Redistricting trial closes; ruling expected next week

Sep. 28—LOVINGTON — Although closing arguments ended Thursday in a trial questioning the legality of the state's congressional district map, more evidence could emerge next week for the judge to consider.

The trial did not include the testimony of any of the Democratic lawmakers named in the suit or those who received subpoenas to appear: state Sens. Mimi Stewart of Albuquerque, Peter Wirth of Santa Fe, Joseph Cervantes of Las Cruces and then-House Speaker Brian Egolf of Santa Fe.

Ninth Judicial District Judge Fred T. Van Soelen had already ruled they did not have to appear under what is known as legislative privilege. But he did agree Thursday to a request from attorneys for the plaintiffs to request text messages, emails and other forms of correspondence about redistricting from those lawmakers for use in the case.

Attorneys for both sides agreed to ask for those missives from Nov. 1 through Dec. 18, 2021. That covers both the time period leading into and during the special session at which the maps were approved and the day after Gov. Michelle Lujan Grisham signed the new maps into law on Dec. 17, 2021.

Sara N. Sanchez, who represents the Democratic lawmakers in the case, said her team could get those documents to the attorneys for the plaintiffs by the end of the day Monday. The plaintiffs' lawyers in turn told Van Soelen they can probably review them and admit the ones they want to him sometime Tuesday.

That means it's unlikely Van Soelen, who has until Oct. 6 to rule on the case, will make a decision before Wednesday.

In closing arguments Thursday night, lawyers for the plaintiffs, which include the Republican Party of New Mexico and several private citizens, told Van Soelen they had successfully made their case that Democrats creating the map moved Democratic voters into the formerly Republican-leaning 2nd Congressional District to dilute GOP voting power there. Democrats pulled off a "near-perfect gerrymander," said plaintiffs' attorney Misha Tseytlin.

Lawyers for the defense, which included a number of leading Democratic lawmakers, countered that no one claims there was no partisan influence on the mapmaking.

"The political reality is the GOP is the minority in the Legislature; the governor is a Democrat," Sanchez said. "That's probably not the best environment for a whole lot of political compromise to happen."

However, she said nothing the plaintiffs presented in court proved there was any evidence of illegal gerrymandering.

Their comments came at the end of the second day of the trial, which was originally scheduled to last three days. The case started when the Republican Party of New Mexico and seven individuals sued Democratic state officials in January 2022, shortly after the Legislature approved new congressional and legislative maps in response to population shifts documented by the 2020 U.S. census.

Earlier Thursday, the judge heard testimony from three redistricting experts, including Sean Trende, who also testified Wednesday on behalf of the plaintiffs. Trende, a senior policy advisor for the political and polling analysis website RealClearPolitics, said the mapping plan Democrats shaped and approved made the 2nd Congressional District "much, much more Democratic" and disadvantaged Republicans.

But during cross-examination Thursday, Lucas M. Williams, one of the attorneys for the defendants, questioned Trende's analysis, saying his report was impossible to verify because he did not save the the original set of over 2 million simulated maps he used in his report.

Trende acknowledged no one could run a diagnostic review on the original maps because they are gone. But, he said, they can use the data in his report to run a similar test to verify the results.

He acknowledged a second run of the same 2 million-plus maps might not come out exactly the same.

But Williams failed to convince Van Soelen to throw out Trende's Wednesday testimony.

Williams then called the first witness for the defense, Jowei Chen, a political science professor at the University of Michigan who provided an analysis of the redistricting map in question by running a 1,000-map simulation computer program, which was "partisan-blind," as he put it.

Chen said in his analysis of the map, its "partisan characteristics could have reasonably emerged from a partisan-neutral map-drawing process."

Albuquerque pollster Brian Sanderoff, whose company Research & Polling, Inc. provided staffing and technical aid to the Legislature in the redistricting process, also testified. He said he still thinks the 2nd District is a "toss up" district in any political contest between a Republican and a Democrat.

Congressional District 2 incumbent Yvette Herrell, a Republican, lost to Democrat contender Gabe Vasquez by roughly 1,350 votes in the 2022 election under the new map. Sanderoff said that close margin is evidence the new map does "not entrench the party in power."

The plaintiffs have pointed to the results of that election as a symbol of the impact the redrawn congressional boundaries had on Republican influence in southeastern New Mexico.

They say in the suit the 2nd District map adopted in 2021 shifted some communities with large numbers of Republicans into New Mexico's two safely Democratic congressional districts in the north and moved some Democratic communities into the 2nd District.

Sanderoff said it's important to realize that while Republican voter registration remains stable in the state — around the 31% mark — fewer New Mexicans are registering as Democrats and close to 25% of New Mexicans are registered as independents, or "decline to state." And many of those younger independents tend to vote for Democrats, he said, which factors into election results around the state.

Redistricting takes place in every state every 10 years, after each U.S. census, and uses updated data to redraw the geographic — and, some would say, political — boundaries of state legislative, congressional and, in New Mexico, Public Education Commission districts. Any changes to maps can impact who holds political power in a state.

If Van Soelen rules in favor of the Republicans, this could lead to a redrawing of New Mexico's congressional district boundaries, state GOP Chairman Steve Pearce said in an interview at the courthouse.

"The judge can do anything he wants, but my understanding is it would go back to the Legislature with instructions to redraw," Pearce said. "Then if the redraw does not satisfy what he believes to be a more balanced, less gerrymandered approach ... if he finds that it doesn't go [far] enough, then I understand he can draw the maps or have a specialist draw the maps."

Voting districts in New Mexico were last redrawn in 2012 by a state District Court after then-Gov. Susana Martinez, a Republican, vetoed a redistricting plan drafted by a Democratic-majority Legislature following the 2010 census.