The Roundhouse in Santa Fe (Photo by Heath Haussamen)
It happens just once every 10 years. First, state lawmakers come together to draw district lines on maps, approve those maps, and then send them to the governor for her signature or veto.
All too frequently in our history, lawsuits ensue at that point and the final outcomes end up being decided in court.
Welcome to redistricting in New Mexico.
And 2011’s reenactment of this decennial process – the special session of the legislature that started today – promises to be an unusually stormy one.
That’s due, in part, to the fact that in addition to addressing the complicated once-in-a-decade job of redrawing three congressional, 112 legislative and five Public Regulation Commission district lines, lawmakers will also have on their plates a whole smorgasbord of difficult issues, wholly unrelated to redistricting, put there by Governor Susana Martinez. No special redistricting session in at least the last 50 years has had to deal with unrelated issues placed on the session call by a governor.
Our legislators will have to be at their multi-tasking best, if this is not to become an unproductive mess.
That’s a shame, because redistricting is fundamentally rooted in the U.S. Constitution and decades of major Supreme Court decisions. It’s about our most sacred right – your right to vote and to choose who will represent you.
Redistricting is a matter of basic justice. The job of adjusting for population changes to ensure continued equal representation for all is something that deserves the full attention of not only our elected representatives, but the public as well.
For if the redistricting job is not done right, lawsuits inevitably ensue. Litigation means huge legal bills for an already revenue-strapped state government.
And here is where the Voting Rights Act (VRA) comes into play. It is probably the most effective civil rights law enacted in United States history – the last, most significant stage in ensuring the inclusion of all adult citizens into our democracy.
When legislatures and governors ignore the VRA as it pertains to the redistricting process, injustice is the result and political and legal chaos is its byproduct.
Here’s an example what can happen when a legislature and governor throw the law under the bus when doing the redistricting process.
During the 2003 redistricting fight in the Texas Legislature, a congressional redistricting plan was enacted that moved nearly 100,000 Hispanic voters from one district (TX-23) into an adjacent district (TX-25). This slick move was done to protect an incumbent who had been steadily losing support among Hispanics in prior elections.
Three years later, on June 28, 2006, the U.S. Supreme Court, in League of United Latin American Citizens v. Perry, ruled that the 23rd District violated the VRA. TX-23 was a protected majority-Hispanic district – meaning that if it was ever redrawn in a way that put Hispanics in a minority, a new majority-Hispanic district would have to be created. Of particular significance was the fact that Hispanics made up 55 percent of the new TX-23’s population, but only 46 percent of its voting-age population. As a result, the Court concluded that new TX-23 was not a true majority-minority district.
Attention must be paid: The Voting Rights Act
The purpose of the VRA was to combat discrimination and intimidation that was being used to deny African Americans and other minorities the right to an effective vote.
Section 2 of the VRA prohibits any voting practice or procedure that denies or abridges the right to vote on the basis of race, color or minority language status.
According to the Brennan Legal Center’s excellent publication, “A Citizen’s Guide to Redistricting,” Congress amended Section 2 in 1982 “to clarify that, specifically, it prohibited laws or practices that denied minority voters an equal opportunity ‘to participate in the political process and to elect representatives of their choice.’ “
Such a violation of the VRA’s Section 2 is called “vote dilution.”
According to the Brennan Legal Center:
“Many states had a shameful history of using the redistricting process to dilute the vote minority communities. In some cases, they would splinter a single community among many majority-white districts to eliminate minority voting power; in other cases, with larger minority populations, they would pack as many minority voters as possible into one district, to minimize the number of seats minorities could control.”
Sadly, New Mexico has its own chapters in that shameful history.
One of the most egregious involved the 1982 redistricting plan for N.M. House of Representatives.
The coalition of legislators that controlled the House at that time opted to forego the use of straight-up Census population figures to draw their maps. Instead, they used something called the “votes-cast formula.”
Given the fact that minorities, especially Native Americans, had been voting in numbers disproportionate to their population, the formula was inherently flawed and produced unacceptable population deviations.
A federal court agreed and gave the Legislature the chance to do it again with a remedial plan.
And, yet for all of that, in its second attempt the House botched it again.
Hispanics, Navajos and Pueblo Indians sued to have 19 of the House districts in the remedial plan thrown out.
On April 8, 1982, the U.S. District Court in the Sanchez v. King ruled the following:
“…the three-judge court concluded that seventeen of the nineteen challenged house districts were in violation of section 2. Although Indians were more than eight percent of the population and were concentrated in certain geographic areas of the state, only one Indian was a member of the house.
“… Given the depressed levels of Indian voting, the votes-cast formula systematically discriminated against Indians. ‘The defect in the formula was not random or sporadic but inherent and systematic.’”
(From “The Future of the Voting Rights Act,” David Epstein, Richard H. Pildes, Rodolfo O. de la Garza, Sharyn O’Halloran, editors)
For New Mexico, it was a landmark ruling that led to many subsequent changes in the redistricting process. Since that time, the number of Native Americans and Hispanics in the Legislature increased significantly to more closely correspond to their respective populations.
The lesson of Sanchez v. King is as relevant now as it was then: To the Voting Rights Act, attention must be paid.
John Daniel serves as senior advisor at the Center for Civic Policy, a New Mexico nonprofit organization.