As a state district court judge decides whether New Mexico’s congressional map signed into law in 2021 is a partisan gerrymander, he will have to figure out a way to properly question the lawmakers who drew it.
Ninth Judicial District Court Judge Fred Van Soelen met by phone on Monday morning with attorneys representing the Republican Party of New Mexico and government officials representing the governor’s office and the statehouse.
Carter Harrison was one of the attorneys who appeared on behalf of the New Mexico GOP, which argues that the new map “cracked” a Republican voting bloc in the southeastern part of the state, making it harder for a Republican candidate to win the Congressional District 2 seat in the U.S. House of Representatives.
In 2022, under the redrawn maps, southern New Mexico Democrat Gabe Vasquez won the congressional district by 1,346 votes. All three of the state’s federal delegates in the U.S. House are Democrats.
Van Soelen in April 2022 refused to dismiss the lawsuit, and Democratic leaders that July asked the state Supreme Court to decide whether the state’s courts have the power to weigh in on cases like this one.
The justices on July 5 found state courts do have that power, ruled in favor of the GOP, and sent the case back down to Van Soelen.
Lawmakers to assert ‘legislative privilege’
The justices ordered him to review the Republican Party’s claims using a three-part test: whether the lawmakers intentionally tried to dilute the votes of their opponents, whether they succeeded, and whether they had any legitimate, nonpartisan reasons for the way they drew the maps.
Answering these questions may prove difficult because New Mexico’s constitution makes evidence of “legislative actions” inadmissible in court in most circumstances.
The state constitution says lawmakers “shall not be questioned in any other place for any speech or debate or for any vote cast” in the House or Senate. In previous cases, for example, emails between a lawmaker and his staff were considered privileged.
Harrison said one issue he knows will come up in discovery will be “the assertion of legislative privilege under the Speech and Debate clause of the state constitution.”
Richard Olson appeared on behalf of Senate President Pro Tempore Mimi Stewart and House Speaker Javier Martinez.
He said there are two areas where legislative privilege is going to come up, but only mentioned one during the meeting on Monday, having to do with “discovery directed toward documentary evidence.”
One way of handling it, Harrison said, would be for lawmakers to testify in depositions outside the courthouse, assert the privilege on a question-by-question basis, and for the GOP to formally compel them to answer if they feel it is appropriate.
Another way of doing it, Harrison said, would be for the court to appoint a special master. The special master would be called on to resolve any disputes about legislative privilege coming out of the depositions, Olson said.
“I don’t think that I’ll have an issue with it,” Van Soelen said, referring to appointing a special master. “That might be something where a special master would be helpful.”
The order contains four names of possible candidates to take the appointment, Harrison said.
Van Soelen said he received an email with a proposed scheduling order, but by Monday afternoon the order had not been published in the online court records system.
Election clock ticking
The state Supreme Court gave Van Soelen until Oct. 1 to decide the case.
The time issue is “comin’ up quick,” he said.
“The Supreme Court has given us a short time window, and I understand why, and we’ll do everything we can to follow through on that,” the judge said.
The state’s election administrators have said they need the maps dealt with by then so candidates and voters will be ready for the 2024 primary election.
Harrison said the order lays out proposed expert disclosure deadlines, and that both sides think it would be helpful for an expert to weigh in.
Olson said the parties would need two to three full days for the hearing to include testimony from “probably multiple experts” and “various fact witnesses.”
Harrison said the order gives the judge the option of deciding the issues based only on written submissions, or if he wants he could conduct a bench trial that would entail live testimony from any witness he wants to question.