Abstract

Excerpted From: Stanley Halpin, How Section 2 of the Voting Rights Act and One Civil Rights Lawyer Transformed the Electoral Success of Native Americans and Chicanos in New Mexico, 49 Southern University Law Review 509 (Spring, 2022) (38 Footnotes) (Full Document)

As the 1980 census approached, New Mexico's Chicanos and Native Americans still were grossly underrepresented among elected officials. Voter registration had slowly increased but gerrymandering and the almost total use of at-large elections for local offices precluded their election. New Mexico was not covered by Section 5's preclearance provision of the Voting Rights Act, and Section 2 had been used only once to attack these discriminatory systems. There were no voting rights lawyers in New Mexico, private or public addressing this problem.

Toward the latter part of the 1970s my focus began to change from litigating voting rights cases in Louisiana, having sued most of its jurisdictions. A few years earlier, I obtained a leave of absence from my Ph.D. studies at George Washington University to practice civil rights law in Louisiana. I was anxious to complete my dissertation It had been some time now since I started the program, and I feared the University would insist I write my dissertation or cut bait. At the time, I had open cases, so I hired a lawyer, Chip Dewitt, to run my practice while I returned to Washington to focus on my dissertation. My topic was one I now know a lot about: The impact of Section 5 in Louisiana, “The Anti-Gerrymander: The impact of Section 5 of the Voting Rights Act of 1965 upon Louisiana Parish Redistricting.”

When I finished, I returned to Louisiana to continue litigating my pending cases. I also took a visiting professor job at the University of New Orleans, teaching Judicial Process, Constitutional Law and American Government during a Political Science Professor's sabbatical.

Two years later, when the professor returned from sabbatical and most of my cases were complete, I was itchy to leave New Orleans. Also, voting rights law had gone south with a couple of Supreme Court decisions by the increasingly conservative Court. One was the Alyeska v. Wilderness Society, attorney fee case. Up until that case in 1975, I and other Civil Rights lawyers had been able to convince the federal courts that they had equitable discretion to award attorney fees to the prevailing plaintiffs. Aleyeska, an environmental law case, drew that to a screeching halt. The decision not only handicapped my future earnings as a private lawyer but also placed doubt that I would recover for time spent on cases in which the fees had not yet been awarded. This would be a severe financial blow because unlike other lawyers, my total practice was based on Civil Rights cases and court awarded fees. It was time to shift gears and leave New Orleans.

I had visited New Mexico a few years earlier and loved it. I applied for a job as “Litigation Training Specialist” with the New Mexico Legal Services Support Project. As a litigation training specialist, I provided training, consulted, and coached lawyers working in New Mexico's five Legal Services programs: Southern New Mexico Legal Services headquartered in Las Cruces, Northern New Mexico Legal Services in Santa Fe and Taos, Albuquerque Legal Services serving the urban area, DNA Peoples Legal Services in Window Rock serving the Navajo Nation, and Pueblo Legal Services serving the 13 Pueblo tribes spread mostly along the Rio Grande River.

The unstated agenda was really what attracted me. It was promoted primarily by Tony Silva, Director of the Southern New Mexico program; Frank Sanchez, a community organizer out of Roswell; as well as some of the staff at the regional office of Legal Services. They wanted me to promote litigation of voting rights cases, particularly on behalf of Chicanos in south and southeast New Mexico who were still effectively denied equal access to election of candidates of their choice in state and local elections. Other attorneys in the Native American programs were aware of the voting rights agenda and joined in.

II. Preparing for the 1980s New Mexico Cases.

When the results of the 1980 census would be promulgated, I expected a rash of redistricting activity by the legislature and local jurisdictions. Unlike Louisiana, after the 1970 census, there had been absolutely no litigation on behalf of minorities to assert their voting rights in the redistricting process. In spite of significantly increased registration, there were virtually no Native American elected officials, and similarly, there were no Chicanos elected in “little Texas,” the south and southeast area of the state. This was the result of gerrymandered lines in the legislature and at-large elections for all of the counties, school districts and towns in the state. There could be a drastic advance in the number of minority elected officials if litigation was successful.

I first needed to educate myself on the politics and especially racial politics of New Mexico. There was a Political Science professor at New Mexico Highlands University in Las Vegas, Murillio Vehil, with expertise in this area, and I paid him a visit. He was generous with his time and extremely helpful. He explained that Hispanics settled northern New Mexico over 100 years before the Mayflower landed, and because of their isolation from Mexico, were very autonomous and operated their own governmental system.

When the Americans began to settle and ultimately obtain the territory by the Treaty of Guadalupe Hidalgo, the Hispanic government was well entrenched. The Americans appointed an Anglo governor, who died, and the Hispanic Lieutenant Governor took over and continued to govern the territory for several years, with other Hispanics following. Because of this rather continuous governing experience and the fact that Hispanics continued to comprise a majority in a number of northern New Mexico counties, these Hispanics continued in an unbroken tradition of participation, holding office at every level of the counties, cities, and school boards, and registering and voting at a very high level. Intracounty and regional political participation and organization was also very high, and even developed a level of machine politics with Naranjo machine, reputedly controlled by Emilio Naranjo of Bernalillo County. Partly due to this well-organized voting group of Hispanics in northern New Mexico, Hispanics were elected to the legislature and able on occasion to win statewide elected office, including Tony Anaya as Attorney General, and Jerry Apodaca as governor in 1975, and later Tony Anaya as governor in 1983. Roberto Mondragon was elected Lieutenant Governor in 1971 and again in 1979. Thus, the northern New Mexico Hispanics were fully participating and were not limited by the political system.

In Little Texas the history is quite different from northern New Mexico. There, more recent Mexican immigrants, who often refer to themselves by the more political designation of “Chicanos,” arrived in the 1930s, 40s and 50s to pick cotton and remained in these counties where they comprise from 15% to 45% of the population. The history of discrimination against this group is closely related to the usual pattern similar to the discrimination that took place in Texas. The New Mexico Advisory Committee to the Civil Rights Commission found that in the 1980s Chicanos' registration and voting lagged far behind Anglos. Chicanos election to political office was an extremely rare event.

Voting rights law, which had had such an impact upon registration, voting and election in Louisiana and other parts of the South, had virtually no impact in New Mexico prior to 1980. Although Hispanics continued to elect large numbers of officials in the northern counties where they were a majority, Chicanos in the South of the state were virtually without representation in state and local offices. Also, prior to 1980 voting rights litigation was virtually non-existent. Although two or three counties were originally covered by the preclearance provision of Section 5 of the Voting Rights Act of 1965, New Mexico was allowed to “bail out” of the Act's coverage. Apparently, upon representations of then Attorney General Tony Anaya, the Justice Department agreed to allow the removal of the counties from coverage-As a result, the decision was bad news for Southern New Mexico Chicanos who continued to be abandoned by their northern neighbors.

The only voting rights suit filed before 1980 and decided that year, was one filed by the Justice Department challenging at- large elections in San Juan County as dilutive of Navajo voting strength (U.S. v. San Juan County No. 79-507 JB, D.N.M. Judgement of April 18, 1980, Unreported). After considerable discovery and negotiations, the defendants finally agreed to a consent decree setting up single-member districts for that county.

The case was litigated by Jim Schermerhorn, one of the many staff lawyers who struggled to afford some protection against racially discriminatory voting practices under the leadership of reluctant political appointees. The Native American section of the Civil Rights division was abolished during these years, leaving Shermerhorn the single lawyer devoted to these cases. He was extremely dedicated and adept at the law and negotiating the Justice Department bureaucracy, but his hands were tied. He was personally very helpful and supportive of me and got the department to join in the legislative district challenge but was limited in that effort by his superiors. I think it was he who introduced me to Dr. Ron Faich, the demographer for the Navajo Nation, who he used in the San Juan case. Ron was essential as an expert in my litigation of later Native American cases because the demography of Native Americans was complicated in New Mexico due their widespread and sometimes migratory location and lack of standard addresses. He was dedicated and knew how to manage these difficulties like no one else. Dr. Faich also helped educate me on the history of discrimination against Native Americans in New Mexico.

This history was often brutal. In New Mexico, Navajos are concentrated in the northwest quadrant of the state, predominately in San Juan and McKinley counties where the Navajo Reservation and “checkerboard area” is located. The checkerboard area is formed by range and lines creating blocks, some of which are dedicated Indian lands and others occupied by some off reservation Indians. Acoma Pueblo is also located in McKinley County and adds to its Indian population. The 19 Pueblo tribes are spread up and down the Rio Grande River, with Acoma and Zuni to the west and Taos to the east. Pueblo Indians are thus one-fifth of the population of Cibola County, one-fourth in Sandoval County and ten percent or less in other counties. Remote from these concentrations, there is a small Mescalero Apache reservation in the mountains of Southern New Mexico with a population too small for a majority in any district.

Native Americans have uniformly been denied access to the political process by the usual means used against other minorities. In addition, Indians were threatened with state taxation of their lands (prohibited by federal law), loss of their lands and indeed with extinction as a separate people if they exercised the franchise. Until 1948 in New Mexico, Indian registration and voting was prohibited by law. Returning from World War II, Isleta Pueblo Indian, Miguel Trujillo sued for being prohibited from voting because he did not pay state taxes on his property. The federal court invalidated a clause in the state constitution noting: “Any other citizen, regardless of race, in the State of New Mexico who has not paid one cent of tax of any kind or character, if he possesses the other qualifications, may vote. An Indian, and only an Indian, in order to meet the qualifications of a vote, must have paid a tax.” Native American registration and voting, however, remained low due to the continued existence of the above threats and the fear of taxation. Other impediments included language impediments with many tribal members not comfortable with English or even Spanish, but only their native language of Navajo, and Tewa, Towa, or Keres in the Pueblos. State officials also failed to make registering and voting accessible to the remote reservation areas, and in many instances, state elections were held on the same day as tribal elections hundreds of miles away on dirt roads impassable in inclement weather even with a decent vehicle. Native Americans were thus faced with a choice between participation in tribal politics or in state and local politics and frequently chose the former as a more viable form of representation.

[. . .]

With county commissions, school boards and cities all under single-member district orders, I turned to the smallest jurisdiction in the state, my last case in New Mexico, which turned out being the biggest battle: The Artesia Hospital District. Its board was elected at-large, excluding Chicanos, and they were organized and irate, led by Jose Aguilar. He asked me to meet with him and members of the community in a meeting room he had secured in the bank. It was a long drive, and I was delayed. Jose had kept the group of about 30 together and waiting for two hours. I was embarrassed to be so late, but the group was patient and receptive as I explained the lawsuit. We filed suit, and frankly, I did not expect much resistance, but the chairman of the hospital board apparently took it as a personal affront. He was an important businessman and civic leader and was instrumental in founding the hospital and getting it funded.

The board hired attorney Luis Stelzner who was one of the lawyers representing the Vargas plaintiffs in the legislative districting case. He put up a full-throated defense. Judge Parker, who had handled several of my cases, denied a preliminary injunction against the December 12, 1989, elections and we quickly went to trial. I brought in Dick Engstrom who did his usual magnificent and unassailable polarized voting analysis. Jim Williams drew a proposed plan and lots of Chicanos from the community attended. After a long trial with extensive evidence of a Section 2 violation, Judge Parker invalidated the at-large elections, and we then negotiated a single member district plan.

I was pleased that I accomplished my plan for New Mexico. In the course of less than a decade, the legislature had fairly drawn districts and all of the local jurisdictions with a significant minority population now had representation approximating their proportion in the population, Chicanos, Navajos and Pueblos were now oriented toward participation in the state and local systems and ready to fend for themselves in future redistricting with New Mexico lawyers like Manny Lopez available to help.

For a while I looked across the border into Arizona, seeing a similar dilution of Navajo and Hispanic voting strength. The Holbrook Arizona School District with a sizable Navajo population, at large elections, and only one Navajo ever elected looked like a good target for Jim Anaya and me. Apparently, the Arizona Attorney General had got wind of our march through New Mexico and decided to stop us at the first case. His office, along with a law firm out of Flagstaff, put up a well-financed vigorous defense. The case was tried in Phoenix before Judge Parker, who was unknown to us. I saw that we needed help and contacted the Lawyers' Committee for Civil Rights Under Law. They did not come in on the case but got a big Phoenix law firm to help behind the scenes, supplying research and briefs and even typing. This was a help because Jim and I were operating out of a hotel room without a secretary or any other support.

The trial was brutal and went on for some time. I got Dick Engstrom to do a bloc voting analysis and testify. Engstrom was brilliant as usual and bulletproof on cross examination. After his testimony, Judge Parker paused the trial and called us into conference in his chambers. He looked at defense counsel and admonished: “You can continue along with this trial if you like, but you have a hard row to hoe.” They settled, and we got our single member districts. The trial was hard on me and Jim, living in a hotel room, and without much support against a large defense team including the Attorney General's office. I had had enough and was not ready for another statewide attack on racially discriminatory voting. Jim was also ready to leave New Mexico and went into law teaching first at Iowa, then University of Arizona and then as Dean of the University of Colorado Law School. He did not do any more voting cases but focused on International Human Rights of Indigenous People handling cases in international courts and was appointed Rapporteur for Rights of Indigenous People by the United Nations.

I also went back to teaching law in Louisiana at Historically Black University, Southern University Law Center, and quit litigating voting cases.

J.D. Tulane Law School, Ph.D. George Washington University.