All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

ANNOTATIONS

Cross references. — For Election Code, see Chapter 1.

Comparable provisions. — Idaho Const., art. I, § 19.

Montana Const., art. II, § 13.

Utah Const., art. I, § 17.

Wyoming Const., art. I, § 27.

Vote is supreme right. — The supreme right guaranteed by state constitution is the right of a citizen to vote at public elections. State ex rel. Walker v. Bridges, 1921-NMSC-041, 27 N.M. 169, 199 P. 370.

A partisan gerrymandering claim is justiciable under N.M. Const., Art. II, Sec. 18. — Where plaintiffs filed suit in the district court alleging that the congressional districting maps enacted in 2021 violate New Mexico’s equal protection clause and sought a declaration that the challenged map is an unconstitutional partisan gerrymander, and where petitioners, defendants in the district court, moved to dismiss plaintiffs’ lawsuit, arguing that the lawsuit raised a nonjusticiable political question, and where the district court denied the motion, reasoning that plaintiffs had alleged a valid case that the challenged map is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico but also denied plaintiffs’ preliminary injunction, and where, following the district court’s orders denying the motion to dismiss and for preliminary injunction, petitioners, in their capacities as elected officials, filed a petition seeking a stay of proceedings and a writ of superintending control to resolve whether N.M. Const., Art. II, Sec. 18 provides a remedy for a claim of alleged partisan gerrymandering and whether the issue of alleged partisan gerrymandering is a justiciable issue, the New Mexico supreme court held that a partisan gerrymandering claim is justiciable under N.M. Const., Art. II, Sec. 18, because the right to vote is of paramount importance in New Mexico and vote dilution can rise to a level of constitutional harm for which Art. II, Sec. 18 provides a remedy. Grisham v. Van Soelen, 2023-NMSC-027.

Three-part test for an equal protection claim asserting a partisan gerrymander. — Where plaintiffs filed suit in the district court alleging that the congressional districting maps enacted in 2021 violate New Mexico’s equal protection clause and sought a declaration that the challenged map is an unconstitutional partisan gerrymander, and where petitioners, defendants in the district court, moved to dismiss plaintiffs’ lawsuit, arguing that the lawsuit raised a nonjusticiable political question, and where the district court denied the motion, reasoning that plaintiffs had alleged a valid case that the challenged map is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico but also denied plaintiffs’ preliminary injunction, and where, following the district court’s orders denying the motion to dismiss and for preliminary injunction, petitioners, in their capacities as elected officials, filed a petition seeking a stay of proceedings and a writ of superintending control to resolve whether N.M. Const., Art. II, Sec. 18 provides a remedy for a claim of alleged partisan gerrymandering and whether the issue of alleged partisan gerrymandering is a justiciable issue, the New Mexico supreme court held that for an equal protection claim asserting a partisan gerrymander under N.M. Const., Art. II, Sec. 18, the plaintiffs challenging a districting plan must prove that state officials’ predominant purpose in drawing a district’s lines was to entrench their party in power by diluting the votes of citizens favoring its rival, and must establish that the lines drawn in fact have the intended effect by substantially diluting their votes, and, if established, the state must come up with a legitimate, non-partisan justification to save its map. Grisham v. Van Soelen, 2023-NMSC-027.

Intermediate scrutiny is the proper level of scrutiny for adjudication of a partisan gerrymandering claim under N.M. Const., Art. II, Sec. 18. — Where plaintiffs filed suit in the district court alleging that the congressional districting maps enacted in 2021 violate New Mexico’s equal protection clause and sought a declaration that the challenged map is an unconstitutional partisan gerrymander, and where petitioners, defendants in the district court, moved to dismiss plaintiffs’ lawsuit, arguing that the lawsuit raised a nonjusticiable political question, and where the district court denied the motion, reasoning that plaintiffs had alleged a valid case that the challenged map is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico and also denied plaintiffs’ preliminary injunction, and where, following the district court’s orders denying the motion to dismiss and for preliminary injunction, petitioners, in their capacities as elected officials, filed a petition seeking a stay of proceedings and a writ of superintending control to resolve whether N.M. Const., Art. II, Sec. 18 provides a remedy for a claim of alleged partisan gerrymandering and whether the issue of alleged partisan gerrymandering is a justiciable issue, the New Mexico supreme court held that intermediate scrutiny is the proper level of scrutiny for adjudication of a partisan gerrymandering claim under N.M. Const., Art. II, Sec. 18, because intermediate scrutiny properly balances the competing constitutional interests of a partisan gerrymandering claim. Therefore, when applying intermediate scrutiny, a court must examine the governmental interests served by the restriction of the right affected, and whether the restriction of the right affected under the statute bears a substantial relationship to any such important interests. Grisham v. Van Soelen, 2023-NMSC-027.

Guidance for courts considering a partisan gerrymandering claim. — To satisfy the effects prong of the partisan gerrymandering test, a plaintiff must provide sufficient evidence that the plaintiff’s own district was either packed or cracked, depending on the allegations, and that the resultant dilution of the plaintiff’s vote is substantial. For a district court to find a violation of N.M. Const., Art. II, Sec. 18, such district-specific evidence of disparate treatment should be as objective as possible, by comparing such evidence as voter registration percentages or data for the political party affiliation of the individual plaintiffs under the prior districting map against parallel percentages or data under the challenged districting map. Further, a district court adjudicating a partisan gerrymandering claim must determine whether the evidence shows the challenged redistricting map substantially diluted the votes of plaintiffs within their district, though statewide evidence may also be relevant. Grisham v. Van Soelen, 2023-NMSC-027.

Restrictions that impair the right to candidacy are subject to rational basis review. — The right to candidacy and the right to vote are subject to differing levels of scrutiny. The right to candidacy is not fundamental, whereas the right to vote is fundamental. Restrictions that only impair the right to candidacy are subject to rational basis review. Restrictions on voters’ rights can be subjected to heightened scrutiny. Laws limiting the field of candidates are unconstitutional when they burden an identifiable segment of voters, such as voters who share a particularized viewpoint, economic status, or associational preference, by limiting these voters’ freedom of choice and association. Under rational basis review, a law need only be rationally related to a legitimate governmental purpose. Kane v. City of Albuquerque, 2015-NMSC-027.

Where the city of Albuquerque’s charter and personnel rules prohibit employees of the city from being a candidate for, or from holding elective office of, the state of New Mexico or any of its political subdivisions, the charter and personnel rules do not violate the First Amendment to the United States Constitution because they do not impinge on voters’ choice by limiting the field of potential candidates, nor do they impact an identifiable group of voters who share a common political affiliation, economic status, viewpoint, or membership in a protected class. Petitioner, a captain with the Albuquerque fire department (AFD), was free to retain her position in the AFD or hold elective office, and there was no legal provision precluding petitioner from making this choice. Kane v. City of Albuquerque, 2015-NMSC-027.

Where the city of Albuquerque’s charter and personnel rules prohibit employees of the city from being a candidate for, or from holding elective office of, the state of New Mexico or any of its political subdivisions, the charter and personnel rules do not violate the First Amendment to the United States Constitution because they regulate conflicts of interest and limit the perception of partisan influence among its employees, and they are rationally related to the legitimate governmental purpose of promoting administrative proficiency and removing either actual or apparent partisan influence. Kane v. City of Albuquerque, 2015-NMSC-027.

Fundamental errors outside of Election Code trigger constitutional violation. — Election is only "free and equal" if the ballot allows the voter to choose between the lawful candidates for that office; therefore, ballot errors by county clerk that are outside the Election Code are violations of N.M. Const., art. II, § 8. Gunaji v. Macias, 2001-NMSC-028, 130 N.M. 734, 31 P.3d 1008.

Standing. — While constestants in an election do not enjoy directly as political candidates the protection of N.M. Const., art. II, § 8, they have standing to assert the rights of those voters whose votes were incorrectly tabulated. Gunaji v. Macias, 2001-NMSC-028, 130 N.M. 734, 31 P.3d 1008.

Remedy. — The remedy for ballot errors outside the Election Code but in violation of N.M. Const., art. II, § 8 is not a new election but rather to analogize from the Election Code, specifically 1-14-13 NMSA 1978, and reject the votes in the tainted precinct. Gunaji v. Macias, 2001-NMSC-028, 130 N.M. 734, 31 P.3d 1008.

Closed primary system is not unconstitutional. — Where plaintiff sued the secretary of state and the Bernalillo county clerk, seeking an injunction to enjoin them from prohibiting voters who declined to designate their political affiliation from voting during the primary election, the district court did not err in granting the motion to dismiss plaintiff’s complaint, because requiring voters to designate their affiliation with a major political party before the primary election, and only allowing voters to vote for candidates of a party which is designated on their voter registration, as required by 1-12-7 NMSA 1978, are reasonably modest burdens which further the state’s interests in securing the purity of and efficiently administering primary elections, and although the free and open clause of this section is intended to promote voter participation during elections, the legislature has the constitutional power to enact laws that secure the secrecy of the ballot and the purity of elections and guard against the abuse of the elective franchise, and if a statute imposes only modest burdens, then the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions on election procedures. Crum v. Duran, 2017-NMSC-013.

Write-in candidates in conservancy district elections. — Conservancy district board rule prohibiting write-in candidates for election to the board is invalid as contrary to the legislative intent expressed by 1-1-19 NMSA 1978, making the Election Code, Chapter 1 NMSA 1978, applicable to special district elections and to the constitutional mandate in this section of "free and open" elections. Gonzales v. Middle Rio Grande Conservancy Dist., 1987-NMCA-125, 106 N.M. 426, 744 P.2d 554.

Law reviews. — For note, "Why Gunaji v. Macias Matters to Candidates and Voters: Its Impact on New Mexico Election Law", see 33 N.M. L. Rev. 431 (2003).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 2 et seq.

Criminal responsibility of one cooperating in violation of election law which he is incapable of committing personally, 5 A.L.R. 786, 74 A.L.R. 1110, 131 A.L.R. 1322.

Constitutionality of corrupt practices acts, 69 A.L.R. 377.

Women's suffrage amendment to federal or state constitution as affecting preexisting constitutional or statutory provisions which limited rights or duties to legal or male voters, 71 A.L.R. 1332.

Propriety of test or question asked applicant for registration as voter other than formal questions relating to specific conditions of his right to registration, 76 A.L.R. 1238.

Constitutionality of statutes in relation to registration before voting at election or primary, 91 A.L.R. 349.

Purging voters' registration lists, remedy and procedure for, 96 A.L.R. 1035.

Nonregistration as affecting legality of votes cast by persons otherwise qualified, 101 A.L.R. 657.

Statutory provisions relating to form or manner in which election returns from voting districts or precincts are to be made, failure to comply with, 106 A.L.R. 398.

Failure of officers to give notice of election as a punishable offense, 134 A.L.R. 1257.

Excess or illegal ballots, treatment of, when it is not known for which side of a proposition they were cast, 155 A.L.R. 677.

Voting by persons in the military service, 155 A.L.R. 1459.

Conspiracy to prevent exercise of right respecting election as within federal statutes denouncing conspiracy, 162 A.L.R. 1373.

Official ballots or ballots conforming to requirements, failure to make available as affecting validity of election of public officer, 165 A.L.R. 1263.

Power of election officers to withdraw or change returns, 168 A.L.R. 855.

Military establishments, state voting rights of residents of, 34 A.L.R.2d 1193.

What constitutes "conviction" within constitutional or statutory provision disfranchising one convicted of crime, 36 A.L.R.2d 1238.

Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162.

Validity and effect of statutes exacting filing fees from candidates for public office, 89 A.L.R.2d 864.

Absentee Voters' Laws, validity of, 97 A.L.R.2d 218.

Effect of conviction under federal law, or law of another state or country on right to vote or hold public office, 39 A.L.R.3d 303.

Students: residence of students for voting purposes, 44 A.L.R.3d 797.

29 C.J.S. Elections § 6.