Parties began making their cases Wednesday in a trial over whether New Mexico鈥檚 Democratic-led Legislature in 2021 illegally drew the boundaries of the state鈥檚 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鈥檛 drawn fairly.
They also presented text messages from Senate President Pro Tem Mimi Stewart sent during the redistricting session, which they argue illustrate lawmakers鈥� 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, 鈥淭hat鈥檚 not enough for a mid term (sic) election so we adjusted some edges, scooped up more of abq [Albuquerque] and are now at 53%.鈥�
鈥淲hat鈥檚 so remarkable about these texts is that Sen. Stewart not only admits that gerrymandering was happening, but explains how and why,鈥� said attorney Misha Tseytlin.
In the defense鈥檚 opening statement, attorney Richard Olsen said, 鈥淭he stray comments by a few Legislators are irrelevant and certainly aren鈥檛 determinative of legislative intent.鈥�
Did Democrats make the 2nd Congressional District a sure thing?
The state Supreme Court earlier this year that some partisan gerrymandering is acceptable in redistricting, as long as it is not 鈥渆gregious.鈥� 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鈥檛 be able to win.
鈥淚f the intent was to entrench, the parties who were allegedly entrenching did a pretty sorry job,鈥� 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.
鈥淎t a certain point 鈥� and it鈥檚 not 100% Democratic 鈥� it鈥檚 just a Democratic district,鈥� he said, referring to partisan performance measures. 鈥淎 district that leans toward the opposing party by more than three or four points 鈥� it鈥檚 going to be very difficult for the party to pick it up no matter what.鈥�
The 2nd Congressional District has about a six point advantage for the Democrats, according to
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 鈥渨as constructed with the intent of disadvantaging the Republican Party and, in fact, did so.鈥�
鈥淚t鈥檚 almost inconceivable that these maps were not drawn with heavy political considerations behind them,鈥� he testified.
Democratic defendants have also hired an expert witness who performed his own statistical map analysis, Jowei Chen, 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, 鈥渢he importance of the oil and gas industry, and maximizing its representation in Congress so that it had multiple advocates.鈥�
The oil-rich southeastern corner of New Mexico entirely in Congressional District 2, but splits it into each of the state鈥檚 three districts.
Republican Rep. Jim Townsend of Artesia testified that splitting the industry into multiple districts is not in its best interest, because there鈥檚 power in numbers.
鈥淚f 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?鈥� he asked. 鈥淭hey鈥檙e going to listen to where the votes are 鈥� in Albuquerque.鈥�
Republican state Sen. David Gallegos, who is a plaintiff in the case and represents Lea and Eddy county in the state鈥檚 oil patch, reiterated that point. He said his constituents and family in the area, 鈥渄on鈥檛 feel like they鈥檙e being cared for.鈥�
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鈥檚 capacity to defend herself against 鈥渕yriad litigation challenging recent declaration of public health emergencies.鈥�
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 鈥渋rreparable and severe.鈥�
The Supreme Court denied the Democrats鈥� 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鈥檛 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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