The New Mexico Supreme Court just decided that Democrats gerrymandered a little, but not too much, when they redrew District 2 congressional lines in 2021. Those are the lines that enabled Rep. Gabe Vasquez to squeak by Yvette Herrell by 1,350 votes — 0.7 percent of the total — in the 2022 election.
This decision infuriated one of my favorite New Mexico columnists, Merritt Hamilton Allen. I agree with the criticisms in her column published here last Friday. One reason she is so upset is that she worked on the nonpartisan commission that drew fair lines overridden by the same Democrats who created the commission. I agree that gerrymandering is outrageously undemocratic and wrong, but my reasoning is a little different than hers.
I read the New Mexico court decision that approved the gerrymander, and since it referred to the 2019 U.S. Supreme Court gerrymandering decision, I read that, too. I read this boring stuff so you don’t have to.
Let’s review. In 2020, the New Mexico Legislature created a citizens’ commission to advise on new district lines based on the Census. But predictably, the Democratic majority cheated — allowing themselves to override the commission if they didn’t like its recommendations. And they didn’t like them. They borrowed extra Democrats from adjacent districts to draw more favorable lines.
I don’t think Democrats had much choice. If cheating is legal, it’s legislative malfeasance to play fair. If legislators are more concerned with being even-handed than with winning on the issues, voters will replace them with people ready to play hardball.
In 2021, there were more Republican states in a position to cheat than Democratic states. New Mexico Democrats felt they were just leveling the national playing field. Meanwhile, Republicans (like Democrats in red states) were outraged. They filed suit to overturn the gerrymandered district. That wouldn’t change the 2022 election, but it might create more favorable districts for the election next fall.
But the Republican suit was at a disadvantage, because the U.S. Supreme Court had ruled that gerrymandering is as American as apple pie. Sure, gerrymandering is unfair and undemocratic, but the bad judgment of legislatures should not be overridden by the bad judgment of federal courts.
If you think the New Mexico gerrymander was bad, you might be shocked by the Supreme Court decision approving far worse gerrymanders by Republicans in North Carolina and Democrats in Maryland. In both cases, redistricting planners said partisan advantage was one of their goals. At least New Mexico Democrats denied cheating, although no one was fooled.
The New Mexico lawsuit created some strange bedfellows. Republicans cited the dissent by Justice Elena Kagan representing the four liberal justices, rather than the majority opinion of the five conservative justices. One big issue was whether the gerrymandering would entrench the gerrymandering party.
Of course, Democrats didn’t entrench CD2. Their candidate won by less than 1 percent, and it’s unclear whether he can hold on next year. Therefore, the gerrymander wasn’t egregious. While the federal court approved outrageous gerrymanders, the New Mexico court said that some theoretical gerrymander might be too much.
Every American has the right to disagree with the Supreme Court, and I’m using that right to say that the source of current redistricting problems is their terrible decision in 2019. Redistricting should be based on the constitutional principle of one person, one vote, which is derived from the equal protection clause of the 14th Amendment. But the purpose of gerrymandering is to provide unequal protection, and to give some votes (ours) more weight than others (yours).
Redistricting is never fair when the majority party draws its own lines. They will always cheat if they can. A correct reading of equal protection is that state legislatures can set up a redistricting system, but can’t draw crooked lines themselves.
The New Mexico Legislature did set up a nonpartisan redistricting commission. The commission worked fine. Citizens participated. The recommendations were reasonably fair. They should have been accepted.
But that wasn’t likely during redistricting season. You don’t change the rules in the middle of the game, and Democrats shouldn’t have tried it. They had majorities in both houses. They were in a position to cheat legally. If they had just gerrymandered without pretending to play fair through a toothless commission, Republicans might not have been so angry.
The best time — the only time — to change the rules is in the off-season, which is right now. No one knows which party will have the majority in 2031. The legislative session starting in a few weeks is not too late to set up a real nonpartisan commission. If Democrats don’t take their finger off the scale, they should be ready for mighty revenge the next time Republicans get a majority.
