the boundaries of the state’s congressional map in 2021 ended a day early on Thursday.
While the courtroom proceedings are done, the state Republican party and other plaintiffs are still waiting for subpoenas of Democratic lawmakers and legislative staff to be fulfilled.
In his closing argument, attorney for the plaintiffs Misha Tseytlin said it remained undisputed during the trial that the state’s Democratic lawmakers intentionally moved voters around in a way that raised the Democratic Performance Index or “DPI” percentage high enough in the 2nd Congressional District to dilute GOP votes.
"The Democrats who control the legislature were trying to create a near-perfect gerrymander by pushing the DPI in District 2 as close as they could to 54% while not pushing it below 54 in other districts," he said.
Democrats have 53% of likely votes in the southern district, 53.5% in the 1st Congressional District and 56% in the 3rd, according to legislative analysis.
Tseytlin argued New Mexico Democrats entrenched their party in the southern district by making it difficult for a GOP congressional candidate to win, even if it would still be possible in a year with other factors on their side.
In 2022, Republican Yvette Herrell lost to Rep. Gabe Vasquez by only about 1,300 votes. Tseytlin said Herrell being an incumbent may have boosted her chances “a couple points” and Republicans nationally also had a strong midterm showing.
"That would account entirely for the close race," he said.
Attorney for the defense Sara Sanchez said in her closing that her team was able to prove that Democrats are not entrenched in the district.
The legislation that redrew the district, "is not an egregious partisan gerrymander for one very simple reason: under this plan, Congressional District 2 is a highly competitive toss-up district that either party can win," she said.
A recent KOB-TV poll showed Republican Yvette Herrell has a slight edge in the 2024 race for the district.
Contradictory map analyses
Both the Republican plaintiffs and Democratic defendants commissioned experts to conduct analyses of the state’s congressional map by comparing it to computer-generated, nonpartisan maps.
The findings of the two experts differ greatly, each bolstering the argument of the counsel that retained them.
Expert for the plaintiffs Sean Trende’s report concludes New Mexico’s congressional map is an “extreme outlier” when compared to over two million computer-simulated maps.
"It’s almost inconceivable that these maps were not drawn with heavy political considerations behind them," he said.
Meanwhile, an analysis by the defense’s expert Jowei Chen showed the state’s map is not an outlier when compared to a sample of 1,000 computer-generated maps he created without using partisan data. It fell near the middle of the pack on various tests he ran comparing its partisan performance to the others.
While Chen did not weigh in on whether New Mexico’s congressional map is a partisan gerrymander in his report, he concluded it was possible to create it through a partisan-neutral process.
Trende, on the other hand, testified that New Mexico’s map was an “egregious gerrymander.”
A key characteristic of Chen’s nonpartisan maps the plaintiffs took issue with is that he included a requirement that no district encompass more than 60% of the state’s active oil wells.
Chen said attorneys for Democratic legislative defendants instructed him to include that because it was a “policy consideration” among lawmakers.
The effect was that all of Chen’s maps split up Lea and Eddy Counties in the southeast corner of the state, where the majority of the state’s active oil wells are located. It’s also a heavily Republican region.
Attorney for the Republican Party and other plaintiffs, Molly DiRago, argued that criterion made all of Chen’s samples gerrymanders. She requested his testimony be excluded from the evidence.
The judge denied the plaintiff’s motion, just as he did earlier in the trial when the defendants requested to exclude Trende’s testimony, on the grounds that Trende did not save the maps he analyzed so that their team could test his conclusions.
More evidence and a ruling to come
More evidence is yet to come.
The parties came to an agreement Thursday over subpoenas the plaintiffs issued to Democratic lawmakers and legislative staff back in July that had been in question and so not fulfilled.
On Tuesday, Judge Fred Van Soelen decided what would be admissible would be any messages, including emails and texts, those individuals sent during the redistricting process to people who are not fellow lawmakers or staffers. The state Supreme Court affirmed that decision Wednesday.
With time ticking in the speedy trial, the parties agreed on a limited timeframe and search terms that could help narrow the number of messages the lawmakers and staffers would have to dig up, and the defense would have to review.
The subpoenaed individuals must submit any emails, texts or other messages sent between Nov. 1 and Dec. 18, 2021, about New Mexico’s congressional redistricting that meet certain search criteria. Terms include versions of names for the map or the district like “CD2,” along with the word “congressional” and the names “Yvette” and “Herrell.”
Plaintiffs said at the end of the day they had already received messages from an unnamed legislative staffer, which attorney Misha Tseytlin called “explosive,” but did not give details.
Judge Van Soelen has asked the defense to get him all the documents by end of day Monday ahead of his deadline next Friday, Oct. 6, to rule on the case.
If found to be unconstitutional, a new map will have to be drawn ahead of next year’s election.
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