MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support, filed November 4, 2015 (Doc. 22)(“Mo-
First, the Court concludes that the relevant status quo is the situation before April 8, 2015, when Plaintiff Stewart Logan was a viable candidate for the county seat and the parties’ dispute had not yet begun, and that the proposed injunction will not alter the status quo. Second, the Court concludes that the harms that the requested injunction seeks to prevent would be irreparable. Third, the Court concludes that the harm to the Plaintiffs in the absence of the preliminary injunction outweighs the relatively minor expenses that the preliminary injunction would impose on the PERA. Fourth, the Court concludes that the requested preliminary injunction would not be adverse to the public interest. Finally, the Court concludes that the Plaintiffs do not have a substantial likelihood of succeeding on the merits of their claim. The substantial-likelihood-of-suecess standard is a necessarily speculative one, which does not require the Plaintiffs to carry their full burden of proof at the preliminary-injunction stage. Still, the Plaintiffs’ claims are speculative, and they have not cited any cases directly on point. Because failure on any of the four prongs necessitates denial of a preliminary injunction, the Court will deny the Motion.
FINDINGS OF FACT
Pursuant to rule 52(a)(2) of the Federal Rules of Civil Procedure, the Court will make formal findings of fact and conclusions of law to support its disposition of the Motion. See Fed.R.Civ.P. 52(a)(2), 65(d)(1).
1. The Parties.
1. The PERA “is a statutorily created association whose members are designated under N.M. Stat. Ann.1978, § 10-11-3.” First Amended Complaint for Declaratory, Preliminary, and Permanent Injunctive Relief ¶ 9, at 3, filed in state court September 2, 2015, filed in federal court September 4, 2015 (Doc. l-3)(“Complaint”).
3. The PERA administers the primary pension plan for state and municipal employees in New Mexico, with the exception of teachers, who use the separate New Mexico Educational Retirement Board. See About PERA Public Employees Retirement ASSOCIATION OF NEW MEXICO, http://www.nmpera.org/about (last visited Jan. 9, 2016).
4. The PERA “manages 31 retirement plans and two benefit tiers for state, municipal and county employees. This includes police, firefighters, judges, magistrates, legislators and volunteer firefighters. The association also manages retirement plans for other political subdivisions, such as special districts and housing authorities.” About PERA Public Employees Retirement Association of New MexiCO, http://www.nmpera.org/ about (last visited Jan. 9, 2016).
5. Defendant PERA Board governs the PERA and appoints its Executive Director, who manages day-to-day operations. See Board of Trustees, Public Employees Retirement Association of New Mexico, http://www.nmpera.org/board-of-trustees (last visited Jan. 9, 2016).
6. The PERA Board has twelve members: four under a state coverage plan, whom state members elect; three under a municipal coverage plan, whom municipal members elect; one municipal member who is a county employee, whom municipal members elect; two retired members, whom PERA retirees elect; the New Mexico Secretary of State (ex officio); and the New Mexico State Treasurer (ex officio). See Board of Trustees, Public Employees Retirement Association of New Mexico, http://www.nmpera.org/board-of-trustees (last visited Jan. 9, 2016).
7. The PERA Board’s mission is “to preserve, protect, and administer the trust to meet its current and future obligations and provide quality services to Association members.” Board of Trustees, Public Employees Retirement Association of New Mexico, http://www.nmpera.org/board-of-trustees (last visited Jan. 9, 2016).
8. Plaintiff Stewart Logan, who works in Farmington, New Mexico, currently holds the county board member position on the PERA’s Board. See Motion at 3.
9. Logan seeks to retain this position. See Complaint ¶ 6, at 2-3.
10. Plaintiff Carol Taubee is a qualified voter for the county seat election for the PERA Board. See Complaint ¶ 7, at 3.
11. Taubee made a nomination
12. Plaintiff Clyde Ward is a qualified voter for the county seat election for the PERA Board. See Complaint ¶8, at 3.
14. Defendant Patricia French is the Chair of the PERA Board and one of its Municipal Members. See Board Membership, PubliC Employees RetiRement Association of New Mexioo, http://www. nmpera.org/board-of-trustees/leadership (last visited Jan. 9, 2016).
15. French has held both of these positions during the relevant events. See Complaint ¶ 11, at 3.
16. Defendant Paula Fisher is one of the PERA Board’s State Members. See Complaint ¶ 12, at 3.
17. Fishér held this position during the relevant events. See Complaint ¶ 12, at 3.
18. Defendant Roman Jimenez was one of the PERA Board’s State Members at the time of the relevant events. See Complaint ¶ 13, at 4.
19. Jimenez is no longer a PERA Board member. See Board Membership, PubliC Employees RetiRement Association of New Mexico, http://www.nmpera.org/ board-of-trustees/leadership (last visited Jan. 9, 2016).
20. Defendant Jackie Kohlasch is one of the PERA Board’s State Members. See Board Membership, PubliC Employees Retirement Association of New Mexico, http://www.nmpera.org/board-of-trustees/ leadership (last visited Jan. 9, 2016).
21. Kohlasch held this position during the relevant events. See Complaint ¶ 14, at 4.
22. Defendant Daniel Mayfield is one of the PERA Board’s Retiree Members. See Board Membership, Publio Employees Retirement Association of New Mexico, http://www.nmpera.org/board-of-trustees/ leadership (last visited Jan. 9, 2016).
23. Mayfield held this position during the relevant events. See Complaint ¶ 15, at 4.
24. Defendant Loretta Naranjo Lopez is one of the PERA Board’s Retiree Members. See Board Membership, Public Employees Retirement Association of New Mexioo, http://www.nmpera.orgd)oard-of-trustees/leadership (last visited Jan. 9, 2016).
25. Naranjo Lopez held this position during the relevant events. See Complaint ¶ 16, at 4.
26. Defendant John Reynolds is one of the PERA Board’s State Members. See Board Membership, PubliC Employees Retirement Association of New Mexioo, http://www.nmpera.org/board-of-trustees/ leadership (last visited Jan. 9, 2016).
27. Reynolds held this position during the relevant events. See Complaint ¶ 17, at 4.
2. The Timeline of Events.
28. The PERA Board’s members serve four-year terms. See Board Elections, Public Employees Retirement Association of New Mexioo, http://www.nmpera.org/ board-of-trustees/eleetions (last visited Jan. 9, 2016).
29. On January 13, 2015,, the PERA Board held a meeting and adopted Resolution 15-04, which governed its next round of elections. See Motion at 3; Response to Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support at 2, filed November 25, 2015 (Doc. 24)(“Re-sponse”).
30. Resolution 15-04 states that nominations for the PERA Board’s county seat election were required to be “completed and filed with PERA not later than 5:00 p.m. on April 14, 2015.” Motion at 3; Response at 2 (using identical language).
31. Potential candidates had to obtain 150 nominations to qualify as candidates. See Motion at 3; Response at 3.
33. The PERA Board provided printed election materials to possible candidates that identified the deadline as April 13, 2015. See Motion at 17; Response at 4-5.
34. Logan submitted eighty-four valid nominations before April 13, 2015. See Motion at 3; Response at 3.
35. Logan’s nominations included Plaintiffs Taulbee’s and Ward’s nominations. See Motion at 3.
36. On April 8, 2015, Logan mailed nineteen pages of nominating petitions with one-hundred and sixty-four nominations to the PERA using the United States Postal Service (“USPS”).
37. Logan mailed the petitions and nominations to the PERA by placing the original versions in an envelope and leaving it with his employer, San Juan County, in Aztec, New Mexico. See Motion at 3.
38. On April 13, 2015, Logan called the PERA to ask whether he could fax additional nominations on the day before the deadline. See Motion at 18; Response at 2.
39. The PERA informed him that all nominations/nominating petitions had to be originals. See Motion at 18; Response at
2.
40. On April 14, Logan called the PERA to determine whether it had received his mailed nominations. See Complaint ¶ 42, at 9; Response at 2.
41. The PERA informed him that it had not received his mailing. See Complaint ¶ 42, at 9; Response at 2.
42. At 2:54 p.m. on April 14, 2015, Logan emailed scanned copies of his additional nominations to the PERA. See Motion at 3; Response at 2.
44. On April 15, 2015, at approximately 8:39 a.m., PERA stamped Logan’s original additional nominating petitions and nominations as received by United States mail. See Motion at 4; Response at 2.
45. On April 16, 2015, Logan sent a letter to the PERA’s deputy general counsel, Karen Risku, explaining that a reasonable person would expect that his hard-copy nominations would be delivered within three days. See Motion at 4; Response at 2.
46. Logan’s letter attached a separate letter from the Postmaster of the Flora Vista Post Office stating that the PERA should have received the nominations within three days. See Motion at 4; Response at 2.
47. On April 24, 2015, the PERA Board’s Election Committee met to verify signatures, approve signature counts, and certify candidates for the county seat election. See Motion at 4; Response at 2-3.
48. The Election Committee determined that Logan had submitted 268 total nominations, disallowed 184 of these nominations, and allowed 84 nominations. See Motion at 4; Response at 3.
49. The Election Committee accepted 169 nominations for the other possible candidate, James Maxon, making Maxon the only remaining candidate for the county seat. See Motion at 5; Response at 3.
50. The Election Committee submitted its report to the full PERA Board. See Motion at 5; Response at 3.
51. On May 12, 2015, the full PERA Board met to consider the Election Committee’s report. See Motion at 5; Response at 3.
52. Logan, a PERA Board member, argued that the PERA Board should reverse the Election Committee’s decision disallowing his nominations. See Motion at 5; Response at 3.
53. The PERA Board declined to stay the decision or allow Logan’s additional nominations, and accepted the Election Committee’s report. See Motion at 4; Response at 4.
54. The PERA Board then voted to cancel the county-employee election pursuant to N.M.A.C. § 2.80.200.70(A)(6) and declare Maxon the winner on the grounds that only one candidate had met the nomination requirements. See Response at 4.
PROCEDURAL BACKGROUND
The Court will briefly outline this case’s progress and summarize the parties’ arguments for and against the Motion. The Court will first describe what has happened in the case besides the Motion. Second, the Court will describe the Plaintiffs’ and the Defendants’ positions vis-a-vis the Motion.
1. The Case’s Pre-Motion Background: Pleadings and Removal.
1. The Plaintiffs initiated this case on August 5, 2015 in the First Judicial District Court, County of Santa Fe, state of New Mexico. See Complaint and Application for Civil Restraining Order at 1, filed in state court August 5, 2015, filed in federal court September 4, 2015 (Doc. 1-2).
2. The Plaintiffs filed an amended complaint on September 2, 2015. See Complaint at 1. The Complaint describes Logan as “a candidate for the county seat” on the PERA Board, and Taulbee and Ward as “qualified voters who desire to have Mr. Logan on the ballot for the county seat.”
declaratory and injunctive relief under 42 U.S.C. § 1983, as well as New Mexico law, ordering PERA, PERA’s Board, and its individual Board Members to qualify Mr. Logan as a candidate for the county seat on PERA’s Board and ordering PERA to hold a fair and impartial election that includes Mr. Logan for the county seat.
Complaint at 2.
3. The Defendants filed a Notice of Removal on September 4, 2015. See Notice of Removal, filed September 4, 2015 (Doc. 1). They noted that the Plaintiffs invoked 42 U.S.C. § 1983, stating that their Complaint “is founded on a claim or right arising under the Constitution, treaties or laws of the United States.” Notice of Removal at 2.
2. The Plaintiffs’Motion.
4. The Plaintiffs filed the Motion on November 4, 2015. They request that the Court: (i) issue a preliminary injunction preventing the PERA from filling the PERA Board’s county seat position; (ii) issue a preliminary injunction requiring the PERA to accept Logan’s nominations, thereby allowing him to be a candidate, and mail appropriate ballots to the PERA’s municipal county members; (iii) hold an expedited preliminary injunction hearing pursuant to rule 65(a)(2) of the Federal Rules of Civil Procedure; and (iv) waive the bond requirements under rule 65(c) of the Federal Rules of Civil Procedure. See Motion at 1-2.
5. The Plaintiffs make four primary arguments to' support the Motion. First, they contend that they do not seek to change the status quo. See Motion at 7-8. They explain that the United States Court of Appeals for the Tenth Circuit defines the status quo as the “last peaceable uncontested status existing between the parties before the dispute developed.” Motion at 7 (quoting Schrier v. University of Colorado,
6. Second, the Plaintiffs argue that they will suffer irreparable harm which that outweighs any possible prejudice to the Defendants. See Motion at 8-12. Although the Motion is not entirely clear, it seems to define the relevant injuries as the violation of the Plaintiffs’ liberty and property interests; namely, “their constitutional right to associate for political purposes and vote for a candidate of their choice,” as New Mexico statutes establish these
7.The Plaintiffs then balance their potential injuries against the possible prejudice to the Defendants. See Motion at 12. They argue that the failure to grant a preliminary injunction will deprive the Plaintiffs of their constitutional rights, and that “[t]he deprivation of a constitutional right is a significant and irreparable injury.” Motion at 12 (quoting Herrera v. Santa Fe Pub. Sch.,
8. Third, the Plaintiffs argue that their proposed preliminary injunction would not be adverse to the public interest. See Motion at 12-14. They note that the Tenth Circuit’s cases suggest that it “is always in the public interest to prevent the violation of a party’s constitutional rights.” Motion at 13 (quoting Awad v. Ziriax,
9. Finally, the Plaintiffs contend that they have a substantial likelihood of success on the merits. Their arguments have five basic components. First, they contend that the PERA Board erred in can-celling the election. See Motion at 15. They cite N.M. Stat. Ann.1978, §§ 10 — 11— 130(B)(3), (4), and (5), which state that PERA Board members are “to be elected by the members” of the PERA. Motion at 15. They argue that this statute conflicts with a PERA rule allowing the PERA Board to cancel an election if only one member is nominated. See Motion at 15 (citing N.M.A.C. § 2.80.200.70(A)(6)). They conclude that the PERA Board’s decision to cancel the election violated state and federal law. See Motion at 15.
10. Second, they say that the PERA Board erred by failing to consider Logan’s reasonable expectation that his mailed nominations would arrive by “April 11 or
11. Third, the Plaintiffs assert that the PERA Board must use the April 14, 2015 date listed in Resolution 15-04. See Motion at 17. They state that the PERA Board cannot construe the date as a typographical error, because such construction “ ‘will substantially and adversely affect the rights of another.” Motion at 17 (citing In re Garrison P.,
12. Finally, the Plaintiffs argue that the PERA Board should have interpreted the ambiguous word “returned” in Resolution 15-04 “in favor of inclusion.” Motion at 18. They also state that Logan’s scanned document complied with Resolution 15-04. See Motion at 18-19.
3. The Defendants ’ Response.
13. The Defendants responded on November 25, 2015. See Response at 1. They begin by attacking the entire basis for the Plaintiffs’ lawsuit, noting that “the PERA Board election is not a public election covered by either the state or the federal constitutional provisions.” Response at 6. They argue that the Constitution of New Mexico’s provisions on state elections apply “only to elections by the general electorate to public office.” Response at 6 (citing Davy v. McNeill,
14.The Defendants state that the Plaintiffs’ claims also fail under federal law, because the election did not involve state action. See Response at 8-12. The Defendants rely on Akina v. Hawaii, No. CV 15-00322 JMS/BMK,
15. The Defendants next argue that the Plaintiffs seek to alter the status quo. They note that Logan will serve as an appointed board member until the PERA Board swears in new members on January 12, 2016. See Response at 12. If the Court grants a preliminary injunction, they say, “Mr. Logan will retain his position after his term expires” because his successor will not yet be qualified. Response at 12. They also argue that the Plaintiffs failed to preserve the status quo as of April 8, 2015 by waiting too long to file their Complaint. See Response at 1415. They allege:
A preliminary injunction that returns the matter to its status as of April 8 would have the effect of overturning the entire process that was never effectively challenged until September 2, 2015, and it would unduly extend Mr. Logan’s service beyond the end of his term and intrude into the next term.
Response at 14-15.
16. The Defendants close by attempting to rebut the Plaintiffs’ arguments on the factors necessary for a preliminary injunction. See Response at 15-20. First, they explain that the Plaintiffs will not suffer any irreparable injury. See Response at 16-17. They contend that the Plaintiffs’ constitutional rights “are not implicated in this limited, closed election.” Response at 16. They contend that none of the Plaintiffs’ cited cases excuse Logan’s delay in submitting his nominations. See Response at 16-17. Second, they contend that the threatened injury neither outweighs the damage to the PERA nor poses a threat to the public interest. See Response at 1819. They explain that the harm, to the PERA is harm to the trust fund, which pays the organization’s administrative expenses. See Response at 18. They also assert that the public interest “is clearly served by minimizing costs that would adversely affect the fund.” Response at 18. They state that the PERA trust fund should not be required to fund an election with only one candidate. See Response at 18-19.
17. The Defendants argue that the Plaintiffs have no likelihood of prevailing on the merits. See Response at 19-26. First, they, argue that N.M. Stat. Ann.1978 § 10-11-30’s requirement that PERA Board members be “elected by the members” of the PERA does not prohibit them from cancelling an election under N.M.A.C. § 2.80.200.70(A)(6). Response at 19. They note that courts must interpret a statute “so as to give effect to its objective and purpose, to give effect to its entire purpose, and to • avoid an absurd result.” Response at 19 (citing N.M. Stat. Ann.1978 § 12-2A-18(A)). They state that an election with only one candidate would be absurd and that the PERA Board has a fiduciary duty to preserve the trust fund’s resources. See Response at 20. Second, they question the Plaintiffs’ reliance on the mailbox rule. See Response at 21-22. They note that: (i) their date-stamped envelope overcomes any presumption of earlier delivery; (ii) Logan could have delivered his petition by any other method within the three months before the deadline; and (iii) Logan has not produced enough evidence to show a “reasonable expectation of earlier delivery.” Response at 21-22.
18. Third, the Defendants reject the Plaintiffs’ argument that the April 14, 2015, date on Resolution 15-04 controls the deadline. See Response at 22-23. They note that Logan did not rely on the April
4. The Plaintiffs ’ Reply.
19. The Plaintiffs replied on November 30, 2015. See Plaintiffs’ Reply in Support of their Motion for Preliminary Injunction, filed November 30, 2015 (Doc. 25)(“Re-ply”). The Plaintiffs place great weight on their argument that the PERA and its Board are state actors. See Reply at 2. They note that: (i) the New Mexico Constitution created the PERA; (ii) the PERA’s governing statutes fall within Chapter 10 of New Mexico’s statutes, which is titled “Public Officers and Employees”; (iii) New Mexico’s Secretary of State and State Treasurer sit on the PERA’s Board; (iv) New Mexico’s Legislature requires that the PERA’s members elect its Board members; and (v) • the PERA is subject to the Open Meetings Act, N.M. Stat. Ann.1978 §§ 10-15-1 — 10-15-4, which expressly applies to “the affairs of government and the official acts of those officers and employees who represent them.” Reply at 2-4 (quoting N.M. Stat. Ann.1978 § 10-15-1(A)). Furthermore, they explain that the PERA Board has the authority to adopt rules published in New Mexico’s Administrative Code, which become legally binding. See Reply at 4.
20. The Plaintiffs repeat their arguments that the PERA Board cannot ignore the Legislature’s command to hold elections. See Reply at 5 (citing N.M. Stat. Ann. 1978 § 10-11-130(C)). They contend
21. The Plaintiffs next attempt to reinforce their description of the status quo. See Reply at 9-10. They state that the “Defendants’ attempt to argue that the status quo should be the current situation in which the parties find themselves, months after the contested issues which form the basis for this action, is precisely the version of ‘status quo’ that has been soundly rejected by the Tenth Circuit.” Reply at 9 (citing Guidance Endodontics, LLC v. Dentsply Int’l, Inc.,
22. Finally, the Plaintiffs argue that the Defendants’ failures to follow the statutory election requirements should bar them from making similar accusations against the Plaintiffs. See Reply at 10-11. They contend that the Defendants failed to hold a required election and failed to promulgate rules explaining their election requirements. See Reply at 10-11. They note that “mailing and counting statutorily required ballots does not breach PERA’s fiduciary duty to its members.” Reply at 11. They conclude by stating that the PERA members who signed Maxon’s petitions voted to place his name on the ballot rather than to vote for him and that they did not even receive a ballot. See Reply at 11. As the Plaintiffs see it, these individuals would not “have been deprived of anything other than the same right that Plaintiffs seek to secure — the right to vote in the legally mandated PERA election.” Reply at 11.
5. The Hearing.
23. The Court held a hearing on the Motion on December 1, 2015. The hearing consisted only of oral argument — not witness testimony or other evidentiary presentations.
24. The Court opened the hearing with its thoughts on the motion. It stated that:
I had a couple of thoughts. One is I think the defendants are probably going to have a hard time convincing me that the PERA is not a state entity and there is not state action.... I guess the thing I’m struggling with as far as the plaintiffs are concerned, I’m just trying to figure out why the United States constitution cares about how the elections take place over at the PERA.
Tr. at 3:13-24 (Court).
25. The Plaintiffs largely stood behind their briefing, but they clarified their theory in minor ways. See Tr. at 4:20-33:11 (Court, Lowry). They stated that New Mexico law provides a liberty interest in the electoral process that the Fourteenth Amendment protects. See Tr. at 5:146:16 (Court, Lowry). They argued that New Mexico -law could create a liberty interest requiring protection regardless whether it
26. The Court questioned why, on the Plaintiffs’ theory, a federal court should become involved in every dispute over the state election code. See Tr. at 9:18-10:1 (Court). The Plaintiffs responded that the question whether to hold an election at all is a matter of federal interest. See Tr. at 11:9-19 (Lowry). The Plaintiffs repeated their arguments that the Court should read the statutory language broadly and impose a mailbox rule on the PERA’s elections. See Tr. at 24:12-20 (Lowry).
27. The Defendants also stood behind their briefing. They argued that the Court should remand the case to state court, because there “is not a federal claim.” Tr. at 33:17-34:9 (Rennick). The Defendants stated that the PERA election “does not bear the relationship to governing that both state and federal cases require to get to the constitutional issues.” Tr. at 37:1-9 (Rennick). They argued that the Court should hold that federal constitutional protections “apply to a state defined election that involves public issues, public officials and right of the general public to vote.” Tr. at 39: 14-21 (Ren-nick). The Defendants also conceded that the PERA “is a state agency,” adding that “[t]here is no question about that.” Tr. at 38:8-18 (Rennick).
28. The Plaintiffs emphasized in rebuttal that their claims focus on the First Amendment’s rights to political expression and the Fourteenth Amendment’s due-process clause, rather than the Equal Protection clause. See Tr. at 47:14-50:17. This explanation distinguished their arguments from the Defendants’ cited cases, which allegedly concern whether the plaintiffs could be members of more limited organizations, like irrigation districts. See Tr. at 47:14-50:17. The Plaintiffs also requested that the Court declare the New Mexico Administrative Code provision allowing the PERA Board to cancel an election unconstitutional. See Tr. at 53:14-56:4 (Court, Lowry).
CONCLUSIONS OF LAW
The Court will outline the generally applicable law surrounding preliminary injunctions and state elections. It will then analyze the Motion.
I. LAW REGARDING PRELIMINARY INJUNCTIONS
1. “It is well settled that a preliminary injunction is an extraordinary remedy, and that it should not be issued unless the movant’s right to relief is clear and unequivocal.” Kikumura v. Hurley,
2. “[T]he limited purpose of a preliminary injunction ‘is merely to preserve the relative positions of the parties until a trial on the merits can be held....’” Schrier v. Univ. of Colo.,
3. “[I]n an action for money damages, the district court does not have the power to issue a preliminary injunction. ...” United States ex rel. Rahman v. Oncology Assocs.,
II. LAW REGARDING ELECTORAL FRANCHISE
1. The United States Court of Appeals for the Fourth Circuit has stated that:
Our constitution does not contemplate that the federal judiciary routinely will pass judgment on particular elections for federal, state or local office. The conduct of elections is instead a matter committed primarily to the control of states, and legislative bodies are traditionally the final judges of their own membership. The legitimacy of democratic politics would be compromised if the results of elections were regularly to be rehashed in federal court.
Hutchinson v. Miller,
ANALYSIS
1. The Court will deny the Motion. The requested injunction does not fall into any of the Tenth Circuit’s three categories of disfavored preliminary injunctions. Nevertheless, the Plaintiffs have failed to establish three of the four showings required to merit the extraordinary remedy of a preliminary injunction. The Plaintiffs have shown a likelihood of irreparable harm that the balance of harms weighs in them favor, and that the requested injunction is not adverse to the public interest, but have not shown a likelihood of success on the ultimate merits.
I. THE REQUESTED INJUNCTION DOES NOT FALL INTO ANY OF THE THREE CATEGORIES OF DISFAVORED PRELIMINARY INJUNCTIONS.
2. The Tenth Circuit has identified three categories of disfavored preliminary injunctions — mandatory injunctions, injunctions that alter the status quo, and injunctions that give the movant all the relief to which he or she would be entitled if he or she won at trial — and the requested injunction does not fall into any of them. See O Centro,
3. The first disfavored category is “mandatory preliminary injunctions.” Schrier v. Univ. of Colo.,
4. Here, the requested injunction is not mandatory. It seeks to prevent the PERA from filling the PERA Board’s county seat position, require the PERA to accept Logan’s nominations, and mail appropriate ballots to the PERA’s municipal county members. See Motion ¶¶ 1-2, at 1-2. Ascertaining the Defendants’ compliance with the injunction would require no special effort on the Court’s part — the injunction’s terms are clear, its requirements would be short-term, and the Plaintiffs could simply alert the Court of any infractions. Although the requirement that the PERA accept nominations and mail ballots out speaks in mandatory terms, it will not require ongoing supervision.
5. The second disfavored category is “preliminary injunctions that alter the status quo.” Schrier v. Univ. of Colo.,
7. The third and final disfavored category is “preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” Schrier v. Univ. of Colo.,
8. The requested injunction is thus not disfavored at law, and, accordingly, the Court will not apply a heightened standard to it on that ground. The Plaintiffs must still satisfy all four prongs of the standard preliminary-injunction analysis, however, and, as explained in the next portions of this Memorandum Opinion and Order, they have failed to show that they have a substantial likelihood of success on the merits.
II. THE HARMS THAT THE REQUESTED PRELIMINARY INJUNCTION SEEKS TO AVOID WOULD BE IRREPARABLE.
9. The Plaintiffs’ identified injury&emdash;the violation of their constitutional rights&emdash;is irreparable.
10.The Defendants argue that, absent a preliminary injunction, “Plaintiff Logan will retain his current Board position until January 12, 2016,” and “Taulbee and Ward will thereby be represented on the PERA Board by the member of their choice, and all county voters will be represented on the PERA Board.” Response at 16. This point ignores that the gap between (i) and (ii) will change dramatically on January 12, 2016. Taulbee and Ward will no longer be represented by the member of their choice — they will effectively be denied a choice. Moreover, even if Logan prevails on the merits and the election returns him to the PERA Board, he will have missed a number of months when he should have been in office, including possible votes on the trust fund’s disposition. Money damages will not suffice to remedy his injury; indeed, his Complaint does not request any.
11. The Plaintiffs also cite to cases analyzing whether the deprivation of a constitutional right constitutes irreparable harm. See Herrera v. Santa Fe Pub. Sch.,
12. These cases, however, are not conclusive. Subsequent Tenth Circuit decisions have linked the “irreparable injury” inquiry to the “likelihood of success” inquiry, holding that a plaintiff who cannot demonstrate a substantial likelihood of success is not entitled to a presumption of irreparable harm. See Schrier v. Univ. Of Colo.,
III. THE BALANCE OF HARMS WEIGHS IN THE PLAINTIFFS’ FAVOR, BECAUSE THEY WOULD SUFFER MORE HARM FROM THE INJUNCTION’S DENIAL THAN THE DEFENDANTS WOULD FROM ITS IMPOSITION.
13. The Court concludes that the harm that, will accrue before this case is resolved on the merits — both to Logan and .to the other two plaintiffs — outweighs the minimal damage that a preliminary injunction would inflict on the Defendants.
14. The Plaintiffs contend that the “irreparable harm at issue here involves the deprivation of fundamental rights, which far outweighs any administrative costs or inconvenience to PERA or its Board that a preliminary injunction may cause.” Motion at 12. As discussed above, the Court does not accept the Plaintiffs’ assertion that a fundamental right is at stake at face value. The Court considers, however, the harm that would result from the injunction’s denial, including Logan’s loss of an opportunity to compete in the PERA election and loss of a chance to participate as a member of its Board as well as the Plaintiffs’ loss of an opportunity .to vote for their preferred candidate.
15. The Defendants have provided little evidence on the magnitude of the injunction’s harms. They dispute the Plaintiffs’ characterization of the possible harm as “administrative costs or inconvenience,” explaining that the real harm “to PERA is in the harm to the trust fund.” Response at 18-19. Because the PERA’s administrative expenses come out of its trust fund, the Defendants say, the requirement to conduct an unnecessary election would directly harm the PERA’s members. See Response at 18 (citing N.M. Stat. Ann. 1978, § 10-11-128). The Defendants do not provide any estimate on the cost of conducting an election. Nor do they suggest that the uncertainty of knowing precisely which person will fill the county seat will significantly harm their operations. Moreover, the Plaintiffs suggest that the PERA has already re-mailed ballots for the state employee position “due to an error on PERA’s part.” Reply at 11.
16.In the absence of more concrete evidence, the Court concludes that a new election will not impose significant costs on the PERA. The PERA has only one county seat. See Response at 1. Its rules “specify that only members of designated groups are to vote for representatives of that group.” Response at 7. The resulting election would only involve one of the PERA Board’s positions and only a limited subset of its total membership, which is in turn far smaller than the membership involved in a general election.
IV. THE REQUESTED INJUNCTION WOULD NOT BE ADVERSE TO THE PUBLIC INTEREST.
17. The same factors that make the Plaintiffs unlikely to prevail on the merits indicate that the proposed injunction does not strongly point in either direction.
18. The Plaintiffs have not shown that a preliminary injunction would clearly benefit the public interest. As noted above, the Court will not simply accept that a preliminary injunction would allow the PERA’s members “to participate in a free and fair election, which is in the public interest.” Motion at 14. The Plaintiffs cite Awad v. Ziriax,
19. The PERA represents a limited slice of the public at large, and its elections are not open to the public at large. See Response at 18. Its administrative expenses do not draw on taxpayer funds. See Response at 18 (citing N.M. Stat. Ann. 1978, § 10-11-128). Any uncertainty is unlikely to have a significant effect on the PERA’s functions. The PERA Board normally has twelve members, at least ten of whom are actively involved in governance. See Board of Trustees, Public Employees Retirement Association of New Mexioo, http://www.nmpera.org/board-of-trustees (last visited Jan. 9, 2016). The presence or absence of a single Board member is thus unlikely to affect its operations in any significant way. The PERA’s Executive Director manages its day-to-day operations. See Board of Trustees, Public Employees RETIREMENT ASSOCIATION OF NEW Mexico, http://www.nmpera.org/board-of-trustees (last visited Jan. 9, 2016). The PERA also uses professional money managers to invest its assets and improve the trust fund. See Arleen Jacobius, New Mexico PERA Invests $365 Million with 2 Hedge Fund Managers, Pensions and Investments (July 31, 2015), http://www. pionline.com/article/20150731/ONLINE/ 150739969/new-mexico-pera-invests-365- I million-with-2-hedge-fund-managers (last visited Jan. 9, 2016).
20. The Plaintiffs have not demonstrated that the preliminary injunction would benefit the public interest, but the standard requires them only to demonstrate that it would not harm the public interest. There is no evidence indicating that the proposed preliminary injunction would have a significant adverse effect on the public interest.
V. THE PLAINTIFFS HAVE NOT ESTABLISHED THAT THEY HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS.
21. The Plaintiffs have not established that they have a substantial-likelihood-of-success, because the evidence presented thus far does not persuade the Court that the Plaintiffs are reasonably likely to establish that the Defendants violated their rights under the First or Fourteenth Amendments. The Court will first describe the legal standard behind the substantial-likelihood-of-success prong — an exacting one, which dooms the Plaintiffs’ Motion at least as much as the facts of this case — and then apply that standard.
22. The proper standard applicable to the substantial-likelihood-of-success prong is that the movant must (i) carry the burden of production, i.e., he or she must present a prima facie case; and (ii) make it reasonably likely — beyond just being “not unreasonable” — that the factfinder would actually find for the movant, i.e., that the movant would satisfy the burden of per
All courts agree that plaintiff must present a prima facie case but need not show a certainty of winning.
An appraisal of the possible outcome of the case on the merits is of particular importance when the court determines in the course of balancing the relative hardships that one party or the other will be injured whichever course is taken on the Rule 65(a) application. However, the degree of likelihood of success is not determinative. Rather it must be considered and balanced with the comparative injuries of the parties. If plaintiff seems unlikely to win, a preliminary injunction will not be issued unless plaintiff demonstrates a strong probability of injury if the court fails to act. Thus, the balancing which takes place between the two factors is often referred to as a “sliding scale.” ....
Accordingly, although a showing that plaintiff will be more severely prejudiced by a denial of the injunction than defendant would be by its grant does not remove the need to show some probability of winning on the merits, it does lower the standard that must be met. Conversely, if there is only slight evidence that plaintiff will be injured in the absence of interlocutory relief, the showing that plaintiff is likely to prevail on the merits is particularly important. In this same vein, it has been held that a preliminary injunction may be granted even though the harm factor favors defendant if plaintiff demonstrates a substantial likelihood of ultimately prevailing.
11A Wright & Miller, supra, § 2948.8 (footnotes omitted). The Court’s formulation uses the same principles to arrive at roughly the same result, and that result— requiring the movant to fully carry the burden of production, and additionally present a likelihood, which will vary depending on the movant’s showing on the other prongs, of carrying the burden of persuasion — constitutes the analytical framework for assessing a movant’s satisfaction of the substantial-likelihood-of-success prong in the ordinary case.
23. Having outlined the substantial-likelihood-of-success standard, the Court will now apply it. The Court concludes that the Plaintiffs do not have a substantial likelihood of success for two primary reasons.
24. First, federal courts do not interfere in state elections under the circumstances present here.
25. In Warf v. Bd. of Elections of Green Cty., Ky.,
“The right to vote is a fundamental right, ‘preservative of all rights.’ ” League of Women Voters v. Brunner,548 F.3d 463 , 476 (6th Cir.2008)(quoting Yick Wo v. Hopkins,118 U.S. 356 , 370,6 S.Ct. 1064 ,30 L.Ed. 220 ... (1886)). Because “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims,377 U.S. 533 , 562,84 S.Ct. 1362 ,12 L.Ed.2d 506 ... (1964).
The Constitution, however, “ ‘leaves the conduct of state elections to the states.’ ” Shannon v. Jacobowitz,394 F.3d 90 , 94 (2d Cir.2005)(quoting Gamza v. Aguirre,619 F.2d 449 , 453 (5th Cir.1980)). The “[p]rineiples of federalism,” therefore, “limit the power of federal courts to intervene in state elections.” Id. at 94 (quoting Burton v. Georgia,953 F.2d 1266 , 1268 (11th Cir.1992))(internal quotation marks omitted). Courts “have long recognized that. not every state election dispute implicates federal constitutional rights.” Burton,953 F.2d at 1268 . As such, “ ‘[o]nly in extraordinary circumstances will a challenge to a state [or local] election rise to the level of a constitutional deprivation.’ ” Shannon,394 F.3d at 94 (quoting Curry v. Baker,802 F.2d 1302 , 1314, (11th Cir.1986))(alteration in original).
Such an exceptional case may arise, for example, if a state employs “non-uniform rules, standards and procedures,” that result in significant disenfranchisement and vote dilution, Brunner,548 F.3d at 478 , or significantly departs from previous state election practice, see Roe v. Alabama,43 F.3d 574 , 580-81 (11th Cir.1995) (intervening where failure to exclude contested absentee ballots constituted a post-election departure from previous state practice); Griffin,570 F.2d at 1079 (intervening where state court disrupted seven-year practice of voting by absentee and shut-in ballot). Federal courts, however, “have uniformly declined to endorse action[s] under [§ ] 1983 with respect to garden variety election irregularities.” Griffin,570 F.2d at 1076 ; see also Brunner,548 F.3d at 478 (“[T]he federal courts should not be asked to count and validate ballots and enter into the details of the administration of the election.” (citation and internal quotation marks omitted)).
26.The Plaintiffs’ allegations are dissimilar from any of these “extraordinary” cases in which “a state’s voting system is fundamentally unfair.” Warf v. Bd. of Elections of Green Cty., Ky.,
27. Similarly, in Bonas v. Town of N. Smithfield,
28. The First Circuit described only two such exceptions, (i) “when a discrete group of voters suffers a denial of equal protection”; and (ii) when a denial of substantive due process occurs, if “the election process itself reaches the point of patent and fundamental unfairness.”
29. The Plaintiffs’ claims fall outside these two exceptions. The Plaintiffs have not raised any equal protection arguments. The case, moreover, does not involve “total and complete disenfranchisement of the electorate as a whole.” Bonas v. Town of N. Smithfield,
30. The Court finds that the reasoning in Warf v. Bd. of Elections of Green Cty., Ky. and Bonas v. Town of N. Smithfield is compelling. This dispute involves issues— including whether the mailbox rule should apply, whether a PERA Board Resolution’s date can be considered a typographical error, and whether nominations for the PERA’s elections must be original — that do not justify federal courts’ intrusion into state elections. Given the absence of authority to the contrary from the Tenth Circuit, the Court concludes that the Plaintiffs are unlikely to succeed for this reason alone. Even if these cases did not exist, however, the Plaintiffs’ specific allegations would still suffer from significant flaws.
31.Second, the Court is reluctant to grant a federal injunction in a case where it would normally decline to exercise supplemental jurisdiction. Section 1367(c) of Title 28 of the United States Code allows district courts to “decline to exercise supplemental jurisdiction over a claim” if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). See City of Chicago v. Int’l Coll. of Surgeons,
32. The Court cannot overemphasize the importance of elections in a democratic and republican form of government. They are in need of protection by all three branches of government, especially from the un-elected branch, the judiciary. But precisely because elections need protection from the judiciary, we must be careful that it does not, in the name of protection, overprotect, or meddle in something that should be left as much as possible to the elected branches. In large part, the courts should not care how the executive and legislative branches choose their leaders, either through elections, appointment, or some other mode.
33. When a federal court is asked to review a state election, the need for care and caution is even more prominent, because federalism is at play. To a great extent, the federal Constitution and laws are agnostic on how states pick their officials. Especially when the issue is how members of boards, commissions, and agencies are chosen, who are in many states often appointed, the federal interest in how these officers are filled is low. The federal courts should be careful that all the state law issues that arise from state elections are not moved across the street from state court to federal court in the guise of protecting the First Amendment association and due process rights. Otherwise, the federal court will become the preferred venue of some party or individual for resolving all state election disputes.
34.The Court does not suggest that federal courts have no role in protecting the electoral system, be it federal or state elections. The federal Constitution sets forth the mechanics about elections for the President and Congress. See, e.g., U.S. Const, art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.”).
35. Moreover, federal and state courts do halt violations of equal protection, such as discrimination on race, religion, or nationality. Unless the case involves these expansive categories of discrimination of suspect or protected categories, the federal courts should be reluctant to micro-manage state elections.
36. Once the federal court decides there is no federal interest in need of protection, there is even less of a sound basis for the court to hang on to the case and decide state law issues. The federal court does not have an interest in whether the PERA&emdash;the state&emdash;employs a mailbox rule, accepts emailed nominations, or cancels unopposed elections without allowing for a write-in ballot. At this point, the Court will let the parties see what it has decided on the chances of there being a federal claim, and signal that it is unlikely to keep the case. It certainly should not proceed to decide the issues in favor of the Plaintiffs and against the state on state law grounds. These issues should be left to the state courts.
IT IS ORDERED that the requests in the Plaintiffs’ Motion for Preliminary Injunction and Memorandum in Support, filed November 4, 2015 (Doc. 22), are denied.
Notes
. The parties agree on almost all of the facts in this case. See Transcript of Motion Proceedings at 19:14-17 (Lowiy)(taken December 1, 2015)("Tr.”)("I really think that ... factually there is some minor discrepancies on the fringes of this case, but I think in the main, the facts are pretty well known and agreed upon by the parties.”); Tr. at 46:2-47:4 (identifying only one factual dispute). The Court’s citations to the transcript for this hearing refer to the court reporter's original, unedited version. Any final version may contain slightly different page and/or line numbers.
. The Court cites to the Complaint only for facts that the parties do not dispute.
. The Plaintiffs use the terms "nominating petition,” "nominating signature,” "nomination,” and “nominating request” in a confusing manner. The New Mexico Administrative Code requires candidates to obtain "a minimum of 150 valid nominations” to be eligible for an election for the PERA Board. N.M.A.C. § 2.80.200.70(A)(3). A nomination must include: "a signature, a legible printing of the member’s name, the member’s current employer and one of the following: 1) the last four digits of the member's social security number; 2) the member's date of birth; or 3) the member’s PERA identification number.” N.M.A.C. § 2.80.200.70(A)(3). A "nominating petition” appears to be a collection of nominations. See N.M.A.C. § 2.80.200.70(A)(3) (“To be eligible, a candidate must have a minimum of 150 valid nominations ... on his or her nominating petition.”). The Court remains unsure of precisely what a "nominating request” is. Motion at 3.
. The parties’ only factual dispute relates to the precise dates when Logan mailed his additional nominations to the PERA and when they arrived. The Plaintiffs describe the factual dispute as “when did these 19 pages of nominating petitions enter! 1 the United States mail system and when did they depart the United States mail system.” Tr. at 19:21— 20:1 (Lowry). The Plaintiffs state that Logan mailed his additional nominations to the PERA on April 8, 2015. See Motion at 3. The Defendants contend that Logan cannot demonstrate this fact. , See Response at 21. They note that: (i) the postmark on Logan's letter does not show the post office or the time of day; and (ii) Logan used a private postage meter, so the Court cannot determine whether Logan delivered the letter to a U.S. Post Office. See Response at 21.
The Defendants also argue that Logan “has submitted two different letters that are not entirely consistent”: (i) the Letter from Laura Stowe, Flora Vista Postmaster, USPS, dated April 16, 2015, filed November 25, 2015 (Doc. 24-8)("Letter”); and (ii) the Declaration of Sandi Whiten ¶¶ 7-8, at 2, filed November 30, 2015 (Doc, 25-2)(“Declaration”). Tr. at 46:7-10 (Rennick). The Letter states that the nominations “would have been sent directly to the Santa Fe Post Office to be delivered” and that "[tjhis piece of mail should have been accepted by the 13 th of April for this customer.” Letter at 1. The Declaration states that, “[biased on the way the mail is handled in my employer’s office,” Logan's letter would have been placed in the U.S. mail on April 8, 2015 and picked up by the USPS around 3:30 p.m. Declaration ¶¶ 7-8, at 2. The Court does not understand why these letters are inconsistent. Logan could have mailed the envelope from his office in Aztec, New Mexico on April 8, 2015. The USPS could have picked it up from his office, passed it through the post office in nearby Flore Vista, New Mexico, sent it to Albuquerque, New Mexico for processing, and delivered it to Santa Fe, New Mexico as discussed in the postmaster’s letter.
Furthermore, the Court finds Logan's statements credible and concludes that he mailed his additional nominations on April 8, 2015. As discussed in greater detail below, this conclusion has no effect on the Court’s decision on the Motion.
. This argument seems inconsistent with the Defendants’ contention that there is no state action involved. The Defendants cannot soundly deny that they are state actors while simultaneously arguing that they are entitled to deference under Morningstar Water Users Ass’n v. New Mexico Pub. Util. Comm'n,
. The requirement that the movant show a mere "substantial likelihood” of prevailing on the merits is the only prong of the preliminary-injunction analysis that is easier to satisfy than its analogous prong in the permanent-
At a trial on the merits, a plaintiff bears two burdens of proof. The first burden is the burden of production, which is sometimes called the burden of going forward. If the plaintiff fails to carry the burden of production during his or her case-in-chief, then the court will decide the case in the defendant’s favor, and the case will not go to the jury. The second burden is the burden of persuasion, which refers to convincing the factfin-der — typically a jury — that he or she has satisfied the ultimate standard of proof — usually the preponderance-of-the-evidence standard. There is also a third, even higher quantum of evidence, sometimes called the "third burden of proof,” which a plaintiff carries when he or she presents evidence of such great extent and one-sidedness that he or she is entitled to a verdict as a matter of law. Anderson Living Trust v. WPX Energy Prod., LLC,
Moreover, satisfying the initial burden of production is known as presenting a "prima facie case.” Black’s Law Dictionary 1310 (9th ed.2009)(defining "prima facie case” as "[a] party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor”). The best way to interpret the Tenth Circuit’s dictate that the movant must make "a prima facie case showing a reasonable probability that he will ultimately [prevail]” is by requiring that the movant put forth enough evidence to both: (i) satisfy the burden of production — meaning that if the same evidence were presented at trial, it would be sufficient for a reasonable factfinder to find in the movant’s favor; and (ii) make it reasonably likely — beyond just being “not unreasonable” — that the factfinder would in fact find for the movant, i.e., that the movant would satisfy the burden of persuasion. See 11A Wright & Miller, supra § 2948.3 (“All courts agree that plaintiff must present a prima facie case but need not show a certainty of winning.” (footnotes omitted)). The movant need not show a greater-than-fifty-percent probability of satisfying the burden of persuasion, as to require such a showing would be to convert the substantial-likelihood-of-success standard into the ultimate trial standard, which the case law makes clear is not the intended result. See Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc.,
The Court will require preliminary-injunction movants to carry the burden of production at the preliminary-injunction stage in all cases, and it will never require the movant to carry the full burden of persuasion at that stage. As for where in between those two quanta of proof the Court will set the standard, it will vary in different cases, depending upon the strength of the movant's showing on the other three prongs: the irreparability of the movant’s harm, the balance of harms as between the movant and the nonmovant, and the public interest. Cf. Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,
. A request for a disfavored preliminary injunction is also not entitled to the Tenth Circuit's relaxed or "modified” substantial-likelihood-of-success standard, which reduces the plaintiff's required showing of that prong to raising "questions going to the merits [that] are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Davis v. Mineta,
. The Plaintiffs correctly note that they must demonstrate a showing of "probable” irreparable harm. Motion at 8 (quoting Planned Parenthood of Arkansas & E. Oklahoma v. Cline,
The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a "possibility” of irreparable harm....
We agree with the Navy that the Ninth Circuit's "possibility” standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. 11A Wright & Miller, supra, § 2948.1 (applicant must demonstrate that in the absence of a preliminary injunction, "the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”). Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of in-junctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.
Winter v. Nat. Res. Def. Council, Inc.,
. The Defendants ask the Court not to apply the full constitutional limitations — whatever they are — to the PERA, because its elections are too far down the food chain from public or general elections for higher office, such as for a governor or legislator. See Response at 6-8. The Court has declined to make a vertical decision, and decide that some offices need constitutional protection and that others do not based on their prominence. If the PERA or an irrigation district discriminated on the basis of race or religion, the federal government would have a strong interest in intervening in its election. Rather, the Court believes that the same body of federal constitutional law applies to all elections, big or small. The Court believes, however, that some body of law — to be applied to all elections — should be narrow and carefully, sensitively applied.
. The Defendants rely on a distinction between "elections by the general electorate to public office” and elections of more limited interest, such as the PERA election, to show that they did not violate any state laws. Response at 6, 11-12. The Plaintiffs respond that the Defendants’ "focus on the Election Code is misguided,” instead pointing to the PERA's governing statutes. Reply at 2. The Court thus will not discuss whether the PERA’s elections fall within New Mexico’s Election Code in detail. It notes, however, that at least one New Mexico case has held that Article VII § 2 of the New Mexico Constitution does not restrict the Legislature from prescribing the qualifications for junior college and irrigation district board members. See Daniels v. Watson,
. The fundamental unfairness standard came from Griffin v. Burns,
. The PERA is clearly a state agency and a state actor. The Defendants wisely conceded this point during the hearing. See Tr. at 38:8-18 (Rennick). The Court will thus disregard the Defendants’ arguments that the PERA is not a state actor. See Response at 8-11.
. Although the Court does not reach the state law issues in this matter, it notes that a state court might disagree with the Plaintiffs’ arguments. First, the Plaintiffs' interpretation of NMSA 1978 § 10-11-130 seems, at
The retirement board consists of:
(1) the secretary of state;
(2) the state treasurer;
(3) four members under a state coverage plan to be elected by the members under state coverage plans;
(4) four members under a municipal coverage plan to be elected by the members under municipal coverage plans, provided one member shall be a municipal member employed by a county; and
(5) two retired members to be elected by the retired members of the association.
NMSA 1978 § 10-11 — 130(B)(1)—(5). It also states: "The results of elections of elected members of the retirement board shall be certified at the annual meeting of the association. Elections shall be conducted according to rules the retirement board adopts from time to time.” NMSA’ 1978 § 10-11 — 130(C). The Plaintiffs argue that the phrase "to be elected by the members” and the reference to the "elected members of the retirement board” require the PERA to hold an election regardless of the number of candidates unless an elected Board member has failed to attend four consecutive Board meetings. Reply at 5. They thus contend that the statute is inconsistent with the PERA's rule, N.M.A.C. § 2.80.200.70(6), which allows PERA's Board to cancel an election and declare a winner.
A state court might find that the statute does not require this result. Courts must interpret the statute, if possible, to: "(1) give effect to its objective and purpose; (2) give effect to its entire text; and (3) avoid an unconstitutional, absurd or unachievable result.” NMSA 1978, § 12-2A18. A state court might find that interpreting this statute to require an election with only one name on the ballot would produce an absurd result. See Padilla v. Montano,
Second, future courts interpreting these provisions must give considerable deference to the PERA's interpretation of the statutes and regulations that it administers. The Plaintiffs make a number of arguments that essentially interpret the PERA’s rules. They contend that the agency must accept non-original nominations based on the plain meaning of N.M.A.C. § 2.80.200.70(A)(3). See Motion at 18 ("Under PERA's election rules, any nomination that includes the four elements outlined in § 2.80.200.70(A)(3) N.M.A.C. must be counted toward the 150 valid nominations to be placed on the ballot.”). They argue that Resolution 15-04 failed to comply with N.M.A.C. § 2.80.200.70(A), because it used the term "filed” instead of copying the rule’s use of “returned.” Motion at 19 ("Plaintiff Logan clearly returned his petitions before April 14, 2015.”)(emphasis added).
“When an agency that is governed by a particular statute construes or applies that statute, the court will begin by according some deference to the agency’s interpretation.” Morningstar Water Users Ass’n v. New Mexico Pub. Util. Comm’n,