Partisan Gerrymandering Case Under the New Mexico Constitution Nears Critical Point


This is an important week for determining the fate of congressional district lines in the state of New Mexico. In the wake of the 2020 census, the Democrat-controlled elected legislature (and governor) approved new maps that seem to favor Democratic candidates in all three congressional districts in the state. (And all three U.S. House members from the state elected in 2022 are Democrats under these new maps, whereas one district had elected a Republican Representative in 2020.) After the adoption of the new district lines, suit was filed in state court by Republicans alleging that the maps violate the Equal Protection Clause of the New Mexico Constitution, found in Article II, Section 18. About three months ago (on July 5), the New Mexico Supreme Court (a majority of whose seats are currently filled by Democrats), in a somewhat terse order, held that the suit could go forward inasmuch as claims about excessively partisan gerrymandering under Article II, section 18 are “justiciable” in state courts under the state constitution. The New Mexico Supreme Court ruling occupies a doctrinal territory left open by the U.S. Supreme Court’s 5-4 2019 decision in Rucho v. Common Cause. There, the high Court held that federal courts could not entertain claims that partisan gerrymandering violates the federal Constitution (because such claims present non-justiciable “political questions”), but explicitly permitted claims attacking partisan gerrymandering to be brought in state courts under state constitutions, whose standards might be judicially enforceable. And the U.S. Supreme Court (a week before the New Mexico Justices rendered their ruling) reinforced the permissibility of state-court enforcement of state constitutions in federal-election regulation in Moore v. Harper. The July 5 New Mexico Supreme Court ruling directed the state district (trial) court to “resolve this matter” by October 1, 2023, which is just days away. So it will be very interesting to see what the district court does, and how its ruling fares when (as I assume would be the case) it is appealed up the higher state courts.

Here are two particularly important things to watch for as early October approaches. First, if the district lines are invalidated, it will be very important for the state courts to make clear they are basing their ruling on the state, rather than the federal, constitution. As I explained three years ago, the Rucho majority opinion, best read, means more than that federal courts are not appropriate fora to entertain partisan-gerrymandering attacks under the federal Constitution. (If that were all Rucho stood for, then at least an argument could be made that state courts could entertain and act on federal claims in this realm.) Given that the Rucho Court found no “discernible” prohibition of even aggressive partisan gerrymandering in any part of the U.S. Constitution—that is, the Court concluded there is simply nothing in the Constitution that constrains district-line-drawers in this regard—there is simply no federal claim on the merits to be made. To say there is “no law” that constrains is to say (when, as here, a plaintiff-challenger bears the burden of proof) that a plaintiff simply has no viable claim.

Why is it important that the state courts not improperly rely on the federal Constitution here? Because if the state courts aren’t careful—if, for example, their rulings invalidating partisan gerrymandering under the New Mexico constitution do not make crystal clear that the meaning of the state constitution is “independent” of the meaning of the federal Constitution—then the U.S. Supreme under applicable precedent such as Michigan v. Long would feel free to grant review and correct any misunderstandings of federal law that might have affected the state courts’ decisions. As I wrote when Rucho was decided: “State courts that want to insulate their decisions from federal reversal should, therefore, make quite clear that any rulings they render regulating partisan gerrymandering rest on independent and adequate state-law grounds.”

This reminder seems especially important in New Mexico because the July 5 ruling by the New Mexico Supreme Court did not seem particularly careful in this regard. For example, even though the Republicans’ challenge to the congressional district lines was brought explicitly under the state constitution only (the Complaint included only a single Count, raised under N.M. Const. Art. II, section 18), the New Mexico Supreme Court opined that, “[a] partisan gerrymandering claim under the New Mexico Constitution is subject to the three-part test articulated by Justice Kagan in her dissent in Rucho. . . .” Standing alone, perhaps this holding by the New Mexico court doesn’t create any suggestion that New Mexico law incorporates, and thus is not independent of, federal law, inasmuch as the federal approach the New Mexico Justices seem to want to embrace for their state has never become federal law (Justice Kagan never got a fifth vote), and the New Mexico Supreme Court, by referring to Justice Kagan’s writing as a dissent, seems to understand that. It’s as if the New Mexico Justices had said: “We think the dissent by Justice Kagan’s offers a sensible framework for giving meaning to our state constitution, and we thus adopt it as the right way to understand our fundamental law, even though we appreciate that it has not been adopted by the U.S. Supreme Court as the meaning of federal law.” In this regard, the fact that the approach being adopted by New Mexico comes from a U.S. Supreme Court dissent rather than from, say, a law review article should not undermine the “adequacy and independence” of the state-law ground. To be sure, it is possible that the New Mexico Supreme Court is misunderstanding what Justice Kagan’s dissent actually says or means (although that would be hard to know since the state-court Order does not elaborate at all), but even if Justice Kagan’s dissent is being misunderstood in a way that could be influencing state law, it would seem odd for the U.S. Supreme Court to exercise review in order to clear up confusion not about a majority opinion but about a dissenting opinion that never became law. (I am unaware of the U.S. Supreme Court ever discussing such a possibility.)

But putting all that aside, there are other parts of the July 5 opinion that raise eyebrows even more obviously. For instance, the July 5 opinion says “as with partisan gerrymandering under the Fourteenth Amendment, some degree of partisan gerrymandering is permissible under Article II, section 18 of the New Mexico Constitution. Accord Rucho, 139 S.Ct. 2497” (emphasis added). Here the New Mexico Supreme Court seems to be saying something about the meaning of federal law (under the Fourteenth Amendment) as interpreted by the majority of the U.S. Supreme Court in Rucho. Moreover, and importantly, the New Mexico court’s invocation here of federal law—an invocation that is arguably grounded on an overly narrow understanding of Rucho, insofar as Rucho can be read to say the Fourteenth Amendment permits not just “some degree” of partisan gerrymandering but any degree of it—certainly could be understood to suggest that this federal meaning informs the content of state law, such that the latter isn’t truly independent of the former.

The possibility I raise here is even stronger given another, similar passage in the New Mexico Supreme Court’s July 5 order:

In the context of a partisan gerrymandering claim, a reasonable degree of partisan gerrymandering—taking into account the inherently political nature of redistricting—is likewise permissible under Article II, Section 18 of the New Mexico Constitution and the Fourteenth Amendment (emphasis added).

Once again, why is the Fourteenth Amendment being mentioned unless its meaning is informing that of the state constitution? And isn’t an inference of dependence at least suggested by the word “likewise” in the sentence?

The point here is not that the New Mexico Supreme Court is in its own mind necessarily letting its views of federal law influence its views of state law; the point is that the court is not being careful to make clear the independence of the latter vis a vis the former. Hopefully, as the case moves back up the state court ladder, there will be more clarity. In this regard, it is noteworthy that the New Mexico Supreme Court issued an amended Order on August 25, about seven weeks after the July 5 ruling. Interestingly, the amended order omitted the “likewise permissible” bullet point referring to the Fourteenth Amendment (which is good!), but it retained the “as with partisan gerrymandering under the Fourteenth Amendment” passage, indicating the court still has a ways to go in its precision here. (The August 25 Order also pushes back the date by which the district court is supposed to “resolve this matter” from October 1, 2023 to October 6, 2023, but also elaborates the deadline, saying that by October 6 the district court’s resolution needs to “include[e] entry of a final, appealable order, which shall set forth the court’s findings of facts and conclusions of law.”)

All of that brings up the second big point to watch in the coming days and weeks. If the state courts end up invalidating the congressional districts, state jurists need to justify their rulings more fully and coherently. The July 5 Order and the August 25 Order each contains only about two pages of substance, and the (bullet-point) holdings in each lack meaningful explanation, discussion, or invocation of past caselaw or state constitutional history or purpose, much less consideration of the arguments that had been presented by the parties. Although, after Moore, state courts should have very wide authority to interpret and apply state constitutional limitations (something I have explained in great depth in a brand-new law review article and on which I may write more for this website), state courts would nevertheless be well-advised to exercise some diligence by explaining how the traditional tools and modes of judicial interpretation generate the results being reached. And such a best-practices standard would seem to entail much more of an explication than the New Mexico courts have offered so far.

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