The Second Black District: A Critical Response to the New Mexico Supreme Court’s Voting Rights Case Against Democratic State Representative Gabe Vasquez

The unanimous decision by a three-judge lower court panel that included two Trump appointees was upheld, as well as the requirement for a second majority Black congressional district, by the Supreme Court. But when he case was returned to the state legislature with orders to create a second majority Black district, the GOP lawmakers didn’t do that. They increased the number of Black voters by 40% in one of the districts.

The state appealed a third time to the Supreme Court because they wanted to delay the creation of a new map. The state argued that it should be allowed time for a new legal line of attack.

On Tuesday, the justices did not want to delay the drawing of a new map with two majority, or black districts. In an unsigned order, the court said: “The application for stay presented to Justice Thomas and by him referred to the Court is denied.”

The Voting Rights Act still provides a limited but important protection against the deliberate reduction of black voting strength, even after the Supreme Court’s renunciation of Alabama’s tactics.

Judge Fred Van Soelen, who was the state district judge at the time, ruled that the map would be used for the election, despite the fact that the lawsuit was strong. The New Mexico Supreme Court has asked Van Soelen to expedite the case to avoid disruptions to next year’s election.

New Mexico Democratic Rep. Gabe Vasquez eked out a win over incumbent Yvette Herrell last year in the state’s 2nd Congressional District. The trial challenging the map used in that race comes ahead of a likely rematch between the two in the 2024 election.

The 2nd District used to include all of the southern part of New Mexico, which included the oil-rich Permian Basin and vast agricultural land. The new plan excludes the eastern border of the state with Texas and adds part of Albuquerque, the state’s largest city.

The Democratic-controlled Legislature violated the state’s Equal Protection Clause by discriminating against the GOP voters, argued the attorney for the lawsuit.

Attorney for Democratic leadership Sara Sanchez argued the plaintiffs were pushing back on a district that is simply harder for Republicans to win than it used to be.

The lower court was ordered by the justices to use a three-part test in assessing the GOP’s claims. In her dissent, Justice Elena Kagan noted that the case had to do with partisan gerrymander. It asks whether lawmakers intentionally tried to dilute the votes of their opponents, whether they succeeded and whether they have any nonpartisan justifications for where they drew the lines.

The evidence the court will use to determine lawmakers’ intent has already been a point of argument. The plaintiffs subpoenaed numerous current and former state legislators for depositions on the matter, according to court documents. Democratic defendants filed for a protective order, arguing that the state constitution protects them from testifying about the legislative process.

“There must be limited ways in which a legislator’s intent can be admitted to help in deciding cases before the courts,” he wrote in a letter to both parties.

The judge said lawmakers can’t be called to testify about their deliberations on the map. Any statements made to individuals that were not involved in the legislative process before the map was enacted will be allowed. This could include statements made to the public, advocacy groups, journalists or even members of the state’s congressional delegation. Van Soelen added that the map itself and its effect will be the court’s primary means for gauging Democratic lawmakers’ intent behind where they drew the lines.