A. Senators shall not be less than twenty-five years of age and representatives not less than twenty-one years of age at the time of their election. If any senator or representative permanently removes his residence from or maintains no residence in the district from which he was elected, then he shall be deemed to have resigned and his successor shall be selected as provided in Section 4 of this article. No person shall be eligible to serve in the legislature who, at the time of qualifying, holds any office of trust or profit with the state, county or national governments, except notaries public and officers of the militia who receive no salary.

B. The senate shall be composed of no more than forty-two members elected from single-member districts.

C. The house of representatives shall be composed of no more than seventy members elected from single-member districts.

D. Once following publication of the official report of each federal decennial census hereafter conducted, the legislature may by statute reapportion its membership. (As repealed and reenacted November 2, 1976.)

ANNOTATIONS

The 1976 amendment, which was proposed by S.J.R. No. 4 (Laws 1976) and adopted at the general election held on November 2, 1976, with a vote of 130,364 for and 115,684 against, repealed and reenacted this section, which formerly read: "a. Senators shall not be less than twenty-five years of age and representatives not less than twenty-one years of age at the time of their election. If any senator or representative permanently removes his residence from or maintains no residence in the county from which he was elected, then he shall be deemed to have resigned and his successor shall be selected as provided in Section 4 of this article. No person shall be eligible to serve in the legislature who, at the time of qualifying, holds any office of trust or profit with the state, county or national governments, except notaries public and officers of the militia who receive no salary.

"b. The senate shall consist of one senator from each county of the state. In the event the number of counties is hereafter increased or decreased, the number of senators shall be increased or decreased accordingly at the next election thereafter at which members of the senate are to be elected.

"c. Until changed as provided herein, the house of representatives shall consist of sixty-six members, composed of at least one member elected from each county of the state, provided that the county of Bernalillo shall elect a total of nine members; the counties of Chaves, Dona Ana, Eddy, Lea, McKinley, Rio Arriba, San Juan, San Miguel and Santa Fe shall elect a total of three members each; and the counties of Colfax, Curry, Grant, Otero, Quay, Roosevelt, Taos and Valencia shall elect a total of two members each.

"d. For the purpose only of selection in each county entitled to elect more than one member of the house of representatives, there shall be designated by the officer issuing the election proclamation as many places, consecutively numbered, as there shall be representatives to be elected in such county, and only one member of the house of representatives shall be elected for each place designated. No county shall be geographically divided for the purpose of designating places in the election of such members of the house of representatives. Each candidate shall designate, upon filing his petition, the position number for which he is a candidate, and the county clerk shall so designate him upon the ballot.

"e. Upon the creation of any new county, it shall be entitled to elect one member of the house of representatives at the next general election following its creation.

"f. Once following publication of the official report of each federal decennial census hereafter conducted, the legislature may by statute reapportion among the various counties the number of members of the house of representatives to be elected from each county, provided that each county shall be entitled to elect at least one member of the house of representatives, and that no member of the house of representatives shall represent or be elected by the voters of more than one county," and enacted a new Section 3 providing for a maximum limitation on the size of the legislature of no more than 42 members for the senate and 70 for the house of representatives and requiring that members be elected from single member districts. See catchline, "Former section unconstitutional," in notes below.

A legislator's appointment as a special assistant district attorney does not violate the separation of powers doctrine in Article III, Section 1 of the New Mexico Constitution. — The New Mexico Constitution prohibits a person charged with the exercise of the powers of one branch of government from exercising the powers of the other branches of government, prohibits service as a legislator by any person who, at the time of qualifying, holds any office of trust or profit with the state, county or national governments, and prohibits a legislator from being appointed to a civil office in the state during the legislator's term of office. A district attorney occupies an office of trust, is a quasi-judicial officer, and exercises core executive functions; as a result, a district attorney is constitutionally ineligible to serve as a member of the legislative branch. A private attorney appointed as a special assistant district attorney, however, is neither a public officer nor a public employee of the appointing district attorney and exercises the power and authority of the district attorney only in the specific case or matter for which they are appointed, and therefore a legislator's appointment to such a role does not unduly encroach upon or interfere with the authority of the executive or judicial branches. A private attorney's isolated exercise of district attorney authority while serving as a special assistant district attorney and a legislator does not violate the separation of powers doctrine of Article III, Section 1 of the New Mexico Constitution. 2024 Op. Att'y Gen. No. 24-04.

Cross references. — For constitutional provision prohibiting appointment of legislator to civil office during or within one year after his term, see N.M. Const., art. IV, § 28.

Comparable provisions. — Idaho Const., art. III, §§ 4 to 6.

Iowa Const., art. III, §§ 4, 5, 22; amendment 26.

Montana Const., art. V, §§ 4, 9, 14.

Utah Const., art. VI, §§ 5, 6; art. IX, § 2.

Wyoming Const., art. III, §§ 2, 3, 8.

Repeals. — A concluding portion of N.M. Const., art. IV, entitled "Apportionment" and relating to the apportionment of legislative districts throughout the state was repealed in 1949 by the constitutional amendment of N.M. Const., art. IV, § 3.

Factors courts must consider in drawing redistricting maps. — When a court is required to draw a redistricting plan, the court must draw a partisan-neutral map that complies with both the one person, one vote doctrine and the requirements of the Voting Rights Act of 1965, 42 U.S.C. § 1973. To accomplish this goal, partisan symmetry may be one consideration. In addition, maintaining the political ratios as close to the status quo as is practicable, accounting for any changes in statewide trends, will honor the required neutrality. Because redistricting involves criteria, policies and standards that have been publicly deliberated by both the legislative and executive branches of government, the court should apply legitimate and rational state policies relevant to our representative form of government, such as historic legislative redistricting guidelines regarding contiguity of precincts, compactness of districts, political and geographic boundaries, and the preservation of communities of interest. The court should also consider previous plans and policies, even plans the legislature failed to enact into law. Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66.

Population deviations based on state policy are permissible. — When a court is required to draw a redistricting plan, the court is not required to rigidly adhere to maximum population equality of districts as long as the court can enunciate the state policy on which it relies in deviating from the ideal population. Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66.

Voting Rights Act requirements. — If a voting district is drawn in a way that a voting block majority is usually able to defeat candidates supported by a politically cohesive, geographically insular minority group of sufficient size, the district will violate the Voting Rights Act of 1965, 42 U.S.C. § 1973. Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66.

Where a minority community in a municipality was sufficiently large and geographically compact to constitute a single-member district, the minority community was politically cohesive, and the non-minority voters in the area voted sufficiently as a block to enable the non-minority voters to usually defeat the minority’s preferred candidate, Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 required the district court to maintain an effective majority-minority district in the area unless specific findings were made before the court that Section 2 considerations were no longer relevant. Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66.

Redistricting plan created partisan districts. — Where a redistricting plan increased the number of republican swing seats over prior partisan-neutral plans; increased the number of republican majority districts; and tilted the balance for the republican party by combining a republican and a democrat seat in an odd-shaped consolidated district where compactness was easy to achieve without any valid justification, the district court should have rejected the plan. Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66.

Los Alamos county. — Since, in adopting the 1949 amendment to former art. IV, § 3, no proposition to remove Los Alamos county from the 28th representative district was submitted, nor any proposal made for its annexation to another contiguous district, the county remained in the district designated by the act which created it. State ex rel. Craig v. Mabry, 1950-NMSC-018, 54 N.M. 158, 216 P.2d 694.

Redistricting is permitted only after the federal decennial census. — Where the governor vetoed the house-redistricting bill that the legislature adopted in the 2001 special session; in 2002, the district court adopted the house-redistricting plan that the governor had vetoed with some modifications; and the legislature did not subsequently adopt any house-redistricting plan, the legislature could not reapportion its membership until after publication of the official report of the 2010 federal census. 2007 Op. Att'y Gen. No. 07-02.

Former section unconstitutional. — Under the fourteenth amendment to the federal constitution, Subsection b of former art. IV, § 3, providing for one senator from each county, along with parts of the 1966 Senate Reapportionment Act (Laws 1966, ch. 27, §§ 1 to 51, now repealed), was invalid. Beauchamp v. Campbell, Civ. No. 5778 (D.N.M. 1966) (unreported); 1963 Op. Att'y Gen. No. 63-153.

Residence requirement explained. — At the time of qualification for office of representative or senator the person in question must maintain a residence within the county, that is to say, have place of abode therein, which place of abode must be maintained as a residence either full or part time; any failure to do so would constitute an abandonment of the office and resignation would be automatic. 1956 Op. Att'y Gen. No. 56-6400.

Though a state senator or representative actually maintains a house (and lives in it most of the time) outside of the district in which he by intention maintains his legal residence as further evidenced by his voting registration, he is properly qualified under our statutes as a resident of the district in which he maintains his residence by intention and his voting registration, and he may properly be elected from such district to the legislature. 1952 Op. Att'y Gen. No. 52-5490. See 1956 Op. Att'y Gen. No. 56-6400, distinguishing prior opinions which had equated residence with domicile, due to new residence language in 1955 amendment rewriting former N.M. Const., art. IV, § 3.

Failure to maintain county residence deemed resignation. — As prescribed in this section, whenever a state representative no longer maintains his residence in the county from which he was elected, then he is deemed to have resigned from such office, and his successor is to be selected as prescribed in N.M. Const., art. IV, § 4. 1961 Op. Att'y Gen. No. 61-119.

Nature of absence to be considered. — The question of whether or not a senator or representative has actually permanently removed his residence from the county wherein he was elected, or whether such absence is merely temporary in character and not permanent, so as to create a vacancy in such legislative office, must necessarily be considered by the board of county commissioners as a prerequisite to their appointing a successor to fill such vacancy. 1961 Op. Att'y Gen. No. 61-119.

Only legislature is judge of qualifications of its members. 1961 Op. Att'y Gen. No. 61-131.

Final determination of the eligibility of individuals for legislative office is within the exclusive power of the particular legislative body itself to rule upon. 1961 Op. Att'y Gen. No. 61-119.

Section is concerned primarily with conflicts of interest involved in serving in the legislature while receiving other compensation. 1969 Op. Att'y Gen. No. 69-111.

Uniform state law commissioner does not hold office of trust or profit within the contemplation of the constitution, and may serve as a legislator. 1967 Op. Att'y Gen. No. 67-04.

Legislator may serve as delegate to western interstate nuclear board, which is not an office of trust or of profit since no provision is made for payment to such delegates. 1970 Op. Att'y Gen. No. 70-37.

Legislator may serve as elected local school board member. — A member of the state legislature is not precluded by state law from serving as an elected local school board member. 1991 Op. Att'y Gen. No. 91-02.

Professors. — A teaching professor in one of the state universities does not exercise any portion of sovereign power and is not in a post created by law; and while it may be said that a retired person holding emeritus status is occupying a position created by law, no portion of the sovereign power is exercised and such a status is not that of a civil officer. 1958 Op. Att'y Gen. No. 58-39.

School board. — A state senator cannot also hold office on the county board of education. 1920 Op. Att'y Gen. No. 20-2761.

Commission in national guard. — One may not serve as a member of the legislature while holding a commission in the national guard, although temporarily relieved from duties and without pay. 1925 Op. Att'y Gen. No. 25-3790.

Federal position. — Based on the applicable constitutional and statutory provisions, whether a state legislator may hold a position with the federal government depends upon whether that legislator at the time of qualifying holds an "office" or is simply an employee; the latter is permissible, the former not, if the office is one for trust or profit. 1972 Op. Att'y Gen. No. 72-61.

Acting postmaster holds office of trust or profit under the national government. 1958 Op. Att'y Gen. No. 58-233.

Selective service director. — Legislator appointed to the position of state director of selective service may not also continue in his legislative capacity, since the office is one of trust and profit of the national government. 1967 Op. Att'y Gen. No. 67-46.

Appointment as notary impermissible. — Under N.M. Const., art. IV, § 28, a member of the legislature may not be appointed a notary public, notwithstanding the fact that a notary public may be elected to the legislature under this section. 1917 Op. Att'y Gen. No. 17-1958.

Law reviews. — For note, "Redistricting: Easley v. Cromartie, 532 U.S. 234 (2001): Race-Based Redistricting and Unequal Protection," see 32 N.M. L. Rev. 491 (2002).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 7, 8, 9, 13, 16, 17, 21 et seq., 28, 37, 51; 72 Am. Jur. 2d States, Territories and Dependencies § 44.

Civil responsibility of member of legislative body for his vote therein, 22 A.L.R. 125.

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision, 89 A.L.R.2d 632.

81A C.J.S. States §§ 42, 44, 62 to 78.