Grisham v. Van Soelen

Office of the
New Mexico
Director Compilation
Commission
2023.12.08
'00'07- 11:06:41
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2023-NMSC-027

Filing Date: September 22, 2023

No. S-1-SC-39481

MICHELLE LUJAN GRISHAM in her official
capacity as Governor of the State of New Mexico,
HOWIE MORALES, in his official capacity as
New Mexico Lieutenant Governor and President
of New Mexico Senate, MIMI STEWART, in her
official capacity as President Pro Tempore of the
New Mexico Senate, and JAVIER MARTINEZ,
in his official capacity as Speaker of the New
Mexico House of Representatives,

Petitioners,

v.

HON. FRED T. VAN SOELEN, District Court
Judge, Fifth Judicial District Court,

Respondent,

and

REPUBLICAN PARTY OF NEW MEXICO,
DAVID GALLEGOS, TIMOTHY JENNINGS,
DINAH VARGAS , MANUEL GONZALES JR.,
BOBBY AND DEE ANN KIMBRO, AND
PEARL GARCIA,

Real Parties in Interest,

and

MAGGIE TOULOUSE OLIVER,

Defendant-Real Party in Interest.

ORIGINAL PROCEEDING ON PETITION FOR WRIT OF SUPERINTENDING
CONTROL
Hinkle Shanor LLP
Richard E. Olson
Lucas M. Williams
Ann C. Tripp
Roswell, NM

Peifer, Hanson, Mullins & Baker, P.A.
Sara N. Sanchez
Mark T. Baker
Albuquerque, NM

UNM School of Law
Michael B. Browde
Albuquerque, NM

Stelzner, LLC
Luis G. Stelzner
Albuquerque, NM

Holly Agajanian
Kyle P. Duffy
Santa Fe, NM

for Petitioners

Dylan Kenneth Lange, General Counsel
Albuquerque, NM

for Defendant-Real Party in Interest

Harrison, Hart & Davis, LLC
Carter B. Harrison IV
Daniel J. Gallegos
Albuquerque, NM

for Real Parties in Interest

OPINION

BACON, Chief Justice.

{1} This case presents the issue of whether a partisan gerrymandering claim is
cognizable and justiciable under the Equal Protection Clause in Article II, Section 18 of
the New Mexico Constitution and, if so, what standards should be applied in its
adjudication. N.M. Const. art. II, § 18 (“No person shall be deprived of life, liberty or
property without due process of law; nor shall any person be denied equal protection of
the laws.” (emphasis added)). Real Parties in Interest (Real Parties)—Republican Party
of New Mexico, David Gallegos, Timothy Jennings, Dinah Vargas, Manuel Gonzales Jr.,
Bobby and Dee Ann Kimbro, and Pearl Garcia—had filed suit as Plaintiffs in the district
court, alleging that the congressional districting maps enacted in 2021 violate New
Mexico’s Equal Protection Clause. As Defendants in the district court, Petitioners—in
their capacities as elected officials, the Governor, Lieutenant Governor-President of the
Senate, President Pro Tempore of the Senate, and Speaker of the House of
Representatives1—filed a petition for a writ of superintending control and request for
stay in this Court to resolve the aforementioned issues. Following oral argument and
supplemental briefing on those issues, we filed an order and an amended order, both of
which, among other things, granted the petition insofar as declaring the justiciability of a
partisan gerrymander claim and providing guidance and standards for the district court.
Today, we explain that order and provide additional guidance to the district court
regarding the resolution of a partisan gerrymandering case.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Within a special legislative session in December 2021, the challenged
congressional map and associated legislation was introduced in the Senate, approved
by both chambers, and signed into law by the Governor. 2 In November 2021, the
Citizen Redistricting Committee had submitted to the Legislature its proposed
redistricting plans, promulgated in accordance with the Redistricting Act, NMSA 1978,
§§ 1-3A-1 to -9 (2021). 3 However, the Legislature exercised its discretion to draw and
enact its own maps, including the challenged congressional map. See Senate Bill 1,
“Congress-Final Version Maps and Data” hyperlink; see also § 1-3A-9(B) (“The
legislature shall receive the adopted district plans for consideration in the same manner
as for legislation recommended by interim legislative committees.”).

{3} Approximately one month after the congressional map’s adoption, the Real
Parties filed their lawsuit in district court challenging the map as an unconstitutional
partisan gerrymander. Among other claims, the Real Parties quoted Maestas v. Hall,
2012-NMSC-006, ¶¶ 25, 34, 274 P.3d 66, for the proposition that “[w]hen drafters of
congressional maps use ‘illegitimate reasons’ to discriminate against regions at the
expense of others, including failing to adhere to New Mexico’s ‘traditional districting
principles,’ aggrieved voters may seek redress of this constitutional injury in the courts

1Secretary of State Maggie Toulouse Oliver, also named as a real party in interest, asserted that she is a
nominal party and therefore has declined to take a position on the questions presented in this matter.
2Senate Bill 1, 2021 N.M. Laws, 2d Spec. Sess., ch. 2, §§ 1-5,
https://www.nmlegis.gov/Legislation/Legislation?chamber=S&legType=B&legNo=1&year=21s2 (last
visited Sept. 18, 2023) (choose “Final Version” and “Congress -Final Version Maps and Data” hyperlinks);
see NMSA 1978, § 1-15-15 (2021), § 1-15-16 (2021), § 1-15-16.1 (2021), § 1-15-17 (2021), § 1-15-15.2
(2021).
3See Citizen Redistricting Committee, CRC District Plans & Evaluations (reissued Nov. 8, 2021) at 4,
https://www.nmredistricting.org/wp-content/uploads/2021/11/2021-11-2-CRC-Map-Evaluations-Report-
Reissued-1.pdf (last visited Sept. 8, 2023); see also § 1-3A-5(A)(1)(a) (providing that the committee shall
“adopt three district plans each for . . . New Mexico’s congressional districts”); § 1-3A-7(C)(1) (prohibiting
the use of partisan data other than “to ensure that the district plan complies with applicable federal law”);
§ 1-3A-9(A) (“The committee shall deliver its adopted district plans . . . to the legislature by October 30,
2021, or as soon thereafter as practicable . . . .”).
through an equal protection challenge.” The Real Parties further alleged that the
challenged map “drastically” split (or “crack[ed]”) 4 the votes of registered Republicans in
southeastern New Mexico from a single district (Congressional District 2) into all three
congressional districts and diluted those votes by splitting registered Democrats in the
greater-Albuquerque area into all three districts as well. The alleged effect was to
“impose[] a severe partisan performance swing by shifting [Congressional District] 2’s
strong Republican block . . . into majority-Democratic seats.” The Real Parties sought a
declaration that the challenged map is an unconstitutional partisan gerrymander in
violation of Article II, Section 18. They additionally moved for a preliminary injunction to
block the map from taking effect for the 2022 congressional elections.

{4} The Real Parties also moved for injunctive relief in asking the district court to
adopt “a partisan neutral congressional map consistent with [map E],” one of the three
partisan-neutral congressional plans developed by the Citizen Redistricting Committee
and recommended to the Legislature.

{5} Petitioners moved to dismiss the Real Parties’ lawsuit, arguing under Rucho v.
Common Cause, 139 S. Ct. 2484 (2019), and separation-of-powers principles that the
lawsuit raised a nonjusticiable political question. The district court denied the motions,
reasoning that the Real Parties had alleged “a strong, well-developed case that [the
challenged map] is an unlawful political gerrymander that dilutes Republican votes in
congressional races in New Mexico.” The district court also held that the Real Parties’
partisan-gerrymandering claim was not definitively barred by Rucho or state law and
noted that the Real Parties had cited state law authorities, namely Maestas and the
Redistricting Act, that may provide a standard for evaluating their equal protection claim.

{6} In separate findings and conclusions, the district court denied the Real Parties’
motion for preliminary injunction, concluding among other things (1) that the court likely
could not grant the requested relief of adopting map E or drawing its own map, (2) that
enjoining the 2021 map would cause “chaos and confusion” for the imminent primary
election, and (3) that the Real Parties had not shown a “likelihood of success on the
merits.” In its second letter decision on the motion, the district court further explained
that, because the challenged map “will be used . . . potentially for the next five (5)
elections, . . . the case will continue, and the Court will hear further argument at a later
date on [the] complaint, that could affect the elections after 2022.”

{7} Shortly after the district court filed its orders denying the motions to dismiss and
for preliminary injunction, Petitioners filed the instant petition seeking a stay of

4As expressed in the Alaska Supreme Court’s In re 2021 Redistricting Cases:
Gerrymandering often takes one of two forms, “packing” or “cracking.” “Packing” occurs
when groups of voters of similar expected voting behavior are unnaturally concentrated in
a single district; this may create a “wasted” excess of votes that otherwise might have
influenced candidate selection in one or more other districts. “Cracking” occurs when like-
minded voters are unnaturally divided into two or more districts; this often is done to
reduce the split group’s ability to elect a candidate of its choice.
528 P.3d 40, 54 (Alaska 2023) (footnotes omitted).
proceedings and a writ of superintending control to resolve two “controlling legal issues”
in the underlying suit:

(1) Whether Article II, Section 18 . . . provides a remedy for a claim of
alleged partisan gerrymandering?
(2) Whether the issue of alleged partisan gerrymandering is a justiciable
issue; and if such a claim is justiciable under the New Mexico Constitution,
what standards should the district court apply in resolving that claim in this
case?

This Court stayed the proceedings in the district court and heard oral arguments,
following which we ordered supplemental briefing addressing whether “the New Mexico
Constitution provide[s] greater protection than the United States Constitution against
partisan gerrymandering.” Subsequently herein we discuss the parties’ arguments in
these proceedings as relevant to the issues.

{8} We granted the petition and provided guidance and standards for the district
court. As we discuss further herein, our guidance and standards include (1) that a
partisan gerrymandering claim is justiciable under Article II, Section 18, (2) that such a
claim is subject to the three-part test articulated by Justice Kagan in her dissent in
Rucho, (3) that at this stage in the proceedings, we need not determine the precise
degree of partisan gerrymandering that is permissible under the New Mexico
Constitution, (4) that intermediate scrutiny is the proper level of scrutiny for such a
claim, and (5) what evidence must be considered of the relevant evidence that may be
considered.

II. DISCUSSION

A. Our Exercise of Superintending Control and Standard of Review

{9} “Article VI, Section 3 of the New Mexico Constitution confers on this Court
superintending control over all inferior courts and the power to issue writs necessary or
proper for the complete exercise of our jurisdiction and to hear and determine the
same.” Kerr v. Parsons, 2016-NMSC-028, ¶ 16, 378 P.3d 1 (text only) (citation
omitted). 5 “The power of superintending control is the power to control the course of
ordinary litigation in inferior courts.” Dist. Ct. of Second Jud. Dist. v. McKenna, 1994-
NMSC-102, ¶ 3, 118 N.M. 402, 881 P.2d 1387 (internal quotation marks and citation
omitted). “In granting a writ of superintending control, we may offer guidance to lower
courts on how to properly apply the law.” State ex rel. Torrez v. Whitaker, 2018-NMSC-
005, ¶ 30, 410 P.3d 201. We may exercise the power of superintending control “where it
is deemed to be in the public interest to settle the question involved at the earliest

5The “text only” parenthetical as used herein indicates the omission of all of the following—internal
quotation marks, ellipses, and brackets—that are present in the quoted source, leaving the quoted text
itself otherwise unchanged.
moment.” Griego v. Oliver, 2014-NMSC-003, ¶ 11, 316 P.3d 865 (internal quotation
marks and citation omitted).

{10} The implications and constitutional interests of the underlying lawsuit warrant the
exercise of this authority. The adjudication of a partisan gerrymandering claim is a
matter of first impression that implicates both New Mexicans’ constitutional right to vote
and the Legislature’s constitutional responsibility for redistricting. See State ex rel.
Walker v. Bridges, 1921-NMSC-041, ¶ 8, 27 N.M. 169, 199 P. 370 (“[T]he supreme right
guaranteed by the Constitution of the state is the right of a citizen to vote at public
elections.”); see also N.M. Const. art. IV, § 3(D) (identifying the Legislature as the
provenance of reapportionment). We echo the district court’s observation that
uncertainty as to the applicable districting maps for upcoming elections could result in
“chaos and confusion,” further highlighting the clear and substantial public interest
served by resolving the underlying legal issues here. See McKenna, 1994-NMSC-102, ¶
5 (“[T]his Court has used its power of superintending control to address issues of great
public interest and importance.” (internal quotation marks and citation omitted)).
“Because this case presents an issue of first impression . . . without clear answers
under New Mexico law, . . . we agree that this is an appropriate case in which to
exercise our superintending control authority.” Torrez, 2018-NMSC-005, ¶ 31 (first
omission in original) (internal quotation marks and citation omitted).

B. Resolution of This Case Is Proper Under Article II, Section 18 Without
Application of Interstitial Analysis

{11} As a preliminary matter, we determine whether the instant claim under the Equal
Protection Clause of Article II, Section 18 can be resolved through interstitial analysis.
For the reasons that follow, we determine that it cannot.

{12} Under the framework for interstitial analysis announced in State v. Gomez,
“[w]hen a litigant asserts protection under a New Mexico Constitutional provision that
has a parallel or analogous provision in the United States Constitution,” a state “court
asks first whether the right being asserted is protected under the federal constitution. If
it is, then the state constitutional claim is not reached. If it is not, then the state
constitution is examined.” 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932 P.2d 1. Under
the latter scenario, a court “may diverge from federal precedent for three reasons [or
prongs]: a flawed [or undeveloped] federal analysis, structural differences between state
and federal government, or distinctive state characteristics.” Id. ¶ 19. For purposes of
this discussion, we consider the framework above to consist of two stages: the first
stage consists of the initial question and answer regarding the scope of federal
constitutional protection, and the second stage, if no such protection applies, consists of
determining which prong if any supports divergence from federal precedent.

{13} The applicability of Gomez is debated at length in the parties’ supplemental
briefing. The Real Parties first assert that a partisan gerrymander violates the federal
equal protection standard, and they thus invite this Court to “adjudicate claims asserting
the full substantive scope of the federal Equal Protection Clause.” The Real Parties then
assert in the alternative that each of the three Gomez prongs of interstitial analysis
supports adjudication under Article II, Section 18; that Rucho’s holding establishes the
relevant federal analysis to be “undeveloped” where federal courts cannot reach the
merits of such a claim for prudential reasons; that structural differences exist for New
Mexico, including our lack of provisions analogous to the “Cases” or “Controversies” of
the United States Constitution’s Article III, Section 2; and that distinctive New Mexico
characteristics include “[t]his Court’s [b]road[er] [c]onstruction of the [s]tate Equal
Protection Clause.”

{14} In response, Petitioners first reject the availability of the federal equal protection
standard here, asserting that “the U.S. Supreme Court has never held that partisan
gerrymandering violates the federal equal protection clause.” Regarding the three
Gomez prongs of interstitial analysis, Petitioners assert that none avail: that federal
analysis is not undeveloped, given Rucho’s “ultimate rejection” of “th[at] Court’s political
gerrymandering jurisprudence”; that no state “structural differences command departure
from Rucho’s federal analysis,” where “[r]espect for separation of powers” should
constrain this Court; and that no “[s]pecial [s]tate [c]haracteristics . . . [j]ustify
[d]eparture” from the federal standard. Regarding the Real Parties’ assertion that this
Court has construed the state Equal Protection Clause more broadly, Petitioners argue
that “the State and Federal Equal Protection Clauses are coextensive, providing the
same protections” (internal quotation marks and citation omitted), and that this Court
has only interpreted our state Equal Protection Clause more broadly in discrete
circumstances that do not apply here.

{15} Notwithstanding the parties’ arguments, we determine that the instant case
should be resolved under Article II, Section 18 without application of interstitial analysis.
Our conclusion rests primarily on the undetermined nature of the federal Equal
Protection Clause—which we discuss further herein—as it applies to a partisan
gerrymandering claim. Because that substantive matter is undetermined rather than
undeveloped, we cannot answer “whether the right being asserted is protected under
the federal constitution.” Gomez, 1997-NMSC-006, ¶ 19. Importantly, the Gomez
framework of interstitial analysis is best suited to state constitutional claims for which
the relevant “federal protections are extensive and well-articulated,” whereas the
framework’s utility is significantly diminished when federal precedent is unclear. Id. ¶ 21
(internal quotation marks and citation omitted). Without a clear answer to that initial
question of the Gomez framework, we do not reach the framework’s second stage.

{16} Under the plain language of Gomez, interstitial analysis of the instant claim under
the state Equal Protection Clause begins by asking whether the right to vote is
protected by the federal Equal Protection Clause from vote dilution effected by a
partisan gerrymander—envisioning a clear, yes-or-no answer. See id. ¶ 19. If yes, “then
the state constitutional claim is not reached”; if no, “then [Article II, Section 18] is
examined.” Id. Because Rucho did not address the merits of the alleged equal
protection violation therein, we are left with uncertainty as to the substantive scope of
the federal standard for this context, 6 and thus we lack the clear answer required by
Gomez’s initial question. In this regard, we read Gomez to require clarity as to the
existence of federal protection as a prerequisite to reaching the second stage of
interstitial analysis. Stated differently, proceeding to the framework’s second stage
without such clarity would rely on speculation as to the reach of the relevant federal
protection. We do not read Gomez to allow such speculation, and accordingly we
cannot resolve the instant case under interstitial analysis.

{17} We recognize that Gomez does contemplate application of interstitial analysis
where the relevant federal analysis is “undeveloped,” as argued by the Real Parties. Id.
¶ 20. However, this argument does not avail for two reasons. First, we have read
Gomez to apply this consideration within the second stage of interstitial analysis,
specifically within the first prong of “reasons to depart from established federal
precedent.” State v. Adame, 2020-NMSC-015, ¶ 14, 476 P.3d 872 (stating the first such
“reason” as “the federal analysis is flawed or undeveloped”); see also State v. Crane,
2014-NMSC-026, ¶ 15, 329 P.3d 689. As explained, here we do not reach that second
stage of the analysis.

{18} Second, Gomez’s incorporation of undeveloped federal analysis derives from
State v. Attaway, wherein this Court interpreted Article II, Section 10 of the New Mexico
Constitution in a context not previously reached by the United States Supreme Court’s
interpretation of the Fourth Amendment. Attaway, 1994-NMSC-011, ¶ 14, 117 N.M. 141,
870 P.2d 103 (“The [United States] Supreme Court has not determined whether officers
executing a search warrant must knock and announce prior to entry.”). The Attaway
Court thus reached its holding without having to navigate an established, analogous
federal standard. See id. ¶ 20 (“The New Mexico Constitution embodies a knock-and-
announce requirement.” (emphasis omitted)). In this regard, we read Gomez’s use of
“undeveloped federal analogs,” 1997-NMSC-006, ¶ 20 (emphasis added), to mean
situations in which no United States Supreme Court standard for a federal provision
exists relevant to a state court’s analysis of a specific provision of the New Mexico
Constitution. In contrast to the issue in Attaway, the issue of partisan gerrymandering
under the Federal Equal Protection Clause has been debated extensively over decades
by the United States Supreme Court, see Rucho, 139 S. Ct. at 2497-98, resulting in the
uncertainty discussed above regarding the scope of the federal standard. We determine

6By way of illustration, we note that, pre-Rucho, the United States Supreme Court recognized that
invidious discrimination against political groups, like that against racial groups, could be cognizable under
equal protection:
What is done in so arranging for elections, or to achieve political ends or allocate political
power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment. As
we have indicated, for example, multimember districts may be vulnerable, if racial or
political groups have been fenced out of the political process and their voting strength
invidiously minimized.
Gaffney v. Cummings, 412 U.S. 735, 754 (1973) (emphasis added). However, as that proposition
regarded the merits, we cannot know if the principle would be applicable by a court unbound by the
federal standard of nonjusticiability announced subsequently in Rucho. See 139 S. Ct. at 2494, 2496.
that this uncertainty is not what the Gomez Court envisioned by its use of
“undeveloped.”

{19} Further, because that uncertainty necessarily extends to the relationship of our
state Equal Protection Clause to its federal analog, we deem that any ruling by this
Court interpreting or relying on the unknown scope of the federal provision—regardless
of the prevailing party—would be especially uncertain. In the event of subsequent
federal development in this area of law, the circumstances of New Mexico’s ensuing
congressional elections could indeed be thrown into chaos and confusion. Accordingly,
we determine that exercising our constitutional “power of superintending control to
address issues of great public interest and importance,” McKenna, 1994-NMSC-102, ¶
5 (internal quotation marks and citation omitted), warrants a ruling solely under Article II,
Section 18, thus allowing the public to rely on the result. 7

{20} Under our determination that this case cannot be resolved under interstitial
analysis, we need not further address the parties’ arguments in this regard.

C. A Partisan Gerrymandering Claim Is Justiciable Under Article II, Section 18

{21} Citing Rucho, 139 S. Ct. at 2494, Petitioners argue that this Court should hold a
partisan gerrymandering claim to be nonjusticiable, that is, not “capable of being
disposed of judicially.” Justiciable, Black’s Law Dictionary (11th ed. 2019). Petitioners
assert that separation of powers principles are offended by adjudication of such
“fundamentally political dispute[s]”; that the New Mexico Equal Protection Clause is
“coextensive” with its federal analog, and thus additional state constitutional or statutory
guideposts are necessary for adjudication under Article II, Section 18; and that political
question doctrine precludes the justiciability of a partisan gerrymandering claim.
Implicitly, these arguments suggest that concerns regarding federal standards of
justiciability should override state judicial concerns regarding constitutional violations of
equal protection and, consequently, that a partisan gerrymandering claim under Article
II, Section 18 is excepted from judicial review. We disagree.

1. The right to vote is of paramount importance in New Mexico

{22} At the outset, we emphasize that “[t]he right to vote is the essence of our
country’s democracy, and therefore the dilution of that right strikes at the heart of
representative government.” Maestas, 2012-NMSC-006, ¶ 1; see State ex rel. League
of Women Voters of N.M. v. Advisory Comm. to N.M. Compilation Comm’n, 2017-

7We take note of Justice Bosson’s observations that “Gomez is not inscribed in granite; it is not part of
the state Constitution. It is merely a means to an end . . . [intended to] serve[] the purposes of justice and
an independent development of our state Constitution.” State v. Garcia, 2009-NMSC-046, ¶ 56, 147 N.M.
134, 217 P.3d 1032 (Bosson, J., specially concurring). We agree that Gomez does not bind this Court as
to our analysis of state constitutional questions, and we encourage thoughtful and reasoned argument in
the future addressing whether the interstitial approach is the proper method to ensure the people of New
Mexico the protections promised by their constitution. Cf. Jeffery S. Sutton, 51 Imperfect Solutions: States
and the Making of American Constitutional Law, 174, Oxford Univ. Press (2018) (“[A] chronic
underappreciation of state constitutional law has been hurtful to state and federal law and the proper
balance between state and federal courts in protecting individual liberty.”).
NMSC-025, ¶ 1, 401 P.3d 734 (“[T]he elective franchise . . . is among the most precious
rights in a democracy.”). In State ex rel. League of Women Voters v. Herrera, we
“reiterat[ed] the longstanding and fundamental principle that the right to vote is of
paramount importance. The courts of New Mexico have long held that in service of this
important right, courts should guard against voter disenfranchisement whenever
possible and interpret statutes broadly to favor the right to vote.” 2009-NMSC-003, ¶ 8,
145 N.M. 563, 203 P.3d 94 (citations omitted). We have further identified voting as “a
fundamental personal right or civil liberty . . . which the Constitution explicitly or implicitly
guarantees.” Marrujo v. N.M. State Highway Transp. Dep’t, 1994-NMSC-116, ¶ 10, 118
N.M. 753, 887 P.2d 747.

{23} In addition, we recognize that other provisions in our state Bill of Rights—
specifically Article II, Sections 2, 3, and 8—support that the right to vote is of paramount
importance in New Mexico. Article II, Section 2 (Popular Sovereignty Clause) provides,
“All political power is vested in and derived from the people: all government of right
originates with the people, is founded upon their will and is instituted solely for their
good.” Article II, Section 3 (Right of Self-Government Clause) provides, “The people of
the state have the sole and exclusive right to govern themselves as a free, sovereign
and independent state.” Article II, Section 8 (Freedom of Elections Clause) provides, “All
elections shall be free and open, and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of suffrage.” As we discuss herein, we
determine that the right to vote is intrinsic to the guarantees embodied in these
provisions of our state Bill of Rights.

{24} We begin this discussion with our Freedom of Elections Clause, which we have
also characterized as our Free and Open Clause. See, e.g., Crum v. Duran, 2017-
NMSC-013, ¶ 2, 390 P.3d 971. By its plain language, the Clause implicitly asserts the
importance of “the free exercise of the right of suffrage.” N.M. Const. art. II, § 8. We
have characterized the Freedom of Elections Clause as “intended to promote voter
participation during elections” and as “Provid[ing] a Broad Protection of the Right to
Vote.” Crum, 2017-NMSC-013, ¶¶ 2-6; see also Gunaji v. Macias, 2001-NMSC-028, ¶
29, 130 N.M. 734, 31 P.3d 1008 (“[A]n election is only ‘free and [open]’ if the ballot
allows the voter to choose between the lawful candidates for that office.”). In Crum, we
further noted with approval the Missouri Supreme Court’s interpretation of that state’s
“substantively identical” provision “to mean that every qualified voter may freely exercise
the right to vote without restraint or coercion of any kind and that his or her vote, when
cast, shall have the same influence as that of any other voter.” 2017-NMSC-013, ¶ 9
(text only) (quoting Preisler v. Calcaterra, 243 S.W.2d 62, 64 (Mo. 1951) (en banc)).

{25} While we have not had prior occasion to construe either our Popular Sovereignty
Clause or our Right of Self-Government Clause, we determine that Article II, Sections 2
and 3 by their plain language are constitutional provisions articulating the sovereignty of
the people over their government, which sovereignty under our system of representative
democracy is ensured by the right to vote. These two provisions—which have no federal
analog—underscore the importance of the franchise to effectuating the other rights
guaranteed by the New Mexico Constitution. To that extent, we agree with the Real
Parties that we “should construe the Equal Protection Clause’s application here in par[i]
materia or through the ‘prism’ of [these] other Bill of Rights provisions that also speak
directly to the right to fair electoral representation.” Cf. Herrera, 2009-NMSC-003, ¶ 8
(“[T]he right to vote is of paramount importance.”); Walker, 1921-NMSC-041, ¶ 8 (“[T]he
supreme right guaranteed by the Constitution of the state is the right of a citizen to vote
at public elections.”); Hannett v. Jones, 1986-NMSC-047, ¶ 13, 104 N.M. 392, 722 P.2d
643 (recognizing “the principle that constitutions must be construed so that no part is
rendered surplusage or superfluous”); State v. Gutierrez, 1993-NMSC-062, ¶ 55, 116
N.M. 431, 863 P.2d 1052 (“Surely, the framers of the Bill of Rights of the New Mexico
Constitution meant to create more than ‘a code of ethics under an honor system.’”
(quoting Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins,
Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83
Colum. L. Rev. 1365, 1369-72 (1983))).

{26} We need not determine here whether these broad constitutional provisions are
merely “meant to express . . . basic political principle[s]” or are meant “as a textual
enumeration of certain substantive rights.” Marshall J. Ray, What Does the Natural
Rights Clause Mean to New Mexico?, 39 N.M. L. Rev. 375, 399, 403 (2009) (discussing
the New Mexico Constitution Article II, Section 4). The right to vote is the essential
democratic mechanism intrinsic to these provisions that links the people to their
guaranteed power and rights. We therefore read Article II, Section 18 together with
Sections 2, 3, and 8 to evaluate an individual’s right to vote under the New Mexico
Constitution.

2. Vote dilution can rise to a level of constitutional harm for which Article II,
Section 18 provides a remedy

{27} In the seminal case of Reynolds v. Sims, the United States Supreme Court
stated in the one-person, one-vote context that the “federally protected right suffers
substantial dilution where a favored group has full voting strength and the groups not in
favor have their votes discounted.” 377 U.S. 533, 555 n.29 (1964) (text only) (citation
omitted); see Maestas, 2012-NMSC-006, ¶ 1. In reliance on Reynolds, this Court has
recognized constitutional harm where the individual right to vote is infringed, including
through debasement or dilution. Wilson v. Denver, 1998-NMSC-016, ¶ 27, 125 N.M.
308, 961 P.2d 153 (“‘[T]he right of suffrage can be denied by a debasement or dilution
of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.’” (quoting Reynolds, 377 U.S. at 555)); see also State ex rel.
Witt v. State Canvassing Bd., 1968-NMSC-017, ¶ 22, 78 N.M. 682, 437 P.2d 143 (“‘To
the extent that a citizen’s right to vote is debased, [that individual] is that much less a
citizen.’” (quoting Reynolds, 377 U.S. at 567)).

{28} A partisan gerrymander by its very nature results in vote dilution. See Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015) (defining “the
problem of partisan gerrymandering” as “the drawing of legislative district lines to
subordinate adherents of one political party and entrench a rival party in power”); cf.
Vieth v. Jubelirer, 541 U.S. 267, 274-75 (2004) (recognizing a historical gerrymander as
a political party’s “‘attempt to gain power which was not proportionate to its numerical
strength’” (citation omitted)). Just five years ago, a unanimous United States Supreme
Court agreed that the “harm” of vote dilution “arises from the particular composition of
the voter’s own district, which causes his vote—having been packed or cracked 8—to
carry less weight than it would carry in another, hypothetical district.” Gill v. Whitford,
138 S. Ct. 1916, 1930-31 (2018).

{29} However, some degree of vote dilution under a partisan gerrymander does not
offend the United States Constitution. See Rucho, 139 S. Ct. at 2497 (“[W]hile it is
illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in
racial discrimination in districting, a jurisdiction may engage in constitutional political
gerrymandering.” (internal quotation marks and citation omitted)); see also Gaffney, 412
U.S. at 753 (“Politics and political considerations are inseparable from districting and
apportionment.”). Stated differently, depending on the degree of vote dilution under a
political gerrymander, it may not rise to the level of constitutional harm.

{30} Although some degree of partisan gerrymandering is permissible, egregious
partisan gerrymandering can effect vote dilution to a degree that denies individuals their
“inalienable right to full and effective participation in the political process[],” Reynolds,
377 U.S. at 565, and “enable[s] politicians to entrench themselves in office as against
voters’ preferences,” Rucho, 139 S. Ct. at 2509 (Kagan, J., dissenting). 9 The
consequences of such entrenchment under a partisan gerrymander include that ensuing
elections are effectively predetermined, essentially removing the remedy of the
franchise from a class of individuals whose votes have been diluted.

{31} To allow such a result would be an abdication of our duty to “apply the
protections of the Constitution” when the government is alleged to have threatened the
constitutional rights that all New Mexicans enjoy; accordingly, we would be derelict in
our responsibility to vindicate constitutional protections, including the equal protection
guarantee, were we to deny a judicial remedy to individuals directly affected by such a
degree of vote dilution. See Griego, 2014-NMSC-003, ¶ 1 (“[W]hen litigants allege that

8As described by Justice Kagan,
Partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s
vote as compared to others. A mapmaker draws district lines to “pack” and “crack” voters
likely to support the disfavored party. He packs supermajorities of those voters into a
relatively few districts, in numbers far greater than needed for their preferred candidates
to prevail. Then he cracks the rest across many more districts, spreading them so thin
that their candidates will not be able to win. Whether the person is packed or cracked, his
vote carries less weight—has less consequence—than it would under a neutrally drawn
(non-partisan) map. In short, the mapmaker has made some votes count for less,
because they are likely to go for the other party.
Rucho, 139 S. Ct. at 2513-14 (Kagan, J., dissenting) (citations omitted).
9We note that the dangers for democracy of such gerrymanders are recognized in Rucho by both the
majority and the dissent. See Rucho, 139 S. Ct. at 2506 (the majority recognizing that “[e]xcessive
partisanship in districting leads to results that reasonably seem unjust” as well as “the fact that such
gerrymandering is ‘incompatible with democratic principles’” (quoting Ariz. State Legislature, 576 U.S. at
791)); id. at 2507 (“Our conclusion does not condone excessive partisan gerrymandering.”); id. at 2509
(Kagan, J., dissenting) (“The partisan gerrymanders in these cases deprived citizens of the most
fundamental of their constitutional rights[.] . . . If left unchecked, gerrymanders like the ones here may
irreparably damage our system of government.”).
the government has unconstitutionally interfered with a right protected by the Bill of
Rights, or has unconstitutionally discriminated against them, courts must decide the
merits of the allegation. If proven, courts must safeguard constitutional rights and order
an end to the discriminatory treatment.”); see also Walker, 1921-NMSC-041, ¶ 8; cf. Gill,
138 S. Ct. at 1930-31 (“Remedying the individual voter’s harm [of vote dilution] . . .
requires revising only such districts as are necessary to reshape the voter’s district—so
that the voter may be unpacked or uncracked, as the case may be.”).

{32} Similarly, we fail to see how all political power would be “vested in and derived
from the people” and how “all government of right [would] originate[] with the people”
and be “founded upon their will,” as required by the Popular Sovereignty Clause, if the
will of an entrenched political party were to supersede the will of New Mexicans. N.M.
Const. art II, § 2. In such a scenario, the will of the people would come second to the
will of the entrenched party, and the fundamental right to vote in a free and open
election as required by Article II, Section 8 of the New Mexico Constitution would be
transformed into a meaningless exercise. See N.M. Const. art. II, § 8 (“All elections shall
be free and open, and no power, civil or military, shall at any time interfere to prevent
the free exercise of the right of suffrage.”). Such a result cannot stand.

{33} We reiterate and emphasize that although we refer to federal cases for the
purpose of guidance, such cases do not compel our result. Rather, our opinion is
separately, adequately, and independently based upon the protections provided by the
New Mexico Constitution. See N.M. Const. art. II, § 18; id. § 3 (“The people of the state
have the sole and exclusive right to govern themselves as a free, sovereign and
independent state.”); see also Michigan v. Long, 463 U.S. 1032, 1041 (1983) (“If a state
court chooses merely to rely on federal precedents as it would on the precedents of all
other jurisdictions, then it need only make clear by a plain statement in its judgment or
opinion that the federal cases are being used only for the purpose of guidance, and do
not themselves compel the result that the court has reached. In this way, both justice
and judicial administration will be greatly improved. If the state court decision indicates
clearly and expressly that it is alternatively based on bona fide separate, adequate, and
independent grounds, we, of course, will not undertake to review the decision.”).

{34} We conclude that a partisan gerrymander of an egregious degree violates the
democratic principles expressed above in the New Mexico Constitution and our
precedent through disparate treatment of a class of voters and thus is cognizable under
Article II, Section 18. See Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, ¶ 19, 138
N.M. 331, 120 P.3d 413 (“[A] politically powerless group has no independent means to
protect its constitutional rights.”). Given the consequences of entrenchment, we reiterate
that denial of a judicial remedy to individuals directly affected by such a degree of vote
dilution would be a dereliction of our responsibility to vindicate constitutional protections,
including the equal protection guarantee.
3. A partisan gerrymandering claim under Article II, Section 18 is not
excepted from judicial review

{35} In accordance with our foregoing conclusions on the New Mexico Constitution,
we next address Petitioners’ arguments that a partisan gerrymandering claim should be
excepted from judicial review.

{36} As a general proposition under separation of powers principles, this Court
conducts judicial review of legislation alleged to commit constitutional harm. State ex
rel. Vill. of Los Ranchos de Albuquerque v. City of Albuquerque, 1994-NMSC-126, ¶ 15,
119 N.M. 150, 889 P.2d 185 (“The reviewability of executive and legislative acts is
implicit and inherent in the common law and in the division of powers between the three
branches of government.”). The judiciary’s proper “function and duty [is] to say what the
law is and what the Constitution means.” Dillon v. King, 1974-NMSC-096, ¶ 28, 87 N.M.
79, 529 P.2d 745 (citing Marbury v. Madison, 5 U.S. 137, 178 (1803) (“It is emphatically
the province and duty of the judicial department to say what the law is.”)); United States
v. Nixon, 418 U.S. 683, 703 (1974) (same); see N.M. Const. art. III, § 1. “[T]he primary
responsibility for enforcing the Constitution’s limits on government, at least since the
time of Marbury v. Madison, . . . has been vested in the judicial branch.” Gutierrez,
1993-NMSC-062, ¶ 55 (internal quotation marks and citation omitted); see Moore v.
Harper, 143 S. Ct. 2065, 2079 (2023) (“Since early in our Nation’s history, courts have
recognized their duty to evaluate the constitutionality of legislative acts.”). “When
government is alleged to have threatened any of [the provisions in the New Mexico Bill
of R]ights, it is the responsibility of the courts to interpret and apply the protections of
the Constitution.” Griego, 2014-NMSC-003, ¶ 1.

{37} However, in conducting such review,

“[w]e will not question the wisdom, policy, or justness of a statute, and the
burden of establishing that the statute is invalid rests on the party
challenging the constitutionality of the statute. An act of the Legislature will
not be declared unconstitutional in a doubtful case, . . . and if possible, it
will be so construed as to uphold it.”

Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457 (alteration and
omission in original) (citation omitted); cf. Pirtle v. Legis. Council Comm., 2021-NMSC-
026, ¶ 32, 492 P.3d 586 (“‘[I]t is only when a legislative body adopts internal procedures
that ‘ignore constitutional restraints or violate fundamental rights’ that a court can and
must become involved.” (quoting United States v. Ballin, 144 U.S. 1, 5 (1892))).

a. Judicial review of a partisan gerrymander does not offend separation of
powers principles

{38} To the extent that Petitioners assert that judicial review of redistricting “do[es]
violence to New Mexico’s constitutional separation of powers,” we reject such a blanket
proposition. We agree with Petitioners that “th[is] Court should not interject itself into this
fundamentally political dispute to impose its own policy preference as to just how ‘fair’
maps need to be” (emphasis added). To conduct judicial review with such a purpose
would contradict the judicial limitation expressed above in Bounds. Our proper role, here
as in conducting judicial review of legislation generally, is determining whether the acts
of the political branches have exceeded constitutional authority. See Rodriguez v. Brand
West Dairy, 2016-NMSC-029, ¶ 2, 378 P.3d 13 (“When litigants allege that the
government has unconstitutionally discriminated against them, courts must decide the
merits of the allegation because if proven, courts must resist shrinking from their
responsibilities as an independent branch of government, and refuse to perpetuate the
discrimination . . . by safeguarding constitutional rights. Such is the constitutional
responsibility of the courts.”); see also Moore, 143 S. Ct. at 2083 (“[W]hen legislatures
make laws, they are bound by the provisions of the very documents that give them
life.”). The fact that the results of adjudication in a partisan gerrymandering case, as
Petitioners assert, “will—not maybe—favor one political party over [an]other” reflects the
nature of the case, not judicial policymaking. 10 Cf. Rucho, 139 S. Ct. at 2519-23
(Kagan, J., dissenting) (concluding that “judicial oversight of partisan gerrymandering”
by the lower courts there “us[ed] neutral and manageable—and eminently legal—
standards”).

{39} We will leave no power on the table in properly fulfilling our constitutional
obligations, including to vindicate individual rights. As we explained in Griego, when the
“government is alleged to have threatened” rights such as equal protection of the law
and the right to vote, “it is the responsibility of the courts to interpret and apply the
protections of the Constitution” to both safeguard individual rights and put an end to the
discriminatory treatment. 2014-NMSC-003, ¶ 1. See Reynolds, 377 U.S. at 566 (“We
are cautioned about the dangers of entering into political thickets and mathematical
quagmires. Our answer is this: a denial of constitutionally protected rights demands
judicial protection; our oath and our office require no less of us.”).

b. New Mexico’s Equal Protection Clause should not be read as coextensive
with the federal Equal Protection Clause for purposes of a partisan
gerrymandering claim

{40} Petitioners further assert that the instant case is nonjusticiable because the New
Mexico Equal Protection Clause is coextensive with its federal counterpart and the
additional requisite “standards and guidance” identified in Rucho for justiciability do not
exist in New Mexico law.

10We note the Rucho majority’s public perception concern that, without “especially clear standards,”
“intervening courts—even when proceeding with best intentions—would risk assuming political, not legal,
responsibility for a process that often produces ill will and distrust.” 139 S. Ct. at 2498 (internal quotation
marks and citation omitted). However, we find no explanation in Rucho for how such risk is distinct from
that borne by courts in numerous other contexts under their constitutional mandate to interpret the laws.
We also note and affirm the dissent’s full agreement that “[j]udges should not be apportioning political
power based on their own vision of electoral fairness, whether proportional representation or any other.”
Id. at 2515 (Kagan, J., dissenting).
{41} Petitioners’ view of the state Equal Protection Clause does not square with our
precedent. As Petitioners recognize, we have interpreted Article II, Section 18 as
providing broader protection than the Fourteenth Amendment in other contexts.

{42} In Griego, we held that “[d]enying same-gender couples the right to marry and
thus depriving them and their families of the rights, protections, and responsibilities of
civil marriage violates the equality demanded by the Equal Protection Clause of the
New Mexico Constitution.” 2014-NMSC-003, ¶ 68. In Breen, we stated,

[T]he Equal Protection Clause of the New Mexico Constitution affords
“rights and protections” independent of the United States Constitution.
While we take guidance from the Equal Protection Clause of the United
States Constitution and the federal courts’ interpretation of it, we will
nonetheless interpret the New Mexico Constitution’s Equal Protection
Clause independently when appropriate. . . . Federal case law is certainly
informative, but only to the extent it is persuasive. In analyzing equal
protection guarantees, we have looked to federal case law for the basic
definitions for the three-tiered approach [regarding the level of scrutiny to
apply to legislation], but we have applied those definitions to different
groups and rights than the federal courts.

2005-NMSC-028, ¶ 14 (citations omitted); id. ¶ 50 (holding that certain provisions of the
Workers’ Compensation Act “violate equal protection by discriminating against the
mentally disabled in violation of equal protection guarantees”).

{43} Petitioners attempt to confine Griego and Breen as cases wherein we have
“invoked Article II, Section 18’s Equal Protection Clause as providing greater protection
of civil rights only to protect against historical, invidious and purposeful discrimination
against a discrete group of vulnerable plaintiffs.” Petitioners also note that in both cases
we “pointed to the enaction of legislation protecting the very same class of plaintiffs.”
See Griego, 2014-NMSC-003, ¶ 48 (citing recent legislation prohibiting discrimination
and profiling based on sexual orientation and “add[ing] sexual orientation as a protected
class under hate crimes legislation”); Breen, 2005-NMSC-028, ¶ 27 (“protecting the
mentally disabled against possible discrimination” by statutorily defining the “‘least
drastic means principle’”). However, nothing in Griego or Breen expresses that these
features identified by Petitioners were necessary to our finding broader “rights and
protections” under Article II, Section 18. Given the constitutional importance of the right
to vote, as discussed above, we reject any suggestion that an absence of these
features negates protection under our state Equal Protection Clause.

{44} Petitioners also argue that, due to the provisions’ textual similarity,
“[u]nsurprisingly, New Mexico courts have repeatedly held that the State and Federal
Equal Protection Clauses are coextensive, providing the same protections” (internal
quotation marks and citation omitted). We note, however, that Petitioners do not cite this
Court’s cases for their proposition regarding equal protection. Instead, Petitioners cite
two New Mexico Court of Appeals cases and one federal district court case that itself
cites a third New Mexico Court of Appeals case. See E. Spire Commc’ns, Inc. v. Baca,
269 F. Supp. 2d 1310, 1323 (D.N.M. 2003) (citing Valdez v. Wal-Mart Stores, Inc.,
1998-NMCA-030, ¶ 6, 124 N.M. 655, 954 P.2d 87); Mieras v. Dyncorp, 1996-NMCA-
095, ¶ 16, 122 N.M. 401, 925 P.2d 518; Garcia v. Albuquerque Pub. Schs. Bd. of Educ.,
1980-NMCA-081, ¶ 4, 95 N.M. 391, 622 P.2d 699. The Real Parties in reply make the
apt observation that the cited Court of Appeals cases predate Breen and Griego.
Without more, these citations therefore do not support Petitioners’ argument.

{45} Because Article II, Section 18 should not be read as coextensive with the
Fourteenth Amendment in this context, we do not accept Petitioners’ premise that, to
the extent the federal Equal Protection Clause may be read to lack standards
supporting justiciability of a partisan gerrymander, the New Mexico Equal Protection
Clause does as well. Our rejection of the premise is bolstered by the undetermined
nature of the substantive scope of the federal Equal Protection Clause. Accordingly, we
reject the assertion that New Mexico law lacks adequate standards and guidance, a
point that we address more fully subsequently herein by setting out the applicable equal
protection test.

{46} Notwithstanding our conclusion, we concur with Petitioners’ argument that
neither Maestas nor the Redistricting Act is a source of redistricting standards that bind
the Legislature. Quoting Rucho and Maestas, the Real Parties point to “traditional
districting principles” (Maestas, 2012-NMSC-006, ¶ 34) and the Redistricting Act as
supplying “standards and guidance for state courts to apply” (Rucho, 139 S. Ct. at
2507). Maestas, however, only mandates the use of “traditional districting principles” for
court-drawn plans when the political branches have failed to reach agreement. Maestas,
2012-NMSC-006, ¶¶ 31, 34. It says nothing about whether the Legislature is bound by
such principles in the political redistricting process. See, e.g., id. ¶ 34 (“These
guidelines . . . should be considered by a state court when called upon to draw a
redistricting map.”). Significantly, the Maestas Court was careful to describe these
principles as “guidelines that are relevant to state districts,” not as binding requirements
that provide a constitutional basis for striking down a duly enacted district map. Id. The
Redistricting Act, although requiring the Citizen Redistricting Committee to prepare and
submit nonpartisan redistricting plans to the Legislature, specifies that those plans are
merely recommendations which the Legislature is not required to follow. See § 1-3A-
9(B) (“The legislature shall receive the adopted district plans for consideration in the
same manner as for legislation recommended by interim legislative committees.”
(emphasis added)). Thus, the Real Parties’ reliance on the traditional redistricting
principles in Maestas and the Redistricting Act as standards to satisfy Rucho is
misplaced.

c. Political question doctrine is nonbinding and does not avail

{47} Petitioners also assert that this Court should follow “the holding and rationale of
Rucho” when, Petitioners allege, “There is no means for the Judiciary to supply a clear
and discernable standard.” 11 See Rucho, 139 S. Ct. at 2494 (“Among the political

11Though not an ingredient of our conclusion here, we note that the formulation of the political question
doctrine urged by Petitioners involves a bright-line approach to political questions being nonjusticiable, as
question cases the [United States Supreme] Court has identified are those that lack
‘judicially discoverable and manageable standards for resolving [them].’” (second
alteration in original) (quoting Baker, 369 U.S. at 217)).

{48} The political question doctrine as applied in Rucho binds federal courts through
Article III, Section 2 of the United States Constitution, whereas “the New Mexico
Constitution does not expressly impose a [parallel] ‘cases or controversies’ limitation on
state courts.” New Energy Economy, Inc. v. Shoobridge, 2010-NMSC-049, ¶ 16, 149
N.M. 42, 243 P.3d 746. Notwithstanding their nonbinding status, we have stated that
prudential considerations should guide this Court’s discretion in the context of conferring
standing, N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 13, 126 N.M.
788, 975 P.2d 841, and we have noted that “‘prudential rules’ of judicial self-
governance, like standing, ripeness, and mootness, are ‘founded in concern about the
proper—and properly limited—role of courts in a democratic society’ and are always
relevant concerns,” Shoobridge, 2010-NMSC-049, ¶ 16 (quoting Warth v. Seldin, 422
U.S. 490, 498 (1975)). In other words, federal prudential standards—including the
political question doctrine—are relevant here but are merely persuasive, a point that
Petitioners acknowledge.

{49} Because the federal prudential standard is merely a persuasive consideration
instead of a requirement, the question for this Court is limited to whether our
constitutional responsibility to vindicate the individual right claimed in this case under
Article II, Section 18 outweighs relevant prudential concerns regarding the adjudicatory
standards to be applied. Further, our Constitution contains provisions that Rucho did not
consider, provisions with no federal counterpart. See N.M. Const. art. II, §§ 2, 3, and 8.
Given the importance of the right to vote, and the manageable standards to be applied
under our own constitution discussed below, we conclude that the constitutional
concerns here outweigh the prudential concerns. We hold that a partisan gerrymander
claim is justiciable under Article II, Section 18 of the New Mexico Constitution.

followed by the supreme courts of Kansas and North Carolina. See Rivera v. Schwab, 512 P.3d 168, 185
(Kan. 2022); Harper v. Hall, 886 S.E.2d 393, 399 (N.C. 2023). Instead, we interpret the seminal political
question cases of Baker v. Carr and Marbury as requiring a case-by-case analysis, Baker, 369 U.S. 186,
210-11 (1962) (“Much confusion results from the capacity of the ‘political question’ label to obscure the
need for case-by-case inquiry. Deciding . . . whether the action of [another] branch exceeds whatever
authority has been committed[] is itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution.”); id. at 217 (“The courts cannot
reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds
constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the
precise facts and posture of the particular case, and the impossibility of resolution by any semantic
cataloguing.”), that excepts a political question from nonjusticiability where the case involves vindication
of individual rights, see Marbury, 5 U.S. at 166 (“[T]here exists, and can exist, no power to control
[executive] discretion [where t]he subjects [of an executive officer’s acts] are political. They respect the
nation, not individual rights, and . . . when the rights of individuals are dependent on the performance of
[such an executive officer’s] acts[,] he . . . is amenable to the laws for his conduct[] and cannot at his
discretion sport away the vested rights of others. . . . But where a specific duty is assigned by law, and
individual rights depend upon the performance of that duty, it seems equally clear that the individual who
considers himself injured[] has a right to resort to the laws of his country for a remedy.” (emphasis
added)).
D. A Partisan Gerrymandering Claim Under Article II, Section 18 Is Subject to
the Three-Part Test Articulated by Justice Kagan in Her Rucho Dissent

{50} For an equal protection claim asserting a partisan gerrymander under Article II,
Section 18, we adopt the three-part test articulated by Justice Kagan in her Rucho
dissent:

As many legal standards do, that test has three parts: (1) intent; (2)
effects; and (3) causation. First, the plaintiffs challenging a districting plan
must prove that state officials’ predominant purpose in drawing a district’s
lines was to entrench their party in power by diluting the votes of citizens
favoring its rival. Second, the plaintiffs must establish that the lines drawn
in fact have the intended effect by substantially diluting their votes. And
third, if the plaintiffs make those showings, the State must come up with a
legitimate, non-partisan justification to save its map.

139 S. Ct. at 2516 (Kagan, J., dissenting) (text only) (citations omitted).

{51} This test fits within our existing equal protection framework. “The threshold
question in analyzing all equal protection challenges is whether the legislation creates a
class of similarly situated individuals who are treated dissimilarly.” Breen, 2005-NMSC-
028, ¶ 10. Where the evidence in a partisan gerrymandering claim satisfies this
threshold question, the district court should then apply the Kagan test to determine
whether the disparate treatment of vote dilution rises to the level of an egregious
gerrymander. As discussed above, the touchstone of an egregious partisan
gerrymander under Article II, Section 18 is political entrenchment through intentional
dilution of individuals’ votes, and the Kagan test serves to determine whether the
disparate treatment in an alleged gerrymander rises to such a level. See N.M. Const.
art. II, § 2 (providing that our Popular Sovereignty Clause vests all political power in,
and derives all power from, the people rather than a particular party engaging in
allegedly egregious gerrymandering); id. § 8 (requiring that “[a]ll elections . . . be free
and open”). We find it inconceivable that the framers of our constitution would consider
an election in which the entrenched party effectively predetermined the result to be an
election that is “free and open.”

{52} In Rucho, the dissent provides relevant discussion of the purpose and scope of
this test and of the lower courts’ standards on which it is based. See generally, 139 S.
Ct. at 2509-25 (Kagan, J., dissenting); id. at 2513 (Kagan, J., dissenting) (“Partisan
gerrymandering of the kind before us . . . subverts democracy . . . [and] violates
individuals’ constitutional rights.”). On the one hand,

courts across the country, including those below, have coalesced around
manageable judicial standards to resolve partisan gerrymandering claims.
Those standards satisfy the majority’s own benchmarks. They do not
require—indeed, they do not permit—courts to rely on their own ideas of
electoral fairness, whether proportional representation or any other. And
they limit courts to correcting only egregious gerrymanders, so judges do
not become omnipresent players in the political process. But yes, the
standards used here do allow—as well they should—judicial intervention
in the worst-of-the-worst cases of democratic subversion, causing blatant
constitutional harms. In other words, they allow courts to undo partisan
gerrymanders of the kind we face today from North Carolina and
Maryland.

Id. at 2509 (Kagan, J., dissenting). On the other hand, we agree and caution that

[j]udges should not be apportioning political power based on their own
vision of electoral fairness, whether proportional representation or any
other. And judges should not be striking down maps left, right, and center,
on the view that every smidgen of politics is a smidgen too much. Respect
for state legislative processes—and restraint in the exercise of judicial
authority—counsels intervention in only egregious cases.

Id. at 2515-16 (Kagan, J., dissenting) (concurring in the majority’s identification of “some
dangers everyone should want to avoid”). We emphasize that “by requiring plaintiffs to
make difficult showings relating to both purpose and effects, the standard [in the Kagan
test] invalidates the most [egregious], but only the most [egregious], partisan
gerrymanders.” Id. at 2516 (Kagan, J., dissenting).

E. So Long as the Degree Is Not Egregious in Intent and Effect, We Need Not
Determine at This Stage of the Proceedings the Precise Minimum Degree
That Is Impermissible Under Article II, Section 18

{53} Our ruling on the petition for extraordinary writ resolves pure questions of law
and comes before any record has been developed in the district court. At this stage in
the proceedings, we conclude that we need not determine the precise minimum degree
of partisan gerrymander that would constitute an egregious partisan gerrymander.

{54} We recognize the concerns raised in Rucho, albeit under the rubric of
justiciability analysis, regarding the difficulty of “provid[ing] a standard for deciding how
much partisan dominance is too much.” Rucho, 139 S. Ct. at 2498 (internal quotation
marks and citation omitted) (“[T]he question is one of degree.”). However, we conclude
that those concerns are outweighed by the constitutional harm effected by an egregious
partisan gerrymander. To withhold relief for such harm would illogically render the
political branches’ most egregious violations of equal protection immune to judicial
review by virtue of there being less egregious partisan gerrymanders which are hard to
assess, which would be contrary to Article II, Sections 2, 3, and 8 of our New Mexico
Constitution.

{55} Our duty to vindicate individual rights outweighs any prudential concern that the
minimum degree of constitutional harm under an egregious partisan gerrymander is
difficult to specify. We find such a concern assuaged by the fact that plaintiffs in such
cases will bear the burden to establish that the evidence places defendants’ actions
within the range of constitutional harm, and by our own prudential directive in Bounds:
“An act of the Legislature will not be declared unconstitutional in a doubtful case, and if
possible, it will be so construed as to uphold it.” 2013-NMSC-037, ¶ 11 (text only)
(citation omitted).

F. Intermediate Scrutiny Is the Proper Level of Scrutiny for Adjudication of a
Partisan Gerrymandering Claim Under Article II, Section 18

{56} Balancing the competing constitutional interests involved, we determine that
intermediate scrutiny is the proper level of scrutiny for a partisan gerrymandering claim
under Article II, Section 18. Our determination is based on the nature of the restricted
right rather than on the legislative classification involved, which the Real Parties
concede cannot invoke strict scrutiny. See Breen, 2005-NMSC-028, ¶ 12 (“Only
legislation that affects the exercise of a fundamental right or a suspect classification
such as race or ancestry will be subject to strict scrutiny.” (internal quotation marks and
citation omitted)). “The determination of which level of scrutiny is applicable under the
Constitution is a purely legal question, and is reviewed de novo.” Id. ¶ 15.

{57} “Under . . . the New Mexico Constitution, there are three standards of review that
this Court uses when reviewing equal protection claims: strict scrutiny; intermediate
scrutiny; and the rational basis test.” State v. Ortiz, 2021-NMSC-029, ¶ 27, 498 P.3d
264 (text only) (citation omitted). As we explained in Marrujo:

Strict scrutiny applies when the violated interest is a fundamental
personal right or civil liberty—such as . . . voting . . .—which the
Constitution explicitly or implicitly guarantees. . . . Under this analysis the
burden is placed upon the state to show that the restriction of a
fundamental right . . . supports a compelling state interest, and that the
legislation accomplishes its purposes by the least restrictive means.
Otherwise the statute will be invalidated. . . .

[Intermediate] scrutiny is triggered by . . . [l]egislation that impinges
upon an important—rather than fundamental—individual interest[.] . . .
This level of evaluation is more sensitive to the risks of injustice than the
rational basis standard and yet less blind to the needs of governmental
flexibility than strict scrutiny. The burden is on the party maintaining the
statute’s validity—the state—to prove that the classification is substantially
related to an important governmental interest.

The rational basis standard of review is triggered by all other
interests.

1994-NMSC-116, ¶¶ 10-12 (internal quotation marks and citations omitted).

{58} The right to vote being fundamental, we do not consider the rational basis test
here, regardless of the importance of the governmental interest in redistricting. Thus, we
explain why intermediate scrutiny, rather than strict scrutiny, is the proper level of
scrutiny for a partisan gerrymandering claim under the New Mexico Equal Protection
Clause.

{59} As previously discussed, we recognize the right to vote as “a fundamental
personal right or civil liberty,” which ordinarily would warrant strict scrutiny. Marrujo,
1994-NMSC-116, ¶ 10; see Torres v. Village of Capitan, 1978-NMSC-065, ¶ 23, 92
N.M. 64, 582 P.2d 1277 (quoting Reynolds, 377 U.S. at 562) (noting that voting rights
are “‘fundamental interests’ that must be subjected to the strictest standard”); see also
Richardson v. Carnegie Library Restaurant, Inc., 1988-NMSC-084, ¶ 31, 107 N.M. 688,
763 P.2d 1153 (“‘The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied by the
courts. One’s fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.’” (ellipsis omitted) (quoting W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 638 (1943))), overruled on other grounds by Trujillo v. City of
Albuquerque, 1998-NMSC-031, ¶ 36, 125 N.M. 721, 965 P.2d 305. We have also said
that “[t]he nature of the individual interest and of the legislative classification determines
the appropriate level of scrutiny, not the importance of the government’s goal or the
vagaries of history.” Trujillo v. City of Albuquerque, 1990-NMSC-083, ¶ 19, 110 N.M.
621, 798 P.2d 571, overruled on other grounds, 1998-NMSC-031, ¶ 36.

{60} However, we also recognize the Legislature’s constitutional responsibility for
redistricting under Article IV, Section 3 of the New Mexico Constitution. The importance
of such a responsibility eclipses that of a statutory goal and counsels against strict
scrutiny. See Trujillo, 1990-NMSC-083, ¶ 21 (recognizing “the nearly fatal invocation of
strict scrutiny” for challenged legislation (internal quotation marks and citation omitted));
see also Richardson, 1988-NMSC-084, ¶ 31 (“Strict scrutiny has operated as an
antimajoritarian safeguard. Accordingly, the application of the strict scrutiny test has
resulted in the virtual immunization of certain liberties from legislative affliction.”).

{61} Critically, strict scrutiny entails the least restrictive means analysis, which would
render vulnerable a legislative districting plan involving any degree of partisan
gerrymandering. To hold the state to a least restrictive means requirement in
redistricting where some degree of partisan gerrymandering is constitutionally
permissible would be unreasonable and contradictory. Cf. Torres, 1978-NMSC-065, ¶
22 (“Great latitude must of necessity be accorded the discretionary acts of the
legislature, and every reasonable presumption in favor of the validity of its action must
be indulged.”).

{62} Instead, under intermediate scrutiny a court applies a less restrictive means
analysis, thereby “allowing for a more flexible accommodation of legislative purposes
. . . [while] not abandon[ing] totally the concern with over- and under-inclusiveness that,
under strict scrutiny, is given form as the least restrictive alternative test.” Trujillo, 1990-
NMSC-083, ¶ 28 (emphasis added). The less restrictive means test abides with the
“hallmark” of intermediate scrutiny to “assess[] the importance of the state interest by
balancing it against the burdens imposed on the individual and on society.” Id. ¶ 29 (“[A]
state’s interest in preserving limited educational funds for legal residents did not justify
statute’s burden on the interests of children of [undocumented immigrants].” (citing
Plyler v. Doe, 457 U.S. 202 (1982))). “While the least restrictive alternative need not be
selected if it poses serious practical difficulties in implementation, the existence of less
restrictive alternatives is material to the determination of whether the classification
substantially furthers an important governmental interest.” Id. ¶ 30. Such balancing of
interests abides with the objective of the Kagan test to apply a “standard [that]
invalidates the most [egregious], but only the most [egregious], partisan gerrymanders.”
Rucho, 139 S. Ct. at 2516 (Kagan, J., dissenting).

{63} Under the foregoing considerations, we hold that intermediate scrutiny properly
balances the competing constitutional interests of a partisan gerrymandering claim.
“Therefore, when applying intermediate scrutiny, [a c]ourt must examine (1) the
governmental interests served by the [restriction of the right affected], and (2) whether
the [restriction of the right affected] under the statute bear[s] a substantial relationship to
any such important interests. The burden is on the party supporting the legislation’s
constitutionality.” Breen, 2005-NMSC-028, ¶ 30 (internal quotation marks and citation
omitted).

G. While All Relevant Evidence May Be Considered by the District Court in a
Partisan Gerrymandering Claim, the District Court Shall Consider and
Address Evidence of Packing or Cracking Relating to an Individual
Plaintiff’s Own District

{64} In applying the Kagan test within a partisan gerrymandering claim, a district court
may consider all evidence relevant to whether the challenged legislation seeks to effect
political entrenchment through intentional and substantial vote dilution. To satisfy the
effects prong, however, a plaintiff must provide sufficient evidence that the plaintiff’s
own district was either packed or cracked, depending on the allegations, and that the
resultant dilution of the plaintiff’s vote is substantial. Cf. Rucho, 139 S. Ct. at 2492 (“[A]
plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution
must establish standing by showing he lives in an allegedly ‘cracked’ or ‘packed’
district.” (quoting the unanimous holding in Gill, 138 S. Ct. at 1931)). For a district court
to find a violation of Article II, Section 18, such district-specific evidence of disparate
treatment should be as objective as possible, for example, by comparing voter
registration percentages or data for the political party affiliation of the individual plaintiffs
under the prior districting map against parallel percentages or data under the
challenged districting map. Further, a district court adjudicating a partisan
gerrymandering claim must determine whether the evidence shows the challenged
redistricting map substantially diluted the votes of plaintiffs within their district, though
statewide evidence may also be relevant. 12 See Gill, 138 S. Ct. at 1929-31; see also
Rucho, 139 S. Ct. at 2516 (Kagan, J., dissenting).

12In Gill, the United States Supreme Court articulated propositions that we find persuasive of our
conclusions above, albeit in the context of establishing Article III standing. First, the Gill Court recognized
the well-established proposition “that a person’s right to vote is ‘individual and personal in nature.’” 138 S.
Ct. at 1929 (quoting Reynolds, 377 U.S. at 561). Next, “[t]o the extent the plaintiffs’ alleged harm is the
dilution of their votes, that injury is district specific. . . . The boundaries of the district, and the composition
{65} We find a useful evidentiary template in Rucho, where extensive evidence of
intent and effect indicated that the districting plans in North Carolina and Maryland were
“highly partisan, by any measure.” 139 S. Ct. at 2491. This record in Rucho supports
that many forms of evidence may be relevant to prove predominant intent and
substantial effect for an egregious partisan gerrymander. Regarding the effects prong of
the Kagan test, we reiterate that evidence of substantial dilution of plaintiffs’ votes must
rely on objective district-specific evidence. 13 We point to the evidence in Rucho as
guidance to the district court, not as limitation on what other relevant evidence may be
considered.

{66} Regarding the Kagan test’s third prong of causation, we reiterate that “if the
plaintiffs make those showings [of intent and effects], the State must come up with a
legitimate, non-partisan justification to save its map.” Id. at 2516 (Kagan, J., dissenting).

{67} We conclude by emphasizing that the touchstone of an egregious partisan
gerrymander under Article II, Section 18 is political entrenchment through intentional
dilution of individuals’ votes, thereby invoking the protections of Article II, Sections 2, 3,
and 8. In an egregious partisan gerrymandering claim, evidence of disparate treatment
sufficient to establish a violation of the New Mexico Equal Protection Clause must prove
under intermediate scrutiny that the predominant purpose underlying a challenged map
was to entrench the redistricting political party in power through vote dilution of a rival
party; that individual plaintiffs’ rival-party votes were in fact substantially diluted by the
challenged map; and, upon those showings, that the State cannot demonstrate a
legitimate, nonpartisan justification for the challenged map.

{68} IT IS SO ORDERED.

of its voters, determine whether and to what extent a particular voter is packed or cracked.” Id. at 1930.
Finally, Gill invoked the reasoning of racial and one-person, one-vote gerrymandering jurisprudence in
analyzing the nature of constitutional harm and remedy under a partisan gerrymandering claim. See id. at
1930-31.
In the same vein, we also note Justice Kagan’s related discussion in her concurrence in
Gill:
The harm of vote dilution, as this Court has long stated, is individual and personal in
nature. It arises when an election practice—most commonly, the drawing of district
lines—devalues one citizen’s vote as compared to others. Of course, such practices
invariably affect more than one citizen at a time. For example, our original one-person,
one-vote cases considered how malapportioned maps contracted the value of urban
citizens’ votes while expanding the value of rural citizens’ votes. But we understood the
injury as giving diminished weight to each particular vote, even if millions were so
touched. In such cases, a voter living in an overpopulated district suffered disadvantage
to herself as an individual: Her vote counted for less than the votes of other citizens in her
State. And that kind of disadvantage is what a plaintiff asserting a vote dilution claim—in
the one-person, one-vote context or any other—always alleges.
138 S. Ct. at 1935 (Kagan, J., concurring) (text only) (citations omitted).
13By way of example, we note the voter registration evidence from Maryland’s Sixth Congressional
District, which offers a stark before-and-after comparison of registered Republican voters dropping from
47% under the prior map to 33% under the challenged map. Rucho, 139 S. Ct. at 2519 (Kagan, J.,
dissenting).
C. SHANNON BACON, Chief Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice