Grisham v. Van Soelen

539 P.3d 272

Michelle Lujan GRISHAM in her official capacity as Governor of the State of New Mexico, Howie Morales, in his official capacity as New Mexico Lieutenant Governor and President of New Mexico Senate, Mimi Stewart, in her official capacity as President Pro Tempore of the New Mexico Senate, and Javier Martinez, in his official capacity as Speaker of the New Mexico House of Representatives, Petitioners,

v. Hon. Fred T. VAN SOELEN, District Court Judge, Fifth Judicial District Court, Respondent,andRepublican Party of New Mexico, David Gallegos, Timothy Jennings, Dinah Vargas, Manuel Gonzales Jr., Bobby and Dee Ann Kimbro, and Pearl Garcia, Real Parties in Interest,andMaggie Toulouse Oliver, Defendant-Real Party in Interest.

No. S-1-SC-39481

Supreme Court of New Mexico.

Filing Date: September 22, 2023

Hinkle Shanor LLP, Richard E. Olson, Lucas M. Williams, Ann C. Tripp, Roswell, NM, Peifer, Hanson, Mullins & Baker, P.A., Sara N. Sanchez, Mark T. Baker, Albuquerque, NM, UNM School of Law, Michael B. Browde, Albuquerque, NM, Stelzner, LLC, Luis G. Stelzner, Albuquerque, NM, Holly Agajanian, Kyle P. Duffy, Santa Fe, NM, for Petitioners

Dylan Kenneth Lange, General Counsel, Albuquerque, NM, for Defendant-Real Party in Interest

Harrison, Hart & Davis, LLC, Carter B. Harrison IV, Daniel J. Gallegos, Albuquerque, NM, for Real Parties in Interest

BACON, Chief Justice.

{1} This case presents the issue of whether a partisan gerrymandering claim is cognizable and justiciable under the Equal Protection Clause in Article II, Section 18 of the New Mexico Constitution and, if so, what standards should be applied in its adjudication. N.M. Const. art. II, § 18 ("No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws ." (emphasis added)). Real Parties in Interest (Real Parties)—Republican Party of New Mexico, David Gallegos, Timothy Jennings, Dinah Vargas, Manuel Gonzales Jr., Bobby and Dee Ann Kimbro, and Pearl Garcia—had filed suit as Plaintiffs in the district court, alleging that the congressional districting maps enacted in 2021 violate New Mexico's Equal Protection Clause. As Defendants in the district court, Petitioners—in their capacities as elected officials, the Governor, Lieutenant Governor-President of the Senate, President Pro Tempore of the Senate, and Speaker of the House of Representatives¹ —filed a petition for a writ of superintending control and request for stay in this Court to resolve the aforementioned issues. Following oral argument and supplemental briefing on those issues, we filed an order and an amended order, both of which, among other things, granted the petition insofar as declaring the justiciability of a partisan gerrymander claim and providing guidance and standards for the district court. Today, we explain that order and provide additional guidance to the district court regarding the resolution of a partisan gerrymandering case.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Within a special legislative session in December 2021, the challenged congressional map and associated legislation was introduced in the Senate, approved by both chambers, and signed into law by the Governor.² In November 2021, the Citizen Redistricting Committee had submitted to the Legislature its proposed redistricting plans, promulgated in accordance with the Redistricting Act, NMSA 1978, §§ 1-3A-1 to -9 (2021).³ However, the Legislature exercised its discretion to draw and enact its own maps, including the challenged congressional map. See Senate Bill 1, "Congress-Final Version Maps and Data" hyperlink; see also § 1-3A-9(B) ("The legislature shall receive the adopted district plans for consideration in the same manner as for legislation recommended by interim legislative committees.").

{3} Approximately one month after the congressional map's adoption, the Real Parties filed their lawsuit in district court challenging the map as an unconstitutional partisan gerrymander. Among other claims, the Real Parties quoted Maestas v. Hall , 2012-NMSC-006, ¶¶ 25, 34, 274 P.3d 66, for the proposition that "[w]hen drafters of congressional maps use ‘illegitimate reasons’ to discriminate against regions at the expense of others, including failing to adhere to New Mexico's ‘traditional districting principles,’ aggrieved voters may seek redress of this constitutional injury in the courts through an equal protection challenge." The Real Parties further alleged that the challenged map "drastically" split (or "crack[ed]")⁴ the votes of registered Republicans in southeastern New Mexico from a single district (Congressional District 2) into all three congressional districts and diluted those votes by splitting registered Democrats in the greater-Albuquerque area into all three districts as well. The alleged effect was to "impose[ ] a severe partisan performance swing by shifting [Congressional District] 2's strong Republican block ... into majority-Democratic seats." The Real Parties sought a declaration that the challenged map is an unconstitutional partisan gerrymander in violation of Article II, Section 18. They additionally moved for a preliminary injunction to block the map from taking effect for the 2022 congressional elections.

{4} The Real Parties also moved for injunctive relief in asking the district court to adopt "a partisan neutral congressional map consistent with [map E]," one of the three partisan-neutral congressional plans developed by the Citizen Redistricting Committee and recommended to the Legislature.

{5} Petitioners moved to dismiss the Real Parties’ lawsuit, arguing under Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019), and separation-of-powers principles that the lawsuit raised a nonjusticiable political question. The district court denied the motions, reasoning that the Real Parties had alleged "a strong, well-developed case that [the challenged map] is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico." The district court also held that the Real Parties’ partisan-gerrymandering claim was not definitively barred by Rucho or state law and noted that the Real Parties had cited state law authorities, namely Maestas and the Redistricting Act, that may provide a standard for evaluating their equal protection claim.

{6} In separate findings and conclusions, the district court denied the Real Parties’ motion for preliminary injunction, concluding among other things (1) that the court likely could not grant the requested relief of adopting map E or drawing its own map, (2) that enjoining the 2021 map would cause "chaos and confusion" for the imminent primary election, and (3) that the Real Parties had not shown a "likelihood of success on the merits." In its second letter decision on the motion, the district court further explained that, because the challenged map "will be used ... potentially for the next five (5) elections, ... the case will continue, and the Court will hear further argument at a later date on [the] complaint, that could affect the elections after 2022."

{7} Shortly after the district court filed its orders denying the motions to dismiss and for preliminary injunction, Petitioners filed the instant petition seeking a stay of proceedings and a writ of superintending control to resolve two "controlling legal issues" in the underlying suit:

(1) Whether Article II, Section 18 ... provides a remedy for a claim of alleged partisan gerrymandering?

(2) Whether the issue of alleged partisan gerrymandering is a justiciable issue; and if such a claim is justiciable under the New Mexico Constitution, what standards should the district court apply in resolving that claim in this case?

This Court stayed the proceedings in the district court and heard oral arguments, following which we ordered supplemental briefing addressing whether "the New Mexico Constitution provide[s] greater protection than the United States Constitution against partisan gerrymandering." Subsequently herein we discuss the parties’ arguments in these proceedings as relevant to the issues.

{8} We granted the petition and provided guidance and standards for the district court. As we discuss further herein, our guidance and standards include (1) that a partisan gerrymandering claim is justiciable under Article II, Section 18, (2) that such a claim is subject to the three-part test articulated by Justice Kagan in her dissent in Rucho , (3) that at this stage in the proceedings, we need not determine the precise degree of partisan gerrymandering that is permissible under the New Mexico Constitution, (4) that intermediate scrutiny is the proper level of scrutiny for such a claim, and (5) what evidence must be considered of the relevant evidence that may be considered.

II. DISCUSSION

A. Our Exercise of Superintending Control and Standard of Review

{9} " Article VI, Section 3 of the New Mexico Constitution confers on this Court superintending control over all inferior courts and the power to issue writs necessary or proper for the complete exercise of our jurisdiction and to hear and determine the same." Kerr v. Parsons , 2016-NMSC-028, ¶ 16, 378 P.3d 1 (text only) (citation omitted).⁵ "The power of superintending control is the power to control the course of ordinary litigation in inferior courts." Dist. Ct. of Second Jud. Dist. v. McKenna , 1994-NMSC-102, ¶ 3, 118 N.M. 402, 881 P.2d 1387 (internal quotation marks and citation omitted). "In granting a writ of superintending control, we may offer guidance to lower courts on how to properly apply the law." State ex rel. Torrez v. Whitaker , 2018-NMSC-005, ¶ 30, 410 P.3d 201. We may exercise the power of superintending control "where it is deemed to be in the public interest to settle the question involved at the earliest moment." Griego v. Oliver , 2014-NMSC-003, ¶ 11, 316 P.3d 865 (internal quotation marks and citation omitted).

{10} The...