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
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMSC-006
Filing Date: February 21, 2012
Docket No. 33,386
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
1
Docket No. 33,387
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.
2
ORIGINAL PROCEEDINGS
Jones, Snead, Wertheim & Wentworth, P.A.
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
3
for Real Party in Interest Governor Susana Martinez
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
4
Albuquerque, NM
Saucedo Chavez, P.C.
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
5
the heart of representative government. The idea that every voter must be equal to every
other voter when casting a ballot has its genesis in the Equal Protection Clause, U.S. Const.
amend. XIV, § 1 (Equal Protection Clause), and is commonly referred to as the “one person,
one vote” doctrine. As stated by the United States Supreme Court in the seminal case of
Reynolds v. Sims, 377 U.S. 533, 577 (1964), “[b]y holding that as a federal constitutional
requisite both houses of a state legislature must be apportioned on a population basis, we
mean that the Equal Protection Clause requires that a State make an honest and good faith
effort to construct districts, in both houses of its legislature, as nearly of equal population as
is practicable.” Therefore, when it comes to preserving an adult citizen’s right to vote, there
is no more important task for the Legislature and the Governor to perform than the decennial
reapportionment of districts for state and national elective offices.
{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
1
The Legislature was unable to pass reapportionment legislation relating to the
Congress. Governor Martinez vetoed legislation reapportioning the Public Regulation
Commission and the state Senate. The district court’s decision regarding these elective
offices is not challenged.
6
to permit this Court to conduct oral argument and issue a decision forthwith in an effort not
to delay the House elections. Before this year this Court had never been asked to decide the
legal principles that would govern our courts when they draw reapportionment maps. After
reading the parties’ briefs and listening to oral argument, we entered an order articulating
the legal principles that should govern redistricting litigation in New Mexico and remanded
the case to the district court for further proceedings consistent with the order.
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.
N.M. Const. art. IV, § 3(C); NMSA 1978, § 2-7C-3 (1991). The 2010 federal census
indicates that the population in New Mexico is 2,059,179 people, an increase of 13.2 percent
over the population documented by the 2000 census. Profile of General Characteristics for
the United States, United States Census Bureau (2010). The ideal House district population,
under the one person, one vote principle, would be 29,417 people. The current House
districts deviate from the ideal population with percent deviations ranging from negative
24.3 to a positive 100.9, for a total deviation range of 125.2 percent. The population in West
Albuquerque and Rio Rancho indicate that these areas combined can support three additional
house districts. Slower growth in North Central New Mexico, Southeastern New Mexico,
and Central Albuquerque indicate that these areas each currently have one district too many.
{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 N.M. Const. art. IV,
§ 3(D). The bipartisan New Mexico Legislative Council unanimously adopted “Guidelines
for the Development of State and Congressional Redistricting Plans” and formed a bipartisan
Interim Redistricting Committee to prepare to fulfill the Legislature’s constitutional
responsibility. The Interim Redistricting Committee developed redistricting plans and
invited public input regarding the plans so as to make recommendations to the Legislature
in advance of the September 6, 2011 Special Session called by Governor Martinez.
{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
7
a response.
{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
8
New Mexico. The district court rejected another proposed plan because of “significant
partisan bias.” It rejected one plan because of “highly partisan incumbent pairings” and
another plan because of the pairing of “the only Republican incumbent in north central New
Mexico with a Democratic incumbent and splits Los Alamos [from] White Rock.” Other
plans were rejected because of the failure “to establish Native American districts as
contained in the Multi-Tribal/Navajo Nation Plan under the Voting Rights Act.”
{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, 42 U.S.C. § 1973, prohibits any State or
political subdivision from imposing any electoral practice “which results in a denial or
abridgment of the right of any citizen of the United States to vote on account of race or
color.” 42 U.S.C. § 1973(a). If districts are drawn in such a way that a bloc voting majority
is usually able to defeat candidates supported by a politically cohesive, geographically
insular minority group of sufficient size, those districts will not be in compliance with
9
Section 2. Thornburg v. Gingles, 478 U.S. 30, 49 (1986). The Gingles Court defined three
threshold conditions for establishing a Section 2 violation. “[T]he minority group must be
able to demonstrate [(1)] that it is sufficiently large and geographically compact to constitute
a majority in a single-member district[; (2)] that it is politically cohesive[; and (3)] that the
white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred
candidate.” Id. at 50-51 (footnotes omitted). If these three preconditions are established,
then a violation of Section 1973(a) of the Voting Rights Act occurs if
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
10
vote dilution, the Gingles compactness inquiry considers “the compactness of the minority
population, not . . . the compactness of the contested district.” Bush v. Vera, 517 U.S. 952,
997 (Kennedy, J., concurring) (referring to Gingles, 478 U.S. 30). A district that “reaches
out to grab small and apparently isolated minority communities” is not reasonably compact.
Id. at 979. Section 2 compactness should take into consideration “traditional districting
principles such as maintaining communities of interest and traditional boundaries.” Id. at
977; see also Shaw v. Reno, 509 U.S. 630, 647 (1993) (reasoning that traditional districting
principles “are important not because they are constitutionally required—they are not—but
because they are objective factors that may serve to defeat a claim that a district has been
gerrymandered on racial lines”).
{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
11
POLICY ARE PERMISSIBLE
{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 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
12
v. Cox, 300 F. Supp. 2d 1320, 1340-41 (N.D. Ga. 2004) (rejecting Georgia’s redistricting
plans for its state legislature, although the plans contained maximum deviations under ten
percent). An equal protection challenge will lie “if the plaintiff can present compelling
evidence that the drafters of the plan used illegitimate reasons for population disparities and
created the deviations solely to benefit certain regions at the expense of others.” See
Legislative Redistricting Cases, 629 A.2d 646, 657 (Md. 1993).
{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.
Bryer, 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.
2
Deviations in court-drawn maps have varied with some in the range of five to ten
percent. See Burling v. Chandler, 804 A.2d 471 (N.H. 2002) (per curiam) (court-drawn map
with 9.26 percent deviations in House plan); Below v. Gardner, 963 A.2d 785 (N.H. 2002)
(court-drawn map with 4.96 percent deviations in Senate plan); Chapman v. Meier, 407 F.
Supp. 649 (D.N.D 1975), on remand from 420 U.S. 1 (1975) (court-drawn map with 6.6
percent deviations).
13
{28} Because the redistricting process is embroiled in partisan politics, when called upon
to draw a redistricting map, a court must “do so with both the appearance and fact of
scrupulous neutrality.” Peterson, 786 N.E.2d at 673. To avoid the appearance of partisan
politics, a judge should not select a plan that seeks partisan advantage. Thus, a proposed
plan that seeks to change the ground rules so that one party can do better than it would do
under a plan drawn up by someone without a political agenda is unacceptable for a court-
drawn plan. See Wilson v. Eu, 823 P.2d 545, 576-77 (Cal. 1992) (in bank) (rejecting plans
submitted by the parties because each had calculated partisan political consequences, the
details of which were unknown, leaving no principled way for the court to choose between
the plans, while knowing that the court would be endorsing an unknown but intended
political consequence if it chose one of the plans).
{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,
14
League of United Latin Am. Citizens, 548 U.S. at 420, it should be considered as “a measure
of partisan fairness in electoral systems,” id. at 466 (Stevens, J., concurring in part and
dissenting in part). In addition, maintaining 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. Districts should be drawn to promote fair and
effective representation for all, not to undercut electoral competition and protect incumbents.
It is preferable to allow the voters to choose their representatives through the election
process, as opposed to having their representative chosen for them through the art of drawing
redistricting maps. We believe that consistent and non-discriminatory application of historic
legislative redistricting policies, in conjunction with limited flexibility in the court’s search
for ideal population equality, will be effective tools in drawing redistricting maps that avoid
partisan advantage. In applying these rules, a court may be well advised to employ the
services of an expert under Rule 11-706 NMRA.
{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:
15
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 Section 3(C), Article IV of the New Mexico Constitution. Districts designed
with contiguous precincts that are as compact as practicable are intended to comply with the
requirements of NMSA 1978, Section 2-7C-3. Compactness and contiguity are important
considerations because these requirements help to reduce travel time and costs. These
considerations make it easier for legislative candidates to campaign for office, and once they
are elected, to maintain close and continuing contact with the people they represent. It has
also been suggested that compactness and contiguity greatly reduce, although they do not
eliminate, the possibilities of gerrymandering. Daniel D. Polsby & Robert D. Popper, The
Third Criterion: Compactness as a Procedural Safeguard Against Partisan
Gerrymandering, 9 Yale L. & Pol’y Rev. 301, 326-34 (1991).
{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).
16
{37} With respect to the legislative policy of preserving communities of interest, we
recognize that this criterion may be subject to varying interpretations. We interpret
communities of interest to include a contiguous population that shares common economic,
social, and cultural interests which should be included within a single district for purposes
of its effective and fair representation. See O’Sullivan, 540 F. Supp. at 1204. The rationale
for giving due weight to clear communities of interest is that “[t]o be an effective
representative, a legislator must represent a district that has a reasonable homogeneity of
needs and interests; otherwise the policies he supports will not represent the preferences of
most of his constituents.” Prosser, 793 F. Supp. at 863.
{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
17
had undergone. The executive parties introduced Executive Alternative Plan 3 into evidence
on the last day of trial, after the political science experts who had scrutinized the plans
before the district court were no longer available to testify. This plan was introduced during
the testimony of Brian Sanderoff. Mr. Sanderoff pointed out the existence of significant
partisan performance changes as compared with previously introduced executive plans; plans
which the district court had previously heard from experts were partisan-neutral. Consistent
with that testimony about partisan performance changes, the district court found that
Executive Alternative Plan 3 increased Republican swing seats from five to eight over prior
partisan-neutral executive plans. In addition, the number of majority Republican districts
increased from 31 in the original executive plan to 34 in Executive Alternative Plan 3.3 Mr.
Sanderoff testified that Executive Alternative Plan 3 could have been drafted with less
partisan change, perhaps with the use of slightly greater population deviations. Because of
both this testimony and the district court’s rejection of other plans for perceived partisan bias
considerations, and because of its own recognition that the plan contained significant
partisan performance changes, the district court should have rejected Executive Alternative
Plan 3 as well. At a minimum, the district court should have slowed the process down
enough to determine whether the significant partisan performance changes could have been
ameliorated by consideration of legitimate state policies and a more flexible approach to
population deviations that would not offend the constitution.
{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
3
How these findings of fact are relevant and material to the status quo was not
completely developed at the district court level.
18
apparently relatively easy to achieve, suggesting, at least in part, that the district was created
to give political advantage to one party. This result was not politically neutral and raises
serious questions regarding its propriety in a court-ordered plan that should be partisan-
neutral and fair to both sides. Stated differently, a more competitive district should have
been created if at all practicable to avoid this political advantage to one political party and
disadvantage to the other. Competitive districts are healthy in our representative government
because competitive districts allow for the ability of voters to express changed political
opinions and preferences. See Alexander, 51 P.3d at 1212.
{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 Rule 11-706. The district court was
instructed to include the Multi-Tribal/Navajo Nation partial plan within any redistricting
map that the district court will draw. In addition, we required the district court to reject all
of the previously submitted plans because of the political advantage sought by the parties.
The accusation that we ordered the district court to reduce Republican seats in the House
originates in the imagination of the accuser. We asked the court to draw its own map with
the desired goal being to draw a partisan-neutral map that complies with both the one person,
one vote constitutional doctrine, the requirements of the Voting Rights Act, and considers
other historical and legitimate state redistricting principles. Although it has been suggested
that a partisan-neutral map is illusory, the history of this case proves otherwise. The parties
were able to draw maps that gave them each a political advantage and with population
deviations that likely would have passed constitutional scrutiny. A court, with a cautious
eye toward neutrality, can make the good faith effort to draw a map that advantages neither
political party.
{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.
19
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:
1. 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.
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.
3. 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
20
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 Voting Rights Act litigation, and as it has been
represented, at least in effect, for the past three decades.
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. CHÁVEZ, Justice
WE CONCUR:
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
RICHARD C. BOSSON, Justice
JONATHAN B. SUTIN, Judge
21
Sitting by designation, dissenting
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
22
{53} In regard to Clovis, looking at the totality of circumstances based on the proof
presented, Judge Hall saw no Voting Rights Act violation. He was in no way required to
continue in force the nearly twenty-eight-year-old, elephant-truncated, unnaturally divided
district created in Sanchez. Majority Opinion ¶ 20. The burden was on those contending
that no change should be made to that then legally gerrymandered district to prove that no
change should be made. The Majority errs in placing the burden on Judge Hall to have
shown that certain population changes occurred in the district over the years that required
a change. Further, it appears that the resulting district retained an Hispanic voting age
population above 50%. In addition, Judge Hall found that “[a]ll of the plans before the Court
contain a significant number of Hispanic majority districts; however, the Court finds no
persuasive evidence that Sec. 2 of the Voting Rights Act requires any particular Hispanic
majority district be drawn. Judge Hall also found that “[o]f all the plans presented to the
Court, Executive Alternate Plans 1, 2, and 3 maintain the highest number of districts with
a Hispanic [voting age population] over 50%.”
{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, Voting Rights
Act evaluation requirement, LULAC addressed the proportionality factor and then considered
citizen voting age population on a statewide basis after the district court made a finding
regarding statewide citizen voting age population. Id. at 438. LULAC does not set down a
rule or principle that necessarily governs Judge Hall’s determinations.
{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 Voting
Rights Act was violated and a remedial district must be formed. Furthermore, beyond the
Gingles factors, neither the Majority nor a party has pointed out where data showing the
percent of Hispanic citizen voting age population in the district in question was proved. In
fact, one must question whether any underlying evidentiary support even exists to support
such data for the particular district at issue. Brian Sanderoff, who worked on this case for
the Legislative Council Service, and who apparently is Judge Hall’s new Rule 706 expert
at the strong suggestion of the Majority, testified that there was no data indicating the exact
percentage of Hispanic citizen voting age population in the existing districts or in the
districts contained in any of the plans. I believe the Majority erred in requiring Judge Hall
to rethink the evidence, and the lack thereof, or obtain further evidence in order to arrive at
what the Majority essentially holds is a mandatory Voting Rights Act remedial district.
Majority Opinion ¶¶ 19-20; Majority Order 20-21 (¶ 4).
Minimum Population Deviation
{56} In regard to the one man-one vote requirement embedded in constitutional law, it is
23
obvious that Judge Hall was very much aware of and attuned to the applicable United States
Supreme Court and federal cases, as well as state case law. He knew the law on acceptable
deviation from minimum population requirements. He did not misunderstand, misconstrue,
or misapply the law in any regard. He applied the law correctly. He deviated where it was
necessary under the Voting Rights Act or under any legitimate State interest to do so. In
adopting the Native American Plan in order to protect Native American interests, the
Executive and Judge Hall had to deal with population dispersion “ripple-effect”
complications resulting from that plan’s insertion in the map. Judge Hall did not deviate
where the circumstances and proof offered failed, in his view, to establish any Voting Rights
Act violation or to establish that a legitimate State interest would require deviation. I believe
the Majority erred in concluding that Judge Hall misconstrued the law or did not apply the
law correctly and in instructing Judge Hall to rethink the evidence and change his mind so
as to provide for even further deviation notwithstanding his view that proof requiring any
such deviation was lacking.
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
24
advantage. Judge Hall certainly did not indicate, with respect to swing seats, that there
existed “significant” Republican partisan performance advantage and, when one considers
Mr. Sanderoff’s full testimony, Judge Hall could in his sound discretion have refused to view
any Republican performance swing-seat advantage as justification for arriving at a different
plan. Maintenance of and changes in seats of one party or the other is an understandable
effect of the reapportionment process. As the majority recognizes, Judge Hall sat as a judge
in a court of equity. Majority Order 6 (¶ 3). Considerably more must exist here to say that
Judge Hall abused his discretion.
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
25
seat gained by Republicans, hardly something to require Judge Hall to return to the creative
drawing board in search of the illusory notion of neutrality. Voters will “choose their
representatives[,]” id., just fine under Judge Hall’s plan. The idea that Judge Hall was not
“consistent and non-discriminatory” in applying legitimate State interests, id., marginalizes,
if not repudiates, a trial judge’s basic and essential work and role in determining whether
sufficient evidence exists to support a claim of inconsistency and discriminatory application
of those interests. Such a notion outright and erroneously rejects Judge Hall’s having given
thoughtful consideration to the plans, policies, and interests. That rejection has no support
in the record. Further, it seems to me a bit far fetched to engage in the hyperbolic phrases
of “giv[ing] effect to the will of the majority of the people” and the “unaccept[ability] for
courts to muzzle the voice of the people.” Majority Opinion ¶¶ 32-33. Contrary to the view
of the Majority, I believe that the integrity and legitimacy of the judiciary was not at risk in
Judge Hall’s hands nor were they diminished by Judge Hall’s plan.
{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 Fourteenth
Amendment and the Voting Rights Act are unsupported in the record. The actual effects
about which the Majority is concerned, even if valid to any degree, are too insubstantial to
require the remand and “do over” required of Judge Hall. Other than its references to the
Clovis area with unsupportable reliance on citizen voting age population data, and its
concern about partisan effect relating to one district in Central Albuquerque, the Majority
points to no particular district it considers to be unlawfully established. Its tail-end
instruction that Judge Hall “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.” Majority Order 19 (¶ 1); Majority Opinion ¶ 45(1), has little, if any
basis in the Majority’s Order or Opinion. Based on the Majority’s problematic review
approach and erroneous intrusion into Judge Hall’s bailiwick, on the Majority’s unsupported
view that Judge Hall incorrectly interpreted the law, on the Majority’s vague analyses of
actual error on Judge Hall’s part requiring remand to revamp the plan, and on the minimal
impact of whatever swing-seat advantage the Republicans may have gained, one must
wonder why the Majority has gone to the lengths it has to overturn Judge Hall’s plan.
{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.
26
{66} The foregoing dissent has been prepared as Judge Hall is no doubt attempting to
create a new plan that follows the dictates of the Majority. That plan will no doubt be
affirmed by the Majority, given what Judge Hall is instructed to do.4 My only hope is that
Judge Hall does not expressly confess error.
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 Fourteenth Amendment or Voting Rights Act violation or
relating to secondary factors such as communities of interest.
{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
Fourteenth Amendment. He would not have put forth a plan if the evidence supported a
determination that the plan violated the Voting Rights Act. He would not have created a
plan that would fail to withstand strict scrutiny. In his consideration of secondary factors,
he would not have created a plan that, in his view, failed to protect communities of interest.
{70} Reapportionment cases are known for their rampant partisanship, whether at the
4
Different than the language and tenor of its Order, the Majority now attempts to
ameliorate what it has instructed by saying that the Order did “not specifically direct the
district court what to do, if anything,” about the Majority’s “concerns[,]” and that the
district court “continues to have the discretion necessary to carry out its equitable
jurisdiction.” Majority Opinion ¶ 44.
27
legislative level or in the court. The cases are complex. Population increase over ten years
requires change. Redistricting is necessary. Expert map drawers, political scientists, and
historians are involved. Witness testimony and documentary evidence fills volumes. The
quest for the perfectly neutral reapportionment map devoid of partisan effect or bias is
illusory. Parties and courts quote what they want from the United States Supreme Court and
lower federal courts, as well as from state courts, for favorable language to support their
positions.
{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
Fourteenth Amendment and the Voting Rights Act.
{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 Voting Rights
Act. Judge Hall appropriately justified the deviation. See Thornburg v. Gingles, 478 U.S.
30, 50-51 (1986) (explaining what proof is necessary for a court to find a violation of Section
2 of the Voting Rights Act).
{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 Fourteenth Amendment or the Voting Rights Act. Moreover,
all of the plans split some communities of interest. Furthermore, communities of interest are
defined in many different ways, they are what they are based on the eyes of the beholder, and
are, for the most part, partisan driven.
{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:
28
that his plan includes thirty districts with Hispanic voting age population over 50%,
maintaining the highest number of districts with a Hispanic voting age population over 50%;
that incorporating the Native American plans caused the number of swing districts of 49-
51% to increase from five to eight, and the number of majority Republican performance
districts (over 50%) to reach 34; that his plan avoids splitting communities of interest
(particularly the Native American communities of interest) to a reasonable degree; that he
gave thoughtful consideration to all plans (plus amended, modified, and alternative),
including the unenacted Legislative Plan; that he considered the totality of circumstances
when considering whether the plan violated the Voting Rights Act.
{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 Fourteenth Amendment or Voting Rights Act violation or that some
secondary factor necessarily overrides the plan.
{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
5
I note that the “will of the people” was involved here from start to finish. While
the legislative plan passed the House, all Republicans and a few Democrats voted against
passage, the Governor vetoed the plan, any veto override was unlikely and not attempted,
Judge Hall rejected the legislative plan, and several parties advocating their interests fully
presented their positions and views at trial.
29
study of the various plans; and his interactions with the parties and recommended plan
changes. Judge Hall handled this case “in a manner free from any taint of arbitrariness or
discrimination.” See id. at 672 (quoting Connor v. Finch, 431 U.S. 407, 415 (1977)).
{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 Fourteenth Amendment because of severe
or significant partisan bias. Nothing in the plan shows any egregiousness, and nothing in the
evidence indicates that any attempt at neutrality (which, although not a word used in the
Order, is what I believe the Majority actually requires) or, even as the Order indicates, “less
partisan effect,” will relieve the challengers or the Majority of their view that any
Republican advantage that results in seat gain from the status quo constitutes a partisan bias
that violates the Fourteenth Amendment. Democrats keep their statewide majority under the
plan. Several districts with Republican advantage are competitive. Judge Hall’s plan was
in no way driven by partisan bias. Nothing in the record indicates that Judge Hall’s goal,
much less overriding goal, was to effect partisan change. If the Majority wants Judge Hall
to move things around to obtain “less partisan effect,” does that take us to some sort of status
quo, and will the status quo violate population shifting requirements? The answer to the
question of partisan bias can depend in part on tests or models used. Several were under
consideration. Judge Hall was not required to apply any one of them in particular or to rely
on them as the sole basis on which to decide whether the proof showed a partisan effect or
bias that violated the Fourteenth Amendment. Furthermore, no evidence bound Judge Hall
to find that there was actual harm or undue prejudice to Democrats, who continue to
maintain a majority of the seats in the House.
{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.
30
____________________________________
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
31
APPENDIX A
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
) NO. D-101-CV-2011-02942
DIANNA J. DURAN, in her official )
capacity as New Mexico Secretary of State,
SUSANA MARTINEZ, in her official )
capacity as New Mexico Governor, JOHN
) CONSOLIDATED WITH
A. SANCHEZ, in his official capacity as
New Mexico Lieutenant Governor and ) D-101-CV-2011-02944
presiding officer of the New Mexico D-101-CV-2011-02945
Senate, TIMOTHY Z. JENNINGS, in his ) D0101-CV-2011-03016
official capacity as President Pro-Tempore ) D-101-CV-2011-03099
of the New Mexico Senate, and BEN D-101-CV-2011-03107
LUJAN, SR., in his official capacity as ) D-202-CV-2011-09600
Speaker of the New Mexico House of D-506-CV-2011-00913
Representatives, )
)
Defendants.
)
)
)
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."
32
The First Court-Adopted Plan was reviewed by the New Mexico Supreme Court.
The Supreme Court issued an Order (hereinafter "the Remand Order") returning the case to
this Court with specific instructions on remand. Subsequently, the Supreme Court issued
an Opinion (hereinafter "the Opinion") in Maestas, et al. v. Hall, No. 33386, which further
addressed the issues in this case and the Remand Order.
The Remand Order directed this Court to draw a new reapportionment plan with the
assistance of an expert under Rule 11-706 NMRA. The Remand Order stated that Brian
Sanderoff of Research & Polling, Inc. would be a permissible candidate to serve in the role
of a Rule 11-706 expert. Remand Order at pp. 18-19. This Court appointed Mr. Sanderoff
as the Rule 11-706 expert. As suggested by the Remand Order, the parties were given an
opportunity to file briefs identifying state policies that would assist the Court in drawing a
plan that results in less partisan performance changes and fewer divisions of communities
of interest. The Remand Order further directed that this Court "should rely, as much as
possible on the evidence presently in the record, and it should not admit additional evidence
from the parties."1 Remand Order at p. 18.
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
1
In what appears to be a violation of this Supreme Court directive, the Egolf Plaintiffs
submitted an Affidavit from Theodore Arrington, a witness who testified during the trial.
In response to a Motion to Strike Dr. Arrington’s Affidavit, the Egolf Plaintiffs contend that
the Affidavit is appropriate because it is a part of their “comment” on the Court’s
Preliminary Plans. This argument is not persuasive. Clearly, an affidavit from an expert
witness is evidence and the Supreme Court was quite clear that the parties not submit
additional evidence; therefore, this Court does not consider the Affidavit of Dr. Arrington
or any of the arguments based on that specific evidence.
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.
2
Preliminary Plan No. 2 included a different pairing of legislators in the North
Central region. Although one party had initially proposed this new pairing in the briefs, no
party argued that this Court should adopt Preliminary Plan No. 2 in their comments on the
proposed plans and several parties contended that Preliminary Plan No. 2 was not based on
the evidence presented at trial. After considering the issue, this Court agrees that the
existing court record does not support the adoption of Preliminary Plan No. 2.
33
be referred to as the Final District Court Plan. This written Decision is intended to set forth
this Court's conclusions in light of the Remand Order and Opinion of the Supreme Court.
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
3
This Court’s thoughtful consideration of the Legislative Plan is specifically
addressed in the Findings of Fact and Conclusions of Law. See Findings of Fact Nos. 32-41
and Conclusions of Law 27-28. All of those findings and conclusions are still applicable.
34
Democrat-Republican consolidation in Central Albuquerque4). Because the other plans
introduced at trial do not include these two important components, this Court rejected the
other plans as potential starting points.
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
4
The concerns of the Supreme Court regarding the Democrat-Republican
consolidation in Central Albuquerque are addressed below.
5
As to each of the Supreme Court’s four specific instructions, this Decision sets out
the specific directive language of the Remand Order
6
The Remand Order contains the following language: “In this case, the district court
concluded that it was bound to a plus-or-minus one-percent population deviation with the
exception of addressing Voting Rights Act infractions.” Remand Order at pp. 13-14. This
language was modified slightly in the Opinion which reads: “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.”
Opinion at p. 27.
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 Voting Rights Act. This Court made specific findings regarding Native
American communities of interest. Findings of Fact Nos. 58, 59, 60, 67, 69 and 74. This
Court also specifically concluded that more substantial deviations were justified not only
based on the Voting Rights Act, but also based on significant state policies including
35
In the Final District Court Plan, Las Vegas and Deming are maintained whole within
a single district. In addition, in contrast to the First Court-Adopted Plan, Mountainair and
Tijeras are each contained within a single district in the Final District Court Plan.
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
protection of communities of interest. Conclusions of Law Nos. 24, 27, 33 and 34.
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. 2,
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.
36
is split between District 38 (which is a Republican performing district with a Republican
incumbent) and District 39 (which is a Democrat performing district with a Democrat
incumbent). The Republican incumbent in District 38 lives in Silver City. The Democrat
incumbent in District 39 lives very near Silver City in Bayard.
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 2½ 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
7
This Court examined the possibility of pairing the two incumbents in the Silver City
area. Under the Supreme Court directives, such a Democrat-Republican pairing would have
to provide an equal opportunity to either party. Remand Order, p. 20. Accomplishing this
goal would be very difficult without splitting communities other than Silver City. Moreover,
the partisan performance measures for the newly created district would alter the partisan
balance. Unlike the population growth in Rio Rancho and the west side of Albuquerque
which can clearly be identified as supporting two Republican and one Democrat seat,
identifying the appropriate partisan makeup of a new seat in the southwest area of the state
is virtually impossible.
8
An explanation of the methodology used to determine whether a particular district
is Republican majority or Democrat majority is set forth below. See p. 10.
37
to +/- 5 percent.
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 spilt 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
9
The Court and the Rule 11-706 expert examined additional suggestions to unify
other municipalities submitted by the parties in their comments on the preliminary plans.
When those suggestions were incorporated into the plan, the result generally was some
change in the partisan neutrality of the plan. Not surprisingly, the change in partisan
neutrality generally benefitted the political party aligned with the party proposing the
change. After discussion of each suggested change, the Court concludes that the partisan
consequences of the proposed changes outweigh the potential benefit of the proposed
unification of the identified municipality; therefore, the suggested changes were not adopted.
38
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
10
The issue of incumbent pairings is addressed below.
11
The Research and Polling partisan performance measurement is essentially the
average of all statewide races that were held in New Mexico from 2004 to 2010, excluding
outlier races in which a candidate won/lost by more than 20%. These results were then
segmented at the legislative district level for each of the plans. This index does not include
the legislative district races for various logistical and statistical reasons. The partisan
performance measure is intended to show how the average statewide Democratic and
Republican candidates have performed historically in each district. It is not intended to
predict the outcome of each legislative race. The outcome of specific legislative races will
be affected by many other factors such as the quality and resources of the candidates as well
39
contained some criticism of the Research and Polling formula, the formula does have the
advantage of considering elections over the majority of the most recent decade, as opposed
to focusing on a single election.
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
as the mood of the state and nation at the time of the election. Despite this, the partisan
measure appears to be a very accurate indicator of the party's candidate that may win the
general election. Currently there are only three incumbents who are of the opposite party
of what the measure indicates. And in each case, the partisan percentage is very close to
indicating a toss up race: 49.3%, 50.6%, and 51.8%.
12
In responding to the preliminary plans, the James Plaintiffs contend that the
political ratio in the Final District Court Plan is not 38-32 because District 24 is evenly split
at 50 percent. There are three responses to this contention. First, the split is not exactly 50-
50; the actual calculation for District 24 is 50.03% Republican. A 50-50 split appears in the
map packet only because the table only identifies percentages to one-tenth of a percentage
point. Second, District 24 is the district that results from the Republican-Democrat pairing
in Albuquerque. The Supreme Court has directed that this district should provide an equal
opportunity to either party. Remand Order at p. 20. Finally, the current plan includes one
district, District 43, which appears as a 50-50 split in the map packet but in reality is 50.02%
Republican. To the extent it is argued that the political ratio in the Final District Court Plan
is 38 Democrat majority districts, 31 Republican districts and one evenly split district, that
ratio would also match the current districts as well.
40
seat category. Although it is not completely clear, it appears that the Supreme Court was
concerned that the First Court-Adopted Plan contained significantly more Republican
majority seats in the swing category, thereby giving Republicans a slight advantage in
closely contested districts. To address this concern, the Final District Court Plan includes
a total of fifteen districts in the swing category. Of these, eight are Republican majority
districts and seven are Democrat majority districts. In the current districts, there are nine
Republican majority districts and six Democrat majority districts. While the distribution of
those seats across the spectrum from 50% to 53.9% can never be identical between the
parties, the distribution resulting in the Final District Court Plan is relatively symmetrical.
See the Political Performance chart attached to Preliminary Plan No. 1.
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
13
In this regard, District 7 and District 8 may require some explanation. These two
districts are in the Los Lunas/Belen area and are the subject of much argument from the
parties because they are highly competitive districts. These districts are closely interrelated
and changes in one district almost always affect the other. Consideration of these districts
was further complicated by the fact that both share a boundary with District 49, which is a
district that has been returned to a Democrat majority district under the mandate from the
Supreme Court. To accomplish this, some Democrat leaning precincts in Belen were moved
to District 49 while some Republican leaning precincts in Los Lunas were moved to District
8. Finally, there are communities within District 7 and District 8 which are split. In an
apparent effort to gain a slight advantage in these competitive districts, some parties
submitted suggestions under the guise of attempting to unify certain communities.
Ultimately, the Final District Court Plan balanced these competing issues as follows: Both
District 7 and District 8 remain as competitive districts, but District 7, which under the
current plan had a Republican majority performance percentage, now has a Democrat
majority performance percentage. Conversely, District 8, which under the current plan had
a Democrat majority performance percentage, now has a Republican majority performance
percentage. While both Los Lunas and Belen remain split under the District Court Final
Plan, Los Lunas is now split between only two districts (District 7 and District 8) rather than
three districts as is the case under the current plan.
41
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
14
The final sentence in this provision of the Remand Order states: "[t]he performance
of created districts as well as those left behind should be justified." This Court interprets this
sentence to apply if this Court elected to include some consolidation other than those
contained in the First Court-Adopted Plan. To the extent this Court needs to provide
justification for the created districts in the Final District Court Plan, this Court would adopt
the following statement of the Supreme Court: "The three new seats, two Republican and one
Democrat, correctly reflected the political affiliation of the population in those high-growth
areas on the west side of Albuquerque and in Rio Rancho, a result we do not question."
Remand Order at p. 15.
42
represented by an effective, citizen, majority-minority district as that term is
commonly understood in Voting Rights Act litigation, and it has been
represented, as 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
15
The first sentence of this remand provision sets forth a very serious allegation
regarding this Court’s prior decision. The Remand Order contends that this Court did not
consider Hispanic citizen voting age populations in reaching the decision. The consideration
of minority voting issues is one of the central responsibilities of a Court in redistricting
cases, both from a legal and a moral perspective. Given the Findings of Fact and
Conclusions of Law, it is very difficult for this Court to understand how the Supreme Court
could conclude that this Court did not consider Hispanic citizen voting age populations in
reaching its decision. As it relates to the minority community in Clovis, this Court made
specific findings regarding that community. Findings of Fact Nos. 64, 65 and 66. Most
importantly, this Court made the specific finding that “Executive Alternate Plan 1 provides
for a Hispanic majority VAP district in and around Clovis.” Finding of Fact No. 66. This
is the same district that is included in the First Court-Adopted Plan. The fact that the very
district that contains the most significant Hispanic community in Clovis is a majority
Hispanic voting age district should be a clear indication that this Court did consider Hispanic
voting age populations in reaching a decision.
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.
43
which stretched from Clovis east through Fort Sumner and Santa Rosa, extending to the
western boundary of Guadalupe County. The incumbent in District 63 resides in Santa Rosa,
approximately 100 miles from Clovis. Under the current plan, the Hispanic voting age
population in District 63 is 54.6%. 16
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 Voting Rights Act requires any
particular Hispanic majority district be drawn." Conclusion of Law No. 26. This Court was
of the view that the burden of proof on the need for a particular minority-majority district
rested with the party proposing such a district.
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 Voting Rights Act considerations are no longer warranted." Opinion at p. 14. This
shift in the burden of proof changes the outcome. This Court cannot find on the present
record that any party affirmatively proved that Section 2 Voting Rights Act considerations
are no longer warranted; therefore, this Court interprets the remand from the Supreme Court
to require that District 63 remain as close as possible to its present configuration and that,
at a minimum, the percentage of the Hispanic voting age population not be decreased. These
requirements are met in the Final District Court Plan. In the Final District Court Plan, 89.7%
of the population in current District 63 is also contained within the boundaries of District 63.
The Hispanic voting age population for District 63 in the Final District Court Plan is 57.0%,
an increase of 2.4% over the current District 63. These changes do result in a decrease in
the Hispanic voting age population in District 67 down to 39.7%, thereby reducing by one
the total number of majority Hispanic voting age population districts in New Mexico.
16
At the time of the litigation in Sanchez v. King, No. 82-00670M (D.N.M. 1984), the
Hispanic population in District 63 was well below 50%.
44
For the reasons set forth above, this Court concludes that the District Court Final
Plan complies with the Remand Order of the Supreme Court. Counsel for the Secretary of
State is directed to immediately prepare an Amended Judgment and Final Order consistent
with this Decision, obtain approval as to all counsel as to form, and submit it to the Court
for immediate entry. 17
Dated: _________________ ____________________________________
James A. Hall
District Judge Pro Tempore
Copies to counsel of record via e-filing system.
17
This Court would like to thank Brian Sanderoff, Michael Sharp and all the staff at
Research and Polling, Inc. for their assistance as the Rule 11-706 expert. Their work was
invaluable to this Court in addressing the issues raised in the remand from the Supreme
Court.
45