Judge agrees some lawmakers' emails, texts can be used in redistricting case

Sep. 28 -- LOVINGTON -- While Democratic lawmakers involved in a 2021 redistricting effort that led to a court challenge do not have to testify in the trial, some of their communications with others can be subject to review and use as evidence, a district judge ruled Thursday. Ninth Judicial District Judge Fred T. Van Soelen, who is presiding over the bench trial in Lovington, agreed Thursday to a request from attorneys for the plaintiffs challenging the state's congressional map to request text messages, email and other forms of correspondence about redistricting from some of those lawmakers for use in the case. Attorneys for both sides in the case -- which could determine the geographical shape and political composition of at least one of the three state's congressional districts -- agreed to ask for those missives from Nov. 1 through Dec. 18, 2021. That covers both the time period leading into and during a special session about redistricting and the day after Gov. Michelle Lujan Grisham signed the new maps into law on Dec. 17, 2021. Van Soelen did rule Thursday that the Democratic lawmakers called to testify do not have to appear in court. He told attorneys for the plaintiffs, who had issued subpoenas for state Sens. Mimi Stewart of Albuquerque, Peter Wirth of Santa Fe, Joseph Cervantes of Las Cruces and then-House Speaker Brian Egolf of Santa Fe, that he did not believe they could question those lawmakers about why they worked to pass the legislation in question. "They can't be questioned about it," Van Soelen said. "That's what falls within legislative privilege." When Carter B. Harrison IV, one of the attorneys for the plaintiffs, said he might like to ask Egolf, for example, who he spoke with about the redistricting process, Van Soelen said there are other ways to get that information. And if those lawmakers spoke publicly about the process or with others outside of the legislative arena about it "those comments speak for themselves," Van Soelen said. However, their emails and texts might be introduced into evidence. The issue of compelling Democratic lawmakers to testify and accessing their emails and text messages on the issue came into play even before the trial began Wednesday. Lawyers representing the Democratic state officials who are being sued have argued that because the state Constitution says lawmakers "shall not be questioned in any other place for any speech or debate or for any vote cast in either house," they do not have to testify. Van Soelen did not disagree, but said comments those lawmakers made about the redistricting process to others outside of the legislative arena -- members of the public, the media or advocacy groups, for example -- can be used as evidence. It was not clear during Thursday morning's hearing how quickly the defense has to gather that material for the case. Though the trial ends Friday, Van Soelen has another week beyond that to issue a ruling. Though a spokesman for those Democratic lawmakers said earlier this week that all four had received subpoenas related to the case, lawyers for both sides said Thursday Cervantes, who is out of town and perhaps the state, did not get one. The New Mexico redistricting case -- one of many such cases in states across the country -- started when the Republican Party of New Mexico and seven individuals sued Democratic state officials in January 2022. The plaintiffs charge the map drawn by Democrats is an illegal gerrymander which bolstered Democratic strength in the 2nd Congressional District while decreasing Republican voting power there. The 2nd District map adopted in 2021 shifted some communities with large numbers of Republicans into New Mexico's two safely Democratic congressional districts in the north and moved some Democratic communities into the 2nd District, according to the suit. After the new maps were adopted, Republican incumbent Yvette Herrell was narrowly defeated in the 2022 midterms by now-U.S. Rep. Gabe Vasquez, a Democrat, in the 2nd Congressional District. Some Republican lawmakers who testified Wednesday said they think it unlikely a Republican candidate can win that district now that it has shifted so much to the left. Thursday morning, lawyers for the defense argued the testimony of an expert who spoke on the issue on behalf of the plaintiffs should be dismissed. On Wednesday, Sean Trende, a senior policy advisor for the political and polling analysis website RealClearPolitics, testified the mapping plan Democratic lawmakers shaped and approved for the 2nd Congressional District made the district "much, much more Democratic" and disadvantaged Republicans. But on Thursday, Lucas M. Williams, one of the attorneys for the defendants, questioned Trende's analysis, saying Trende's report was impossible to verify because he did not save the the original set of over 2 million simulated maps he used in his report. Under questioning from Williams, Trende acknowledged it is "true" no one could run a diagnostic review on the original maps because they are gone. But he said they can use the data in his report to run that sort of test to verify the results. He acknowledged a second run of the same 2 million-plus maps might not come out exactly the same. But Williams failed to convince Van Soelen to throw out Trende's Wednesday testimony. Williams then called the first witness for the defense, Jowei Chen, a political science professor at the University of Michigan who provided an analysis of the redistricting map in question by running a 1,000 map simulation computer program on it. Chen said in his analysis of the creation of the map, its "partisan characteristics could have reasonably emerged from a partisan-neutral map drawing process." Attorneys for the plaintiffs are expected to cross examine Chen later this afternoon.