STATE OF NEW MEXICO, ex rel. LEAGUE OF WOMEN VOTERS OF NEW MEXICO, Petitioner, v. ADVISORY COMMITTEE TO THE NEW MEXICO COMPILATION COMMISSION, Respondent.
Docket No. S-1-SC-35524
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
August 3, 2017
2017-NMSC-025
MAES, Justice.
ORIGINAL PROCEEDING
In Accord, P.C.
Daniel A. Ivey-Soto
Albuquerque, NM
for Petitioner
Hector H. Balderas, Attorney General
Ari Biernoff, Assistant Attorney General
Regina A. Ryanczak, Assistant Attorney General
Santa Fe, NM
for Respondent
New Mexico Association of Counties
Grace Philips
Santa Fe, NM
For Amicus Curiae New Mexico Association of Counties
Disability Rights New Mexico
Tim Gardner
Alice Liu Cook
Albuquerque, NM
for Amicus Curiae Disability Rights New Mexico
James E. Harrington, Jr.
Santa Fe, NM
The Duhigg Law Firm
Katy M. Duhigg
Albuquerque, NM
for Amicus Curiae Common Cause New Mexico
Egolf, Ferlic & Harwood, LLC
Katherine M. Ferlic
Jamison Barkley
Santa Fe, NM
for Amicus Curiae Drug Policy Alliance New Mexico
MAES, Justice.
{1}
{2} To protect the elective franchise even further, the framers declared in two separate constitutional provisions that
{3} Petitioner, League of Women Voters of New Mexico, sought a writ of mandamus directing Respondent, Advisory Committee to the New Mexico Compilation Commission, to effectuate the compilation of three constitutional amendments to the so-called unamendable section. The proposed amendments to
{4} Petitioner asked this Court to clarify that under a separate constitutional provision, the 2008, 2010, and 2014 amendments required the approval of only a simple majority of the voters. See
I. Facts and Procedural History
{5} In 2008, Constitutional Amendment 4 was placed on the ballot for the general
Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which
[he]the person offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers. The legislature may enact laws providing for absentee voting by qualified electors. All school elections shall be held at different times from[other]partisan elections.
2008 N.M. Laws, S.J. Res. 4, § 1 at 1554 (showing original language of
{6} In 2010, Constitutional Amendment 3 was placed on the ballot for consideration by the voters. The 2010 amendment proposed to substantially revise the first sentence of
[Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers.]Every person who is a qualified elector pursuant to the constitution and laws of the United States and a citizen thereof shall be qualified to vote in all elections in New Mexico, subject to residency and registration requirements provided by law, except as restricted by statute either by reason of criminal conviction for a felony or by reason of mental incapacity, being limited only to those persons who are unable to mark their ballot and who are concurrently also unable to communicate their voting preference.
2010 N.M. Laws, S.J. Res. 6, § 1 at 1229 (showing first sentence of original language of
{7} In 2014, Constitutional Amendment 1 was placed on the ballot for consideration. Like the 2008 amendment, Constitutional Amendment 1 sought to amend
{8} On September 24, 2015, more than ten months after the election on the 2014 amendment,
II. Discussion
A. Petitioner Has Standing to Petition for Mandamus
{9} We first address whether Petitioner has standing to raise the issues presented in this proceeding. We need not address here whether Petitioner meets the traditional requirements for standing of an organization because this Court has inherent authority to confer standing when the issue brought by a party presents a matter of great public importance. See ACLU of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 33, 144 N.M. 471, 188 P.3d 1222 (“It is clear that this Court can ‘confer’ standing and reach the merits of a case regardless of whether a plaintiff meets the traditional standing requirements, based on a conclusion that the questions raised involve matters of great public importance.“).
{10} “Assuming mandamus would otherwise lie, we exercise our power of original jurisdiction in mandamus if the case presents a purely legal issue that is a fundamental constitutional question of great public importance.” Cty. of Bernalillo, N.M. v. N.M. Pub. Reg. Comm‘n, 2000-NMSC-035, ¶ 6, 129 N.M. 787, 14 P.3d 525. The substantive question raised by the petition here—whether the 2008, 2010, and 2014 amendments were properly approved by the voters and therefore should be compiled into the Constitution—is a matter of great public importance. The right of qualified electors to vote is fundamental to the integrity of state government. So too is the question of whether a constitutional provision has been validly amended, particularly when the provision in question directly implicates the right to vote. See, e.g., Cobb v. N.M. State Canvassing Bd., 2006-NMSC-034, ¶ 39, 140 N.M. 77, 140 P.3d 498 (“[T]he issue of clarifying our Election Code, especially in the current political climate, make this a case of great public importance.“). We therefore conclude that Petitioner has standing in this proceeding, regardless of whether the traditional elements of standing have been satisfied. Cf. Gunaji v. Macias, 2001-NMSC-028, ¶ 20, 130 N.M. 734, 31 P.3d 1008 (conferring third-party standing in an election case implicating the guarantee of free and open elections under
B. The Substantive Question in This Proceeding Is Not an Election Contest and Therefore Is Not Time-barred by the Election Code
{11} We next consider whether the petition presents an untimely election contest under the Election Code‘s thirty-day statute of limitations. See
{12} Section 1-14-3 provides, “Any action to contest an election shall be commenced by filing a verified complaint of contest in the district court . . . . Such complaint shall be filed no later than thirty days from issuance of the certificate of . . . election to the successful candidate.” The thirty-day limit “accords with the need for speedy resolution of election contests[.]” Gunaji, 2001-NMSC-028, ¶ 26. The thirty-day limit does not apply, however, to just any challenge to governmental action associated with or following an election that might render “virtually every lawsuit against a governmental entity . . . subject to the Election Code‘s thirty-day statute of limitations.” Glaser v. LeBus, 2012-NMSC-012, ¶ 11, 276 P.3d 959.
{13} Instead, in Dinwiddie v. Bd. of Cty. Comm‘rs, 1985-NMSC-099, ¶ 7, 103 N.M. 442, 708 P.2d 1043, we identified certain features of these challenges crucial for characterizing the challenges as election contests invoking the Section 1-14-3 thirty-day limit. The plaintiffs in Dinwiddie sought a declaratory judgment to: (1) invalidate a special bond election due to allegedly faulty election procedures and (2) disallow certain “[i]nvalid” ballots. Dinwiddie, 1985-NMSC-099, ¶ 1. The district court dismissed the complaint because, among other things, it was not verified as required by Section 1-14-3. Id., 1985-NMSC-099, ¶¶ 1-2. The plaintiffs argued on appeal that their claim to invalidate the election was distinct from their claim to invalidate certain ballots and therefore was not an election contest subject to the requirements of Section 1-14-3. Dinwiddie, 1985-NMSC-099, ¶ 7. This Court disagreed and held both issues raised in the district court were election contests under Section 1-14-3, explaining:
A challenge to the validity of an election is also a challenge to its result, for if it is successful, the result is changed. Similarly, a challenge to the result contests the inherent validity of the election. Both seek to alter the certified result of the election. An election is a process, not a single event, and the whole process or any part of it, may be subject to contest.
Dinwiddie, 1985-NMSC-099, ¶ 7 (emphasis added); see also Glaser, 2012-NMCA-028, ¶ 20 (“We thus view New Mexico case law as defining an election contest as a challenge to the result of an election, as well as a challenge to the inherent validity of an election when the challenge would necessarily require overturning the results or effects of the election.“).
{14} By contrast, the contentions Petitioner presses in this case—namely, that the 2008, 2010, and 2014 amendments were validly approved by the voters—do not “seek to alter the certified result of the election[s]” or contest “the whole process or any part of [the elections].” Dinwiddie, 1985-NMSC-099, ¶ 7. There is no question in this case that each of the elections conformed with the requirements of the Election Code and no question that the 2008, 2010, and 2014 amendments received 74.48 percent, 56.92 percent, and 57.68 percent of the votes, respectively. See
C. The Advisory Committee Is a Proper Respondent
{15} We next turn to whether the Advisory Committee is a proper respondent in this proceeding. Petitioner candidly admits it is unsure who the proper respondent should be because “[n]either the constitution nor the statutes assign the duty of declaring the winner of a constitutional amendment.” Petitioner contends, however, that “the Advisory Committee has been performing that function [declaring the winner of an election for a constitutional amendment], even if it has been doing so unwittingly.” Petitioner therefore asserts that the Advisory Committee is the proper respondent for a writ of mandamus.
{16} The Advisory Committee disagrees. It argues that it has no responsibility to declare the results of an election and it therefore has not failed to fulfill any legal duty to Petitioner. According to the Advisory Committee, the State Canvassing Board is the proper respondent for the relief being sought by Petitioner, as the Canvassing Board is the entity charged under the Constitution and the Election Code with the duty to “canvass and declare the result of the election.”
{17} The Advisory Committee is appointed by this Court and tasked with providing “advice and approval” to the Compilation Commission. See
{18} Thus, the Advisory Committee must provide advice and approval for any action necessary for the Compilation Commission‘s execution of its statutory responsibilities. The duty necessarily extends to advising and approving the compilation of duly ratified constitutional amendments. The duty would extend to advising and approving the compilation of the 2008, 2010, and 2014 amendments, if they were properly approved by the electorate. But the Committee has not so advised the Commission here, and the amendments have therefore not been compiled. Thus, if we agree in this proceeding that the amendments were properly approved, it would be incumbent upon the Advisory Committee to advise and approve their compilation by the Commission. We therefore hold that the Advisory Committee is the proper Respondent, and we need not consider whether the State Canvassing Board also may be a proper respondent. We turn to the merits of the petition.
D. The 1996 Amendment to Article XIX, Section 1 Preserved Historic Protections for the Political and Educational Rights of Minorities While Making Article VII, Section 1 and Its Sister Provisions Easier to Amend in General
{19} The substantive question before us is whether the 2008, 2010, and 2014 amendments to
1. Article XIX, Section 1, as Amended in 1996, Controls the Outcome of This Proceeding
{20} The requirements for amending
{21} Both provisions also impose heightened requirements for amending several constitutional provisions, including
[n]o amendment shall restrict the rights created by Sections One and Three of Article VII hereof, on elective franchise, and Sections Eight and Ten of Article XII hereof, on education, unless it be proposed by vote of three-fourths of the members elected to each house and be ratified by a vote of the people of this state in an election at which at least three-fourths of the electors voting on the amendment vote in favor of that amendment.
the provisions of this section [Section Three] and of Section One of this article [Article VII] shall never be amended except upon a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state, and at least two-thirds of those voting in each county of the state, shall vote for such amendment.
Thus, rather than the simple majorities required to amend other constitutional provisions,
{22} Despite sharing the three-fourths requirement, these provisions differ in several ways with respect to how
{23} We agree that these two provisions conflict about when the three-fourths requirement applies to an amendment to
{24} As we explain more fully below, the conflicting language between
2. Article VII, Section 1 Is One of Four Provisions Intended to Protect Political and Educational Rights of Minorities
{25} The three-fourths requirement featured in the original Constitution was submitted to Congress after the constitutional convention of 1910. See The Constitution of the State of New Mexico, H.R. Doc. No. 1369, at 25-26, 38-39, 1911 Leg., 3d. Sess. (1911). The requirement protected four constitutional provisions from easy amendment: “sections one and three of article seven hereof on elective franchise and sections eight and ten of article twelve hereof on education . . . .” H.R. Doc. No. 1369, at 39 (
{26} Three of the four provisions protected by the three-fourths requirement explicitly guarantee certain political and educational rights for Spanish-speakers. See
{27} The fourth provision protected by the three-fourths requirement—
{28} Scholars and historians agree that these four provisions were intended to safeguard the political and educational rights of Spanish-speaking citizens in the aspiring state. See, e.g., 2 Ralph Emerson Twitchell, The Leading Facts of New Mexico History, at 587 (facsimile of original 1912 ed., Sunstone Press 2007) (observing in the new Constitution that “the Spanish-speaking citizen was so thoroughly protected in his rights“); Robert W. Larson, New Mexico‘s Quest for Statehood 1846-1912, at 279, (The University of N.M. Press 1968) (“Constitutional safeguards of the rights of Hispanos were made nearly impossible to amend.“); David V. Holtby, Forty-Seventh Star, at 243-44 (University of Okla. Press 2012) (“The constitution also ensured the civil rights of Nuevomexicanos in politics and education, which made it unique among such documents and an early promoter of equality . . . . [T]he constitution afforded strong protections for Nuevomexicanos in the use of their language, including in public affairs, in voting, and in schools.“). As one scholar has explained, “The stringent provisions regarding equality for the Spanish-speaking citizen were intended to overcome the fears and apprehensions of the native population that they might be discriminated against by the Anglo majority.” Larson, supra, at 279.
{29} The history surrounding New Mexico‘s attempts to become a state—and the language repeatedly employed to block statehood—reveal the source of the framers’ concern for the political and educational rights of Spanish-speakers. To be sure, a number of factors delayed New Mexico‘s admission to the Union as a state until 1912, including the growing controversy over slavery. See id. at 50-57 (describing events leading to the Compromise of 1850 in which California was admitted as a free state and New Mexico and Utah were organized as territories without reference to slavery). But from the time New Mexico was annexed to the United States in 1848 from Mexico, its “Spanish-speaking, Roman Catholic people” were the subject of prejudice and ridicule. See id. at 12, 303.
{30} In 1848 for example, Senator Daniel Webster of Massachusetts argued on the Senate floor that the people of New Mexico were unfit to govern themselves as a state. See Holtby, supra, at 4. He implored, “Have they [New Mexicans] any notion of popular government? Not the slightest. . . . It is farcical to talk of such people making a constitution for themselves.” Id. (internal quotation marks omitted) (omission in original) (quoting 10 Daniel Webster, The Writings and Speeches of Daniel Webster, at 21, 29-30, 27-28 (1903)). As support for his views, Senator Webster quoted from the writings of an Englishman who recently had visited New Mexico and had found its people lacking: “[Nuevomexicanos] are as deficient in energy of character and physical courage as they are in all the moral and intellectual qualities. In their social state but one degree removed from the veriest savages.” Holtby, supra, at 4 (alteration in original). Fifty years later, aspiring Senator Albert J. Beveridge echoed
{31} In the first decade of the twentieth century, similar attitudes were on display, particularly about voting rights for the territory‘s non-Anglo population. In 1906, for example, after the Republican candidate won in a closely contested election to become New Mexico‘s congressional delegate, one prominent territorial newspaper accused non-Anglo New Mexicans of being under gang control and argued that they should not be permitted to vote. Holtby, supra, at 118-119. The paper declared that “it emphatically would remove the privilege of voting from anyone . . . whose moral nature is so low, whose intellectual capacity is so limited that it cannot exercise this privilege with intelligence, virtue, and honesty, but instead falls under the whip of the [political] party and of a partisan lackey.” Id. (alteration in original). The paper elaborated, “[T]here is but one race on the earth qualified by its nature to manage and govern man‘s destiny—the pure Anglo-Saxon.” Id. Far away in the Senate, there was similar talk of adding a literacy requirement to the Enabling Act to deny the vote to Spanish-speaking New Mexicans, most of whom were presumed to be illiterate. See id. at 239; see also id. at 54 (summarizing the views of a then-leading educational expert who claimed that the illiteracy rate in the New Mexico territory circa 1900 was “scandalously high” and approaching 60 percent).
{32} Despite decades of hostility toward New Mexico‘s Spanish-speaking population, Congress passed the Enabling Act for New Mexico in 1910, free from literacy tests and other measures that would have restricted the political rights of Spanish-speaking New Mexicans. See Enabling Act for New Mexico, ch. 310, 36 Stat. 557 (1910). New Mexico held a constitutional convention that same fall in Santa Fe, and nearly a third of the convention‘s one hundred elected delegates were native Spanish-speakers. See Larson, supra, at 274. Their influence on the final document was clear, as evidenced by the four provisions protected by the three-fourths requirement and the inclusion of the three-fourths requirement itself. See
{33} Congress‘s response to the proposed Constitution has been well-documented, and we need not revisit it here in detail. See, e.g., Witt, 1968-NMSC-017, ¶¶ 1-6 (comparing the text of
{34} But Congress‘s “blue ballot” proposal did not affect the three-fourths requirement for amending
3. The Heightened Protections for Article VII, Section 1 Proved to Be an Effective Deterrent to Amending That Section
{35} Since New Mexico became a state, the heightened protections for
{36} Similar attempts to amend
{37} Witt thus left the three-fourths requirement as the sole protection against amending
4. The 1996 Amendments to Article XIX, Section 1 Clarified That the Three-fourths Requirement Applies Only to Amendments That Restrict the Right to Vote
{38} Against this historical backdrop, the Legislature created a Constitutional Revision Commission in 1993 and tasked it with reviewing the Constitution of New Mexico and other states and to recommend changes “as it deems desirable and necessary.” See
{39} The commission recommended a number of “Highest Priority” amendments to Section 1 of Article XIX, in particular, to allow for greater flexibility in amending the Constitution. Report, supra, at 101 (recommending the creation of “an additional mechanism which allows substantial constitutional revision without the necessity of calling a constitutional convention“). For purposes of this proceeding, the most notable recommendation was to amend the requirements for amending
{40} Based on the commission‘s report, the Legislature submitted several proposed amendments to the voters in 1996, including Constitutional Amendment 4, a proposal to amend Article XIX for the first time since the blue ballot amendment of 1911. See 1996 N.M. Laws, H.R.J. Res. 2, § 1 at 1074-77 (proposing various amendments to Article XIX); see also Piecemeal Amendment of the Constitution of New Mexico 1911 to 2010, at 16, N.M. Leg. Council Serv. (18th. Rev. Apr. 2011). The amendment to
{41} In light of the foregoing history, we hold that the 1996 amendment to
E. The 2008, 2010, and 2014 Amendments Did Not Restrict the Rights Created in Article VII, Section 1 and Therefore Became Effective With a Simple Majority of the Popular Vote
1. The 2008 and 2014 Amendments Were Effective
{42} The 2008 and 2014 amendments to
{43} More substantively, the 2008 and 2014 amendments also provided, “All school elections shall be held at different times from other partisan elections.” 2008 N.M. Laws, S.J. Res. 4, § 1 at 1554; 2013 N.M. Laws, H.RJ. Res. 2, § 1 at 2569. Petitioner contends that this change allows “school elections [to] be combined with non-partisan elections, but [to] remain separate from partisan [elections].” As such, Petitioner argues that this change is neutral with respect to voting rights because it is a “scheduling matter and not a change to the elective franchise.” Amicus curiae Common Cause New Mexico agrees that the change implicates the timing of school elections. Common Cause further argues that permitting school elections to be consolidated with other non-partisan elections will improve voter turnout and participation and thereby expand
2. The 2010 Amendment Was Effective
{44} A close comparison of the existing language of
Every citizen of the United States who is over the age of twenty-one years and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers.
{45} These qualifications and exclusions are rooted in the original Constitution submitted to Congress after the constitutional convention of 1910. See The Constitution of the State of New Mexico, H.R. Doc. No. 1369, at 25. As such, they do not reflect significant developments in federal voting law over the past century. See, e.g.,
{46} The 2010 amendment therefore proposed to “modernize” the first sentence of
Every person who is a qualified elector pursuant to the constitution and laws of the United States and a citizen thereof shall be qualified to vote in all elections in New Mexico, subject to residency and registration requirements provided by law, except as restricted by statute either by reason
of criminal conviction for a felony or by reason of mental incapacity, being limited only to those persons who are unable to mark their ballot and who are concurrently also unable to communicate their voting preference.
See 2010 N.M. Laws, S.J. Res. 6 at 1229 (“Proposing an Amendment to Article 7, Section 1 of the Constitution of New Mexico to Modernize Language on Qualified Electors by Removing Language Denigrating Persons With Developmental Disabilities, Adopting Federal Requirements to Vote, Defining Mental Incapacity for Voting Purposes and Restricting Felons From Voting Except as Restored by Statute.“). If effective, the amendment would extend the right to vote to those who (1) are qualified electors under the Constitution and laws of the United States, (2) are citizens of the United States, and (3) meet residency and registration requirements as provided by law. The amendment would exclude an otherwise-qualified voter who is restricted by statute from voting because the voter (1) is a convicted felon or (2) lacks mental capacity, limited to an inability to mark one‘s ballot and to communicate one‘s voting preference.
{47} By modernizing the language in
{48} Second, the amendment would recognize the right of the legislative and executive branches to craft laws to define and expand the right to vote. Currently, any state law that would expand voting qualifications beyond
{49} And third, the amendment would shift to the legislative and executive branches the authority to define the circumstances under which an otherwise qualified voter may be excluded from voting as a result of a felony conviction or mental incapacity. In doing so, the amendment would eliminate the exception in
{50} None of these changes would restrict the right to vote as previously set forth in
3. Article VII, Section 1, as Amended, Incorporates the 2010 and the 2014 Amendments
{51} As a final matter, we clarify that
{52} Under well-established law, the 2014 amendment, which was initiated by the Legislature, could not have amended the language about the timing of school elections and repealed the 2010 amendment without being submitted separately to the voters. See
{53} Moreover, even if the two amendments could have been submitted as a single ballot question, the 2014 amendment did not suggest to the voters that the amendment was intended to affect anything but the timing of school elections. See 2013 N.M. Laws, H.R.J. Res. 2 at 2569 (“A Joint Resolution Proposing to Amend Article 7, Section 1 of the Constitution of New Mexico to Provide That School Elections Shall Be Held at Different Times From Partisan Elections“). Without such notice, the effect of the 2014 amendment was limited to the timing of school elections. Cf. Clark, 1995-NMSC-001, ¶ 25 (“[A] ballot title should be intelligible, and impartial . . . [and] complete enough to convey an intelligible idea of the scope and import of the proposed law[,] and be free from any misleading tendency whether of amplification, of omission, or of fallacy.” (alteration in original) (internal quotation marks and citation omitted)).
{54} We therefore ordered Respondent to advise and approve the compilation of
A. Every person who is a qualified elector pursuant to the constitution and laws of the United States and a citizen thereof shall be qualified to vote in all elections in New Mexico, subject to residency and registration requirements provided by law, except as restricted by statute either by reason of criminal conviction for a felony or by reason of mental incapacity, being limited only to those persons who are unable to mark their ballot and who are concurrently also unable to communicate their voting preference. The legislature may enact laws providing for absentee voting by qualified electors. All school elections shall be held at different times from partisan elections.
B. The legislature shall have the power to require the registration of the qualified electors as a requisite for voting and shall regulate the manner, time and places of voting. The legislature shall enact such laws as will secure the secrecy of the ballot and the purity of elections and guard against the abuse of elective franchise. Not more than two members of the board of registration and not more than two judges of election shall belong to the same political party at the time of their appointment.
III. Conclusion
{55} IT IS SO ORDERED.
PETRA JIMENEZ MAES, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
EDWARD L. CHÁVEZ, Justice
BARBARA J. VIGIL, Justice