Report from the Special Session on Redistricting

What happens when “traditional redistricting principles” meet the legislative process
(and before you ask, no, “gerrymandering” does not count as a traditional redistricting principle)

By Michael Sperberg-McQueen. 18 December 2021, last revised 28 December 2021.

The New Mexico Legislature has just concluded its 2021 special session on redistricting, and bills have gone to the governor for signature drawing new district maps for New Mexico’s Congressional delegation, for the New Mexico state Senate, for the state House of Representatives, and for the Public Education Commission.

This report focuses on what happened. Why it happened, its implications, and some of the issues raised in debate, are also worth contemplating but are not considered here. It mostly tries to confine itself to facts. Where it does stray into opinion, any opinions expressed are those of the author.

Executive Summary

The end results can be summarized as follows.

  • The map adopted for districts of the Public Education Commission is very close to one of the maps recommended by the Citizen Redistricting Committee (CRC), and all changes were well explained and well reasoned. View PEC Map.

  • The Congressional map is broadly similar to one of the maps recommended by the CRC but different in many ways, without explanations or reasons being given for any of the changes. The map scores worse than any of the CRC maps on objective measures of bias. View Congressional Map.

  • The House map is based on one of the maps recommended by the CRC but has been modified to reflect a Native American consensus, which was achieved only after the CRC had finished its work; The House map is otherwise identical to the base map (CRC House map E-1). View House Map.

  • The Senate map is described by its sponsor as not based on any one of the maps recommended by the CRC, and in most of the state it resembles none of them. The map as introduced had the support of the Native American consensus. Changes made by a committee were opposed by the tribes and were partially undone later. The final result does have Native American support. View Senate Map.

  • The Legislature took active steps to make proposed new maps available for public inspection even before they were adopted, so that the public could follow the discussion of proposed amendments.

  • An indeterminate but clearly large part of the legislative consideration of maps took place outside public view.

The rest of this report offers more details on the chain of events that led to these results.

The Citizen Redistricting Committee

For some decades, New Mexico’s redistricting process has led to disputes and lawsuits; in 2002 and 2012, final district lines were drawn not by legislation but by court order.

Ideally, reformers would have liked New Mexico to establish an independent redistricting commission with the power to set the district lines, so that legislators are not placed in the position of voting on the borders of the districts in which they and their colleagues will face re-election. Even with the best of intentions, it can be hard to focus on general principles of redistricting and fairness with your political survival, or that of your colleagues, on the line. One way to set up an independent commission would have been to pass a constitutional amendment, and there were efforts in the last few legislative sessions to get such an amendment on the ballot in time for this round of redistricting, but they fell short, so the responsibility for drawing the district lines remains with the Legislature.

In the regular session this year, however, advocates for fair districting succeeded in moving a reform of the process through the Legislature. A Citizen Redistricting Committee (CRC) of seven members was appointed, some by Democratic and Republican leaders in the Legislature, some by the State Ethics Commission. Under the statute, the CRC does not have the power to determine the new district lines unilaterally, but it was charged to gather public input and provide three or more maps for each redistricting task (Congress, Senate, House, Public Education Commission) for the Legislature’s consideration. Advocates would have liked to oblige the Legislature to choose a map from among those recommended by the CRC, but in the end the statute obliged the Legislature to only receive the maps on the same terms as draft legislation prepared by interim legislative committees.

The CRC set to work with a will during the summer. They set up a web site on which citizens could submit their own maps and comment on redistricting issues (and each other’s maps). They held a series of hearings across the state to gather public comment from in-person and virtual attendees, then they contracted with a market research and opinion polling firm in Albuquerque to draw up a set of ‘concept maps’ to spark discussion, after which the committee held a second round of meetings. The committee’s work was complicated by Covid-related delays in the delivery of the 2020 census data, which shortened the time frame dramatically, and by the likelihood that the 2020 census systematically undercounted Native Americans and Hispanics, due in part to Covid and in part to the policy choices of those then in control of the federal executive branch. The committee nevertheless completed its work on schedule by choosing maps to recommend to the Legislature.

The CRC did its work without any reference to partisan data or election results, focusing only on what the statute refers to as “traditional redistricting principles” (and before you ask, no, “gerrymandering” may be traditional in the U.S. but it does not count as a traditional redistricting principle). After the final maps were selected, they were sent to an outside expert to test them for signs of partisan bias. He gave them all passing grades; in fact, he gave each map an A.

The public comments, the final maps, and the extensive final report, complete with a daunting array of statistical measures, are all available from the CRC web site.

Three expectations

As the Legislature convened for the special session on redistricting, Fair Districts New Mexico formulated three requests for the Legislature, which can be paraphrased:

  • Select the Citizen Redistricting Committee (CRC) maps which best comply with the Voting Rights Act, avoid partisan gerrymandering, protect communities of interest, align with existing governmental (including tribal) boundaries, and avoid favoring incumbents.

  • If the Legislature amends the maps sent to them by the CRC, they should provide detailed explanation of why they amended the maps.

  • During the special session on redistricting, all legislative meetings should follow the letter and spirit of the Open Meetings Act. The public’s business should be conducted in full public view. The actions of the public bodies should be taken openly and all deliberations made open to the public.

Now that the special session has come to an end, we can look back and grade the Legislature on its performance. How did they do? Well, to put it gently, the record is mixed.

How they did

The two chambers split the work evenly: maps for the state House and for the Public Education Commission started in the House, and maps for Congress and the state Senate started in the Senate.

In the view of this observer,the House did reasonably well, judged against the requests formulated by Fair Districts New Mexico, at least on the PEC and House maps. It introduced all three House maps and all three PEC maps as bills, and rapidly settled on one of the PEC maps recommended by the CRC. It made a couple of modest changes to align the PEC district lines better with school district lines in the regions of Roswell and Aztec/Bloomfield and to reverse the numbering of Districts 8 and 9.

The story with the House map was more complicated. In addition to the CRC maps, Rep. Damon Ely introduced a fourth map (House Bill 8), which had an interesting history. In deference to the principle of tribal self-determination, the CRC had sought input from Native American communities, but the tribes had not reached consensus on House maps when the CRC was obliged to complete its work. The CRC sent three House maps to the Legislature: one map reflecting input from the Navajo Nation, a conflicting map reflecting the recommendation of the All Pueblo Council of Governors, and one other map that was, so to speak, neutral with respect to Native American interests.

After the CRC had chosen its maps, the tribes continued their work, and they did reach consensus on a House map before the special session began. The fourth map was developed by starting from the neutral CRC map and adjusting it to reflect the consensus reached by the All Pueblo Council of Governors, the Navajo Nation, the Jicarilla Apache Nation, and the Mescalero Apache Tribe. To everyone who watched the CRC’s final selection of maps it was evident that if they had had access to a map reflecting a Native American consensus they would certainly have selected it to send to the Legislature, so changing a CRC map to reflect that consensus seems to be a very strong motive for the change.

In the selection of maps for the PEC and the House, the NM House of Representatives thus came about as close as could be expected to satisfying the first and the second requests, respectively, formulated by Fair Districts New Mexico.

They did pretty well with respect to the third request, also. It’s plausible to assume that a great deal of discussion did take place behind closed doors in the Roundhouse — by all accounts, during redistricting there has historically often been a lot of bloodletting in the meetings of the majority and minority caucuses — but apart from the introduction of the new map for the House there were no out-of-left-field surprises in the House’s work. The changes to the PEC map were introduced and discussed in open session, and once the CRC-plus-Native-consensus map of the House itself was introduced, no changes were made. A number of changes were proposed, often with the explicit aim of protecting this or that sitting representative, but the majority of the House resisted the temptation to tinker with the map.

On the Senate side, things were quite different. The Redistricting Act says:

The Legislature shall receive the adopted district plans for consideration in the same manner as for legislation recommended by interim legislative committees.

The Senate leadership appears to have decided that this does not mean what it appears to mean. As a rule, when an interim committee reaches consensus on legislation, a bill reflecting that consensus is introduced; indeed, the Senate rules say explicitly (sec. 11-9) that bills can be introduced “on the report of a committee” as well as by individual Senators.

Being introduced as a bill does not, of course, guarantee that the map will receive serious consideration: Bills are amended, or die unheard in committee, all the time. But when CRC maps are introduced as bills, they will be preserved in the archival record of legislative activity — which incidentally makes them accessible on the Legislature’s web site in the same format as the maps eventually introduced.

In the Senate, however, none of the CRC maps for Congress or the state Senate were introduced. Instead, at the outset of the session the only maps put forward for consideration were a Congressional redistricting map sponsored by Sen. Joseph Cervantes and Rep. Georgene Louis (Senate Bill 1) and a Senate map sponsored by Sen. Linda Lopez and co-sponsored by Sen. Daniel Ivey-Soto (Senate Bill 2).

One of the CRC maps was later introduced by Sen. Mark Moores, but it was effectively dead on arrival. Both Cervantes and Lopez said they had drawn a great deal of inspiration from the CRC’s work, but neither was willing, when asked, to identify a specific CRC map from which they had started. Cervantes and Louis’s bill had a certain similarity with CRC Congressional Map H, though it differed in many details. Later discussion led to claims that Lopez’s bill was based on CRC Senate map C-1, but outside the northwest quadrant of the state, where both maps reflected the tribal consensus, very few districts have the same boundaries in the two maps.

After party-line votes approving the Congressional map in the Senate Rules and Judiciary committees, there was a pause, and the Judiciary Committee re-convened and promptly voted (again on party lines) first to reconsider its earlier vote and then to amend the map. Sen. Cervantes described the new map as a compromise solution meant to address criticisms directed at the initial map.

The criticisms he had in mind must have been offered in private, since the changes left intact all the features of the map that had been criticized in public comment. The original map of SB 1 scored worse than any of the CRC map on several objective measures of bias, which led some commenters to label it gerrymandering. The revised map scored even worse. But it passed through the Senate on party-line votes, and then through the House, again on party-line votes.

When the map of the Senate (Senate Bill 2) came up in the Senate Judiciary Committee on Sunday, Dec. 12, Senate president pro tem. Mimi Stewart offered an amendment (technically referred to as a ‘committee substitute’, for reasons we won’t go into here) which, she said, reflected some tweaks to Senate Districts 3 and 4 in the northwest, and also included changes intended to reflect Republican concerns in the southeast and the west.

In particular, the committee substitute adjusted the boundaries between Senate Districts 29 and 30 so that the incumbents (Sen. Minority Leader Greg Baca and Sen. Joshua Sanchez) would not end up in the same district. Those interested in non-partisan districting generally regard such pairings of sitting legislators as of no deep importance, but for fairly understandable reasons they are of abiding interest for incumbents.

When the committee chair invited public comment on the original map and the substitute, a long procession of 38 tribal leaders and others spoke for the original map and against the substitute; one lobbyist for Gallup spoke in favor of the substitute. As later explanations made clear, the changes in the southeast were a matter of indifference to the Native American consensus, but the changes to Districts 3 and 30 were not welcome, as the tribes had carefully drawn 3 as a Native American majority district and 30 as a Native American ‘influence’ district. When the committee voted 7:2 to adopt the committee substitute (Ivey-Soto and Lopez being the only dissenters), press reports say that the tribal leaders silently rose and turned their backs on the committee to walk out of the hearing.

The Senate floor session originally scheduled for Monday was postponed several times, and it was not until Wednesday that the Senate met and took up the Senate map. Sen. Lopez then introduced another amendment (a ‘floor substitute’ to replace the ‘committee substitute’) which she described as restoring most but not all of the original map. (That was not quite accurate, but the details would take a long time to explain.) It became clear that the floor substitute had the support of tribal leaders, but it undid the changes to Districts 29 and 30 and did not have the support of the Republican minority. Parliamentary maneuvers blocked the debate on the bill for over a day, and the eventual debate was heated and prolonged, but in the end the bill passed the Senate on a party-line vote. The House debate was also heated and extended, but again the bill passed on a party-line vote.

So in sum, the Senate did not introduce any of the CRC maps as bills, despite an apparent statutory obligation to do so; instead it worked exclusively on maps produced outside of all public scrutiny. The sponsors of those maps professed to have drawn inspiration from the CRC recommendations but provided very few explanations for the many deviations from those recommendations. Every substantive change made to the maps by the Senate came as a bolt from the blue, evidently as much a surprise to other Senators as to the public, and the Senate floor debate made clear that on both sides of the aisle Senators had no objection to discussing changes to the maps in private meetings outside of public view.

One point at which the Senate provided for openness should, however, be noted. In normal practice, committee substitutes for a bill go on the web site only after a committee has adopted them and the chamber as a whole has adopted the relevant committee report. As Sen. Ivey-Soto pointed out, if that practice had been followed for the maps, no one in the public could have had any idea what changes were being debated. And so during the redistricting session, when committee substitutes were proposed, the text of the substitute and the corresponding maps were made available to the public on the legislative web site at the time of the relevant committee hearing, and thus roughly at the same time they were made available to the committee in question. The Senate floor substitute to SB 2 was a little slower showing up on the web site, but it did appear at 10 pm, not long after the Senate had finished its debate.

In both chambers of the Legislature, the predominance of party-line votes makes clear that just as in years past much of the discussion of redistricting issues took place in party caucus meetings, which are not subject to the Open Meetings Act.

As this report is written, both houses of the Legislature have adjourned and the maps have gone to the governor for signature or veto. As of Dec. 28, the Congressional and PEC maps have been signed and the maps for the Legislature have not.

The results of the redistricting process can be taken as a partial success for the Citizen Redistricting Committee and those who worked to make that committee a reality. They can also be taken as an illustration of why advocates for fair districting should continue to seek an independent redistricting commission to remove the redistricting process from legislative control.