ANTONIO MAESTAS and BRIAN FRANKLIN EGOLF, JR., members of the New Mexico House of Representatives, and JUNE LORENZO, ALVIN WARREN, ELOISE GIFT and HENRY OCHOA, Petitioners, v. HON. JAMES A. HALL, District Judge Pro Tempore of the First Judicial District Court, Respondent, and SUSANA MARTINEZ, in her capacity as Governor of New Mexico, et al., Real Parties in Interest, and MAURILIO CASTRO, BRIAN FRANKLIN EGOLF, JR., MEL HOLGUIN, HAKIM BELLAMY and ROXANE SPRUCE BLY, PUEBLO OF LAGUNA, PUEBLO OF ACOMA, JICARILLA APACHE NATION, PUEBLO OF ZUNI, PUEBLO OF SANTA ANA, PUEBLO OF ISLETA, RICHARD LUARKIE, HARRY A. ANTONIO, JR., DAVID F. GARCIA, LEVI PESATA and LEON REVAL, NAVAJO NATION, LORENZO BATES, DUANE H. YAZZIE, RODGER MARTINEZ, KIMMETH YAZZIE and ANGELA BARNEY NEZ, Intervenors. CONSOLIDATED WITH TIMOTHY Z. JENNINGS, in his official capacity as President Pro Tempore of the New Mexico Senate, and BEN LUJAN, SR., in his official capacity as Speaker of the New Mexico House of Representatives, Petitioners, v. THE NEW MEXICO COURT OF APPEALS, Respondent, and DIANNA J. DURAN, in her official capacity as New Mexico Secretary of State, SUSANA MARTINEZ, in her capacity as New Mexico Governor, and JOHN A. SANCHEZ in his official capacity as New Mexico Lieutenant Governor and presiding officer of the New Mexico Senate, Real Parties in Interest, and JONATHAN SENA, DON BRATTON, CARROLL LEAVELL, GAY KERNAN, CONRAD JAMES, DEVON DAY, MARGE TEAGUE, MONICA YOUNGBLOOD, JUDY MCKINNEY, JOHN RYAN, MAURILIO CASTRO, BRIAN F. EGOLF, JR., MEL HOLGUIN, HAKIM BELLAMY and ROXANE SPRUCE BLY, PUEBLO OF LAGUNA, PUEBLO OF ACOMA, JICARILLA APACHE NATION, PUEBLO OF ZUNI, PUEBLO OF SANTA ANA, PUEBLO OF ISLETA, RICHARD LUARKIE, HARRY A. ANTONIO, JR., DAVID F. GARCIA, LEVI PESATA and LEON REVAL, NAVAJO NATION, LORENZO BATES, DUANE H. YAZZIE, RODGER MARTINEZ, KIMMETH YAZZIE and ANGELA BARNEY NEZ, Intervenors.
Docket No. 33,386 and Docket No. 33,387
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
February 21, 2012
2012-NMSC-006
I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM ‘00‘05- 15:30:51 2012.11.29
John V. Wertheim
Jerry Todd Werthiem
Santa Fe, NM
The Law Office of Katherine Ferlic
Katherine Ferlic
Santa Fe, NM
Thompson Law Firm
David K. Thompson
Santa Fe, NM
for Petitioners Antonio Maestas, June Lorenzo, Eloise Gift, Alvin Warren and Henry Ochoa
Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A.
Luis G. Stelzner
Sara N. Sanchez
Albuquerque, NM
Hinkle, Hensley, Shanor & Martin, L.L.P.
Richard E. Olson
Jennifer M. Heim
Roswell, NM
for Petitioners Timothy Z. Jennings and Ben Lujan, Jr.
The Egolf Law Firm, L.L.C.
Brian Franklin Egolf, Jr., Pro Se
Santa Fe, NM
for Petitioner
Kennedy & Han, P.C.
Paul J. Kennedy
Albuquerque, NM
Jessica M. Hernandez
Matthew J. Stackpole
Santa Fe, NM
Peifer, Hanson & Mullins, P.A.
Charles R. Peifer
Robert E. Hanson
Matthew R. Hoyt
Albuquerque, NM
for Real Party in Interest John A. Sanchez
Doughty & West, P.A.
Robert M. Doughty, III
Judd C. West
Albuquerque, NM
for Real Party in Interest Dianna J. Duran
Freedman Boyd Hollander Goldberg Ives & Duncan, P.A.
Joseph Goldberg
John Warwick Boyd
David Herrera Urias
Albuquerque, NM
Garcia & Vargas, L.L.C.
Ray M. Vargas, II
David P. Garcia
Erin O‘Connell
Santa Fe, NM
for Intervenors Maurilio Castro, Brian F. Egolf, Jr., Mel Holguin, Hakim Bellamy and Roxane Spruce Bly
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Patrick J. Rogers
Albuquerque, NM
Scott & Kienzle, P.A.
Duncan Scott
Paul M. Kienzle, III
Albuquerque, NM
for Intervenors Jonathan Sena, Don Bratton, Carroll Leavell, and Gay Kernan
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Henry M. Bohnhoff
Albuquerque, NM
Christopher Saucedo
Iris L. Marshall
Albuquerque, NM
David A. Garcia, L.L.C.
David A. Garcia
Albuquerque, NM
for Intervenors Conrad James, Devon Day, Marge Teague, Monica Youngblood, Judy McKinney and John Ryan
Nordhaus Law Firm, L.L.P.
Teresa Isabel Leger
Cynthia Kiersnowski
Santa Fe, NM
Casey Douma
Laguna, NM
for Intervenors Pueblo of Laguna, Pueblo of Acoma, Jicarilla Apache Nation, Pueblo of Zuni, Pueblo of Santa Ana, Pueblo of Isleta, Richard Luarkie, Harry A. Antonio, Jr., David F. Garcia, Levi Pesata and Leon Reval
Wiggins, Williams & Wiggins, P.C.
Patricia G. Williams
Jenny Dumas
Albuquerque, NM
Dana Lee Bobroff
Window Rock, AZ
for Intervenors Navajo Nation, Lorenzo Bates, Duane H. Yazzie, Rodger Martinez, Kimmeth Yazzie and Angela Barney Nez
OPINION
CHÁVEZ, Justice.
{1} One of the most precious personal rights in a free society is the right to vote for the candidate of one‘s choice. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The right to vote is the essence of our country‘s democracy, and therefore the dilution of that right strikes at
{2} At issue in this case is the apportionment of the New Mexico House of Representatives following the 2010 federal census. It is undisputed that the House of Representatives at this time is unconstitutionally apportioned. The Legislature passed House Bill 39, which reapportioned the House, during the 2011 Special Session. Governor Susana Martinez vetoed House Bill 39.1 Because the lawmaking process failed to create constitutionally-acceptable districts, the burden fell on the judiciary to draw a reapportionment map for the House. To accomplish this we designated retired District Judge James Hall, a hard-working jurist with an impeccable reputation for both fairness and impartiality, to assume this arduous undertaking.
{3} After eight days of testimony and the submission of numerous reapportionment maps by the parties, the district court adopted, in part, the third alternative plan submitted by the attorneys representing Governor Martinez and Lieutenant Governor John Sanchez (Executive Alternative Plan 3). Petitioners filed petitions for a writ of superintending control asking this Court to assume jurisdiction over the case. Petitioners asked this Court to either reverse the district court and adopt an alternative plan or remand the case with instructions regarding the legal standards that the district court should apply. Petitioners argued that the district court incorrectly applied the law for reapportionment (1) by not protecting against the dilution of minority voting rights under the Voting Rights Act; (2) by prioritizing the smallest deviations from ideal population equality over the traditional redistricting principles; and (3) by selecting a partisan plan. In addition, Petitioners raised issues such as due process and separation of powers that were addressed in an order we entered on February 10, 2012, or that are otherwise deemed to be without merit.
{4} We granted Petitioners’ requests for writs of superintending control by assuming jurisdiction in this matter and established an extremely expedited briefing schedule designed
BACKGROUND AND PROCEDURAL HISTORY
{5} The House of Representatives must be composed of seventy members elected from single-member districts that are contiguous and as compact as is practicable and possible.
{6} The need to reapportion elected offices in the New Mexico House of Representatives is readily apparent from the above summary of population growth and shifts. The Legislature has the responsibility to reapportion its membership. See
{7} During the summer of 2011, the Interim Redistricting Committee held public hearings throughout New Mexico and gathered input from citizens and special interest groups. Possible redistricting plans were presented to the public for their input. Demographer Brian Sanderoff and his company, Research & Polling, Inc., worked with Republican and Democrat legislators to create plans requested by individual legislators or their caucuses. A common theme expressed by citizens during these hearings was their desire to keep their municipalities and communities unified so that their representatives would better represent their interests and values. The Native American leadership fully participated in the public meetings and worked closely with the Legislature throughout the process to convey their concerns and preferences for Native American voting districts. The Native American leaders also attempted to communicate with the Governor‘s Office both prior to and during the Special Session to convey their preferences, but they did not receive
{8} During the entire legislative process, including the Special Session, over 200 redistricting plans were drafted by Research & Polling. Many of those plans were introduced during the Special Session and debated in committee and on the floor of both legislative chambers. No redistricting plan introduced during the Special Session was identified as proposed or approved by Governor Martinez. House Bill 39, which reapportioned the House, passed both the House and the Senate without a single Republican vote in favor of the bill. Governor Martinez later vetoed the bill.
{9} Numerous complaints by various parties were filed in different state district courts challenging the constitutionality of the current distribution of voters under the State and Congressional maps. We found it appropriate to exercise our superintending control because this is not the first time New Mexico courts have been imposed upon to reapportion political maps. See Jepsen v. Vigil-Giron, No. D-0101-CV-02177 (N.M. D. Ct. January 24, 2002). We consolidated all of the cases and appointed retired District Judge James Hall to preside over the redistricting litigation.
{10} During the trial, the district court was initially presented with six complete House redistricting plans: (1) the Legislative Plan passed by the Legislature as House Bill 39; (2) the Executive Plan; (3) the James Plan; (4) the Sena Plan; (5) the Egolf Plan; and (6) the Maestas Plan. The Multi-Tribal/Navajo Nation plaintiffs also submitted partial plans to address the concerns of the Native American population in New Mexico. As the trial progressed, nine additional plans were tendered by certain parties, some to address criticisms raised during the testimony of various witnesses and others to respond to the district court‘s request. In addition to numerous lay witnesses, seven expert witnesses, some demographers and other political scientists, testified in favor of and in opposition to certain maps.
{11} The executive plaintiffs tendered Executive Alternative Plan 3, which was adopted in part by the district court, into evidence on the last day of testimony. The Governor‘s demographer who drew the plan was not available to testify. In addition, other expert witnesses who had previously introduced methodologies for assessing the partisan performance of plans and compliance with historic state policies were also not available to testify. Brian Sanderoff, the earlier-mentioned demographer, who had assisted legislators from all parties to prepare redistricting maps, testified about Executive Alternative Plan 3. He noted that the plan had significant partisan performance changes and that the plan could have been drawn without such significant changes.
{12} The district court entered detailed findings of fact and conclusions of law rejecting the Legislative Plan and other plans submitted by the parties. The Legislative Plan was rejected because it systematically left North Central and Southeastern New Mexico underpopulated, which diluted the votes of the persons in the more populated areas of the state: specifically West Albuquerque, Rio Rancho, and Doña Ana County. An overriding, related concern was the Legislative Plan‘s failure to consolidate a district in North Central
{13} The district court adopted Executive Alternative Plan 3, with a minor modification, because it found that the plan prioritized low population deviations between districts, adhered to the requirements of the Voting Rights Act, and reasonably satisfied secondary reapportionment policies. The district court acknowledged that Executive Alternative Plan 3 impacted partisan performance measures, but determined that because all of the plans had some partisan effect, it was compelled not to allow partisan considerations to control the outcome of its decision.
GOVERNING PRINCIPLES
{14} Our review of whether the district court applied the correct legal standards in selecting a redistricting plan is de novo. Strausberg v. Laurel Healthcare Providers, LLC, 2012-NMCA-006, ¶ 6, 269 P.3d 914. As mentioned earlier, the “one person, one vote” doctrine applied by the United States Supreme Court in Reynolds, 377 U.S. at 558 (internal quotation marks and citation omitted), is grounded in the Equal Protection Clause. This doctrine prohibits the dilution of individual voting power by means of state districting plans that allocate legislative seats to districts of unequal populations, thereby diminishing the relative voting strength of each voter in overpopulated districts. While the United States Supreme Court has held that population equality is the paramount objective of apportionment for congressional districts, Karcher v. Daggett, 462 U.S. 725, 732-33 (1983), state legislative district plans require only “substantial” population equality, see Gaffney v. Cummings, 412 U.S. 735, 748 (1973). According to the results of the 2010 census, ideal population equality among each of the seventy House Districts in New Mexico would be 29,417 persons. However, such mathematical precision is not mandated by the Equal Protection Clause. See Reynolds, 377 U.S. at 577. Adherence to the requirements of the Voting Rights Act is essential, and justifiable considerations, such as incorporating legitimate and rational state policies relevant to our representative form of government, may result in deviations from ideal population equality. See id. at 577-81.
VOTING RIGHTS ACT
{15} Section 2 of the Voting Rights Act of 1965,
based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
{16} The essential inquiry is whether, as a result of the way the districts are structured, the protected minority group does “not have an equal opportunity to participate in the political processes and to elect candidates of their choice.” Gingles, 478 U.S. at 44 (internal quotation marks and citation omitted). Relevant to this essential inquiry are the non-exclusive factors set forth in the Senate Report on the 1982 amendments to the Voting Rights Act, which include
the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group . . .; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State‘s or the political subdivision‘s use of the contested practice or structure is tenuous may have probative value.
Gingles, 478 U.S. at 44-45 (citing S. Rep. No. 97-417 (1982), at 28-29, U.S. Code Cong. & Admin. News 1982, at 205-07).
{17} For the purposes of Section 2 of the Voting Rights Act, only eligible voters affect a group‘s opportunity to elect candidates. Therefore, the question is whether the minority group has a citizen voting-age majority in the district. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 427-29 (2006). Also under Section 2, because the injury is
{18} In this case, the district court‘s Findings of Fact 42 through 60 support adopting the Multi-Tribal/Navajo Nation partial plan. These findings by the district court have not been challenged on appeal, and therefore any redistricting plan must contain the Multi-Tribal/Navajo Nation partial plan.
{19} The Egolf petitioners, however, have raised the issue of whether the district court applied the correct legal standard to its analysis of the Hispanic community in and around Clovis, New Mexico. The district court found that “[t]he Hispanic community in and around Clovis is sufficiently large and geographically compact to constitute a majority in a single-member district,” that the community “is politically cohesive,” and that “Anglos in the area vote sufficiently as a bloc to enable them to usually defeat the minority‘s preferred candidate.”
{20} A federal three-judge panel had previously found a detailed history of racial and ethnic discrimination affecting the Clovis minority population. Sanchez v. King, No. 82-0067-M (D.N.M. 1984). That panel found a violation of federal law and redrew House District 63 to include compact and politically cohesive Clovis minorities and make the district a performing, effective, majority-minority district. Id. “Of course, the federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law. But that does not mean that the State‘s powers are similarly limited.” Voinovich v. Quilter, 507 U.S. 146, 156 (1993). Although House District 63 was reshaped in the Jepsen court-ordered redistricting plan, it remains an effective majority-minority district. In the present trial, there was no evidence to establish that the relevant population had materially changed so as to no longer require an effective majority-minority district. Therefore, the same considerations that led to a redrawing of House District 63 in 1984 continue to be relevant to the history of voting-related discrimination in this area. As a result, on remand the district court should determine whether the relevant population is an effective Hispanic citizen voting-age population. Any redistricting plan ultimately adopted by the district court should maintain an effective majority-minority district in and around the Clovis area unless specific findings are made based on the record before the district court that Section 2 Voting Rights Act considerations are no longer warranted.
MINOR DEVIATIONS BASED ON LEGITIMATE AND RATIONAL STATE
{21} Although ideal population equality and whether a plan dilutes the vote of any racial minority are primary considerations in drawing a districting map, minor deviations from absolute population equality are tolerated to permit states to pursue legitimate and rational state policies relevant to our representative form of government. See Mahan v. Howell, 410 U.S. 315, 321-22 (1973) (recognizing that more flexibility is constitutionally permissible with respect to state legislative reapportionment than in congressional reapportionment). We interpret the United States Supreme Court to require courts to consider “the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution.” White v. Weiser, 412 U.S. 783, 795 (1973). Adhering to state policies is a way in which courts can give effect to the will of the majority of the people. Preisler v. Secretary of State, 341 F. Supp. 1158, 1161-62 (D.C. Mo. 1972).
{22} Because the promotion of legitimate and rational state policies will often necessitate “minor deviations” from absolute population equality, the United States Supreme Court has held that such minor deviations alone are insufficient to establish a prima facie case of invidious discrimination. Voinovich, 507 U.S. at 161. So what constitutes a minor deviation? In Brown v. Thomson, 462 U.S. 835, 842 (1983), the United States Supreme Court held that redistricting plans with a maximum population deviation below ten percent fall within the category of minor deviations that are insufficient to establish a prima facie violation of the Equal Protection Clause.
{23} The following methodology is used to calculate deviation percentages. First, the population deviation of a district is the percentage by which a district‘s population is above or below the ideal population. The ideal population is determined by dividing the total population by the total number of districts in the state. “Total deviation” is determined by adding the absolute deviation of the district with the largest population to the absolute deviation of the district with the smallest population. The total deviation can also be thought of as the range of population deviations.
{24} If ten percent is the maximum allowable deviation, then a legislative plan with five percent deviations or less in each district will be prima facie constitutional because the total absolute deviation will not exceed ten percent. Conversely, legislative plans with a total population deviation greater than ten percent are prima facie unconstitutional. See Brown, 462 U.S. at 842-43. The New Mexico State Legislature has declared it to be state policy not to consider a redistricting plan that includes any district with a total population that deviates more than plus or minus five percent from ideal. Thus, no district may contain a population that deviates more than plus or minus 1,470 persons from the ideal population of 29,417.
{25} However, simply because a plan has minor deviations that are prima facie constitutional does not mean that such plans are immune from judicial challenge. See Larios v. Cox, 300 F. Supp. 2d 1320, 1340-41 (N.D. Ga. 2004) (rejecting Georgia‘s redistricting
{26} Yet plans with prima facie constitutional ten-percent deviations are plans drawn by a legislature that have become law. In contrast to legislatively-drawn plans, court-drawn plans are held to a higher standard, and “must ordinarily achieve the goal of population equality with little more than de minimus variation.” Chapman v. Meier, 420 U.S. 1, 27 (1975). The United States Supreme Court has not defined what constitutes de minimus variations for a court-drawn plan.2 However, unlike a legislative body that does not have to articulate the policy reasons for minor deviations from ideal population equality, unless the range of deviations exceeds ten percent, a court must enunciate the historically significant state policy or unique features that it relies upon to justify deviations from ideal population equality. Connor v. Finch, 431 U.S. 407, 419-20 (1977).
PERMISSIBLE STATE POLICIES WHICH JUSTIFY POPULATION DEVIATIONS
{27} When called upon to draw a redistricting map, a court acts in equity and may adopt a plan submitted by a party, modify such a plan, or draw its own map. See O‘Sullivan v. Brier, 540 F. Supp. 1200, 1202-03 (D.C. Kan. 1982). The most fundamental tenet of judicial administration and independence is that “the process must be fair, and it must [also] appear to be fair.” See Peterson v. Borst, 786 N.E.2d 668, 673 (Ind. 2003) (internal quotation marks and citation omitted). This concept of judicial independence, that judges decide the merits of a case based on the facts and the law before them, without fear or favor, is particularly important in this area, which is fundamentally a political dispute. As Justice Felix Frankfurter observed in Colegrove v. Green, 328 U.S. 549, 554 (1946), “[t]he one stark fact that emerges from a study of the history of [legislative] apportionment is its embroilment in politics, in the sense of party contests and party interests.” Thus, his strong recommendation was that “[c]ourts ought not to enter this political thicket.” Id. at 556. Unfortunately, because of the inability of our sister branches of government to find a way to work together and address the most significant decennial legislation to affect the voting rights of the adult citizens of our State, the judiciary in New Mexico finds itself embroiled in this political thicket.
{29} A court‘s adoption of a plan that represents one political party‘s idea of how district boundaries should be drawn does not conform to the principle of judicial independence and neutrality. Peterson, 786 N.E.2d at 673. Although some courts are indifferent to political considerations such as incumbency or party affiliation, Burling v. Chandler, 804 A.2d 471, 474 (N.H. 2002) (per curiam), other courts question the wisdom of such indifference, Gaffney, 412 U.S. at 753 (“It may be suggested that those who redistrict and reapportion should work with census, not political, data and achieve population equality without regard for political impact. But this politically mindless approach may produce, whether intended or not, the most grossly gerrymandered results.“).
{30} The district court heard several of the parties’ expert witnesses testify about court-drawn plans and partisan neutrality. One of the executive‘s expert witnesses who testified in this case agreed that a court should not select a plan that gives one political party a partisan advantage. Dr. Keith Gaddie testified that how political balance is shifted by the court plan when compared to the baseline map is an important consideration. Dr. Theodore Arrington also testified that when courts draw redistricting plans, there is more partisan balance and more competitive districts. Dr. Thomas Lloyd Brunell, the executive‘s other expert witness, put it more bluntly: “[c]ourts . . . try not to advance the purposes or the ability of one party to really elect a lot more people than the status quo. . . .” Whether these experts would have expressed concern about Executive Alternative Plan 3 is not known because they had testified before this plan was introduced into evidence.
{31} Despite our discomfort with political considerations, we conclude that when New Mexico courts are required to draw a redistricting map, they must do so with the appearance of and actual neutrality. The courts should not select a plan that seeks partisan advantage. As was evident from the numerous plans drawn in this case, parties are capable of drawing maps that seek to give themselves a partisan advantage. This was true even when the party was able to maintain de minimus population deviations. When a court is required to draw a redistricting map, it is a desirable goal for the court to draw a partisan-neutral map that complies with both the one person, one vote doctrine and the requirements of the Voting Rights Act. To accomplish this goal, partisan symmetry may be one consideration. Although partisan asymmetry is not a reliable measure of unconstitutional partisanship,
{32} However, because redistricting is primarily the responsibility of the State Legislature, courts must look at previous plans and policies when drawing redistricting maps. Even plans that pass the Legislature but fail to be enacted into law, such as House Bill 39, are due “thoughtful consideration.” See Sixty-Seventh Minn. State Senate v. Beens, 406 U.S. 187, 197 (1972). Thoughtful consideration is important because redistricting ordinarily involves criteria, policies, and standards that have been publicly deliberated by both the legislative and the executive branches of government in the exercise of their political judgment. More importantly, it is during the legislative process that the public regularly participates by commenting on policies and plans and observing the legislators deliberate the virtues of different policies and plans during open meetings. The Legislature is the voice of the people, and it would be unacceptable for courts to muzzle the voice of the people simply because the Legislature was unable, for whatever reason, to have its redistricting plan become law.
{33} Adhering to policies adopted by the Legislature gives effect to the will of the majority of the people and is permissible in redistricting litigation. See White, 412 U.S. at 795-96. Other courts have looked to state policies when drawing a redistricting plan. Bone Shirt v. Hazeltine, 387 F. Supp. 2d 1035, 1042 (D.S.D. 2005) (directing that a court should apply traditional state districting principles); Arizonans for Fair Representation v. Symington, 828 F. Supp. 684, 688 (D. Ariz. 1992), aff‘d, 507 U.S. 981 (1993) (a court may look to several neutral criteria in drawing a redistricting plan that is politically fair); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002) (“Widely recognized ‘neutral redistricting criteria’ may be considered” when drawing a redistricting map.“).
{34} The bipartisan New Mexico Legislative Council adopted guidelines which set forth policies that are similar to policies that have been recognized as legitimate by numerous courts. Testimony during the trial revealed that these guidelines, or other guidelines very similar in substance, have been followed in New Mexico since 1991. These guidelines were followed by the court in Jepsen, and should be considered by a state court when called upon to draw a redistricting map. The policies set forth in the guidelines that are relevant to state districts include:
b. State districts shall be substantially equal in population; no plans for state office will be considered that include any district with a total population that deviates more than plus or minus five percent from the ideal.
. . .
d. Since the precinct is the basic building block of a voting district in New Mexico, proposed redistricting plans to be considered by the legislature shall not be comprised of districts that split precincts.
e. Plans must comport with the provisions of the Voting Rights Act of 1965, as amended, and federal constitutional standards. Plans that dilute a protected minority‘s voting strength are unacceptable. Race may be considered in developing redistricting plans but shall not be the predominant consideration. Traditional race-neutral districting principles (as reflected below) must not be subordinated to racial considerations.
f. All redistricting plans shall use only single-member districts.
g. Districts shall be drawn consistent with traditional districting principles. Districts shall be composed of contiguous precincts, and shall be reasonably compact. To the extent feasible, districts shall be drawn in an attempt to preserve communities of interest and shall take into consideration political and geographic boundaries. In addition, and to the extent feasible, the legislature may seek to preserve the core of existing districts, and may consider the residence of incumbents.
{35} Some comment is necessary regarding these guidelines. Single-member districts are required by
{36} Similarly, considering political and geographic boundaries furthers our representative government. Minimizing fragmentation of political subdivisions, counties, towns, villages, wards, precincts, and neighborhoods allows constituencies to organize effectively and decreases the likelihood of voter confusion regarding other elections based on political subdivision geographics. See Prosser v. Elections Bd., 793 F. Supp. 859, 863 (1992).
{38} Incumbency considerations present their own difficulties. The United States Supreme Court in Karcher, 462 U.S. at 740, held that the legislative policy of avoiding contests between incumbents was included among legitimate objectives, which “on a proper showing could justify minor population deviations.” See also White, 412 U.S. at 791 (“[I]n the context of state reapportionment . . . the fact that ‘district boundaries may have been drawn [to] minimize[] the number of contests between present incumbents does not in and of itself establish invidiousness.‘” (quoting Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966))); Gaffney, 412 U.S. at 752. However, incumbency protection cannot be justified if it is simply for the benefit of the officeholder and not in the interests of the constituents. League of United Latin Am. Citizens, 548 U.S. at 403.
{39} In summary, we interpret United States Supreme Court precedent to permit courts encumbered with the responsibility to draw redistricting maps to be guided by legislative policies underlying state plans to the extent the policies do not violate either the constitution or the Voters Rights Act. Perry v. Perez, U.S. __, ___, 132 S. Ct. 934, 941-42 (2012) (per curiam). A court is not required to rigidly adhere to maximum population equality as long as the court can enunciate the state policy on which it relies in deviating from the ideal population. By only deviating for enunciated state policy reasons, the court complies with the constitution and furthers the state‘s interests. In this case, we interpret the district court to have concluded that it was bound to a plus-or-minus one-percent population deviation with the sole exception of addressing the requirements of the Voting Rights Act. This conclusion does not conform to our view of the proper legal standard to be applied in redistricting cases as articulated above. Thus, we remanded this matter to the district court to draw its own redistricting map to avoid, to the extent possible, partisan bias, and to determine whether it could implement legitimate state policies by employing a more flexible approach to ideal population equality without departing from constitutional considerations.
THE DISTRICT COURT SHOULD HAVE SCRUTINIZED ALL OF THE PLANS FOR POLITICAL CONSIDERATIONS
{40} The district court considered evidence regarding the partisan bias of various plans, and acknowledged the same in its findings of fact and conclusions of law. However, the plan ultimately adopted by the district court, Executive Alternative Plan 3, did not undergo the same scrutiny for partisan bias that the majority of the plans that were previously considered
{41} The incumbent pairings in Executive Alternative Plan 3 appear to have contributed to the plan‘s partisan performance. Six districts were consolidated in areas that were underpopulated, two strong Democrat districts in North Central New Mexico, two strong Republican districts in Southeastern New Mexico, and a strong Republican district and a strong Democrat district that were consolidated in Central Albuquerque. The consolidated North Central district remained a strong Democrat district and the consolidated Southeastern district remained a strong Republican district. However, the consolidated Central Albuquerque district became a strong Republican district. When the vacant districts were moved to the more populous areas West of Albuquerque, two strong Republican and one strong Democrat districts were created. The result was a partisan swing of two strong seats in favor of one party. The three new seats, two Republican and one Democrat, correctly reflected the political affiliation of the population in the overpopulated areas on the West side of Albuquerque and in Rio Rancho, a result we do not question. However, the source of those three seats has a questionable partisan bias. Two of the consolidated seats, one a Democrat-Democrat consolidation in North Central New Mexico, and the other a Republican-Republican consolidation in Southeastern New Mexico, are partisan-neutral in effect. The third consolidated district in Central Albuquerque is the one that raises questions. Despite combining a Republican and a Democrat seat, it resulted in a strongly partisan district favoring one party, in effect tilting the balance for that party without any valid justification. The resulting district is oddly shaped in an area where compactness is
{42} Although consolidation of districts coupled with moving one of the consolidated districts is not the only way to address population disparities when drawing new district boundaries to comply with the Equal Protection Clause, in this case the district court appropriately exercised its equitable powers to insist on the consolidation of districts in the underpopulated regional areas of North Central and Southeastern New Mexico, as well as Central Albuquerque. The problem previously noted with the Central Albuquerque consolidation is not the fact that the consolidation occurred, but the manner in which the consolidation was accomplished.
SPECIFIC INSTRUCTIONS ON REMAND
{43} In our previous order, we remanded this matter to the district court to draw a redistricting map with the assistance of an expert under
{44} Other concerns were alluded to in the order with the expectation that the district court would give such concerns due consideration. However, the order does not specifically direct the district court what to do, if anything, about those concerns. The district court continues to have the discretion necessary to carry out its equitable jurisdiction.
{45} We provided the district court with the following instructions which we repeat here so as to document the instructions in this published opinion.
In doing so, the district court should rely, as much as possible, on the evidence presently in the record, and it should not admit additional evidence from the parties. The district court should consider historically significant state policies as discussed herein through the use, where justified, of greater population deviations as set forth in the Legislative Council guidelines. At the district court‘s discretion, the parties may be permitted, but are not entitled, to file briefs identifying what state policies are supported by the evidence in the record that will assist the court in drawing a plan that results in less partisan performance changes and fewer divisions of communities of interest than the plan it adopted. Also in the district court‘s discretion, Brian Sanderoff would be a permissible candidate to serve as a
Rule 11-706 expert, because of time constraints and his established expertise. Whether or not to use any of the maps that were introduced into evidence as a starting point, including Executive Alternative Plan 3, is within the discretion of the district court. The parties shall have an opportunity to comment on a preliminary plan proposed by the district court before it ultimately adopts a final plan. The final map must take into account the following considerations:
- Population deviations. Executive Alternative Plan 3 achieved very low population deviations, but it was at the expense of other traditional state redistricting policies, the most evident being the failure to keep communities of interest, such as municipalities, intact. Some cities were divided to maintain low population deviations among the different districts. On remand, the district court should consider whether additional cities, such as Deming, Silver City, and Las Vegas, can be maintained whole through creating a plan with greater than one-percent deviations. While low population deviations are desired, they are not absolutely required if the district court can justify population deviations with the non-discriminatory application of historical, legitimate, and rational state policies.
- Partisan performance changes. On remand, the goal of any plan should be to devise a plan that is partisan-neutral and fair to both sides. If the district court chooses to begin with the plan it adopted previously, it should address the partisan performance changes and bias noted in this order, and if the bias can be corrected or ameliorated with enunciated non-discriminatory application of historical, legitimate, and rational state policies, including through the use of higher population deviations, then the district court should do so.
- As part of the review of partisan performance changes, the district court should consider the partisan effects of any consolidations. Any district that results from a Democrat-Republican consolidation, if that is what the district court elects to do, should result in a district that provides an equal opportunity to either party. In the alternative, some other compensatory
action may be taken to mitigate any severe and unjustified partisan performance swing. The performance of created districts as well as those left behind should be justified.
4. Hispanic “Majority” District in House District 67. It does not appear that the district court considered Hispanic citizen voting-age populations in reaching its decision, and it should do so on remand. Whatever its eventual form, the relevant Clovis community must be represented by an effective, citizen, majority-minority district as that term is commonly understood in
CONCLUSION
{46} For all of the foregoing reasons, we remand this matter to the district court to draw its own House redistricting map, taking into consideration the legal principles we have announced herein. The district court was “urged to make every effort to conclude this matter expeditiously, no later than February 27th, 2012, or otherwise advise this Court.” All claims raised by Petitioners have been addressed in this Court‘s Order No. 33,386, dated February 10, 2012, or are considered to be without merit. We emphasize that the principles articulated herein apply only to court-drawn maps. After this opinion was filed and before it was released for official publication, the district court entered a final decision complying with this Court‘s remand order. We take this opportunity to publish the district court‘s final decision as Appendix A to our opinion to document the history of this case and for future reference in the event New Mexico courts are called upon in the future to reapportion elective offices.
{47} IT IS SO ORDERED.
EDWARD L. CHAVEZ, Justice
WE CONCUR:
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
JONATHAN B. SUTIN, Judge
SUTIN, Judge (dissenting).
{48} I respectfully dissent.
{49} Twelve years on the Court of Appeals has taught me to abide by rules relating to standard of proof and review. I therefore look at Judge Hall‘s work under that framework, instead of how the Majority frames its approach.
{50} The Majority reviews solely on a de novo basis. Majority Opinion ¶ 14. But the manner in which the Majority reviews on that basis necessarily combines weighing and finding facts as well as applying law. This case is not one involving pure questions of law. As the Majority acknowledges, Judge Hall sat as a court in equity. He had considerable discretion in arriving at his determinations. He considered all of the facts, and he made his determinations based on facts he thought supported his determinations. Judge Hall did not abuse his discretion—abuse of discretion is the traditional standard of review in equity. Judge Hall weighed and found facts, and nothing shows that his findings were not supported by substantial evidence—sufficiency of evidence is the traditional standard of review in regard to fact weighing and fact finding.
{51} The Majority justifies its approach for this reapportionment setting based on a theory that it “has a constitutional mandate to establish what the rule of law is and to clarify the law if it has not been interpreted correctly.” Majority Order 13 (¶ 8). In my view, the Majority is out of bounds. Judge Hall did not interpret any law incorrectly. And, while the Majority has the prerogative to state what the rule of law is in New Mexico and to clarify the law, I see no reason for the Majority to have by-passed and ignored the traditional and important deference as to credibility determinations, fact finding, proof sufficiency, and discretion in equity given to trial judges, and then itself essentially assume the role of the trial judge while at the same time also then reviewing its own work. Long ago New Mexico stepped away from the territorial practice and procedure where a trial judge tried a case and, when the case was appealed, the same judge acting in the capacity of Supreme Court Justice reviewed his own decision for error. The Majority should not have stepped into Judge Hall‘s judicial shoes in this case.
{52} I expressed a good deal of my thoughts in my necessarily hurried dissent attached to the Majority‘s Order entered in this matter on February 10, 2012. For what it is worth as the lone wolf in this case, I repeat that dissent below because it is the Majority‘s Opinion and not its Order that is published. Also, because of time constraints, I was unable to address in my dissent to the Order the merits of the issues that were decided by the Majority in that Order, I will address the merits here.
Clovis
{54} I would not hang my hat as the Majority does on League of United Latin American Citizens (LULAC). Majority Order 8, 12 (¶ 7); Majority Opinion ¶ 17, 31, 38. “The unique question of law” in LULAC was “whether it was unconstitutional for Texas to replace a lawful redistricting plan ‘in the middle of a decade,’ for the sole purpose of maximizing partisan advantage.” 548 U.S. at 456. LULAC is a congressional redistricting case with very different facts and issues. Within the Gingles totality of the circumstances,
{55} Those challenging the reapportionment with respect to Clovis failed in Judge Hall‘s assessment to prove the Gingles factors that would require a conclusion that the
Minimum Population Deviation
{56} In regard to the one man-one vote requirement embedded in constitutional law, it is
Partisan Effect
{57} I think the Majority is mistaken in thinking that the “public will” is measured solely or even primarily from an un-enacted legislative plan and is also mistaken in its thinking that plans can be fully partisan free. The legislative plan passed with all Republicans and some Democrats voting against passage. The Governor, elected by a will of the majority of voters, vetoed the plan. No attempt was made to override the veto. A highly qualified and experienced retired First Judicial District Court (Santa Fe) judge, who reflected no partisanship, scrupulously studied the facts and the law, and came to a considered and principled determination. Lawyers known to be highly partisan on both sides presented evidence and arguments. The Majority‘s view that “thoughtful consideration” means give more credence to the un-enacted legislative plan than to that offered and eventually modified by the Executive has no basis in law or reason. In no way has the “will of the majority of the people” or the “voice of the people” been “muzzle[d,]” Majority Opinion ¶¶ 21, 32-33, in the process here.
{58} In challenging partisan effect, Petitioners Jennings and Lujan, as well as Maestas, indicated in their opening briefs that unlawful partisan bias is to be “significant.” In their petition for writ of superintending control, Petitioners Maestas and Egolf used the phrases “blatant partisan bias” and “demonstrably partisan effect.” Petitioner Egolf used “severe” in his opening brief. Petitioners Jennings and Lujan also used the phrase “significant partisan change” in their response brief. The Majority faults Judge Hall for not “slow[ing] the process down enough to determine whether the significant partisan performance changes could have been ameliorated[.]” (Emphasis added.) Majority Opinion ¶ 40. Yet the Majority has not shown how any partisan effect here rises to a level of significance, severity, or blatancy sufficient to call for Judge Hall to rethink his work to arrive at “less partisan change[,]” id.; Majority Order 20 (¶¶ 2-3), much less to arrive at the Majority‘s required neutrality. Nor has the Majority shown how a new plan addressing a purported Republican swing-seat advantage will not result in an attackable maintenance of some Democratic
Other Matters
{59} Among other statements and implications in the Majority‘s Opinion that have given me pause are the following. First, Judge Hall, and thus his plan, did not “seek[]” partisan advantage. Majority Opinion ¶ 31. He did not try to “advance the purposes or the ability of one party to really elect a lot more people than the status quo.” Majority Opinion ¶ 30 (internal quotation marks omitted). Judge Hall expressly did not allow partisan considerations to control the outcome of [his] decision.” Furthermore, as I have discussed earlier in this dissent, Judge Hall‘s plan in no way produced any degree of even unintended partisan effect that required it to be overturned.
{60} Second, I believe that the Majority‘s various statements that attempt to show the Executive in bad light go nowhere. Despite implications to the contrary, nothing in the record indicates that those challenging Judge Hall‘s plan did not receive a fair hearing or were denied the opportunity to later examine the Executive‘s expert or to call their own expert back, and nothing indicates that the Executive acted in bad faith.
{61} Third, boiling the important cases down in terms of one man-one vote and population deviations based on legitimate state interests, cases in which the plans were enacted into law are inapposite. Chapman and Connor control here. See also Reynolds, 377 U.S. at 579 (stating that the “overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the [s]tate” (emphasis added)). It bears repeating that Judge Hall did deviate, where he deviated he justified the deviation, and where Judge Hall did not deviate the record fails to reflect that those now challenging his plan justified deviations they felt were required under the law.
{62} Fourth, the Majority‘s “appearance of and actual scrupulous neutrality,” Majority Opinion ¶ 31, principle does not hold water. It relies on misguided notions of “seek[ing] partisan advantage” and on “maintaining the political ratios as close to the status quo as is practicable[.]” Id. Return to the status quo can only mean return to the now, unconstitutional, over-ten-years-old-population districts—involving districts that have dramatically changed in population and districts that gave rise to the Democratic House seat total of thirty-eight and the Republican House seat total of thirty-two in 2011. There exists no recognizable validity to that status quo approach. Further, the partisan issue here is one
{63} Fifth, based on what I have discussed throughout my dissents, the view that Judge Hall‘s plan “did not undergo the same scrutiny for partisan bias that the majority of the plans that were previously considered had undergone[,]” Majority Opinion ¶ 40, is unsupported in the record.
Conclusion
{64} The Majority Opinion is long on the law but falls short on the battlefield decisions. Determinations expressly or impliedly holding that Judge Hall violated the
{65} Based on what I have set out above and below, I respectfully dissent. The Majority should have affirmed Judge Hall and his plan, while at the same time setting out whatever rules or principles the Court thought constituted the rules courts of this State should follow in reapportionment cases.
Repeat of Dissent to Order Previously Entered
{67} The Majority‘s decision that its order be filed immediately has allowed me time and opportunity to only generally address why I oppose the remand requiring Judge Hall to revamp the plan according to the rules laid down by the Majority. The immediacy has not allowed me time and opportunity to rebut the Majority‘s determinations on the merits of the issues as contained in the order. Based on the detail in the order deciding the merits of the issues, and the requirement that Judge Hall change the plan, I tend to doubt that any follow-up Majority opinion will be needed, and I tend to doubt that the extensive detailed work required for a dissent will be useful.
{68} I respectfully oppose entry of the Majority‘s remand order. There exists no need to require Judge Hall to consider facts and law that he has already thoroughly considered. There exists no need for reconsideration of how Judge Hall applied the law of population deviation when it is clear that he understood the law and did not misapply it. Nor is there a need to remand for Judge Hall to reconsider facts (implying, it seems, to also change his mind) relating to any alleged
{69} Of course, this Court is not to rubber stamp Judge Hall‘s work and plan. At the same time, however, it is important to note that the Supreme Court‘s appointment of Judge Hall was purposeful and an excellent choice. Judge Hall was a highly respected judge for his fairness, good judgment, principled and rational decisions, seasoned analytic ability, and his ability to grasp complex issues. In his known judicial capacity, Judge Hall did not act arbitrarily. In these important circumstances, Judge Hall would not and did not, here, create a plan that he saw or felt or believed contained any partisan effect or bias that violated the
{70} Reapportionment cases are known for their rampant partisanship, whether at the
{71} The overriding goal is population equality and to serve the constitutional principle of “one man-one vote.” Once in court, the search involves pathways through various proposed plans offered by partisans. Those in power want to keep their seats and obtain more seats; those out of power want to keep their seats and obtain more seats. The court must give thoughtful consideration to the plans and listen to the arguments. First and foremost, the court sits in equity and tries to structure a plan within the constraints of the
{72} If, in drawing a plan, the court exceeds minimal population deviation, the court must justify the deviation based on legitimate state interests which appear to consist of traditional state redistricting policies and practices. Here, the court started with the clear constitutional mandate of minimum deviation from population equality. At some point, Judge Hall determined that he was required to substantially deviate from population equality with regard to Native American communities in order to satisfy the requirements of the
{73} With respect to the population deviation that Judge Hall maintained at minimal levels, he had nothing to “justify” because that minimal deviation is what the law requires unless a deviation is necessary to satisfy legitimate state interests. Those attacking minimal deviation have the burden of advocating for a particular deviation and then justifying the deviation based on legitimate state interests. To the extent parties launched that attack, Judge Hall determined that the evidence presented was insufficient to require a deviation. To the extent that parties attacked Judge Hall‘s plan because it unfairly diluted Hispanic voting power, Judge Hall determined that the evidence presented was insufficient to support any claimed violation of the
{74} The parties now attacking Judge Hall‘s plan submitted extensive requested findings of fact and conclusions of law stating the various reasons why their respective plans should be adopted by the court. Judge Hall did not adopt their requested findings, thereby effectively finding against those parties and the propriety of their plans. The parties have not attacked with the required specificity Judge Hall‘s findings of fact, among which are:
{75} The issues on which the Majority want to remand this case are intensely fact-based and fact-driven. This Court should not and has no need to (1) disregard the exceptional care Judge Hall took in determining whether the parties attacking the plan and advocating their own plans fulfilled their proof burdens and (2) draw a conclusion that, as a matter of law, those parties proved a
{76} Nothing in this case shows that Judge Hall failed to consider all of the evidence presented. Nothing shows that he failed to give thoughtful consideration to everything offered by the parties. From the record and from his extensive findings of fact and conclusions of law, it is readily apparent that Judge Hall considered all of the evidence and gave thoughtful consideration to the presentations of the parties.
{77} Judge Hall looked at the various plans, discussed his concerns about several of them, and made suggestions to parties about how they might improve the palatability of their plans by considering certain changes. Some made changes; others did not. This was the process Judge Hall chose instead of attempting to draw a virgin plan. In fact, to adopt aspects of plans proposed by the executive and legislative parties following extensive testimony and plan modifications indicates a process that considers the will of the people.5 I do not agree with the Majority that Judge Hall‘s process was flawed because it did not satisfy a requirement of judicial neutrality or independence.
{78} In my view, nothing in the Majority‘s cited case of Peterson v. Borst, 786 N.E.2d 668 (Ind. 2003), which involved a City-County redistricting plan, requires remand. I see no basis on which to question Judge Hall‘s or “the judiciary‘s” neutrality and independence given the nature of the trial; the manner in which Judge Hall conducted the trial; the parties’ full opportunity to present their witnesses, documents, and arguments; Judge Hall‘s detailed
{79} Ultimately, based on how he viewed all of the various plans and any modifications made, and based on how he evaluated the credibility of the witnesses, the models, the various analyses, and the reasonableness of testimony and counsel‘s arguments, Judge Hall thought that the Executive Plan, as modified, was a fair, reasonable, and appropriate plan.
{80} All plans suffered from partisan effect. Will any plan be devoid of some partisan effect? The parties that contend that the plan must be overturned state the standard to be “severe” and “significant” partisan bias. There exists no evidence in this case that Judge Hall intended or adopted a plan that violated the
{81} There exists no basis on which to learn more from Judge Hall on any issue. Nothing in the record shows that Judge Hall abused his discretion in any respect. He did not misapprehend or misconstrue the law. He was in no way arbitrary. He does not need to provide further explanation about his determinations. Nothing proves that the plan will create serious problems in the future. This matter is not in need of remand. Judge Hall‘s plan is an appropriate stopping place. The election process needs to go forward now, without a delay of reconsideration or instruction essentially requiring Judge Hall to reduce Republican seats, without the delay of a 706 expert already shown through his testimony to have opinions about issues in the case, and without a delay involving the required opportunity to comment on any new plan or any changes. The stopping point of Judge Hall‘s plan is eminently more wise and fair than the stopping point of the next, reconstituted plan, with no fair opportunity to follow allowing the party opposing the plan to obtain relief in this Court.
JONATHAN B. SUTIN, Judge
Topic Index for Maestas v. Hall, Docket No. 33,386, consolidated with Jennings v. NMCOA, Docket No. 33,387
CT CONSTITUTIONAL LAW
CT-EP Equal Protection
GV GOVERNMENT
GV-EL Elections
RE REMEDIES
RE-EO Extraordinary Writs
STATE OF NEW MEXICO
COUNTY OF SANTA FE
FIRST JUDICIAL DISTRICT COURT
| BRIAN F. EGOLF, JR., HAKIM BELLAMY, MEL HOLGUIN, MAURILIO CASTRO, and ROXANNE SPRUCE BLY Plaintiffs, v DIANNA J. DURAN, in her official capacity as New Mexico Secretary of State, SUSANA MARTINEZ, in her official capacity as New Mexico Governor, JOHN A. SANCHEZ, in his official capacity as New Mexico Lieutenant Governor and presiding officer of the New Mexico Senate, TIMOTHY Z. JENNINGS, in his official capacity as President Pro-Tempore of the New Mexico Senate, and BEN LUJAN, SR., in his official capacity as Speaker of the New Mexico House of Representatives, Defendants. | ) ) ) ) ) NO. D-101-CV-2011-02942 ) ) ) ) CONSOLIDATED WITH ) ) D-101-CV-2011-02944 ) D-101-CV-2011-02945 ) D0101-CV-2011-03016 ) D-101-CV-2011-03099 ) D-101-CV-2011-03107 ) D-202-CV-2011-09600 ) D-506-CV-2011-00913 ) ) ) |
DECISION ON REMAND
This matter returns back before this Court on remand from the New Mexico Supreme Court. Following an evidentiary hearing on the merits regarding the redistricting of the New Mexico House of Representatives, this Court entered its Findings of Fact and Conclusions of Law and adopted a redistricting plan for the House of Representatives. In this Decision, the initial plan adopted by this Court will be referred to as the “First Court-Adopted Plan.”
The Remand Order directed this Court to draw a new reapportionment plan with the assistance of an expert under
Following the receipt of the briefs and with the assistance of Mr. Sanderoff, the Court developed two preliminary plans which were provided to the parties for comment. The parties commented on the preliminary plans.2 This Court now adopts the plan identified as Preliminary Plan No. 1 without change. For purposes of this Decision, this plan will now
In the Remand Order, the Supreme Court identified four areas in which the Supreme Court agreed with certain determinations made in the First Court-Adopted Plan. Remand Order at pp. 17-18. First, the Supreme Court agreed that the Native American districts should be included without change in the final court map. Second, the Supreme Court concluded that this Court “appropriately exercised its equitable powers to insist on the consolidation of districts in the underpopulated regional areas of North Central and Southeastern New Mexico, as well as Central Albuquerque.” Remand Order at p. 17. Specifically, the Supreme Court recognized the partisan neutral nature of a Democrat-Democrat consolidation in North Central New Mexico and a Republican-Republican consolidation in Southeastern New Mexico. Remand Order at p. 15. Third, the Supreme Court agreed that this Court was not required to adopt the Legislative Plan as long as it gave that plan thoughtful consideration.3 Fourth, the Supreme Court agreed that this Court was not required to preclude Governor Martinez from introducing plans during the litigation. In addition, in the Opinion, the Supreme Court specifically required this Court to reject all previously submitted plans “because of the political advantage sought by the parties.” Opinion at p. 32.
In the Remand Order, the Supreme Court noted that the starting point for the creation of a final plan was left to this Court‘s discretion. After consideration, this Court concludes that the most appropriate starting point is the First Court-Adopted Plan. This Court adopts the First Court-Adopted Plan as the starting point for two reasons. First, the parties had an opportunity during the course of trial to evaluate and present evidence regarding the First Court-Adopted Plan, both in its final form and in earlier iterations of the plan ultimately adopted by this Court. If this Court were to develop a completely new plan from scratch at this time, the parties’ input would be limited to a three-day comment period which would seem insufficient for a completely new plan (as opposed to a modification of a plan on which they already had input).
The second reason that this Court has used the First Court-Adopted Plan as a starting point is that the Supreme Court agreed with two important components of the First Court Adopted-Plan, i.e., the inclusion of the Native American districts without change and the consolidations of certain districts. Of the plans submitted during trial, only the final few plans submitted by the Executive Defendants and the First Court-Adopted Plan included both the Native American districts without change and the basic consolidations which the Supreme Court approved (i.e., a Democrat-Democrat consolidation in North Central New Mexico, a Republican-Republican consolidation in Southeastern New Mexico and a
With that background, this Court addresses the specific instructions of the Supreme Court on remand as follows:5
1. Population deviations.
On remand, the district court should consider whether additional cities, such as Deming, Silver City, and Las Vegas, can be maintained whole through creating a plan with greater than one-percent deviations. While low population deviations are desired, they are not absolutely required if the district court can justify population deviations with the non-discriminatory application of historical, legitimate, and rational state policies.
Remand Order at p. 19.
In the First Court-Adopted Plan, the population deviation between districts ranged from +1.69% above the ideal population for a district to -4.99% below the ideal population for a district, a total range of 6.68%. The Remand Order of the Supreme Court directs this Court to determine whether additional cities can be maintained whole with additional deviations.6
Because Silver City was specifically identified in the Remand Order, this Court and the Rule 11-706 expert examined Silver City closely to determine if it was possible to unify Silver City within one district while still complying with the criteria set forth by the Supreme Court in the Remand Order and Opinion. As explained below, this Court ultimately concluded that Silver City could not be unified without violating the Supreme Court‘s clear direction that the plan be partisan-neutral.
The southwest area of New Mexico presents difficult challenges in this redistricting cycle. Under the current map, three districts (Districts 32, 38 and 39) are included in Grant, Hildago, Luna and Sierra Counties. The largest communities in these counties are Silver City, Lordsburg, Deming and Truth or Consequences. Under the current map, Silver City
In fact, the standard adopted by the Supreme Court as to population equality and deviations is identical to the standard adopted and applied by this Court. In the Opinion, the Supreme Court examines the case law related to the application of legitimate and rational state policies on reapportionment plans and notes that, for plans which are “drawn by a legislature that have become law,” ten-percent deviations are prima facie constitutional. Opinion at pp. 14-17. The Supreme Court goes on to set forth the standard as it relates to court-drawn plans:
In contrast to legislatively-drawn plans, court-drawn plans are held to a higher standard, and “must ordinarily achieve the goal of population equality with little more than de minimus variation.” Chapman v. Meier, 420 U.S. 1, 27 (1975). The United States Supreme Court has not defined what constitutes de minimus variations for a court-drawn plan. However, unlike a legislative body that does not have to articulate the policy reasons for minor deviations from ideal population equality, unless the range of deviations exceed ten percent, a court must enunciate the historically significant state policy or unique features that it relies upon to justify deviations from ideal population equality. Connor v. Finch, 431 U.S. 407, 419-20 (1977).
Opinion at pp. 17-18 (footnote omitted). In the footnote omitted here, the Supreme Court notes that court-drawn plans have had deviations of +/-4.96%, +/-6.6% and +/-9.26%, all percentages which are similar to the deviation of 6.68% in the First Court-Approved Plan. Although some parties argued for a different standard during the trial, the legal standard on population equality that was adopted and applied by this Court matches the Supreme Court‘s recitation of the applicable law almost word-for-word. See Conclusions of Law Nos. 6, 8 and 17.
Based on the most recent census, this area of New Mexico no longer has sufficient population to support three full House districts. In fact, the population in this area is sufficient to support approximately 2 1/2 House districts. As a result, at least one of these districts must now extend into Dona Ana County (where some population increases have occurred) for additional population. This expansion into Dona Ana County is necessary even if population deviations are expanded to +/- 5 percent.
Unifying Silver City presents two problems. First, it is difficult (but not impossible) to unify Silver City and still keep Lordsburg, Deming and Truth or Consequences unified in a single district. In other words, unifying Silver City most often results in splitting at least one of the other three communities. All four communities cannot be kept intact without pairing additional incumbents and/or impacting the partisan neutrality of the plan.
More importantly, unifying Silver City results in partisan change to these districts. In the split of Silver City under the current map, the precincts within Silver City which are part of District 39 tend to be more Democratic, while the precincts within Silver City which are part of District 38 tend to be more Republican than those precincts in District 39. The incumbent in District 38 lives within the city limits of Silver City; therefore, in the absence of an additional pairing of incumbents7, a unified Silver City would have to be included within District 38. Because this would involve the inclusion of additional precincts which tend to be more Democratic, District 38 would change from a Republican majority district to a Democrat majority district if Silver City is unified in District 38.8 The Court and the Rule 11-706 expert examined whether this partisan change could be avoided through the use of higher deviations; however, the partisan change occurs even if deviations are increased
For redistricting purposes, the competing interests here are unifying communities of interest as opposed to partisan neutrality. These competing interests cannot be accommodated by increased deviations up to +/- 5 percent. In the Remand Order and the Opinion, the Supreme Court emphasizes the importance of both partisan neutrality and unifying communities of interest; however, the Supreme Court does not give any guidance as to which of these two interests are to be given preference when they are in conflict and when that conflict cannot be removed with increased deviations.
This Court concludes that, in the particular circumstances present in southwestern New Mexico, maintaining partisan neutrality must take precedence over the admirable goal of unifying Silver City. This Court reaches this conclusion for several reasons. First, all plans must split some municipalities and communities of interest. Second, the current plan divides Silver City. Third, under most scenarios, unifying Silver City results in the split of at least one other substantial community in the region. Finally, the Supreme Court disapproved of this Court‘s adoption of the First Court-Approved Plan at least partially on the grounds that it had different partisan consequences than earlier versions of the Executive Plan. Many of the modifications from earlier versions of the Executive Plan were modifications made with the specific purpose of keeping identified communities of interest unified. See Findings of Fact Nos. 68 and 69 and Conclusions of Law 32 and 33. Because the Supreme Court concluded that the partisan effects of unifying additional communities of interest violated the requirement of partisan neutrality in the First Court-Approved Plan, this Court is hesitant to adopt a plan that unifies Silver City with attendant partisan consequences.9
2. Partisan performance changes.
On remand, the goal of any plan should be to devise a plan that is partisan-neutral and fair to both sides. If the district court chooses to begin with the plan it adopted previously, it should address the partisan performance changes and bias noted in this order, and if the bias can be corrected or ameliorated with enunciated non-discriminatory application of historical, legitimate, and rational state policies, including through the use of
higher population deviations, then the district court should do so.
Remand Order at p. 20.
In reviewing the Remand Order and Opinion, the Supreme Court identified the following partisan performance changes and bias in the First Court-Adopted Plan: 1) the First Court-Adopted Plan increased Republican swing seats from five to eight over prior executive plans (Remand Order at p. 14); 2) the number of majority Republican districts increased from 31 in the original executive plan to 34 in the First Court Adopted Plan (Remand Order at pp. 14-15); and 3) the incumbent pairings in the First Court-Adopted Plan contributed to partisan performance changes. (Remand Order at p. 15).10 While the Remand Order compares the First Court-Adopted Plan to earlier executive plans in terms of majority Republican districts and Republican swing seats, the Opinion focuses more on the status quo: “[M]aintaining the political ratios as close to the status quo as is practicable, accounting for any changes in statewide trends, will honor the neutrality required in such a politically-charged case.” Opinion at pp. 21-22.
The first step for this Court in carrying out the direction of the Supreme Court is to identify what constitutes the “status quo” in terms of the political ratios to be maintained. The Supreme Court gives no specific guidance on this issue. Both at the trial and in briefs submitted on remand, several parties argued that the Court should adopt the present political ratio between Republicans and Democrats in the New Mexico House of Representatives as the “status quo.” See, e.g., Sena Plaintiffs Objections to Preliminary Plans No. 1 and 2, at p. 31. This Court rejects that approach because it places too much emphasis on the outcome of the most recent election. One need only consider the difference in results between the last two elections (2008 and 2010) to conclude that no single election accurately reflects the “status quo” for the State of New Mexico.
Instead, this Court concludes that a more appropriate measure of the “status quo” is the partisan make up of the current districts as reflected in the political performance data for each district as compiled by Research & Polling, Inc.11 Although the trial testimony
Applying this measure to the current districts, the political ratio for the “status quo” is 32 Republican majority districts and 38 Democrat majority districts. Because the Supreme Court Opinion mandates that the political ratios be maintained at the status quo, the Final District Court Plan incorporates the ratio of 32 Republican majority districts and 38 Democrat majority districts.12
In order to reach the political ratio under the status quo as required by the Supreme Court, this Court adjusted district boundaries for two districts so that those districts moved from slight Republican majority districts to slight Democrat majority districts. The two districts selected were District 32 and District 49. The Court selected these two districts because they are slight Democrat majority districts in the current plan. If one of the goals of the Supreme Court remand is to maintain the political ratios that exist under the “status quo,” it made sense to consider these districts so that they do not change their slight majority Democrat status in the current plan. In addition, it should be noted that both of these districts remain competitive districts.
In the Remand Order and Opinion, the Supreme Court also noted that Republican swing seats increased in the First Court-Adopted Plan as compared to earlier executive plans. The First Court-Adopted Plan included eleven Republican majority districts within the swing seat category (defined as 50% to 53.9%) and five Democrat majority seats within the swing
Finally, it is worth noting that the Final District Court Plan maintains very similar political performance percentages in the individual swing districts, as compared to the current districts.13 In the Opinion, the Supreme Court notes that “[c]ompetitive districts are healthy in our representative government because competitive districts allow for the ability of voters to express changed political opinions and preferences.” Opinion at p. 31. In the Final District Court Plan, the competitive seats under the current plan remain competitive.
3. As part of the review of partisan performance changes, the district court should consider the partisan effects of any consolidation.
Any district that results from a Democrat-Republican consolidation, if that is what the district court elects to do, should result in a district that provides
an equal opportunity to either party. In the alternative, some other compensatory action may be taken to mitigate any severe and unjustified partisan performance swing. The performance of created districts as well as those left behind should be justified.
Remand Order at p. 20.14
In the First Court-Adopted Plan, an incumbent pairing was created in central Albuquerque between Representative Al Park (Democrat) and Representative Jimmie Hall (Republican) in District 28. The Supreme Court concluded that this consolidation “resulted in a strongly partisan district favoring one party, in effect tilting the balance for that party without any valid justification.” Remand Order at p. 16. The Supreme Court also observed that District 28 in the First Court-Adopted Plan was an “oddly shaped” district. Id.
In the Final District Court Plan, this Court again adopts a Democrat-Republican consolidation in Central Albuquerque because such a consolidation is consistent with the overall population trends of the state. Because the Supreme Court has directed that any such pairing must provide an equal opportunity to either party, the Final District Court Plan adopts an incumbent pairing between Representative Al Park (Democrat) and Representative Conrad James (Republican) in District 24. Due to the political makeup of the individual precincts, it would be difficult (if not impossible) to create a district which pairs Representative Park and Representative Hall and results in near equality in the political performance percentages. As a result, the Court identified District 24 as a district which could pair Representative Park with a Republican legislator and still produce near equality in the political performance percentages. While the resulting District 24 is not as compact as the Court would prefer, the district does maintain some approximation of the shape of the prior District 24.
4. Hispanic “Majority” District in House District 67
It does not appear that the district court considered Hispanic citizen voting age populations in reaching its decision, and it should do so on remand. Whatever its eventual form, the relevant Clovis community must be
represented by an effective, citizen, majority-minority district as that term is commonly understood in
Voting Rights Act litigation, and as it has been represented, at least in effect, for the past three decades.
Remand Order at p. 20-21.15
During the trial, this Court heard evidence regarding the minority population in Clovis and the history of District 63. Under the current plan, the bulk of the Hispanic population in and around Clovis was included District 63, a geographically large district
In the First Court-Approved Plan, the Court adopted a plan which changed District 63 and District 67. The First Court-Approved Plan reconfigured District 67 as a compact, majority Hispanic voting age population district which included the principle minority populations in Clovis and Portales. Previously, District 67 had not been a majority Hispanic voting age population district; therefore, the First Court-Approved Plan added one additional majority Hispanic voting age population district to this area of the state. Under the First Court-Approved Plan, District 63 changed to a geographically large, but still compact, district which extended from Fort Sumner and Santa Rosa to the northeast corner of New Mexico. The Hispanic voting age population of District 63 remained relatively constant at 54.0%.
In adopting the First Court-Approved Plan, this Court noted the substantial increase in the number of majority Hispanic voting age population districts contained in the plan overall (Finding of Fact No. 71), but concluded, based on the totality of the circumstances, there was not “persuasive evidence that Sec. 2 of the
The Supreme Court Opinion shifts the burden of proof on this issue as it relates to a majority-minority district in Clovis: “Any redistricting plan ultimately adopted by the district court should maintain an effective majority-minority district in and around the Clovis area unless specific findings are made based on the record before the district court that Section 2
Dated: ____________________
James A. Hall
District Judge Pro Tempore
Copies to counsel of record via e-filing system.
Notes
Using a slightly different approach, the Maestas Plaintiffs submitted two proposed redistricting maps to this Court, but contend that the maps submitted are “for illustrative purposes only.” Maestas Brief on Remand at p. 5. While it may be arguable whether this approach violates the letter of the Supreme Court directive, it certainly violates the spirit of the Remand Order. As a result, this Court does not consider the actual maps submitted by the Maestas Plaintiffs, but does consider the comments contained in the Maestas briefs.
With all due respect to the Supreme Court, the Findings of Fact and Conclusions of Law do not support such an interpretation. This Court‘s Findings of Fact and Conclusions of Law do not adopt a +/- one percent deviation standard with the sole exception being violations of the
Moreover, a review of the entire First Court-Adopted Plan shows that this Court paid close attention to Hispanic voting age populations. This Court entered five Findings of Fact and Conclusions of Law specifically addressing Hispanic voting age population. Findings of Fact Nos. 64, 65, 66, and 71 and Conclusions of Law No. 26. Under the current plan, there are twenty-seven majority Hispanic voting age population districts. In the First Court-Adopted Plan, the number of majority Hispanic voting age population districts is increased to thirty. Of all the plans submitted to this Court by the Legislative Defendants, the James Plaintiffs, the Sena Plaintiffs, the Egolf Plaintiffs, the Maestas Plaintiffs, and the Executive Defendants, this Court selected a plan that had the highest number of majority Hispanic voting age population districts. This Court made an express finding to this effect. Finding of Fact No. 71.
The omission of these facts from the majority Opinion is important because the Opinion will become a permanent part of New Mexico law through its publication in the New Mexico Reports. Future readers of the majority Opinion, both in New Mexico and outside the state, will be left with the mistaken impression that this Judge failed to consider Hispanic voting age population in rendering a decision in this case, when in fact both the plan that was adopted and the Findings of Fact and Conclusions of Law demonstrate thorough consideration of minority populations.