Walt Rubel Commentary: Courts can’t fix a broken process

If Yvette Herrell wins re-election, will that disprove the lawsuit filed by the Republican Party now pending in the state Supreme Court alleging gerrymandering.

Earlier this month, the Supreme Court moved to take control of the case from the district court in Clovis. They plan to begin hearing arguments in January. The new district boundaries are in effect for the current election.

In their lawsuit, Republicans argue that those boundaries give Democrats an unfair advantage.

“These congressional maps were ramrodded through the Democrat-led Legislature for political gain,” said Party Chairman Steve Pearce, who once held a tight grip on the seat now being contested. “The Court recognizes that we have strong evidence to support our claim of blatant illegal gerrymandering that rips apart communities of interest and disenfranchises voters across the state.”

Attorneys for the Democrats argue that there is no firm legal definition for what constitutes partisan gerrymandering. They said the new maps achieve the desired goal of bringing rural and urban areas together.

And, they note that this was the first time in 30 years that the Legislature has been able to complete the redistricting process without intervention from the courts, as the Constitution intended. The last two attempts were conducted under Democratic Legislatures and Republican governors (Susana Martinez and Gary Johnson), who could not come to agreement.

I’ve written in previous columns that breaking the Republican stronghold in southeast New Mexico into three districts, creating one new district that stretches from Farmington to Hobbs, is the textbook definition of gerrymandering. But that’s political theory, not legal theory.

In 2019 the U.S. Supreme Court ruled that partisan gerrymandering is allowed under federal law. That legalized a practice that had already been taking place for decades.

As the legal theories are being debated in court, an election is taking place that will soon provide hard answers as to the impact of the new maps. Politico calls the race a toss-up. A recent poll by Global Strategy Group had Herrell trailing by two points, 45 percent to 43 percent, to her Democratic challenger, former Las Cruces City Council member Gabe Vasquez.

In contrast to the question that opens this column, if Vasquez wins will that be proof that the district maps were drawn unfairly? And, should the courts respond by ripping up the new maps and starting over?

I was a big fan of the independent redistricting commission that tried to lead this process, but was naive to think that Democrats would relinquish their power. Partisan gerrymandering is one of the biggest drivers of our divided politics. Too many candidates serve in districts where the only challenge comes in the primary election, driving them further to the extremes.

As long as the maps are drawn by the Legislature, the party in power will seek to gain a partisan advantage every time. For the courts to intervene and try to determine exactly where that crosses the line seems like a fool’s errand. 


Walter Rubel can be reached at [email protected].

Listen to the audio version