Friday, February 17, 2012
State House Redistricting Case Moves Forward in Federal Court
Guest Blog post By Sterling Fluharty, Owner of Southwest Political Services www.swpsnm.com
A panel of three federal judges (Hartz, Black, and Johnson) met this afternoon in Albuquerque to consider taking jurisdiction for redistricting of the State House of Representatives. After two hours of presentations, questions, and answers, they set a briefing schedule for the parties that will occur over the next ten days.
Republicans (the plaintiffs for now) filed in federal court last Monday and Democrats asked to intervene in the case. Republicans argued that the New Mexico Supreme Court gave Judge James Hall unconstitutional instructions when they told him how to produce a new State House map by February 27. Democrats sided with the state Supreme Court and argued that the federal court should not get involved. Today the judges granted all motions to intervene, but did not decide who will ultimately be the defendants and plaintiffs if this case moves forward. According to Republicans, the Navajo Nation and other persons who were not parties to the state cases are contemplating intervention.
The Attorney General's office argued that they should have represented the Secretary of State at today's proceedings. The Secretary of State's position is that she has hired her own independent counsel. The federal judges told the Attorney General's representative that his office could file an Entry of Appearance, and begin to receive electronic notices and participate in the proceedings, as soon as today. The Attorney General's office has until Tuesday to resolve the question of who represents whom.
The judges said today, “The big issue for us is our authority.” Democrats argued that state Supreme Court decisions are generally appealed to the U.S. Supreme Court. The judges asked the parties to respond to the question of whether they have higher authority than the state Supreme Court. The judges were surprised that Republicans wanted a decision from them before Judge Hall finishes his work. Democrats and Republicans were both ordered to submit briefs on this question by Wednesday with replies by Friday.
Republicans argued the state Supreme Court gave Judge Hall unconstitutional instructions in requiring a redistricting map in which communities of interest would be a higher priority than the constitutional principle of “one person, one vote.” You “can't build a house on a faulty foundation,” they argued. Democrats argued that Judge Hall's map will likely be constitutional and he needs to produce a map before it can be ruled unconstitutional. Judge Hall began working this week with Brian Sanderoff, an expert witness, on the new map. Briefs on the constitutionality question are due Thursday with replies the following Monday.
Republicans argued for an expedited court case, since candidate and election administration deadlines are quickly approaching. State statute allows the Governor and Secretary of State to issue and amended proclamation on March 6. March 20 is deadline for declaration of candidacy and nominating petitions, with certification on April 10. County clerks will start sending out ballots to military personnel stationed overseas on April 20. Republicans argued a State House map has to be ready by March 5, or it will be impossible for candidates and officials to meet election deadlines. Democrats argued the federal court could allow the election to proceed under a flawed map, if the correct map was in place for the 2014 election. Briefs on the authority to delay election dates are due Thursday with replies the following Monday.
With this briefing schedule, the federal judges will have all briefs and replies submitted by Monday, February 27, which is also the deadline for Judge Hall's revised map. Based on their questions and decisions today, the federal judges appear ready to master the relevant materials (such as transcripts and opinions), to proceed with this case, and to consider or draft maps, if three conditions are met: 1) only after Judge Hall finishes his work, 2) if they are persuaded it is necessary, and 3) they are convinced they have the authority. Two of the judges are Republicans and one is a Democrat, one of the Republicans is known for being quite fair, so neither Democrats nor Republicans should expect preferential treatment as this case moves forward.
Three cheers for the first legislator to sponsor a bill that takes redistricting out of the hands of New Mexico politicians and turns it over to a bipartisan commission. (Hey, how about tripartisan? Let's throw in a few "Others" too.)
Thirteen states already use some version of a redistricting commission: California has a 14-member commission, Arizona's has 5 members. This hasn't stopped ALL the complaining and lawsuits, but at least it has discouraged the practice of establishing mostly incumbent-safe districts.
See more (especially about Texas) in the Austin Statesman--
Posted by: Ellen Wedum | Feb 19, 2012 8:02:18 AM