Members of the legislature shall be elected as follows: those senators from Bernalillo, Chaves, Curry, DeBaca, Grant, Lea, Lincoln, Luna, Sandoval, San Juan, San Miguel, Socorro, Taos, Torrance, Union and Valencia counties for a term of six years starting January 1, 1961, and after serving such terms shall be elected for a term of four years thereafter; those senators from all other counties for the terms of four years, and members of the house of representatives for a term of two years. They shall be elected on the day provided by law for holding the general election of state officers or representatives in congress. If a vacancy occurs in the office of senator or member of the house of representatives, for any reason, the county commissioners of the county wherein the vacancy occurs shall fill such vacancy by appointment.

Such legislative appointments as provided in this section shall be for a term ending on December 31, subsequent to the next succeeding general election. (As amended September 15, 1953, and November 8, 1960.)

ANNOTATIONS

The 1960 amendment, which was proposed by S.J.R. No. 1 (Laws 1959) and adopted at the general election held November 8, 1960, with a vote of 61,842 for and 61,522 against, rewrote the first paragraph, which prior to amendment, read: "Members of the legislature shall be elected as follows: senators for the term of four years, and members of the house of representatives for the term of two years. They shall be elected on the day provided by law for holding the general election of state officers or representatives in congress. If a vacancy occurs in the office of senator or member of the house of representatives, for any reason, the county commissioners of the county wherein the vacancy occurs shall fill such vacancy by appointment; provided, however, that if a vacancy occurs in a legislative district composed of more than one (1) county, then the county commissioners of each county in the legislative district shall submit one name to the governor, who shall appoint the representative to fill such vacancy from the list of names so submitted by the respective county commissions." See catchline, "Unconstitutionality," in notes below.

The 1953 amendment, which was proposed by H.J.R. No. 1 (Laws 1953) and adopted at a special election September 15, 1953, with a vote of 16,749 for and 10,758 against, changed the method of filling vacancies occurring in either house, vacancies formerly being filled by election held as designated by the governor, and added the last paragraph providing for the term of such appointments.

Unconstitutionality. — First paragraph of this section is unconstitutional insofar as it refers to or pertains to the senate or senators, as are parts of the 1966 Senate Reapportionment Act (Laws 1966, ch. 27, §§ 1 to 51, now repealed), being violative of the fourteenth amendment to the United States constitution. Beauchamp v. Campbell, Civ. No. 5778 (D.N.M. 1966) (unreported).

This section is valid insofar as it relates to the filling of vacancies in single county legislative districts. 1969 Op. Att'y Gen. No. 69-57.

Validity. — First paragraph of section has been held invalid under fourteenth amendment to the United States constitution insofar as it refers to or pertains to the senate or senators. 1978 Op. Att'y Gen. No. 78-05; 1988 Op. Att'y Gen. No. 88-06.

Staggered terms for senators. — We are of the opinion that the Beauchamp case invalidated the staggered terms requirement in the first paragraph of this section and that there is thus no enforceable provision in the constitution of New Mexico that requires staggered terms for senators. 1988 Op. Att'y Gen. No. 88-06.

Terms for representatives. — The two-year term for members of the house of representatives, which was not declared unconstitutional, is still an operative part of the state constitution, and a constitutional amendment would be necessary to provide four-year terms for members of the house. 1973 Op. Att'y Gen. No. 73-11.

Phrase "next succeeding general election" as used in 2-8-9 NMSA 1978 (since repealed) and this section means the next election in time at which the office may be voted upon. 1978 Op. Att'y Gen. No. 78-05.

Board of commissioners to fill vacancies. — State constitution requires that when a vacancy occurs by reason of a change in a legislator's residence, the board of county commissioners must, upon determining that such vacancy exists, act to appoint a successor to such office. 1961 Op. Att'y Gen. No. 61-119.

In case of a vacancy during the term of a state senator and before a general election in midterm, the vacancy is filled by the county commissioners and the ballot vacancy is filled by the county committee. 1958 Op. Att'y Gen. No. 58-175.

Appointment method for multi-county senatorial districts. — Former 2-9-20 D(2), 1953 Comp., provided a method of appointment for multi-county senatorial districts in which a vacancy occurred, and was valid as carrying out the intent of this section. 1969 Op. Att'y Gen. No. 69-57.

Time of appointment. — After notification by newly elected legislator that he does not intend to qualify, and following expiration of the term of the incumbent representative, the county commissioners in regular or special session may appoint representative to fill the vacancy and certify the appointment to the secretary of state. 1962 Op. Att'y Gen. No. 62-145.

After election, qualification and subsequent resignation of a member of the twenty-seventh legislature, a vacancy occurred which was filled by appointment of the appropriate county commissioner, the appointee being entitled to continue in office until election and qualification of his successor at the next regular election for such office. 1965 Op. Att'y Gen. No. 65-47.

Mode of special election. — Prior to the 1953 amendment to this section, the governor was vested with plenary power as to the manner and procedure to be followed at a special election to fill vacancies contemplated by this section, provided only that such action be reasonable and gives adequate and timely notice to the electors involved. 1950 Op. Att'y Gen. No. 50-5325.

Acceptance of resignations. — Neither this section nor any statute authorizes the governor to accept the resignation of a member of the legislature. 1914 Op. Att'y Gen. No. 14-1318; 1918 Op. Att'y Gen. No. 18-2095.

Law reviews. — For article, "The Executive," see 7 Nat. Resources J. 267 (1967).

For article, "The Legislature," see 8 Nat. Resources J. 148 (1968).

For comment on State ex rel. Palmer v. Miller, 74 N.M. 129, 391 P.2d 416 (1964), see 4 Nat. Resources J. 606 (1964).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 72 Am. Jur. 2d States, Territories and Dependencies § 44.

Age, sex, residence, etc., validity of statute requiring information as to, as condition of right to vote, 14 A.L.R. 260.

Violation of law as regards time for keeping polls open as affecting election results, 66 A.L.R. 1159.

Constitutionality and construction of statutes providing for proportional representation, or other systems of preferential voting, in public elections, 110 A.L.R. 1521, 123 A.L.R. 252.

Validity of public election as affected by fact that it was held at time other than that fixed by law, 121 A.L.R. 987.

Voting by persons in military service, 140 A.L.R. 1100, 147 A.L.R. 1443, 148 A.L.R. 1402, 149 A.L.R. 1466, 150 A.L.R. 1460, 151 A.L.R. 1464, 152 A.L.R. 1459, 153 A.L.R. 1434, 154 A.L.R. 1459, 155 A.L.R. 1459.

Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

Voting rights in state elections of residents of military establishments, 34 A.L.R.2d 1193.

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.

81 C.J.S. States § 33.