Dissent lock-stepping in New Mexico

Lock-stepping is the sometimes-derided practice of construing a state constitution in “lock step” with the federal constitution. Derided, because the state constitution may well have an independent meaning rather than a meaning designed to mirror the federal constitution. The practice adopts what the the United States Supreme Court articulates as the standard for interpreting a constitutional text.

As Rick H. links to yesterday, the New Mexico Supreme court did something a little different. It lock-stepped with a dissenting opinion in the United States Supreme Court: “A partisan gerrymandering claim under the New Mexico Constitution is subject to the three-part test articulated by Justice Kagan in her dissent in Rucho v. Common Cause, 139 S.Ct. 2484, 2516 (2019).”

That’s a novel (I think?) lock-step approach. Now, it’s possible this is not “lock-step” as “is subject to” means “is subject to, as a test we adopt” as opposed to “is subject to, because that articulation is identical to what our constitution means.” It is hard to know.

The briefing in this case did not overly focus on Justice Kagan’s opinion in Rucho or even spend much time discussing its application. At oral argument, Chief Justice Bacon asked, “Why can’t we adopt Kagan’s three-part test . . . I mean, I say Kagan, it’s not Kagan’s idea, it is simply an Equal Protection test, if you look at the underpinnings test, it echoes the Equal Proteciton analysis found in our case law in Griego and Breen. . . . I think we are imbued with that power to create that test.” Reading Griego, the New Mexico Supreme Court explained in 2013, “We apply the equal protection approach announced in Breen to answer these two constitutional questions. This approach generally requires us to first determine whether the legislation creates a class of similarly-situated individuals and treats them differently. If it does, we then determine the level of scrutiny that applies to the challenged legislation and conclude the analysis by applying the appropriate level of scrutiny to determine whether the legislative classification is constitutional.” That, to me, doesn’t read anything much like Justice Kagan’s opinion, “As many legal standards do, that test has three parts: (1) intent; (2) effects; and (3) causation.” And it’s hard to know if the New Mexico Supreme Court “created” the test or deems its equal protection clause “subject to” Kagan’s test.

And that lack of explanation brings me to timing, and a post-Moore v. Harper world. The New Mexico Supreme Court asked at oral argument about the issues in Moore, with the express question, “Should we wait?” Given that oral argument was in January and supplemental briefing in February, with a July order, it suggests the New Mexico Supreme Court did choose to wait. And after such a long time, I would have expected some deeper reasoning from the state court about why Justice Kagan’s opinion tracks the state’s equal protection jurisprudence, or how it viewed Justice Kagan’s opinion interacting with state law. There’s little reasoning in the order as it is an order, not an opinion, with seven paragraphs of legal statements.

It is likely no coincidence the state court waited until a week after Moore to issue the order. I noted after Moore that “state courts are on notice.” And I did acknowledge the possibility, “it’s possible some are emboldened in the judicial terms ahead.”

Issuing an order declaring the state legislature’s congressional map an unconstitutional gerrymander with little reasoning, and relying on a federal dissenting opinion without connecting it to the state’s jurisprudence, strikes me as something more on the “emboldened” side.

In the end, this is the problem with a potential “whack a mole” approach from the United States Supreme Court. Unless it is willing to give teeth to what the “boundaries” of “traditional” state judicial review are–and only two to four seem prepared to do so in the near future–it is going to be a constant battle in the state courts. If post-Moore federal judicial review has any teeth, cases like this one are going to get a hard look (if certiorari is pursued). But maybe a majority of the Supreme Court is not willing to whack so many moles and simply allow the state courts and political process to continue to play it out. We shall see.

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