Attorneys representing both sides of a lawsuit that accuses the Republican-majority Sandoval County Commission of gerrymandering commission districts are weighing how an opinion recently issued by the New Mexico Supreme Court in another gerrymandering case could have influence on their case.

In December 2021, the Sandoval County Commission approved new district maps on a party-line 3-2 vote. A year later, a group of Democratic Party officials, politicians, voters, and the pueblos of Jemez and San Felipe filed a civil lawsuit against the county commission, claiming the new district boundaries were drawn to favor of Republicans and non-Hispanic Whites, while diluting the vote of Democrats, Native Americans and Hispanics.

The lawsuit alleges that the Republican majority contracted with a former GOP legislator to draw up county commission districts that ultimately favored Republicans. Specifically, the lawsuit claims the map approved by the commission “pack” Native American communities into District 5 and gerrymander District 2 to give Republicans an advantage.

Redistricting of political districts occurs every 10 years and is based on data collected from the previous census.

Meanwhile, a higher profile gerrymandering case in New Mexico went to trial this week in Lovington. In that case, it’s the Republican Party of New Mexico and several voters who are challenging Congressional districts approved by the Democratic-majority state Legislature. It alleges that district boundaries were manipulated to give Democrats an advantage in the 2nd Congressional District, where Democrat Gabe Vasquez edged GOP incumbent Yvette Herrell to win the seat during the 2022 general election.

Days before the trial got underway in Lovington, the New Mexico Supreme Court issued an opinion intended to give guidance to 9th Judicial District Judge Fred T. Van Soelan who is overseeing the bench trial. The document provided legal reasoning for guidance the court provided earlier this summer, saying that a certain degree of gerrymandering was permissible.

While the opinion was issued for the case being heard in Lovington, attorneys in the Sandoval County case say the subject matter and timing are relevant to their case. The cases are different, yet similar. So it’s likely the same guidance in that case could be applied by 13th District Judge James Lawrence Sanchez in the Sandoval County case.

Giving Guidance

The unanimous opinion issued Sept. 25 by the state Supreme Court, made up entirely by Democrats, was written by Chief Justice C. Shannon Bacon. It concluded that a bipartisan gerrymandering claim is covered by the Equal Protection Clause of the state constitution. The essence of the opinion is that the court says the clause in the state constitution provides “broader protections” than the U.S. Constitution’s 14th Amendment.

Kenneth Stalter, co-counsel for the plaintiffs, said he had interpreted the clause the same way, but before the Supreme Court issued the opinion, that question had been left lingering.

“Now we have the answer,” he said. “That’s a significant, positive development in our case.”

The opinion said that “some degree of partisan gerrymandering is permissible” when drawing boundaries. But it also said that a “partisan gerrymander of an egregious degree” favoring one party could be contested in the courts.

Stalter said the guidance supports the premise of the plaintiff’s case and goes further by defining what constitutes an egregious violation.

“It says that it is reviewable, and here are the factors,” he said.

Taking guidance from a dissenting opinion in a US Supreme Court case, the state’s high court said three criteria must be met to reach an “egregious degree.”

First, plaintiffs must prove that there exists a ”predominant purpose” to entrench one political party in power over another. Second, it must be proven that the maps “substantially diluted” the rival party’s votes. And if both those are proven, then it’s on the government to demonstrate a “legitimate, nonpartisan justification” of the map that was adopted.

The opinion states that the court trying the case “may consider all evidence relevant to whether the challenged legislation seeks to effect political entrenchment through intentional and substantial vote dilution.”

Randy Autio, the attorney representing the county commission, said the opinion creates a precedent “that will allow courts in these (gerrymandering) cases to look at where there was an impact on voters based solely on political considerations.”

Randy Autio, the attorney representing the county commission, said the opinion creates a precedent “that will allow courts in these (gerrymandering) cases to look at where there was an impact on voters based solely on political considerations.”

He said prior to the court issuing its opinion, some degree of gerrymandering was viewed as being allowed under New Mexico law. “Now that’s still allowed, but the down and dirty of it is that it can’t be the sole motivation.”

The state Supreme Court provided guidance for determining whether gerrymandering went too far.

To test whether maps “substantially diluted” the vote of one party over another, for instance, the court suggested voter percentage data from before and after redistricting took place could be provided as evidence. 

The plaintiffs in the Sandoval County case did just that in their lawsuit. It claims that under the map used in the 2020 general election, Democrats held a 52-46 percent advantage over Republicans. But now, under the new maps, Republicans now hold the edge, 51-47.

Stay tuned

There hasn’t been much activity in the case since the Signpost updated the status of the case in July. At that time, court records showed that the only activity in the case so far in 2023 were depositions from County Manager Wayne Johnson and former Republican state Sen. Rod Adair, whose company drew up an array of maps from which the commission selected the one that now applies.

Attorney Stalter said the pace in the case could pick up now that the Supreme Court has chimed in.

“In part, we were waiting for the results of the Supreme Court to know what the landscape of our case is,” he said. “There’s a lot more we can do now that we have a legal framework.”

Autio agreed.

“I think everyone was kind of waiting to see what the Supreme Court did,” he said. “Stay tuned. It will be enlightening.”

TS Last, editor

TS Last is the editor of the Corrales Comment and senior contributor to the Sandoval Signpost. A 25-year veteran of New Mexico news, he previously served as the editor of the Journal North in Santa Fe and has worked in the newsrooms of the El Defensor Chieftan and Valencia News Bulletin.

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