Grisham v. Van Soelen ( 2023 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: __________________
3 Filing Date: September 22, 2023
4 NO. S-1-SC-39481
5 MICHELLE LUJAN GRISHAM in her official
6 capacity as Governor of the State of New Mexico,
7 HOWIE MORALES, in his official capacity as
8 New Mexico Lieutenant Governor and President
9 of New Mexico Senate, MIMI STEWART, in her
10 official capacity as President Pro Tempore of the
11 New Mexico Senate, and JAVIER MARTINEZ,
12 in his official capacity as Speaker of the New
13 Mexico House of Representatives,
14 Petitioners,
15 v.
16 HON. FRED T. VAN SOELEN, District Court
17 Judge, Fifth Judicial District Court,
18 Respondent,
19 and
20 REPUBLICAN PARTY OF NEW MEXICO,
21 DAVID GALLEGOS, TIMOTHY JENNINGS,
22 DINAH VARGAS , MANUEL GONZALES JR.,
23 BOBBY AND DEE ANN KIMBRO, AND
24 PEARL GARCIA,
25 Real Parties in Interest,
1 and
2 MAGGIE TOULOUSE OLIVER,
3 Defendant-Real Party in Interest.
4 ORIGINAL PROCEEDING ON PETITION FOR WRIT OF
5 SUPERINTENDING CONTROL
6 Hinkle Shanor LLP
7 Richard E. Olson
8 Lucas M. Williams
9 Ann C. Tripp
10 Roswell, NM
11 Peifer, Hanson, Mullins & Baker, P.A.
12 Sara N. Sanchez
13 Mark T. Baker
14 Albuquerque, NM
15 UNM School of Law
16 Michael B. Browde
17 Albuquerque, NM
18 Stelzner, LLC
19 Luis G. Stelzner
20 Albuquerque, NM
21 Holly Agajanian
22 Kyle P. Duffy
23 Santa Fe, NM
24 for Petitioners
25 Dylan Kenneth Lange, General Counsel
26 Albuquerque, NM
27 for Defendant-Real Party in Interest
1 Harrison, Hart & Davis, LLC
2 Carter B. Harrison IV
3 Daniel J. Gallegos
4 Albuquerque, NM
5 for Real Parties in Interest
1 OPINION
2 BACON, Chief Justice.
3 {1} This case presents the issue of whether a partisan gerrymandering claim is
4 cognizable and justiciable under the Equal Protection Clause in Article II, Section
5 18 of the New Mexico Constitution and, if so, what standards should be applied in
6 its adjudication. N.M. Const. art. II, § 18 (“No person shall be deprived of life, liberty
7 or property without due process of law; nor shall any person be denied equal
8 protection of the laws.” (emphasis added)). Real Parties in Interest (Real Parties)—
9 Republican Party of New Mexico, David Gallegos, Timothy Jennings, Dinah
10 Vargas, Manuel Gonzales Jr., Bobby and Dee Ann Kimbro, and Pearl Garcia—had
11 filed suit as Plaintiffs in the district court, alleging that the congressional districting
12 maps enacted in 2021 violate New Mexico’s Equal Protection Clause. As
13 Defendants in the district court, Petitioners—in their capacities as elected officials,
14 the Governor, Lieutenant Governor-President of the Senate, President Pro Tempore
15 of the Senate, and Speaker of the House of Representatives 1—filed a petition for a
16 writ of superintending control and request for stay in this Court to resolve the
1
Secretary of State Maggie Toulouse Oliver, also named as a real party in
interest, asserted that she is a nominal party and therefore has declined to take a
position on the questions presented in this matter.
1 aforementioned issues. Following oral argument and supplemental briefing on those
2 issues, we filed an order and an amended order, both of which, among other things,
3 granted the petition insofar as declaring the justiciability of a partisan gerrymander
4 claim and providing guidance and standards for the district court. Today, we explain
5 that order and provide additional guidance to the district court regarding the
6 resolution of a partisan gerrymandering case.
7 I. FACTUAL AND PROCEDURAL BACKGROUND
8 {2} Within a special legislative session in December 2021, the challenged
9 congressional map and associated legislation was introduced in the Senate, approved
10 by both chambers, and signed into law by the Governor.2 In November 2021, the
11 Citizen Redistricting Committee had submitted to the Legislature its proposed
12 redistricting plans, promulgated in accordance with the Redistricting Act, NMSA
2
Senate Bill 1, 2021 N.M. Laws, 2d Spec. Sess., ch. 2, §§ 1-5,
https://www.nmlegis.gov/Legislation/Legislation?chamber=S&legType=B&legNo
=1&year=21s2 (last visited Sept. 18, 2023) (choose “Final Version” and “Congress
-Final Version Maps and Data” hyperlinks); see NMSA 1978, § 1-15-15 (2021), §
1-15-16 (2021), § 1-15-16.1 (2021), § 1-15-17 (2021), § 1-15-15.2 (2021).
2
1 1978, §§ 1-3A-1 to -9 (2021).3 However, the Legislature exercised its discretion to
2 draw and enact its own maps, including the challenged congressional map. See
3 Senate Bill 1, “Congress-Final Version Maps and Data” hyperlink; see also § 1-3A-
4 9(B) (“The legislature shall receive the adopted district plans for consideration in the
5 same manner as for legislation recommended by interim legislative committees.”).
6 {3} Approximately one month after the congressional map’s adoption, the Real
7 Parties filed their lawsuit in district court challenging the map as an unconstitutional
8 partisan gerrymander. Among other claims, the Real Parties quoted Maestas v. Hall,
9 2012-NMSC-006, ¶¶ 25, 34, 274 P.3d 66, for the proposition that “[w]hen drafters
10 of congressional maps use ‘illegitimate reasons’ to discriminate against regions at
11 the expense of others, including failing to adhere to New Mexico’s ‘traditional
12 districting principles,’ aggrieved voters may seek redress of this constitutional injury
13 in the courts through an equal protection challenge.” The Real Parties further alleged
3
See Citizen Redistricting Committee, CRC District Plans & Evaluations
(reissued Nov. 8, 2021) at 4, https://www.nmredistricting.org/wp-
content/uploads/2021/11/2021-11-2-CRC-Map-Evaluations-Report-Reissued-1.pdf
(last visited Sept. 8, 2023); see also § 1-3A-5(A)(1)(a) (providing that the committee
shall “adopt three district plans each for . . . New Mexico’s congressional districts”);
§ 1-3A-7(C)(1) (prohibiting the use of partisan data other than “to ensure that the
district plan complies with applicable federal law”); § 1-3A-9(A) (“The committee
shall deliver its adopted district plans . . . to the legislature by October 30, 2021, or
as soon thereafter as practicable . . . .”).
3
1 that the challenged map “drastically” split (or “crack[ed]”) 4 the votes of registered
2 Republicans in southeastern New Mexico from a single district (Congressional
3 District 2) into all three congressional districts and diluted those votes by splitting
4 registered Democrats in the greater-Albuquerque area into all three districts as well.
5 The alleged effect was to “impose[] a severe partisan performance swing by shifting
6 [Congressional District] 2’s strong Republican block . . . into majority-Democratic
7 seats.” The Real Parties sought a declaration that the challenged map is an
8 unconstitutional partisan gerrymander in violation of Article II, Section 18. They
9 additionally moved for a preliminary injunction to block the map from taking effect
10 for the 2022 congressional elections.
11 {4} The Real Parties also moved for injunctive relief in asking the district court to
12 adopt “a partisan neutral congressional map consistent with [map E],” one of the
4
As expressed in the Alaska Supreme Court’s In re 2021 Redistricting Cases:
Gerrymandering often takes one of two forms, “packing” or “cracking.”
“Packing” occurs when groups of voters of similar expected voting
behavior are unnaturally concentrated in a single district; this may
create a “wasted” excess of votes that otherwise might have influenced
candidate selection in one or more other districts. “Cracking” occurs
when like-minded voters are unnaturally divided into two or more
districts; this often is done to reduce the split group’s ability to elect a
candidate of its choice.
528 P.3d 40, 54 (Alaska 2023) (footnotes omitted).
4
1 three partisan-neutral congressional plans developed by the Citizen Redistricting
2 Committee and recommended to the Legislature.
3 {5} Petitioners moved to dismiss the Real Parties’ lawsuit, arguing under Rucho
4 v. Common Cause, 139 S. Ct. 2484 (2019), and separation-of-powers principles that
5 the lawsuit raised a nonjusticiable political question. The district court denied the
6 motions, reasoning that the Real Parties had alleged “a strong, well-developed case
7 that [the challenged map] is an unlawful political gerrymander that dilutes
8 Republican votes in congressional races in New Mexico.” The district court also
9 held that the Real Parties’ partisan-gerrymandering claim was not definitively barred
10 by Rucho or state law and noted that the Real Parties had cited state law authorities,
11 namely Maestas and the Redistricting Act, that may provide a standard for
12 evaluating their equal protection claim.
13 {6} In separate findings and conclusions, the district court denied the Real Parties’
14 motion for preliminary injunction, concluding among other things (1) that the court
15 likely could not grant the requested relief of adopting map E or drawing its own map,
16 (2) that enjoining the 2021 map would cause “chaos and confusion” for the imminent
17 primary election, and (3) that the Real Parties had not shown a “likelihood of success
18 on the merits.” In its second letter decision on the motion, the district court further
19 explained that, because the challenged map “will be used . . . potentially for the next
5
1 five (5) elections, . . . the case will continue, and the Court will hear further argument
2 at a later date on [the] complaint, that could affect the elections after 2022.”
3 {7} Shortly after the district court filed its orders denying the motions to dismiss
4 and for preliminary injunction, Petitioners filed the instant petition seeking a stay of
5 proceedings and a writ of superintending control to resolve two “controlling legal
6 issues” in the underlying suit:
7 (1) Whether Article II, Section 18 . . . provides a remedy for a claim of
8 alleged partisan gerrymandering?
9 (2) Whether the issue of alleged partisan gerrymandering is a justiciable
10 issue; and if such a claim is justiciable under the New Mexico
11 Constitution, what standards should the district court apply in resolving
12 that claim in this case?
13 This Court stayed the proceedings in the district court and heard oral arguments,
14 following which we ordered supplemental briefing addressing whether “the New
15 Mexico Constitution provide[s] greater protection than the United States
16 Constitution against partisan gerrymandering.” Subsequently herein we discuss the
17 parties’ arguments in these proceedings as relevant to the issues.
18 {8} We granted the petition and provided guidance and standards for the district
19 court. As we discuss further herein, our guidance and standards include (1) that a
20 partisan gerrymandering claim is justiciable under Article II, Section 18, (2) that
21 such a claim is subject to the three-part test articulated by Justice Kagan in her
22 dissent in Rucho, (3) that at this stage in the proceedings, we need not determine the
6
1 precise degree of partisan gerrymandering that is permissible under the New Mexico
2 Constitution, (4) that intermediate scrutiny is the proper level of scrutiny for such a
3 claim, and (5) what evidence must be considered of the relevant evidence that may
4 be considered.
5 II. DISCUSSION
6 A. Our Exercise of Superintending Control and Standard of Review
7 {9} “Article VI, Section 3 of the New Mexico Constitution confers on this Court
8 superintending control over all inferior courts and the power to issue writs necessary
9 or proper for the complete exercise of our jurisdiction and to hear and determine the
10 same.” Kerr v. Parsons, 2016-NMSC-028, ¶ 16, 378 P.3d 1 (text only) (citation
11 omitted). 5 “The power of superintending control is the power to control the course
12 of ordinary litigation in inferior courts.” Dist. Ct. of Second Jud. Dist. v. McKenna,
13 1994-NMSC-102, ¶ 3, 118 N.M. 402, 881 P.2d 1387 (internal quotation marks and
14 citation omitted). “In granting a writ of superintending control, we may offer
15 guidance to lower courts on how to properly apply the law.” State ex rel. Torrez v.
16 Whitaker, 2018-NMSC-005, ¶ 30, 410 P.3d 201. We may exercise the power of
5
The “text only” parenthetical as used herein indicates the omission of all of
the following—internal quotation marks, ellipses, and brackets—that are present in
the quoted source, leaving the quoted text itself otherwise unchanged.
7
1 superintending control “where it is deemed to be in the public interest to settle the
2 question involved at the earliest moment.” Griego v. Oliver, 2014-NMSC-003, ¶ 11,
3 316 P.3d 865 (internal quotation marks and citation omitted).
4 {10} The implications and constitutional interests of the underlying lawsuit warrant
5 the exercise of this authority. The adjudication of a partisan gerrymandering claim
6 is a matter of first impression that implicates both New Mexicans’ constitutional
7 right to vote and the Legislature’s constitutional responsibility for redistricting. See
8 State ex rel. Walker v. Bridges, 1921-NMSC-041, ¶ 8, 27 N.M. 169, 199 P. 3709 (“[T]he supreme right guaranteed by the Constitution of the state is the right of a
10 citizen to vote at public elections.”); see also N.M. Const. art. IV, § 3(D) (identifying
11 the Legislature as the provenance of reapportionment). We echo the district court’s
12 observation that uncertainty as to the applicable districting maps for upcoming
13 elections could result in “chaos and confusion,” further highlighting the clear and
14 substantial public interest served by resolving the underlying legal issues here. See
15 McKenna, 1994-NMSC-102, ¶ 5 (“[T]his Court has used its power of superintending
16 control to address issues of great public interest and importance.” (internal quotation
17 marks and citation omitted)). “Because this case presents an issue of first impression
18 . . . without clear answers under New Mexico law, . . . we agree that this is an
19 appropriate case in which to exercise our superintending control authority.” Torrez,
8
1 2018-NMSC-005, ¶ 31 (first ellipsis in original) (internal quotation marks and
2 citation omitted).
3 B. Resolution of This Case Is Proper Under Article II, Section 18 Without
4 Application of Interstitial Analysis
5 {11} As a preliminary matter, we determine whether the instant claim under the
6 Equal Protection Clause of Article II, Section 18 can be resolved through interstitial
7 analysis. For the reasons that follow, we determine that it cannot.
8 {12} Under the framework for interstitial analysis announced in State v. Gomez,
9 “[w]hen a litigant asserts protection under a New Mexico Constitutional provision
10 that has a parallel or analogous provision in the United States Constitution,” a state
11 “court asks first whether the right being asserted is protected under the federal
12 constitution. If it is, then the state constitutional claim is not reached. If it is not, then
13 the state constitution is examined.” 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932
14 P.2d 1. Under the latter scenario, a court “may diverge from federal precedent for
15 three reasons [or prongs]: a flawed [or undeveloped] federal analysis, structural
16 differences between state and federal government, or distinctive state
17 characteristics.” Id. ¶ 19. For purposes of this discussion, we consider the framework
18 above to consist of two stages: the first stage consists of the initial question and
19 answer regarding the scope of federal constitutional protection, and the second stage,
9
1 if no such protection applies, consists of determining which prong if any supports
2 divergence from federal precedent.
3 {13} The applicability of Gomez is debated at length in the parties’ supplemental
4 briefing. The Real Parties first assert that a partisan gerrymander violates the federal
5 equal protection standard, and they thus invite this Court to “adjudicate claims
6 asserting the full substantive scope of the federal Equal Protection Clause.” The Real
7 Parties then assert in the alternative that each of the three Gomez prongs of interstitial
8 analysis supports adjudication under Article II, Section 18; that Rucho’s holding
9 establishes the relevant federal analysis to be “undeveloped” where federal courts
10 cannot reach the merits of such a claim for prudential reasons; that structural
11 differences exist for New Mexico, including our lack of provisions analogous to the
12 “Cases” or “Controversies” of the United States Constitution’s Article III, Section
13 2; and that distinctive New Mexico characteristics include “[t]his Court’s [b]road[er]
14 [c]onstruction of the [s]tate Equal Protection Clause.”
15 {14} In response, Petitioners first reject the availability of the federal equal
16 protection standard here, asserting that “the U.S. Supreme Court has never held that
17 partisan gerrymandering violates the federal equal protection clause.” Regarding the
18 three Gomez prongs of interstitial analysis, Petitioners assert that none avail: that
19 federal analysis is not undeveloped, given Rucho’s “ultimate rejection” of “th[at]
10
1 Court’s political gerrymandering jurisprudence”; that no state “structural differences
2 command departure from Rucho’s federal analysis,” where “[r]espect for separation
3 of powers” should constrain this Court; and that no “[s]pecial [s]tate [c]haracteristics
4 . . . [j]ustify [d]eparture” from the federal standard. Regarding the Real Parties’
5 assertion that this Court has construed the state Equal Protection Clause more
6 broadly, Petitioners argue that “the State and Federal Equal Protection Clauses are
7 coextensive, providing the same protections” (internal quotation marks and citation
8 omitted), and that this Court has only interpreted our state Equal Protection Clause
9 more broadly in discrete circumstances that do not apply here.
10 {15} Notwithstanding the parties’ arguments, we determine that the instant case
11 should be resolved under Article II, Section 18 without application of interstitial
12 analysis. Our conclusion rests primarily on the undetermined nature of the federal
13 Equal Protection Clause—discussed further below—as it applies to a partisan
14 gerrymandering claim. Because that substantive matter is undetermined rather than
15 undeveloped, we cannot answer “whether the right being asserted is protected under
16 the federal constitution.” Gomez, 1997-NMSC-006, ¶ 19. Importantly, the Gomez
17 framework of interstitial analysis is best suited to state constitutional claims for
18 which the relevant “federal protections are extensive and well-articulated,” whereas
19 the framework’s utility is significantly diminished when federal precedent is unclear.
11
1 Id. ¶ 21 (internal quotation marks and citation omitted). Without a clear answer to
2 that initial question of the Gomez framework, we do not reach the framework’s
3 second stage.
4 {16} Under the plain language of Gomez, interstitial analysis of the instant claim
5 under the state Equal Protection Clause begins by asking whether the right to vote is
6 protected by the federal Equal Protection Clause from vote dilution effected by a
7 partisan gerrymander—envisioning a clear, yes-or-no answer. See id. ¶ 19. If yes,
8 “then the state constitutional claim is not reached”; if no, “then [Article II, Section
9 18] is examined.” Id. Because Rucho did not address the merits of the alleged equal
10 protection violation therein, we are left with uncertainty as to the substantive scope
11 of the federal standard for this context,6 and thus we lack the clear answer required
By way of illustration, we note that, pre-Rucho, the United States Supreme
6
Court recognized that invidious discrimination against political groups, like that
against racial groups, could be cognizable under equal protection:
What is done in so arranging for elections, or to achieve political ends
or allocate political power, is not wholly exempt from judicial scrutiny
under the Fourteenth Amendment. As we have indicated, for example,
multimember districts may be vulnerable, if racial or political groups
have been fenced out of the political process and their voting strength
invidiously minimized.
Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (emphasis added). However, as that
proposition regarded the merits, we cannot know if the principle would be applicable
by a court unbound by the federal standard of nonjusticiability announced
subsequently in Rucho. See 139 S. Ct. at 2494, 2496.
12
1 by Gomez’s initial question. In this regard, we read Gomez to require clarity as to
2 the existence of federal protection as a prerequisite to reaching the second stage of
3 interstitial analysis. Stated differently, proceeding to the framework’s second stage
4 without such clarity would rely on speculation as to the reach of the relevant federal
5 protection. We do not read Gomez to allow such speculation, and accordingly we
6 cannot resolve the instant case under interstitial analysis.
7 {17} We recognize that Gomez does contemplate application of interstitial analysis
8 where the relevant federal analysis is “undeveloped,” as argued by the Real Parties.
9 Id. ¶ 20. However, this argument does not avail for two reasons. First, we have read
10 Gomez to apply this consideration within the second stage of interstitial analysis,
11 specifically within the first prong of “reasons to depart from established federal
12 precedent.” State v. Adame, 2020-NMSC-015, ¶ 14, 476 P.3d 872 (stating the first
13 such “reason” as “the federal analysis is flawed or undeveloped”); see also State v.
14 Crane, 2014-NMSC-026, ¶ 15, 329 P.3d 689. As explained, here we do not reach
15 that second stage of the analysis.
16 {18} Second, Gomez’s incorporation of undeveloped federal analysis derives from
17 State v. Attaway, wherein this Court interpreted Article II, Section 10 of the New
18 Mexico Constitution in a context not previously reached by the United States
19 Supreme Court’s interpretation of the Fourth Amendment. Attaway, 1994-NMSC-
13
1 011, ¶ 14, 117 N.M. 141, 870 P.2d 103 (“The [United States] Supreme Court has not
2 determined whether officers executing a search warrant must knock and announce
3 prior to entry.”). The Attaway Court thus reached its holding without having to
4 navigate an established, analogous federal standard. See id. ¶ 20 (“The New Mexico
5 Constitution embodies a knock-and-announce requirement.” (emphasis omitted)). In
6 this regard, we read Gomez’s use of “undeveloped federal analogs,” 1997-NMSC-
7 006, ¶ 20 (emphasis added), to mean situations in which no United States Supreme
8 Court standard for a federal provision exists relevant to a state court’s analysis of a
9 specific provision of the New Mexico Constitution. In contrast to the issue in
10 Attaway, the issue of partisan gerrymandering under the Federal Equal Protection
11 Clause has been debated extensively over decades by the United States Supreme
12 Court, see Rucho, 139 S. Ct. at 2497-98, resulting in the uncertainty discussed above
13 regarding the scope of the federal standard. We determine that this uncertainty is not
14 what the Gomez Court envisioned by its use of “undeveloped.”
15 {19} Further, because that uncertainty necessarily extends to the relationship of our
16 state Equal Protection Clause to its federal analog, we deem that any ruling by this
17 Court interpreting or relying on the unknown scope of the federal provision—
18 regardless of the prevailing party—would be especially uncertain. In the event of
19 subsequent federal development in this area of law, the circumstances of New
14
1 Mexico’s ensuing congressional elections could indeed be thrown into chaos and
2 confusion. Accordingly, we determine that exercising our constitutional “power of
3 superintending control to address issues of great public interest and importance,”
4 McKenna, 1994-NMSC-102, ¶ 5 (internal quotation marks and citation omitted),
5 warrants a ruling solely under Article II, Section 18, thus allowing the public to rely
6 on the result.7
7 {20} Under our determination that this case cannot be resolved under interstitial
8 analysis, we need not further address the parties’ arguments in this regard.
9 C. A Partisan Gerrymandering Claim Is Justiciable Under Article II,
10 Section 18
11 {21} Citing Rucho, 139 S. Ct. at 2494, Petitioners argue that this Court should hold
12 a partisan gerrymandering claim to be nonjusticiable, that is, not “capable of being
We take note of Justice Bosson’s observations that “Gomez is not inscribed
7
in granite; it is not part of the state Constitution. It is merely a means to an end . . .
[intended to] serve[] the purposes of justice and an independent development of our
state Constitution.” State v. Garcia, 2009-NMSC-046, ¶ 56, 147 N.M. 134, 217 P.3d
1032 (Bosson, J., specially concurring). We agree that Gomez does not bind this
Court as to our analysis of state constitutional questions, and we encourage
thoughtful and reasoned argument in the future addressing whether the interstitial
approach is the proper method to ensure the people of New Mexico the protections
promised by their constitution. Cf. Jeffery S. Sutton, 51 Imperfect Solutions: States
and the Making of American Constitutional Law, 174, Oxford Univ. Press (2018)
(“[A] chronic underappreciation of state constitutional law has been hurtful to state
and federal law and the proper balance between state and federal courts in protecting
individual liberty.”).
15
1 disposed of judicially.” Justiciable, Black’s Law Dictionary (11th ed. 2019).
2 Petitioners assert that separation of powers principles are offended by adjudication
3 of such “fundamentally political dispute[s]”; that the New Mexico Equal Protection
4 Clause is “coextensive” with its federal analog, and thus additional state
5 constitutional or statutory guideposts are necessary for adjudication under Article II,
6 Section 18; and that political question doctrine precludes the justiciability of a
7 partisan gerrymandering claim. Implicitly, these arguments suggest that concerns
8 regarding federal standards of justiciability should override state judicial concerns
9 regarding constitutional violations of equal protection and, consequently, that a
10 partisan gerrymandering claim under Article II, Section 18 is excepted from judicial
11 review. We disagree.
12 1. The right to vote is of paramount importance in New Mexico
13 {22} At the outset, we emphasize that “[t]he right to vote is the essence of our
14 country’s democracy, and therefore the dilution of that right strikes at the heart of
15 representative government.” Maestas, 2012-NMSC-006, ¶ 1; see State ex rel.
16 League of Women Voters of N.M. v. Advisory Comm. to N.M. Compilation Comm’n,
17 2017-NMSC-025, ¶ 1, 401 P.3d 734 (“[T]he elective franchise . . . is among the most
18 precious rights in a democracy.”). In State ex rel. League of Women Voters v.
19 Herrera, we “reiterat[ed] the longstanding and fundamental principle that the right
16
1 to vote is of paramount importance. The courts of New Mexico have long held that
2 in service of this important right, courts should guard against voter
3 disenfranchisement whenever possible and interpret statutes broadly to favor the
4 right to vote.” 2009-NMSC-003, ¶ 8, 145 N.M. 563, 203 P.3d 94 (citations omitted).
5 We have further identified voting as “a fundamental personal right or civil liberty
6 . . . which the Constitution explicitly or implicitly guarantees.” Marrujo v. N.M.
7 State Highway Transp. Dep’t, 1994-NMSC-116, ¶ 10, 118 N.M. 753, 887 P.2d 747.
8 {23} In addition, we recognize that other provisions in our state Bill of Rights—
9 specifically Article II, Sections 2, 3, and 8—support that the right to vote is of
10 paramount importance in New Mexico. Article II, Section 2 (Popular Sovereignty
11 Clause) provides, “All political power is vested in and derived from the people: all
12 government of right originates with the people, is founded upon their will and is
13 instituted solely for their good.” Article II, Section 3 (Right of Self-Government
14 Clause) provides, “The people of the state have the sole and exclusive right to govern
15 themselves as a free, sovereign and independent state.” Article II, Section 8
16 (Freedom of Elections Clause) provides, “All elections shall be free and open, and
17 no power, civil or military, shall at any time interfere to prevent the free exercise of
18 the right of suffrage.” As we discuss herein, we determine that the right to vote is
19 intrinsic to the guarantees embodied in these provisions of our state Bill of Rights.
17
1 {24} We begin this discussion with our Freedom of Elections Clause, which we
2 have also characterized as our Free and Open Clause. See, e.g., Crum v. Duran,
3 2017-NMSC-013, ¶ 2, 390 P.3d 971. By its plain language, the Clause implicitly
4 asserts the importance of “the free exercise of the right of suffrage.” N.M. Const. art.
5 II, § 8. We have characterized the Freedom of Elections Clause as “intended to
6 promote voter participation during elections” and as “Provid[ing] a Broad Protection
7 of the Right to Vote.” Crum, 2017-NMSC-013, ¶¶ 2-6; see also Gunaji v. Macias,
8 2001-NMSC-028, ¶ 29, 130 N.M. 734, 31 P.3d 1008 (“[A]n election is only ‘free
9 and [open]’ if the ballot allows the voter to choose between the lawful candidates
10 for that office.”). In Crum, we further noted with approval the Missouri Supreme
11 Court’s interpretation of that state’s “substantively identical” provision “to mean that
12 ‘every qualified voter may freely exercise the right to vote without restraint or
13 coercion of any kind and that his or her vote, when cast, shall have the same
14 influence as that of any other voter.” Id., 2017-NMSC-013, ¶ 9 (text only) (quoting
15 Preisler v. Calcaterra, 243 S.W.2d 62, 64 (Mo. 1951) (en banc)).
16 {25} While we have not had prior occasion to construe either our Popular
17 Sovereignty Clause or our Right of Self-Government Clause, we determine that
18 Article II, Sections 2 and 3 by their plain language are constitutional provisions
19 articulating the sovereignty of the people over their government, which sovereignty
18
1 under our system of representative democracy is ensured by the right to vote. These
2 two provisions—which have no federal analog—underscore the importance of the
3 franchise to effectuating the other rights guaranteed by the New Mexico
4 Constitution. To that extent, we agree with the Real Parties that we “should construe
5 the Equal Protection Clause’s application here in par[i] materia or through the
6 ‘prism’ of [these] other Bill of Rights provisions that also speak directly to the right
7 to fair electoral representation.” Cf. Herrera, 2009-NMSC-003, ¶ 8 (“[T]he right to
8 vote is of paramount importance.”); Walker, 1921-NMSC-041, ¶ 8 (“[T]he supreme
9 right guaranteed by the Constitution of the state is the right of a citizen to vote at
10 public elections.”); Hannett v. Jones, 1986-NMSC-047, ¶ 13, 104 N.M. 392, 722
11 P.2d 643 (recognizing “the principle that constitutions must be construed so that no
12 part is rendered surplusage or superfluous”); State v. Gutierrez, 1993-NMSC-062, ¶
13 55, 116 N.M. 431, 863 P.2d 1052 (“Surely, the framers of the Bill of Rights of the
14 New Mexico Constitution meant to create more than ‘a code of ethics under an honor
15 system.’” (quoting Potter Stewart, The Road to Mapp v. Ohio and Beyond: The
16 Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure
17 Cases, 83 Colum. L. Rev. 1365, 1369-72 (1983))).
18 {26} We need not determine here whether these broad constitutional provisions are
19 merely “meant to express . . . basic political principle[s]” or are meant “as a textual
19
1 enumeration of certain substantive rights.” Marshall J. Ray, What Does the Natural
2 Rights Clause Mean to New Mexico?, 39 N.M. L. Rev. 375, 399, 403 (2009)
3 (discussing the New Mexico Constitution Article II, Section 4). The right to vote is
4 the essential democratic mechanism intrinsic to these provisions that links the people
5 to their guaranteed power and rights. We therefore read Article II, Section 18
6 together with Sections 2, 3, and 8 to evaluate an individual’s right to vote under the
7 New Mexico Constitution.
8 2. Vote dilution can rise to a level of constitutional harm for which Article
9 II, Section 18 provides a remedy
10 {27} In the seminal case of Reynolds v. Sims, the United States Supreme Court
11 stated in the one-person, one-vote context that the “federally protected right suffers
12 substantial dilution where a favored group has full voting strength and the groups
13 not in favor have their votes discounted.” 377 U.S. 533, 555 n.29 (1964) (text only)
14 (citation omitted); see Maestas, 2012-NMSC-006, ¶ 1. In reliance on Reynolds, this
15 Court has recognized constitutional harm where the individual right to vote is
16 infringed, including through debasement or dilution. Wilson v. Denver, 1998-
17 NMSC-016, ¶ 27, 125 N.M. 308, 961 P.2d 153 (“‘[T]he right of suffrage can be
18 denied by a debasement or dilution of the weight of a citizen’s vote just as effectively
19 as by wholly prohibiting the free exercise of the franchise.’” (quoting Reynolds, 377
20 U.S. at 555)); see also State ex rel. Witt v. State Canvassing Bd., 1968-NMSC-017,
20
1 ¶ 22, 78 N.M. 682, 437 P.2d 143 (“‘To the extent that a citizen’s right to vote is
2 debased, [that individual] is that much less a citizen.’” (quoting Reynolds, 377 U.S.
3 at 567)).
4 {28} A partisan gerrymander by its very nature results in vote dilution. See Ariz.
5 State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015)
6 (defining “the problem of partisan gerrymandering” as “the drawing of legislative
7 district lines to subordinate adherents of one political party and entrench a rival party
8 in power”); cf. Vieth v. Jubelirer, 541 U.S. 267, 274-75 (2004) (recognizing a
9 historical gerrymander as a political party’s “‘attempt to gain power which was not
10 proportionate to its numerical strength’” (citation omitted)). Just five years ago, a
11 unanimous United States Supreme Court agreed that the “harm” of vote dilution
12 “arises from the particular composition of the voter’s own district, which causes his
13 vote—having been packed or cracked 8—to carry less weight than it would carry in
14 another, hypothetical district.” Gill v. Whitford, 138 S. Ct. 1916, 1930–31 (2018).
8
As described by Justice Kagan,
Partisan gerrymandering operates through vote dilution—the
devaluation of one citizen’s vote as compared to others. A mapmaker
draws district lines to “pack” and “crack” voters likely to support the
disfavored party. He packs supermajorities of those voters into a
relatively few districts, in numbers far greater than needed for their
preferred candidates to prevail. Then he cracks the rest across many
more districts, spreading them so thin that their candidates will not be
able to win. Whether the person is packed or cracked, his vote carries
21
1 {29} However, some degree of vote dilution under a partisan gerrymander does not
2 offend the United States Constitution. See Rucho, 139 S. Ct. at 2497 (“[W]hile it is
3 illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage
4 in racial discrimination in districting, a jurisdiction may engage in constitutional
5 political gerrymandering.” (internal quotation marks and citation omitted)); see also
6 Gaffney, 412 U.S. at 753 (“Politics and political considerations are inseparable from
7 districting and apportionment.”). Stated differently, depending on the degree of vote
8 dilution under a political gerrymander, it may not rise to the level of constitutional
9 harm.
10 {30} Although some degree of partisan gerrymander is permissible, egregious
11 partisan gerrymandering can effect vote dilution to a degree that denies individuals
12 their “inalienable right to full and effective participation in the political process[],”
13 Reynolds, 377 U.S. at 565, and “enable[s] politicians to entrench themselves in office
less weight—has less consequence—than it would under a neutrally
drawn (non-partisan) map. In short, the mapmaker has made some votes
count for less, because they are likely to go for the other party.
Rucho, 139 S. Ct. at 2513-14 (Kagen, J., dissenting) (citations omitted).
22
1 as against voters’ preferences,” Rucho, 139 S. Ct. at 2509 (Kagan, J., dissenting).9
2 The consequences of such entrenchment under a partisan gerrymander include that
3 ensuing elections are effectively predetermined, essentially removing the remedy of
4 the franchise from a class of individuals whose votes have been diluted.
5 {31} To allow such a result would be an abdication of our duty to “apply the
6 protections of the Constitution” when the government is alleged to have threatened
7 the constitutional rights that all New Mexicans enjoy; accordingly, we would be
8 derelict in our responsibility to vindicate constitutional protections, including the
9 equal protection guarantee, were we to deny a judicial remedy to individuals directly
10 affected by such a degree of vote dilution. See Griego, 2014-NMSC-003, ¶ 1
11 (“[W]hen litigants allege that the government has unconstitutionally interfered with
12 a right protected by the Bill of Rights, or has unconstitutionally discriminated against
13 them, courts must decide the merits of the allegation. If proven, courts must
9
We note that the dangers for democracy of such gerrymanders are recognized
in Rucho by both the majority and the dissent. See Rucho, 139 S. Ct. at 2506 (the
majority recognizing that “[e]xcessive partisanship in districting leads to results that
reasonably seem unjust” as well as “the fact that such gerrymandering is
‘incompatible with democratic principles’” (quoting Ariz. State Legislature, 576
U.S. at 791)); id. at 2507 (“Our conclusion does not condone excessive partisan
gerrymandering.”); id. at 2509 (Kagan, J., dissenting) (“The partisan gerrymanders
in these cases deprived citizens of the most fundamental of their constitutional
rights[.] . . . If left unchecked, gerrymanders like the ones here may irreparably
damage our system of government.”).
23
1 safeguard constitutional rights and order an end to the discriminatory treatment.”);
2 see also Walker, 1921-NMSC-041, ¶ 8; cf. Gill, 138 S. Ct. at 1930-31 (“Remedying
3 the individual voter’s harm [of vote dilution] . . . requires revising only such districts
4 as are necessary to reshape the voter’s district—so that the voter may be unpacked
5 or uncracked, as the case may be.”).
6 {32} Similarly, we fail to see how all political power would be “vested in and
7 derived from the people” and how “all government of right [would] originate[] with
8 the people” and be “founded upon their will,” as required by the Popular Sovereignty
9 Clause, if the will of an entrenched political party were to supersede the will of New
10 Mexicans. N.M. Const. art, II § 2. In such a scenario, the will of the people would
11 come second to the will of the entrenched party, and the fundamental right to vote
12 in a free and open election as required by Article II, Section 8 of the New Mexico
13 Constitution would be transformed into a meaningless exercise. See N.M. Const. art.
14 II § 8 (“All elections shall be free and open, and no power, civil or military, shall at
15 any time interfere to prevent the free exercise of the right of suffrage.”). Such a result
16 cannot stand.
17 {33} We reiterate and emphasize that although we refer to federal cases for the
18 purpose of guidance, such cases do not compel our result. Rather, our opinion is
19 separately, adequately, and independently based upon the protections provided by
24
1 the New Mexico Constitution. See N.M. Const. art. II, § 18; id. § 3 (“The people of
2 the state have the sole and exclusive right to govern themselves as a free, sovereign
3 and independent state.”); see also Michigan v. Long, 463 U.S. 1032, 1041 (1983)
4 (“If a state court chooses merely to rely on federal precedents as it would on the
5 precedents of all other jurisdictions, then it need only make clear by a plain statement
6 in its judgment or opinion that the federal cases are being used only for the purpose
7 of guidance, and do not themselves compel the result that the court has reached. In
8 this way, both justice and judicial administration will be greatly improved. If the
9 state court decision indicates clearly and expressly that it is alternatively based on
10 bona fide separate, adequate, and independent grounds, we, of course, will not
11 undertake to review the decision.”).
12 {34} We conclude that a partisan gerrymander of an egregious degree violates the
13 democratic principles expressed above in the New Mexico Constitution and our
14 precedent through disparate treatment of a class of voters and thus is cognizable
15 under Article II, Section 18. See Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, ¶
16 19, 138 N.M. 331, 120 P.3d 413 (“[A] politically powerless group has no
17 independent means to protect its constitutional rights.”). Given the consequences of
18 entrenchment, we reiterate that denial of a judicial remedy to individuals directly
25
1 affected by such a degree of vote dilution would be a dereliction of our responsibility
2 to vindicate constitutional protections, including the equal protection guarantee.
3 3. A partisan gerrymandering claim under Article II, Section 18 is not
4 excepted from judicial review
5 {35} In accordance with our foregoing conclusions on the New Mexico
6 Constitution, we next address Petitioners’ arguments that a partisan gerrymandering
7 claim should be excepted from judicial review.
8 {36} As a general proposition under separation of powers principles, this Court
9 conducts judicial review of legislation alleged to commit constitutional harm. State
10 ex rel. Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-
11 126, ¶ 15, 119 N.M. 150, 889 P.2d 185 (“The reviewability of executive and
12 legislative acts is implicit and inherent in the common law and in the division of
13 powers between the three branches of government.”). The judiciary’s proper
14 “function and duty [is] to say what the law is and what the Constitution means.”
15 Dillon v. King, 1974-NMSC-096, ¶ 28, 87 N.M. 79, 529 P.2d 745 (citing Marbury
16 v. Madison, 5 U.S. 137, 178 (1803) (“It is emphatically the province and duty of the
17 judicial department to say what the law is.”)); United States v. Nixon, 418 U.S. 683,
18 703 (1974) (same); see N.M. Const. art. III, § 1. “[T]he primary responsibility for
19 enforcing the Constitution’s limits on government, at least since the time of Marbury
20 v. Madison, . . . has been vested in the judicial branch.” Gutierrez, 1993-NMSC-062,
26
1 ¶ 55 (internal quotation marks and citation omitted); see Moore v. Harper, 143 S.
2 Ct. 2065, 2079 (2023) (“Since early in our Nation’s history, courts have recognized
3 their duty to evaluate the constitutionality of legislative acts.”). “When government
4 is alleged to have threatened any of [the provisions in the New Mexico Bill of
5 R]ights, it is the responsibility of the courts to interpret and apply the protections of
6 the Constitution.” Griego, 2014-NMSC-003, ¶ 1.
7 {37} However, in conducting such review,
8 “[w]e will not question the wisdom, policy, or justness of a statute, and
9 the burden of establishing that the statute is invalid rests on the party
10 challenging the constitutionality of the statute. An act of the Legislature
11 will not be declared unconstitutional in a doubtful case, . . . and if
12 possible, it will be so construed as to uphold it.”
13 Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457 (alteration
14 and omission in original) (citation omitted); cf. Pirtle v. Legis. Council Comm.,
15 2021-NMSC-026, ¶ 32, 492 P.3d 586 (“‘[I]t is only when a legislative body adopts
16 internal procedures that ‘ignore constitutional restraints or violate fundamental
17 rights’ that a court can and must become involved.” (quoting United States v. Ballin,
18 144 U.S. 1, 5 (1892))).
19 a. Judicial review of a partisan gerrymander does not offend separation of
20 powers principles
21 {38} To the extent that Petitioners assert that judicial review of redistricting “do[es]
22 violence to New Mexico’s constitutional separation of powers,” we reject such a
27
1 blanket proposition. We agree with Petitioners that “th[is] Court should not interject
2 itself into this fundamentally political dispute to impose its own policy preference as
3 to just how ‘fair’ maps need to be” (emphasis added). To conduct judicial review
4 with such a purpose would contradict the judicial limitation expressed above in
5 Bounds. Our proper role, here as in conducting judicial review of legislation
6 generally, is determining whether the acts of the political branches have exceeded
7 constitutional authority. See Rodriguez v. Brand West Dairy, 2016-NMSC-029, ¶ 2,
8 378 P.3d 13 (“When litigants allege that the government has unconstitutionally
9 discriminated against them, courts must decide the merits of the allegation because
10 if proven, courts must resist shrinking from their responsibilities as an independent
11 branch of government, and refuse to perpetuate the discrimination . . . by
12 safeguarding constitutional rights. Such is the constitutional responsibility of the
13 courts.”); see also Moore, 143 S. Ct. at 2083 (“[W]hen legislatures make laws, they
14 are bound by the provisions of the very documents that give them life.”). The fact
15 that the results of adjudication in a partisan gerrymandering case, as Petitioners
16 assert, “will—not maybe—favor one political party over [an]other” reflects the
28
1 nature of the case, not judicial policymaking. 10 Cf. Rucho, 139 S. Ct. at 2519-23
2 (Kagan, J., dissenting) (analyzing that “judicial oversight of partisan
3 gerrymandering” by the lower courts there “us[ed] neutral and manageable—and
4 eminently legal—standards”).
5 {39} We will leave no power on the table in properly fulfilling our constitutional
6 obligations, including to vindicate individual rights. As we explained in Griego,
7 when the “government is alleged to have threatened” rights such as equal protection
8 of the law and the right to vote, “it is the responsibility of the courts to interpret and
9 apply the protections of the Constitution” to both safeguard individual rights and put
10 an end to the discriminatory treatment. 2014-NMSC-003, ¶ 1. See Reynolds, 377
11 U.S. at 566 (“We are cautioned about the dangers of entering into political thickets
12 and mathematical quagmires. Our answer is this: a denial of constitutionally
10
We note the Rucho majority’s public perception concern that, without
“especially clear standards,” “intervening courts—even when proceeding with best
intentions—would risk assuming political, not legal, responsibility for a process that
often produces ill will and distrust.” 139 S. Ct. at 2498 (internal quotation marks and
citation omitted). However, we find no explanation in Rucho for how such risk is
distinct from that borne by courts in numerous other contexts under their
constitutional mandate to interpret the laws. We also note and affirm the dissent’s
full agreement that “[j]udges should not be apportioning political power based on
their own vision of electoral fairness, whether proportional representation or any
other.” Id. at 2515 (Kagen, J., dissenting).
29
1 protected rights demands judicial protection; our oath and our office require no less
2 of us.”).
3 b. New Mexico’s Equal Protection Clause should not be read as coextensive
4 with the federal Equal Protection Clause for purposes of a partisan
5 gerrymandering claim
6 {40} Petitioners further assert that the instant case is nonjusticiable because the
7 New Mexico Equal Protection Clause is coextensive with its federal counterpart and
8 the additional requisite “standards and guidance” identified in Rucho for
9 justiciability do not exist in New Mexico law.
10 {41} Petitioners’ view of the state Equal Protection Clause does not square with
11 our precedent. As Petitioners recognize, we have interpreted Article II, Section 18
12 as providing broader protection than the Fourteenth Amendment in other contexts.
13 {42} In Griego, we held that “[d]enying same-gender couples the right to marry
14 and thus depriving them and their families of the rights, protections, and
15 responsibilities of civil marriage violates the equality demanded by the Equal
16 Protection Clause of the New Mexico Constitution.” 2014-NMSC-003, ¶ 68. In
17 Breen, we stated,
18 [T]he Equal Protection Clause of the New Mexico Constitution affords
19 “rights and protections” independent of the United States Constitution.
20 While we take guidance from the Equal Protection Clause of the United
21 States Constitution and the federal courts’ interpretation of it, we will
22 nonetheless interpret the New Mexico Constitution’s Equal Protection
23 Clause independently when appropriate. . . . Federal case law is
30
1 certainly informative, but only to the extent it is persuasive. In
2 analyzing equal protection guarantees, we have looked to federal case
3 law for the basic definitions for the three-tiered approach [regarding the
4 level of scrutiny to apply to legislation], but we have applied those
5 definitions to different groups and rights than the federal courts.
6 2005-NMSC-028, ¶ 14 (citations omitted); id. ¶ 50 (holding that certain provisions
7 of the Workers’ Compensation Act “violate equal protection by discriminating
8 against the mentally disabled in violation of equal protection guarantees”).
9 {43} Petitioners attempt to confine Griego and Breen as cases wherein we have
10 “invoked Article II, Section 18’s Equal Protection Clause as providing greater
11 protection of civil rights only to protect against historical, invidious and purposeful
12 discrimination against a discrete group of vulnerable plaintiffs.” Petitioners also note
13 that in both cases we “pointed to the enaction of legislation protecting the very same
14 class of plaintiffs.” See Griego, 2014-NMSC-003, ¶ 48 (citing recent legislation
15 prohibiting discrimination and profiling based on sexual orientation and “add[ing]
16 sexual orientation as a protected class under hate crimes legislation”); Breen, 2005-
17 NMSC-028, ¶ 27 (“protecting the mentally disabled against possible discrimination”
18 by statutorily defining the “‘least drastic means principle’”). However, nothing in
19 Griego or Breen expresses that these features identified by Petitioners were
20 necessary to our finding broader “rights and protections” under Article II, Section
21 18. Given the constitutional importance of the right to vote, as discussed above, we
31
1 reject any suggestion that an absence of these features negates protection under our
2 state Equal Protection Clause.
3 {44} Petitioners also argue that, due to the provisions’ textual similarity,
4 “[u]nsurprisingly, New Mexico courts have repeatedly held that the State and
5 Federal Equal Protection Clauses are coextensive, providing the same protections”
6 (internal quotation marks and citation omitted). We note, however, that Petitioners
7 do not cite this Court’s cases for their proposition regarding equal protection.
8 Instead, Petitioners cite two New Mexico Court of Appeals cases and one federal
9 district court case that itself cites a third New Mexico Court of Appeals case. See E.
10 Spire Commc’ns, Inc. v. Baca, 269 F. Supp. 2d 1310, 1323 (D.N.M. 2003) (citing
11 Valdez v. Wal-Mart Stores, Inc., 1998-NMCA-030, ¶ 6, 124 N.M. 655, 954 P.2d 87);
12 Mieras v. Dyncorp, 1996-NMCA-095, ¶ 16, 122 N.M. 401, 925 P.2d 518; Garcia v.
13 Albuquerque Pub. Sch.s Bd. of Educ., 1980-NMCA-081, ¶ 4, 95 N.M. 391, 622 P.2d
14 699. The Real Parties in reply make the apt observation that the cited Court of
15 Appeals cases predate Breen and Griego. Without more, these citations therefore do
16 not support Petitioners’ argument.
17 {45} Because Article II, Section 18 should not be read as coextensive with the
18 Fourteenth Amendment in this context, we do not accept Petitioners’ premise that,
19 to the extent the federal Equal Protection Clause may be read to lack standards
32
1 supporting justiciability of a partisan gerrymander, the New Mexico Equal
2 Protection Clause does as well. Our rejection of the premise is bolstered by the
3 undetermined nature of the substantive scope of the federal Equal Protection Clause.
4 Accordingly, we reject the assertion that New Mexico law lacks adequate standards
5 and guidance, a point that we address more fully subsequently herein by setting out
6 the applicable equal protection test.
7 {46} Notwithstanding our conclusion, we concur with Petitioners’ argument that
8 neither Maestas nor the Redistricting Act is a source of redistricting standards that
9 bind the Legislature. Quoting Rucho and Maestas, the Real Parties point to
10 “traditional districting principles” (Maestas, 2012-NMSC-006, ¶ 34) and the
11 Redistricting Act as supplying “standards and guidance for state courts to apply”
12 (Rucho, 139 S. Ct. at 2507). Maestas, however, only mandates the use of “traditional
13 districting principles” for court-drawn plans when the political branches have failed
14 to reach agreement. Maestas, 2012-NMSC-006, ¶¶ 31, 34. It says nothing about
15 whether the Legislature is bound by such principles in the political redistricting
16 process. See, e.g., id. ¶ 34 (“These guidelines . . . should be considered by a state
17 court when called upon to draw a redistricting map.”). Significantly, the Maestas
18 Court was careful to describe these principles as “guidelines that are relevant to state
19 districts,” not as binding requirements that provide a constitutional basis for striking
33
1 down a duly enacted district map. Id. The Redistricting Act, although requiring the
2 Citizen Redistricting Committee to prepare and submit nonpartisan redistricting
3 plans to the Legislature, specifies that those plans are merely recommendations
4 which the Legislature is not required to follow. See § 1-3A-9(B) (“The legislature
5 shall receive the adopted district plans for consideration in the same manner as for
6 legislation recommended by interim legislative committees.” (emphasis added)).
7 Thus, the Real Parties’ reliance on the traditional redistricting principles in Maestas
8 and the Redistricting Act as standards to satisfy Rucho is misplaced.
9 c. Political question doctrine is nonbinding and does not avail
10 {47} Petitioners also assert that this Court should follow “the holding and rationale
11 of Rucho” when, Petitioners allege, “[t]here is no means for the Judiciary to supply
34
1 a clear and discernable standard.” 11 See Rucho, 139 S. Ct. at 2494 (“Among the
2 political question cases the [United States Supreme] Court has identified are those
3 that lack ‘judicially discoverable and manageable standards for resolving [them].’”
4 (second alteration in original) (quoting Baker, 369 U.S. at 217)).
11
Though not an ingredient of our conclusion here, we note that the
formulation of the political question doctrine urged by Petitioners involves a bright-
line approach to political questions being nonjusticiable, as followed by the supreme
courts of Kansas and North Carolina. See Rivera v. Schwab, 512 P.3d 168, 185 (Kan.
2022); Harper v. Hall, 886 S.E.2d 393, 399 (N.C. 2023). Instead, we interpret the
seminal political question cases of Baker v. Carr and Marbury as requiring a case-
by-case analysis, Baker, 369 U.S. 186, 210-11 (1962) (“Much confusion results from
the capacity of the ‘political question’ label to obscure the need for case-by-case
inquiry. Deciding . . . whether the action of [another] branch exceeds whatever
authority has been committed[] is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate interpreter of the
Constitution.”); id. at 217 (“The courts cannot reject as ‘no law suit’ a bona fide
controversy as to whether some action denominated ‘political’ exceeds
constitutional authority. The cases we have reviewed show the necessity for
discriminating inquiry into the precise facts and posture of the particular case, and
the impossibility of resolution by any semantic cataloguing.”), that excepts a
political question from nonjusticiability where the case involves vindication of
individual rights, see Marbury, 5 U.S. at 166 (“[T]here exists, and can exist, no
power to control [executive] discretion [where t]he subjects [of an executive
officer’s acts] are political. They respect the nation, not individual rights, and . . .
when the rights of individuals are dependent on the performance of [such an
executive officer’s] acts[,] he . . . is amenable to the laws for his conduct[] and
cannot at his discretion sport away the vested rights of others. . . . But where a
specific duty is assigned by law, and individual rights depend upon the performance
of that duty, it seems equally clear that the individual who considers himself
injured[] has a right to resort to the laws of his country for a remedy.” (emphasis
added)).
35
1 {48} The political question doctrine as applied in Rucho binds federal courts
2 through Article III, Section 2 of the United States Constitution, whereas “the New
3 Mexico Constitution does not expressly impose a [parallel] ‘cases or controversies’
4 limitation on state courts.” New Energy Economy, Inc. v. Shoobridge, 2010-NMSC-
5 049, ¶ 16, 149 N.M. 42, 243 P.3d 746. Notwithstanding their nonbinding status, we
6 have stated that prudential considerations should guide this Court’s discretion in the
7 context of conferring standing, N.M. Right to Choose/NARAL v. Johnson, 1999-
8 NMSC-005, ¶ 13, 126 N.M. 788, 975 P.2d 841, and we have noted that “‘prudential
9 rules’ of judicial self-governance, like standing, ripeness, and mootness, are
10 ‘founded in concern about the proper—and properly limited—role of courts in a
11 democratic society’ and are always relevant concerns,” Shoobridge, 2010-NMSC-
12 049, ¶ 16 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). In other words,
13 federal prudential standards—including the political question doctrine—are relevant
14 here but are merely persuasive, a point that Petitioners acknowledge.
15 {49} Because the federal prudential standard is merely a persuasive consideration
16 instead of a requirement, the question for this Court is limited to whether our
17 constitutional responsibility to vindicate the individual right claimed in this case
18 under Article II, Section 18 outweighs relevant prudential concerns regarding the
19 adjudicatory standards to be applied. Further, our Constitution contains provisions
36
1 that Rucho did not consider, provisions with no federal counterpart. See N.M. Const.
2 art. II, §§ 2, 3, and 8. Given the importance of the right to vote, and the manageable
3 standards to be applied under our own constitution discussed below, we conclude
4 that the constitutional concerns here outweigh the prudential concerns. We hold that
5 a partisan gerrymander claim is justiciable under Article II, Section 18 of the New
6 Mexico Constitution.
7 D. A Partisan Gerrymandering Claim Under Article II, Section 18 Is
8 Subject to the Three-Part Test Articulated by Justice Kagan in Her
9 Rucho Dissent
10 {50} For an equal protection claim asserting a partisan gerrymander under Article
11 II, Section 18, we adopt the three-part test articulated by Justice Kagan in her Rucho
12 dissent:
13 As many legal standards do, that test has three parts: (1) intent; (2)
14 effects; and (3) causation. First, the plaintiffs challenging a districting
15 plan must prove that state officials’ predominant purpose in drawing a
16 district’s lines was to entrench their party in power by diluting the votes
17 of citizens favoring its rival. Second, the plaintiffs must establish that
18 the lines drawn in fact have the intended effect by substantially diluting
19 their votes. And third, if the plaintiffs make those showings, the State
20 must come up with a legitimate, non-partisan justification to save its
21 map.
22 139 S. Ct. at 2516 (Kagan, J., dissenting) (text only) (citations omitted).
23 {51} This test fits within our existing equal protection framework. “The threshold
24 question in analyzing all equal protection challenges is whether the legislation
37
1 creates a class of similarly situated individuals who are treated dissimilarly.” Breen,
2 2005-NMSC-028, ¶ 10. Where the evidence in a partisan gerrymandering claim
3 satisfies this threshold question, the district court should then apply the Kagan test
4 to determine whether the disparate treatment of vote dilution rises to the level of an
5 egregious gerrymander. As discussed above, the touchstone of an egregious partisan
6 gerrymander under Article II, Section 18 is political entrenchment through
7 intentional dilution of individuals’ votes, and the Kagan test serves to determine
8 whether the disparate treatment in an alleged gerrymander rises to such a level. See
9 N.M. Const. art. II, § 2 (providing that our Popular Sovereignty Clause vests all
10 political power in, and derives all power from the people, rather than a particular
11 party engaging in allegedly egregious gerrymandering); id. § 8 (requiring that “[a]ll
12 elections . . . be free and open”). We find it inconceivable that the framers of our
13 constitution would consider an election in which the entrenched party effectively
14 predetermined the result to be an election that is “free and open.”
15 {52} In Rucho, the dissent provides relevant discussion of the purpose and scope
16 of this test and of the lower courts’ standards on which it is based. See generally,
17 139 S. Ct. at 2509-25 (Kagen, J., dissenting); id. at 2513 (Kagen, J., dissenting)
18 (“Partisan gerrymandering of the kind before us . . . subverts democracy . . . [and]
19 violates individuals’ constitutional rights.”). On the one hand,
38
1 courts across the country, including those below, have coalesced
2 around manageable judicial standards to resolve partisan
3 gerrymandering claims. Those standards satisfy the majority’s own
4 benchmarks. They do not require—indeed, they do not permit—courts
5 to rely on their own ideas of electoral fairness, whether proportional
6 representation or any other. And they limit courts to correcting only
7 egregious gerrymanders, so judges do not become omnipresent players
8 in the political process. But yes, the standards used here do allow—as
9 well they should—judicial intervention in the worst-of-the-worst cases
10 of democratic subversion, causing blatant constitutional harms. In other
11 words, they allow courts to undo partisan gerrymanders of the kind we
12 face today from North Carolina and Maryland.
13 Id. at 2509 (Kagen, J., dissenting). On the other hand, we agree and caution that
14 [j]udges should not be apportioning political power based on their own
15 vision of electoral fairness, whether proportional representation or any
16 other. And judges should not be striking down maps left, right, and
17 center, on the view that every smidgen of politics is a smidgen too
18 much. Respect for state legislative processes—and restraint in the
19 exercise of judicial authority—counsels intervention in only egregious
20 cases.
21 Id. at 2515-16 (Kagen, J., dissenting) (concurring in the majority’s identification of
22 “some dangers everyone should want to avoid”). We emphasize that “by requiring
23 plaintiffs to make difficult showings relating to both purpose and effects, the
24 standard [in the Kagan test] invalidates the most [egregious], but only the most
25 [egregious], partisan gerrymanders.” Id. at 2516 (Kagen, J., dissenting).
39
1 E. So Long as the Degree Is Not Egregious in Intent and Effect, We Need
2 Not Determine at This Stage of the Proceedings the Precise Minimum
3 Degree That Is Impermissible Under Article II, Section 18
4 {53} Our ruling on the petition for extraordinary writ resolves pure questions of
5 law and comes before any record has been developed in the district court. At this
6 stage in the proceedings, we conclude that we need not determine the precise
7 minimum degree of partisan gerrymander that would constitute an egregious partisan
8 gerrymander.
9 {54} We recognize the concerns raised in Rucho, albeit under the rubric of
10 justiciability analysis, regarding the difficulty of “provid[ing] a standard for deciding
11 how much partisan dominance is too much.” Rucho, 139 S. Ct. at 2498 (internal
12 quotation marks and citation omitted) (“[T]he question is one of degree.”). However,
13 we conclude that those concerns are outweighed by the constitutional harm effected
14 by an egregious partisan gerrymander. To withhold relief for such harm would
15 illogically render the political branches’ most egregious violations of equal
16 protection immune to judicial review by virtue of there being less egregious partisan
17 gerrymanders which are hard to assess, which would be contrary to Article II,
18 Sections 2, 3, and 8 of our New Mexico Constitution.
19 {55} Our duty to vindicate individual rights outweighs any prudential concern that
20 the minimum degree of constitutional harm under an egregious partisan gerrymander
40
1 is difficult to specify. We find such a concern assuaged by the fact that plaintiffs in
2 such cases will bear the burden to establish that the evidence places defendants’
3 actions within the range of constitutional harm, and by our own prudential directive
4 in Bounds: “An act of the Legislature will not be declared unconstitutional in a
5 doubtful case, and if possible, it will be so construed as to uphold it.” 2013-NMSC-
6 037, ¶ 11 (text only) (citation omitted).
7 F. Intermediate Scrutiny Is the Proper Level of Scrutiny for Adjudication
8 of a Partisan Gerrymandering Claim Under Article II, Section 18
9 {56} Balancing the competing constitutional interests involved, we determine that
10 intermediate scrutiny is the proper level of scrutiny for a partisan gerrymandering
11 claim under Article II, Section 18. Our determination is based on the nature of the
12 restricted right rather than on the legislative classification involved, which the Real
13 Parties concede cannot invoke strict scrutiny. See Breen, 2005-NMSC-028, ¶ 12
14 (“Only legislation that affects the exercise of a fundamental right or a suspect
15 classification such as race or ancestry will be subject to strict scrutiny.” (internal
16 quotation marks and citation omitted)). “The determination of which level of
17 scrutiny is applicable under the Constitution is a purely legal question, and is
18 reviewed de novo.” Id. ¶ 15.
19 {57} “Under . . . the New Mexico Constitution, there are three standards of review
20 that this Court uses when reviewing equal protection claims: strict scrutiny;
41
1 intermediate scrutiny; and the rational basis test.” State v. Ortiz, 2021-NMSC-029,
2 ¶ 27, 498 P.3d 264 (text only) (citation omitted). As we explained in Marrujo:
3 Strict scrutiny applies when the violated interest is a fundamental
4 personal right or civil liberty—such as . . . voting . . .—which the
5 Constitution explicitly or implicitly guarantees. . . . Under this analysis
6 the burden is placed upon the state to show that the restriction of a
7 fundamental right . . . supports a compelling state interest, and that the
8 legislation accomplishes its purposes by the least restrictive means.
9 Otherwise the statute will be invalidated. . . .
10 [Intermediate] scrutiny is triggered by . . . [l]egislation that
11 impinges upon an important—rather than fundamental—individual
12 interest[.] . . . This level of evaluation is more sensitive to the risks of
13 injustice than the rational basis standard and yet less blind to the needs
14 of governmental flexibility than strict scrutiny. The burden is on the
15 party maintaining the statute’s validity—the state—to prove that the
16 classification is substantially related to an important governmental
17 interest.
18 The rational basis standard of review is triggered by all other
19 interests.
20 1994-NMSC-116, ¶¶ 10-12 (internal quotation marks and citations omitted).
21 {58} The right to vote being fundamental, we do not consider the rational basis test
22 here, regardless of the importance of the governmental interest in redistricting. Thus,
23 we explain why intermediate scrutiny, rather than strict scrutiny, is the proper level
24 of scrutiny for a partisan gerrymandering claim under the New Mexico Equal
25 Protection Clause.
42
1 {59} As previously discussed, we recognize the right to vote as “a fundamental
2 personal right or civil liberty,” which ordinarily would warrant strict scrutiny.
3 Marrujo, 1994-NMSC-116, ¶ 10; see Torres v. Village of Capitan, 1978-NMSC-
4 065, ¶ 23, 92 N.M. 64, 582 P.2d 1277 (quoting Reynolds, 377 U.S. at 562) (noting
5 that voting rights are “‘fundamental interests’ that must be subjected to the strictest
6 standard”); see also Richardson v. Carnegie Library Restaurant, Inc., 1988-NMSC-
7 084, ¶ 31, 107 N.M. 688, 763 P.2d 1153 (“‘The very purpose of a Bill of Rights was
8 to withdraw certain subjects from the vicissitudes of political controversy, to place
9 them beyond the reach of majorities and officials and to establish them as legal
10 principles to be applied by the courts. One’s fundamental rights may not be
11 submitted to vote; they depend on the outcome of no elections.’” (ellipsis omitted)
12 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943))), overruled
13 on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 36, 125
14 N.M. 721, 965 P.2d 305. We have also said that “[t]he nature of the individual
15 interest and of the legislative classification determines the appropriate level of
16 scrutiny, not the importance of the government’s goal or the vagaries of history.”
17 Trujillo v. City of Albuquerque, 1990-NMSC-083, ¶ 19, 110 N.M. 621, 798 P.2d
18 571, overruled on other grounds, 1998-NMSC-031, ¶ 36.
43
1 {60} However, we also recognize the Legislature’s constitutional responsibility for
2 redistricting under Article IV, Section 3 of the New Mexico Constitution. The
3 importance of such a responsibility eclipses that of a statutory goal and counsels
4 against strict scrutiny. See Trujillo, 1990-NMSC-083, ¶ 21 (recognizing “the nearly
5 fatal invocation of strict scrutiny” for challenged legislation (internal quotation
6 marks and citation omitted)); see also Richardson, 1988-NMSC-084, ¶ 31 (“Strict
7 scrutiny has operated as an antimajoritarian safeguard. Accordingly, the application
8 of the strict scrutiny test has resulted in the virtual immunization of certain liberties
9 from legislative affliction.”).
10 {61} Critically, strict scrutiny entails the least restrictive means analysis, which
11 would render vulnerable a legislative districting plan involving any degree of
12 partisan gerrymander. To hold the state to a least restrictive means requirement in
13 redistricting where some degree of partisan gerrymander is constitutionally
14 permissible would be unreasonable and contradictory. Cf. Torres, 1978-NMSC-065,
15 ¶ 22 (“Great latitude must of necessity be accorded the discretionary acts of the
16 legislature, and every reasonable presumption in favor of the validity of its action
17 must be indulged.”).
18 {62} Instead, under intermediate scrutiny a court applies a less restrictive means
19 analysis, thereby “allowing for a more flexible accommodation of legislative
44
1 purposes . . . [while] not abandon[ing] totally the concern with over- and under-
2 inclusiveness that, under strict scrutiny, is given form as the least restrictive
3 alternative test.” Trujillo, 1990-NMSC-083, ¶ 28 (emphasis added). The less
4 restrictive means test abides with the “hallmark” of intermediate scrutiny to “assess[]
5 the importance of the state interest by balancing it against the burdens imposed on
6 the individual and on society.” Id. ¶ 29 (“[A] state’s interest in preserving limited
7 educational funds for legal residents did not justify statute’s burden on the interests
8 of children of [undocumented immigrants].” (citing Plyler v. Doe, 457 U.S. 2029 (1982))). “While the least restrictive alternative need not be selected if it poses
10 serious practical difficulties in implementation, the existence of less restrictive
11 alternatives is material to the determination of whether the classification
12 substantially furthers an important governmental interest.” Id. ¶ 30. Such balancing
13 of interests abides with the objective of the Kagan test to apply a “standard [that]
14 invalidates the most [egregious], but only the most [egregious], partisan
15 gerrymanders.” Rucho, 139 S. Ct. at 2516 (Kagan, J., dissenting).
16 {63} Under the foregoing considerations, we hold that intermediate scrutiny
17 properly balances the competing constitutional interests of a partisan
18 gerrymandering claim. “Therefore, when applying intermediate scrutiny, [a c]ourt
19 must examine (1) the governmental interests served by the [restriction of the right
45
1 affected], and (2) whether the [restriction of the right affected] under the statute
2 bear[s] a substantial relationship to any such important interests. The burden is on
3 the party supporting the legislation’s constitutionality.” Breen, 2005-NMSC-028, ¶
4 30 (internal quotation marks and citation omitted).
5 G. While All Relevant Evidence May Be Considered by the District Court in
6 a Partisan Gerrymandering Claim, the District Court Shall Consider and
7 Address Evidence of Packing or Cracking Relating to an Individual
8 Plaintiff’s Own District
9 {64} In applying the Kagan test within a partisan gerrymandering claim, a district
10 court may consider all evidence relevant to whether the challenged legislation seeks
11 to effect political entrenchment through intentional and substantial vote dilution. To
12 satisfy the effects prong, however, a plaintiff must provide sufficient evidence that
13 the plaintiff’s own district was either packed or cracked, depending on the
14 allegations, and that the resultant dilution of the plaintiff’s vote is substantial. Cf.
15 Rucho, 139 S. Ct. at 2492 (“[A] plaintiff asserting a partisan gerrymandering claim
16 based on a theory of vote dilution must establish standing by showing he lives in an
17 allegedly ‘cracked’ or ‘packed’ district.” (quoting the unanimous holding in Gill,
18 138 S. Ct. at 1931)). For a district court to find a violation of Article II, Section 18,
19 such district-specific evidence of disparate treatment should be as objective as
20 possible, for example, by comparing voter registration percentages or data for the
21 political party affiliation of the individual plaintiffs under the prior districting map
46
1 against parallel percentages or data under the challenged districting map. Further, a
2 district court adjudicating a partisan gerrymandering claim must determine whether
3 the evidence shows the challenged redistricting map substantially diluted the votes
4 of plaintiffs within their district, though statewide evidence may also be relevant.12
12
In Gill, the United States Supreme Court articulated propositions that we
find persuasive of our conclusions above, albeit in the context of establishing Article
III standing. First, the Gill Court recognized the well-established proposition “that a
person’s right to vote is ‘individual and personal in nature.’” 138 S. Ct. at 1929(quoting Reynolds, 377 U.S. at 561). Next, “[t]o the extent the plaintiffs’ alleged
harm is the dilution of their votes, that injury is district specific. . . . The boundaries
of the district, and the composition of its voters, determine whether and to what
extent a particular voter is packed or cracked.” Id. at 1930. Finally, Gill invoked the
reasoning of racial and one-person, one-vote gerrymandering jurisprudence in
analyzing the nature of constitutional harm and remedy under a partisan
gerrymandering claim. See id. at 1930-31.
In the same vein, we also note Justice Kagan’s related discussion in her
concurrence in Gill:
The harm of vote dilution, as this Court has long stated, is individual
and personal in nature. It arises when an election practice—most
commonly, the drawing of district lines—devalues one citizen’s vote as
compared to others. Of course, such practices invariably affect more
than one citizen at a time. For example, our original one-person, one-
vote cases considered how malapportioned maps contracted the value
of urban citizens’ votes while expanding the value of rural citizens’
votes. But we understood the injury as giving diminished weight to each
particular vote, even if millions were so touched. In such cases, a voter
living in an overpopulated district suffered disadvantage to herself as
an individual: Her vote counted for less than the votes of other citizens
in her State. And that kind of disadvantage is what a plaintiff asserting
a vote dilution claim—in the one-person, one-vote context or any
other—always alleges.
138 S. Ct. at 1935 (Kagan, J., concurring) (text only) (citations omitted).
47
1 See Gill, 138 S. Ct. at 1929-31; see also Rucho, 139 S. Ct. at 2516 (Kagan, J.,
2 dissenting).
3 {65} We find a useful evidentiary template in Rucho, where extensive evidence of
4 intent and effect indicated that the districting plans in North Carolina and Maryland
5 were “highly partisan, by any measure.” 139 S. Ct. at 2491. This record in Rucho
6 supports that many forms of evidence may be relevant to prove predominant intent
7 and substantial effect for an egregious partisan gerrymander. Regarding the effects
8 prong of the Kagan test, we reiterate that evidence of substantial dilution of
9 plaintiffs’ votes must rely on objective district-specific evidence. 13 We point to the
10 evidence in Rucho as guidance to the district court, not as limitation on what other
11 relevant evidence may be considered.
12 {66} Regarding the Kagan test’s third prong of causation, we reiterate that “if the
13 plaintiffs make those showings [of intent and effects], the State must come up with
14 a legitimate, non-partisan justification to save its map.” Id. at 2516 (Kagan, J.,
15 dissenting).
By way of example, we note the voter registration evidence from Maryland’s
13
Sixth Congressional District, which offers a stark before-and-after comparison of
registered Republican voters dropping from 47% under the prior map to 33% under
the challenged map. Rucho, 139 S. Ct. at 2519 (Kagan, J., dissenting).
48
1 {67} We conclude by emphasizing that the touchstone of an egregious partisan
2 gerrymander under Article II, Section 18 is political entrenchment through
3 intentional dilution of individuals’ votes, thereby invoking the protections of Article
4 II, Sections 2, 3, and 8. In an egregious partisan gerrymandering claim, evidence of
5 disparate treatment sufficient to establish a violation of the New Mexico Equal
6 Protection Clause must prove under intermediate scrutiny that the predominant
7 purpose underlying a challenged map was to entrench the redistricting political party
8 in power through vote dilution of a rival party; that individual plaintiffs’ rival-party
9 votes were in fact substantially diluted by the challenged map; and, upon those
10 showings, that the State cannot demonstrate a legitimate, nonpartisan justification
11 for the challenged map.
12 {68} IT IS SO ORDERED.
13
14 C. SHANNON BACON, Chief Justice
15 WE CONCUR:
16
17 MICHAEL E. VIGIL, Justice
18
19 DAVID K. THOMSON, Justice
49
1
2 JULIE J. VARGAS, Justice
3
4 BRIANA H. ZAMORA, Justice
50