N.M. Const. art. VII, § 2
A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.
B. The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee.
C. The right to hold public office in New Mexico shall not be denied or abridged on account of sex, and wherever the masculine gender is used in this constitution, in defining the qualifications for specific offices, it shall be construed to include the feminine gender. The payment of public road poll tax, school poll tax or service on juries shall not be made a prerequisite to the right of a person to vote or hold office. (As amended September 20, 1921, September 19, 1961, and November 6, 1973.)
The 1973 amendment, which was proposed by H.J.R. No. 7, § 1 (Laws 1973), and adopted at the special election held on November 6, 1973, with a vote of 33,215 for and 9,783 against, recast a proviso at the end of Subsection C as a separate sentence and substituted "person" for "female" near the end of that sentence.
The 1961 amendment, which was proposed by S.J.R. No. 1, § 1 (Laws 1961), and adopted at the special election held on September 19, 1961, with a vote of 25,915 for and 23,417 against, divided the section into three subsections, in Subsection A inserted "elective" before "public office" and deleted "in the state" thereafter, inserted new matter as Subsection B, in Subsection C deleted "in the state of" before "New Mexico" and set off with a semicolon the proviso which had been a separate sentence.
The 1921 amendment, which was proposed by H.J.R. No. 18 (Laws 1921) and adopted at a special election held on September 20, 1921, by a vote of 26,744 for and 19,751 against, amended this section to read: "Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any public office in the state except as otherwise provided in this Constitution. The right to hold public office in the state of New Mexico shall not be denied or abridged on account of sex, and wherever the masculine gender is used in this Constitution, in defining the qualifications for specific offices, it shall be construed to include the feminine gender. Provided, however, that the payment of public road poll tax, school poll tax or service on juries shall not be made a prerequisite to the right of a female to vote or hold office." Prior to amendment the section read: "Every male citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any public office in the state, except as otherwise provided in this constitution; provided, however, that women possessing the qualifications of male electors prescribed in Paragraph one of this article shall be qualified to hold the office of county school superintendent, and shall also be eligible for election to the office of school director or members of a board of education."
Cross references. — For qualifications of state senators and representatives, see N.M. Const., art. IV, § 3.
For qualifications of executive officers, see N.M. Const., art. V, § 3.
For residence requirement for local public officers, see N.M. Const., art. V, § 13.
For qualifications of supreme court justices, district judges and judges of court of appeals, see N.M. Const., art. VI, §§ 8, 14 and 28, respectively.
For qualifications of district attorney, see N.M. Const., art. VI, § 24.
For qualifications of voters, see N.M. Const., art. VII, § 1.
For residence of members of governing body of home-rule municipality, see N.M. Const., art. X, § 6.
For qualifications of public officers and employees, see 10-1-1 NMSA 1978 et seq.
For Personnel Act, see 10-9-1 NMSA 1978 et seq.
Comparable provisions. — Montana Const., art. IV, § 4.
"Qualified" is equivalent to "eligible." Gibbany v. Ford, 1924-NMSC-038, 29 N.M. 621, 225 P. 577.
"Public officer" defined. — The officers of "a public corporation for a municipal purpose" are not "public officers" within the contemplation of this section. Daniels v. Watson, 1966-NMSC-011, 75 N.M. 661, 410 P.2d 193.
Naturalization. — Naturalization does not have the effect of automatically conferring the right to vote and the right to hold office in New Mexico. Lopez v. Kase, 1999-NMSC-011, 126 N.M. 733, 975 P.2d 346.
Dual pathways to restoration of civil rights. — Section 31-13-1 NMSA 1978 provides dual pathways to restoring civil rights. Subsection A provides for the restoration of civil rights for convicted felons who receive deferred sentences and have no criminal sentences to complete. Subsections C and E provide for the restoration of civil rights for convicted felons who receive and complete criminal sentences. United States of America v. Reese, 2014-NMSC-013.
Completion of deferred sentence. — Upon the completion of all conditions for a deferred sentence and the resulting dismissal of all charges, a person’s civil rights, including the right to vote, the right to hold public office, the right to serve on a jury, and the right to possess firearms, are restored by operation of law without the necessity of a pardon or certificate from the governor. United States of America v. Reese, 2014-NMSC-013.
Where defendant pleaded no contest to one felony count of tampering with evidence; the district court deferred sentencing and placed defendant on probation; defendant completed the conditions of deferment and the district court dismissed the charge of tampering with evidence; a decade later, defendant was indicted for violation of a federal statute that prohibited felons from possessing firearms based on defendant’s felony conviction for tampering with evidence; federal law excluded any conviction for which a person had their civil rights restored; and the parties agreed that New Mexico had restored defendant’s rights to vote, to serve on a jury and to possess firearms, but disagreed over whether New Mexico had restored defendant’s right to hold public office because Subsection E, which addresses the right to hold public office, does not refer to deferred sentences, upon the completion of defendant’s deferred sentence, all of defendant’s civil rights were automatically restored, including the right to hold public office. United States of America v. Reese, 2014-NMSC-013.
Restoration of political rights. — A convicted felon who was elected to the position of county commissioner became eligible to hold that office when, prior to taking the oath of office, she applied for and received a certificate of restoration of full rights of citizenship from the governor of New Mexico. Lopez v. Kase, 1999-NMSC-011, 126 N.M. 733, 975 P.2d 346.
Sections construed together to determine governor's qualifications. — The constitution must be construed as a whole so that N.M. Const., art. V, § 3 and this section should be read together, thereby requiring that a person in order to hold the office of governor must be a citizen of the United States, at least 30 years of age, who has been a resident continuously for five years preceding his election and who is a qualified elector in New Mexico. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445, 39 A.L.R. 3d 290.
Legislature has no power to make added restrictions to the right to hold public office. — Consequently, Laws 1919, ch. 111, § 3, which required aldermen to live within the ward for which they were elected, was void. Gibbany v. Ford, 1924-NMSC-038, 29 N.M. 621, 225 P. 577.
Additional conditions not precluded. — The constitution does not provide that all qualified voters may hold public office without additional burdens or conditions. Board of Comm'rs v. District Court of Fourth Judicial Dist., 1924-NMSC-009, 29 N.M. 244, 223 P. 516.
Restrictions on office-holding by public employee. — Section 10-9-21 NMSA 1978, which prohibits certain state employees from simultaneously holding public office, does not violate this section, since it imposes no restriction on the employee's public office, but rather upon his job with the state. State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, 87 N.M. 230, 531 P.2d 1203.
Article VII, Section 2(A) is not implicated. — N.M. Const., Art. VII, § 2(A) only concerns the class of persons eligible to be chosen for elective public office; it does not concern the separate employment regulations this class of persons may have. This constitutional provision is not implicated if the position upon which the qualification is added is not an elective public office. The requirement that the holder of an appointive public office must tender his or her resignation upon becoming a candidate for another office, or that his or her filing for another office would work a resignation from the appointed position, does not prescribe additional qualifications for the elective public office. 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 N.M. Const., Art. VII, § 2, because the city’s employment provisions do not constitute qualifications for elective public office. The city’s employee regulations are permissible qualifications and standards for holding an appointive position within the meaning of N.M. Const., Art. VII, § 2(B). Petitioner’s appointive position as a city employee did not render her ineligible for the elective public office of a state legislator, but instead, her campaign for and service as a state legislator precluded her from continuing her appointive position as a city employee. Kane v. City of Albuquerque, 2015-NMSC-027.
Municipalities have authority to enact qualifications for appointive employee positions. — Under 3-13-4 NMSA 1978, municipalities have been delegated the legislative authority articulated in N.M. Const., Art. VII, § 2(B) to enact qualifications and standards for appointive employee positions. 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 city’s employee regulations are valid promulgations because pursuant to 3-13-4(A) NMSA 1978, municipalities have the legislative authority to impose restrictions on political activities that are qualifications and standards within the meaning of N.M. Const., Art. VII, § 2(B). The city’s employment regulations prohibiting petitioner from seeking or holding elective public office were permissibly promulgated. Kane v. City of Albuquerque, 2015-NMSC-027.
Junior college district board members. — A junior college district is a quasi-municipal corporation, the officers of which, like those of irrigation districts, are not those contemplated by the constitution. Accordingly, this section does not restrict the legislature in fixing the qualifications of such board members. Daniels v. Watson, 1966-NMSC-011, 75 N.M. 661, 410 P.2d 193.
Board of medical examiners. — Section 61-6-1 NMSA 1978, whereby the governor was obligated to appoint to the board of medical examiners nominees submitted by the New Mexico medical society, did not unconstitutionally usurp governor's power, since the legislature, and not the constitution, delegated this power, and the legislature could establish board member qualifications. Seidenberg v. New Mexico Bd. of Med. Exam'rs, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.
Former Sales Tax Act. — Sales Tax Act (Laws 1934 (S.S.), ch. 7, temporary in nature) did not violate constitution on theory that it made the "seller" a collector of taxes who must be appointed by the governor, and must have the qualifications of a public officer under this section; in fact the tax was levied against the seller and was collected by the state tax commission. State ex rel. Attorney Gen. v. Tittmann, 1938-NMSC-005, 42 N.M. 76, 75 P.2d 701.
Bond requirement. — A statutory requirement, authorized by N.M. Const., art. XXII, § 19, that first state officers should furnish bond before being inducted into office and exercising the functions thereof, did not violate this section. Board of Comm'rs v. District Court of Fourth Judicial Dist., 1924-NMSC-009, 29 N.M. 244, 223 P. 516.
Term limits not authorized in home rule municipalities. — The home rule amendment to the constitution does not allow home rule municipalities to impose eligibility requirements for municipal elected office beyond those set forth in the qualification clause and elsewhere in the constitution; thus, the provision of the city charter adopting term limits was not authorized. Cottrell v. Santillanes, 1995-NMCA-090, 120 N.M. 367, 901 P.2d 785, cert. denied, 120 N.M. 213, 900 P.2d 962.
Residence in subdivision for which elected or appointed. — The only general restriction against the right of every citizen of the United States who is a resident of, or a qualified voter within, this state to hold any public office is that all reside within the political subdivision for which they were elected or appointed. Gibbany v. Ford, 1924-NMSC-038, 29 N.M. 621, 225 P. 577.
Acquiring municipal residence. — New Mexico Const., art. V, § 13 and this section fix no time that one must occupy a place or home in order to become a resident of a certain city, town or village when not coming from without the state. State ex rel. Magee v. Williams, 1953-NMSC-082, 57 N.M. 588, 261 P.2d 131.
Dual abodes. — There is no reason why, within the meaning of N.M. Const., art. V, § 13 and this section, a person may not have more than one place to reside in. State ex rel. Magee v. Williams, 1953-NMSC-082, 57 N.M. 588, 261 P.2d 131.
Illegal registration does not "qualify" elector for office. — A candidate is not a "qualified elector" eligible for a state senate candidacy where, although he registered and voted in a precinct in that senate district, he was ineligible to so register and vote because he actually resides outside the precinct and senate district. Thompson v. Robinson, 1984-NMSC-096, 101 N.M. 703, 688 P.2d 21.
Out-of-state residence of employee. — The superintendent of the reform school was an employee and not an officer, and was not disqualified by being a resident of another state. 1913 Op. Att'y Gen. No. 13-1109.
"Public office" defined. — To be a public office: (1) the office must be created by the constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. 1958 Op. Att'y Gen. No. 58-10.
Unconstitutional limitation on candidacy for Albuquerque mayor. — An Albuquerque city charter provision that no full-time elective official other than the mayor or the mayor pro tem can be a candidate for the office of mayor is unconstitutional, because it violates this section. 1985 Op. Att'y Gen. No. 85-04.
Any citizen who is qualified voter, can hold county office, subject to term limitations. 1915 Op. Att'y Gen. No. 15-1596.
Municipal board of trustees. — Any citizen who is a resident and qualified elector of the state and a resident of a town may hold office on its board of trustees. 1934 Op. Att'y Gen. No. 34-736.
Women are eligible to hold any office in state. 1922 Op. Att'y Gen. No. 22-3247.
A woman is qualified to hold the appointive office of state librarian. 1912 Op. Att'y Gen. No. 12-934.
Registration is not requirement for qualified elector. 1965 Op. Att'y Gen. No. 65-10.
Registration does not affect the qualifications of a candidate for public office, and the fact that a particular candidate is registered under her former name can have no bearing on the fact that she now appears as a candidate under her present real name. 1965 Op. Att'y Gen. No. 65-10.
Conviction of felony or infamous crime as disqualification. — To be qualified to hold any public office in this state a citizen must be a qualified elector in New Mexico; since one convicted of a felony or infamous crime cannot vote for the election of public officers, he is also ineligible to hold public office. 1970 Op. Att'y Gen. No. 70-85.
Since only "qualified electors" may be candidates for municipal office, and since the constitution denies the status of "qualified elector" to a convicted felon, one who has been convicted of a federal felony and confined in federal prison may not be a candidate for municipal office. 1970 Op. Att'y Gen. No. 70-16.
Regardless of pending appeal. — Person who committed felony by assaulting a federal officer was ineligible to run for governor even though he was appealing; a judgment on a verdict of guilty is a conviction, regardless of the fact that an appeal is pending. 1968 Op. Att'y Gen. No. 68-98.
Conviction after election. — Unless and until the house of representatives refuses to seat a member who, since his election, has been convicted of a felony, the member will continue to occupy his office and no vacancy exists. 1961 Op. Att'y Gen. No. 61-131.
"Infamous crime". — A conviction in federal court of a violation of 18 U.S.C. § 242, relating to violation of citizen's rights, privileges and immunities under color of law, does not constitute a conviction of an "infamous crime" within the meaning of N.M. Const., art. VII, § 1 and this section. 1958 Op. Att'y Gen. No. 58-55.
Restoration of political rights. — Both the right to vote and the right to hold public office are restored if the governor exercises his constitutional power to restore a convicted felon to his political rights. 1970 Op. Att'y Gen. No. 70-85.
Minor could be appointed deputy county clerk and clerk of the district court, since the constitutional provision does not apply to the deputies of the officers. 1926 Op. Att'y Gen. No. 26-3894.
This article prohibits legislature from adding restrictions upon right to hold office beyond those provided in the constitution itself. 1962 Op. Att'y Gen. No. 62-106.
This section relates generally to the elective franchise and right to hold office, and is concerned entirely with the definition of the personal qualifications and characteristics of persons who may vote, hold office and sit as jurors. The legislature has no power to make added restrictions to such right to hold public office. 1940 Op. Att'y Gen. No. 40-3410.
Qualifications inconsistent with section. — Qualifications of county school superintendents fixed by Laws 1907, ch. 97, § 18 (since repealed) were inconsistent with, and abrogated by, original provision of this section that every male citizen who was a legal resident of the state and a qualified elector therein, was qualified to hold any public office except as otherwise provided in the constitution, and therefore, school superintendents were not required to submit themselves to the territorial board of education as to their qualifications. 1912 Op. Att'y Gen. No. 12-934.
Legislature authorized to impose restrictions on right to appointive office. — This constitutional provision empowers the legislature with the authority to impose statutory restrictions and qualifications upon the right of individuals to hold any appointive state office or employment. 1964 Op. Att'y Gen. No. 64-15.
Qualifications for magistrates. — Requirement in 35-2-1 NMSA 1978 that magistrates must have the equivalent of a high school education does not violate this section because N.M. Const., art. VI, § 26 gives the legislature the power to prescribe qualifications for magistrate court judges. 1969 Op. Att'y Gen. No. 69-08.
Prohibition of private law practice constitutional. — In prohibiting a small claims court judge from practicing law while in office under 34-8-3 NMSA 1978 (repealed, see 34-8A-4 NMSA 1978), the legislature is attaching a lawful condition to the holding of the office which in no way interferes with the class of persons eligible to hold public office under this section. 1963 Op. Att'y Gen. No. 63-58.
Surveyors. — Section 4-42-1 NMSA 1978 does not violate this section by requiring county surveyors to be practical land surveyors. 1968 Op. Att'y Gen. No. 68-114.
Offices not incompatible. — The offices of probate judge and deputy county treasurer were not incompatible under this section. 1917 Op. Att'y Gen. No. 17-2022.
Office holders to be citizens and residents. — This provision specifically requires all persons seeking to hold elective state office to be both a citizen and a resident of the state of New Mexico. 1964 Op. Att'y Gen. No. 64-15.
Residence in legislative district required. — Based on N.M. Const., art. VII, § 1 and this section, and on House Bill No. 2, § 6, Laws 1963 (S.S.) (repealed), candidates for the New Mexico house of representatives were to actually reside in the legislative district where they were seeking election and to be qualified electors in such legislative district. 1964 Op. Att'y Gen. No. 64-18.
Failure to fill residence requirements. — One who has not fulfilled the residence requirements for a qualified elector is not eligible to the office of probate judge. 1918 Op. Att'y Gen. No. 18-2137.
Person who established a business and home in Grant county about December 5, 1965 and since that time has lived there, and changed his voter registration to Grant county on March 2, 1966, but served as state representative from Catron county in the 1966 legislative session, was not eligible to run for nomination for state senator from Grant county in the 1966 primary election. 1966 Op. Att'y Gen. No. 66-47.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 37, 46, 51, 60 to 63.
Mental or physical disability as disqualification, 28 A.L.R. 777.
Women's suffrage amendment as affecting eligibility of women to office, 71 A.L.R. 1333.
Time as of which eligibility to office is to be determined, 88 A.L.R. 812, 143 A.L.R. 1026.
Residence or inhabitancy within district or other political unit for which he is elected or appointed as a necessary qualification of officer or candidate, in absence of express provision to that effect, 120 A.L.R. 672.
Nonregistration as affecting one's qualification to hold public office, 128 A.L.R. 1117.
Discrimination because of race, color or creed in respect of appointment, duties, etc., of public officers, 130 A.L.R. 1512.
Interest as stockholder or officer of corporation with which contract is made as affecting disqualification for serving in office, 140 A.L.R. 356.
Defeated candidate for nomination: constitutionality, construction and application of statute declaring him ineligible as a candidate at general election, 143 A.L.R. 603.
Legislative power to prescribe qualifications for or conditions of eligibility to constitutional office, 34 A.L.R.2d 155.
Infamous crime or one involving moral turpitude constituting disqualification to hold public office, 52 A.L.R.2d 1314.
Previous tenure of office, construction and effect of constitutional or statutory provisions disqualifying one for public office because of, 59 A.L.R.2d 716.
Effect of conviction under federal law or law of another state or county, on right to vote or hold public office, 39 A.L.R.3d 303.
Pardon as restoring eligibility to public office, 58 A.L.R.3d 1191.
Validity of requirement that candidate for public office has been resident of governmental unit for a specified period, 65 A.L.R.3d 1048.
What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 10 A.L.R.5th 139.
67 C.J.S. Officers and Public Employees §§ 16, 20, 21, 26.