IN THE UNITED STATES DISTRICT COURTDISTRICT OF NEW MEXICO

Civil Division

ALAN P. WOODRUFF, DANIEL FENTON, )LIBERTARIAN PARTY OF NEW MEXICO, )GREEN PARTY OF NEW MEXICO and )DONALD HILLIS )

Plaintiffs )Vs. ) Case No.: CV-09-449

)MARY HERRERA, in her official capacity )as New Mexico Secretary of State )__________________________________________)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’MOTION FOR SUMMARY JUDGMENT

COME NOW, Plaintiffs ALAN WOODRUFF, DANIEL FENTON, LIBERTARIAN

PARTY OF NEW MEXICO, GREEN PARTY OF NEW MEXICO and DONALD HILLIS

and file this memorandum of law in support of Plaintiff’s motion for summary judgment and say:

SUMMARY

In New Mexico, a candidate’s route to the ballot for the general election is determined by

his party affiliation—or lack thereof.

Candidates who have no party affiliation, and candidates who are affiliated with a

political organization that has not “qualified” to nominate candidates, can only be listed

on the general election ballot as “Independent” candidates—and then only if they can

collect the number of petition signatures prescribed by statute.

Political parties obtain an “ownership” interest in a place on the ballot—and a right to

offer candidates for political offices—by satisfying the statutory requirements for

becoming “qualified” political party1. However, the New Mexico Election Code has

additional provisions for determining who can be listed on the general election ballot as

the candidate of a “qualified” political party.

Major political parties fill their allotted slots on the ballot with candidates

selected through primary elections. However, the State limits the candidates

1 Major political parties “own” a place for their candidates on the ballot by virtue of their demonstration of voter support in prior elections. Minor political parties earn their “ownership” of a place for their candidates by satisfying the petition signature requirements discusses in detail infra.

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whose names may appear on the ballot for the party primary election by requiring

candidates to file a prescribed number of signatures—the number being only a

fraction of the number of signatures required to be filed by independent

candidates. The winner of the party primary becomes the party’s candidate on the

ballot for the general election.

Minor political parties fill their allotted slots on the ballots with candidates

selected in accordance with their applicable party rules and regulations.

However, even after the minor party has chosen its candidates to fill its allotted

places on the ballot, the State imposes an additional petition signature requirement

before it will list the party’s chosen candidate on the general election ballot.

In this action, brought under 42 U.S.C. §1983, Plaintiffs challenge the constitutionality of

certain provisions of the New Mexico Election Code as they relate to the requirements for

qualifying for inclusion on the ballot for the 2010 General Election. In particular, Plaintiffs

contend, inter alia, that:

1. All provisions of New Mexico Election Code limiting access to the ballot by candidates

seeking political office violate the New Mexico Constitution. [COUNT I]

2. The provisions of New Mexico Election Code requiring candidates for the office of

Representative to the U.S. House of Representatives to be residents of the State of New

Mexico before the date of the general election violate the Qualifications Clause of Article

2, Section 2, clause 2. of the United States Constitution [COUNTS II-A and B]

3. The provisions of New Mexico Election Code requiring minor party candidates for the

office of Representative to the U.S. House of Representatives to independently qualify

for ballot access as the candidate of an otherwise qualified minor party violate the

Qualifications Clause of Article 2, Section 2, clause 2. of the United States Constitution

[COUNTS II-C]

4. The minor party qualifying petition requirements of NMSA §1-7-2, the minor party

candidate qualifying petition requirements of NMSA §1-8-2 and the “Declaration of

Candidacy” requirements of the New Mexico Election Code are being administered by

the Secretary of State in a way that violates the “Elections Clause” of Article 1, Section 4,

of the United States Constitution. [COUNT III-A and B]

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5. The Secretary of State’s practice of refusing to make qualifying petition forms available

to minor parties and minor party candidates for the U.S. House of Representatives until

October of the year preceding a general election violates the “Elections Clause” of

Article 1, Section 4, of the United States Constitution. [COUNT III-C].

6. New Mexico’s practice of identifying candidate’s for select state and federal offices by

their party affiliation impermissibly disadvantages minor party candidates. [COUNT III-

D]

7. NMSA §1-7-2, which establishes the content requirements for petitions to “qualify”

minor parties, and NMSA §1-8-2, which establishes the petition content requirements for

petitions minor party candidates, are unconstitutionally vague. [COUNT IV]

8. The provisions of the New Mexico Election Code establishing candidate nominating

petition requirements unconstitutionally discriminate against minor parties and minor

party candidates in violation of the “Equal Protection” clause of the Fourteenth

Amendment. [COUNT V]

9. The provisions of the New Mexico Election Code requiring minor party candidates who

have been duly nominated by their parties to individually qualify for ballot access

constitutes an unconstitutional interference with internal affairs and the rights of a minor

parties. [COUNT VI]

10. The provisions of the New Mexico Election Code requiring that minor parties and minor

party candidates file their ballot access qualifying papers on one, and only one, specific

date are unconstitutionally restrictive. [COUNT VII]

11. The provisions of the New Mexico Election Code “de-qualifying” previously qualified

political parties are unconstitutional. [COUNT VIII]

12. The provisions of New Mexico Election Code limiting ballot access on the part of minor

parties and minor party candidates unconstitutionally impairs voters’ fundamental rights.

[COUNT IX]

For the convenience of the Court, Plaintiffs provide the following outline of the content of this

Memorandum.

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MEMORANDUM TABLE OF CONTENTS Page

INTRODUCTION

I. STANDARD OF JUDICIAL REVIEW OF ELECTION LAWII-A: The Anderson Balancing Test:II-B: The Continuing Relevance of Strict Scrutiny:

III: STATE INTERESTS AND “RIGHTS” TO BE CONSIDERED IN BALLOT-ACCESS CHALLENGES:

IV: COUNT I: NEW MEXICO’S BALLOT-ACCESS LIMITING STATUTES VIOLATETHE NEW MEXICO STATE CONSTITUTION:

V: COUNT II: NEW MEXICO IMPOSES IMPERMISSIBLE QUALIFYING REQUIREMENTS ONCANDIDATES FOR THE U.S. HOUSE OF REPRESENTATIVES,

V-A: New Mexico Imposes an Unconstitutional Residency Requirement On Candidates for Electionto the U.S. House of Representatives:

V-B: New Mexico’s Nomination Petition Signature Requirements are Unconstitutional When Appliedto Candidates for U.S. Senators and Representatives.

VI: COUNT III: WHEN APPLIED TO CANDIDATES FOR FEDERAL OFFICE, NEW MEXICO’SNOMINATING PETITION REQUIREMENTS VIOLATE THE ELECTIONS CLAUSE OF THEU.S. CONSTITUTION.

VI-A: The Nominating Petition Forms Published for Minor Party Candidate Is Unconstitutional.VI-B: The Procedures by Which Nominating Petitions are Made Available to Candidates

is Constitutionally Flawed.VI-C: The New Mexico Statutes Impermissibly Limit the Signatures That May be Gathered by a

Minor-Party Candidate.VI-D: The New Mexico Ballot Listing and Voting Option System is Unconstitutional

VI-D-(1): New Mexico’s “Straight Party” Voting Option is Unconstitutional:VI-D-(1)-(a): New Mexico’s “Straight Party” Voting Option Unconstitutionally

Favors the Major Parties: VI-D-(1)-(b): New Mexico’s “Straight Party” Voting Option is Contrary to

Public Policy: VI-D-(1)-(c): Mexico’s “Straight Party” Voting Option is Unconstitutional

Undermines Free Speech: VI-(D)-(2): New Mexico’s Practice of Identifying Candidates on the Ballot by their

Party Affiliation is Unconstitutional.VI-D-(2)-(a): The State has no Compelling Interest in Promoting Party Identity: VI-D-(2)-(b): Party Labels are Misleading and Result in Voter Confusion

and Constructive Fraud: VI-D-(3): NMSA §1-10-8.1 Impermissible Gives Major Party Candidates Priority in Ballot

Placement.

VII: COUNT IV: NEW MEXICO’S NOMINATING PETITION SIGNATURE REQUIREMENTSARE CONSTITUTIONALLY VAGUE

VIII: COUNT V: NEW MEXICO’S BALLOT ACCESS REQUIREMENTS DISCRMINATE AGAINST MINOR POLITICAL PARTIES AND MINOR PARTY CANDIDATES

VIII – PART I: THE LAW OF BALLOT ACCESS:VIII [PART I]-A: Ballot Access Requirements for “Candidates” vs. Ballot Access

Requirements for “Parties”:

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VIII [PART I]-B: Ballot Access Limitations and “Political Stability”:VIII [PART I]-C: Justifications for Ballot-Access Limiting Statutes:

VIII [PART I]-C-1: Argument 1: Limiting the Number of Candidates on the Ballot Prevents Voter Confusion:

VIII [PART I]-C-2: Argument 2: Nominating Petition Requirements Are Necessary to Establish a “Modicum of Support”:

VIII [PART I]-C-2(a): Origin of the “Modicum of Support” Argument: VIII [PART I]-C-2(b): Jenness and the Changing Standard of Review: VIII [PART I]-C-2(c): The Relevance of Jenness Today:

VIII – PART II: NEW MEXICO’S BALLOT ACCESS PETITION SIGNATURE REQUIRE-MENTS UNCONSTITITIONAL

VIII [PART II]--A: New Mexico Statutes Are Not Consistent with a State Interest in Preventing Voter Confusion:VII [PART II]-A (1): “Voter Confusion” as justification for MINOR

PARTY petition signature requirements: VII [PART II]-A (2): “Voter Confusion” as justification for

CANDIDATE petition signature requirements: VIII [PART II]--B: The “Modicum of Support” Argument Is Inapplicable to New Mexico:

VIII [PART II]--B-1: New Mexico’s Nominating Petition System Does Not Measure “Support.”

VIII [PART II]--B-2: New Mexico Makes Exceptions to its Ballot-Access Require- Ments for Only Major Parties and Major Party Candidates:

VIII [PART II]--B-3: New Mexico Only Requires a Showing of a “Modicum of Support” for Offices Above the County Level.

VIII [PART II]--C: New Mexico’s Petition Signature Requirements Are Inconsistent:VIII [PART II]--D: New Mexico’s System for Determining Petition Signature Require-

ments Discriminate Against Minor Party CandidatesVIII [PART II]--E: Determining Petition Signature Requirements for Candidates for the House

of Representatives by Reference to Prior Voter Turnout in the District is Unconstitutional:

IX: COUNT VI: MINOR PARTY CANDIDATE PETITION REQUIRMENTS IMPERMISSIBLYINTERFERE WITH RIGHTS AND PROCEDURES OF MINOR PARTIESIX-A: “Dual Qualification” Cannot Be Justified by “Voter Confusion” Argument:IX-B: “Dual Qualification” Cannot Be Justified by “Modicum of Support” Argument:IX-C: “Dual Qualification” Unconstitutionally Intrudes into Minor Party Affairs. IX-D: “Dual Qualification” Impermissibly Prejudices Minor Parties.

X: COUNT VII: THE SPECIFIC FILING DATE REQUIRED BY NMSA § 1-8-2 PREJUDICESMINOR PARTY CANDIDATES:

XI: COUNT VIII: NMSA §1-8-18 UNCONSTITUTIONALLY IMPAIRS THE RIGHTS OF PARTIES.

XII: COUNT IX: NEW MEXICO ELECTION CODE PROVISIONS “DE-QUALIFYING”MINOR PARTIES ARE UNCONSTITUTIONAL.XII-A: The “Two Election” Basis for Determining Continuing Party Qualification has No Rational BasisXII-B: There is no Justifiable Reason for De-qualifying a Party Once it has been Qualified:XII-C: NMSA §1-7-2(D) Unconstitutionally Impairs Minor Parties:XII-D: Votes for Candidates are Not Valid Measures of Support for a Party:

XII-D-1: NMSA §1-7-2 Encourages a Voting Practice That is Contrary to Public Policy XII-D-2: New Mexico’s “Straight-Party” Voting Option Unconstitutional Impairs Minor Parties:

XII-E: The Absence of Candidates on the Ballot is Not a Valid Party Disqualifying Event.XII-F: New Mexico’s Minor Party Qualifying Requirements are Unconstitutionally Incomplete.XII-G: Requirement to Qualify a Party STATEWDE As Predicate to Nominating Candidates

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for LESS THAN STATEWIDE OFFICE is Unconstitutional:XII-H: NMSA §1-7-2(C) Lacks Adequate Notice Provisions and is Not Complied with by

Applicable Authorities.

XIII: COUNT X: NEW MEXICO’S BALLOT ACCESS REQUIREMENTS UNCONSTITUTIONALLYIMPAIR THE RIGHTS OF VOTERS.

XII-A: Voters Rights—Generally:XII-B: Voters Rights—Congressional Elections:

XIV: RELIEF SOUGHT

I. INTRODUCTION

The right to vote, the right to associate for political purposes, and the right to be a

political candidate are constitutional rights protected by the First and Fourteenth Amendments.

See Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992) ; Eu v.

San Francisco County Democratic Central Comm., 489 U.S. 214, 224, 109 S.Ct. 1013, 103

L.Ed.2d 271 (1989); Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15, 107 S.Ct.

544, 93 L.Ed.2d 514 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787-88, 103 S.Ct. 1564,

1569, 75 L.Ed.2d 547 (1983). However, as explained in Burdick v. Takushi,

“It does not [] follow, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute. The Constitution provides that States may prescribe ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’ [Art. I, § 4, cl. 1], and the court have recognized that States retain the power to regulate their own elections.” 504 U.S. at 433 2 .

Nonetheless, “any alleged infringement of the right of citizens to vote must be carefully and

meticulously scrutinized,” Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d

506 (1964).

The importance of minor party candidacies in a democracy has long been recognized.

Nonetheless, state legislatures—which are controlled by the major parties—have consistently

sought to thwart the development of minor parties through legislation limiting the access of

minor parties and their candidates to the general election ballot. Even the Commissioner of the

2 See also Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) ([A]s a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.” ).

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Federal Elections Commission has acknowledged that “State laws regulating ballot access [are]

far more restrictive than any legitimate state interest would require.”3

For more than thirty years, the courts have struggled with challenges to State ballot-

access laws. Unfortunately, the resulting decisions have been characterized by an inconsistency

in the standards applied to examining the constitutionality of such laws in their interpretation of

the precedents on which they purport to base their holdings.

Any effort to establish a common set of principles to be applied to the facts of an

individual case is further complicated by:

(1) A general failure of the courts to adequately distinguish between the rights and

interests of parties and the rights and interests of candidates;

(2) A general failure of the courts to distinguish between the effect of ballot-access

limiting laws on candidates for state/local office and candidates for federal office;

(3) The absence of any critical examination of the effect of ballot-access limiting

laws on the rights of voters.

Lastly, the history of ballot-access cases in complicated by the fact that many of the

arguments offered by states in support of their ballot-access limiting laws—such as the need to

avoid “voter confusion” and the requirement for a showing of a “modicum of support”--have

their beginnings in dicta in the earliest ballot-access cases and have become engrained in case

law through rote repetition without any critical examination of their applicability to the facts of

any specific case. Therefore, before examining the facts of this case, it is necessary to establish,

to the extent that it is permitted by relevant authorities, the standards and principles that must be

applied in this case.

The following section examines the standard of review that the court must apply to the

various issues raised in this case. In Part I of Section VIII separately examines the legal

principles applicable to ballot access petition signature requirements.

II. STANDARD OF JUDICIAL REVIEW OF ELECTION LAWS

The applicable standard of review in ballot access cases depends, in large measure, on the

precise question presented and the rights at issue.

II-A: The Anderson Balancing Test:

3 Smith, Bradley, “Regulation and the Decline of Grassroots Politics,” 50 Cath. U. L. Rev. 1, 5 (2000)

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The general analytical framework for evaluating constitutional challenges to state election laws

was articulated by the Supreme Court in Anderson v. Celebreze, 460 U.S. 780, 103 S.Ct. 1564,

75 L.Ed.2d 547 (1983).4 As explained in Anderson:

“[The court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” 460 U.S. at 789, 103 S.Ct. 1570

In applying the analytical framework established by Anderson, it is important to bear in mind

two additional criteria:

FIRST: The constitutionality of State election law provisions must be

determined by reference to the relevant statutes individually and collectively.

That is, it is not enough for challenged statutes, taken separately, to satisfy

Constitutional requirements if, when considered together, they constitute an

unconstitutional impairment of individual or minor party rights. As Justice

O’Conner explained in her concurring opinion in Clingman v. Beaver, 544 U.S.

581, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005):

A court should “examine the cumulative burdens imposed by the overall scheme of electoral regulations upon the rights of voters and parties to associate through primary elections. ... A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting

4 Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) , annulled, or otherwise changed, the familiar strict scrutiny, intermediate scrutiny, and rational basis classifications as applied to ballot access cases. For a period of time after Anderson was decided the Courts seemed to be unclear whether the Anderson balancing test applies to ballot access claims brought under the Equal Protection Clause, given that Anderson is a First Amendment case. See Dixon v. Maryland St. Admin. Bd. of Election Laws, 878 F.2d 776, 778- 80 (4th Cir. 1989) (noting possible distinction between challenges based on the Equal Protection Clause and challenges based on the First Amendment); Libertarian Party of Indiana v. Marion County Bd. of Voter Registration, 778 F.Supp. 1458, 1462-63 (S.D. Ind. 1991) (noting same possible distinction).  However, recent decisions make it clear that the Anderson standard applies to both First and Fourteenth Amendment cases See, e.g.,   Rogers v. Corbett, 468 F.3d 188, 194 (3rd Cir, 2006) (“we conclude that Anderson sets out the proper method for balancing both associational and equal protection concerns and the burdens that the challenged law creates on these protections as weighed against the proffered state interests.”);  Republican Party of Arkansas v. Faulkner Co., 49 F.3d 1289, 1293 n. 2 (8th Cir. 1995) (“In election cases, equal protection challenges essentially constitute a branch of the associational rights tree.”).

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participation and competition.”5

Thus, for example, an otherwise constitutionally permissible nominating petition

signature requirement may be found to be unconstitutional if candidates are

required to collect signatures in an impermissible short period of time or are

required to collect signatures using a form containing unconstitutional provisions.

SECOND: The constitutionality of a statute must be determined based on an

analysis of what the consequences of its application could be, not merely on what

those consequences have been. That is, the parties alleging that a statute or

practice is unconstitutional do not have to show that its application has resulted in

a violation of a constitutional right. While evidence of past impermissible

consequences is absolute proof of unconstitutionality, a Court must also find a

stature of practice unconstitutional if could result in a violation of a constitutional

right.

Statutes that unambiguously favor established parties, or give them rights that are not also

given to minor parties, are inherently unconstitutional6 and no weighing of interests is required.

If the state election scheme imposes “severe burdens”7 on the plaintiffs' constitutional

5 See also Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Holding unconstitutional a provision of the Ohio election law based on an examination the statutory schema taken as a whole); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582 (6th Cir. 2006) (Specifically criticized the State of Ohio because, in its defense, it “analy[zed] the burdens imposed by the challenged statutes separately, rather than addressing their collective impact.” (Emphasis added).

6 See Green Party of Michigan v. Land, 541 F.Supp.2d 912 (E.D. Mich. 2008) (holding unconstitutional a statute providing party preference data to only parties that received 20% of vote in preceding election on the grounds that because the statute effective limits access to voter preference information only to the major political parties, it creates “a burden that falls unequally on new or small political parties.”); Socialist Workers Party v. Rockefeller, 314 F.Supp. 984 (S.D.N.Y. 1970) (Holding unconstitutional a statute requiring lists of registered voters to be sent free of charge to parties that earned more than 50,000 votes in the last gubernatorial election but charging all other parties for the cost of reproduction.); Fulani v. Krivanek, 973 F.2d 1539, 1542-44 (11th Cir. 1992) (Invalidating a statute providing for a waiver of the county election supervisor’s $0.10 per signature verification fee for independent candidates but not for minor party candidates.); Libertarian   Party of Indiana v. Marion County Board of Voter Registration, 778 F.Supp. 1458 (S.D. Ind. 1991) (holding unconstitutional a statute requiring that lists of registered voters be provided to major parties by merely made available for inspection by others because others would have to expend significant amounts of labor and money to have the list in a usable form, a burden not imposed on the major political parties.)

7 In determining the severity of the burden imposed by a ballot-access limiting statute, the court is required to “give significant weight to the historical impact of ballot access restrictions.” Lee v. Keith, 463 F.3d 763, 770 (7th

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rights, it may survive only if it is “narrowly tailored and advance[s] a compelling state interest.” 

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 1370, 137 L.Ed.2d

589 (1997)8.

If the state election scheme imposes only “reasonable, nondiscriminatory restrictions”

upon the protected rights, then the interests of the state in regulating elections is “generally

sufficient to justify” the restrictions. Id.

Although Anderson has become the standard for most ballot access cases, virtually every

case applying Anderson has continued to rely on historical decisions – including pre-Anderson

decisions -- as “authority” for the weight to be assigned to the various interests—e.g the interests

of the state to be balances against the interests of minor parties and their candidates. In doing so,

the Courts have largely ignored intervening changes in the political landscape that necessarily

change the weight that should be given to the relevant interests. For example, as discussed in

detail infra, growing voter frustration with the established parties, and the disenfranchisement

that has resulted from that frustration, have dramatically changes the importance of minor parties

as a voice for the people and as a necessary alternative to the entrenched parties.

Likewise, the growing stranglehold of one or the other of the established parties over the

legislatures of individual states—and their associated control over election procedures by party-

loyalist election officers—have dramatically changed the relationship between election laws as

written and election laws as applied. Therefore, historical justifications for ballot assess limiting

laws—justifications such as avoiding “voter confusion” and requirements for prior showing of a

“modicum of support”—have become arguments for perpetuating that status quo rather than

maintaining the integrity of the electoral process.

These trends, discussed in detail infra, require both: (a) inquiry into matters heretofore

ignored by the courts and (b) a re-examination of the relative weight to be given to the interests

at stake.

II-B: The Continuing Relevance of Strict Scrutiny:

Cir. 2006) (citing Storer v. Brown, 415 U.S. 724, 742, 94 S.Ct. 1274, 1274, 39 L.Ed.2d 714 (1974). Few courts have affirmatively examined the historical impact of the ballot access law under challenge. This court should not make that mistake.

8 See also Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ; Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); Am. Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974).

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The Anderson test and analytic schema does not apply to all election law related

questions. To the contrary:

In Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) the Supreme Count held that the traditional strict scrutiny standard continues to apply to statutes that make it “difficult for a new political party to obtain a position on the ballot.”

  In Chandler v. City of Arvada, 292 F.3d 1236, 1238-39, 1241-42 (10th Cir. 2002),

the Tenth Circuit held that “[s]trict scrutiny is applicable where the government restricts the overall quantum of speech available to the election or voting process....”9 

The standard of review is of particular relevance to this case because Plaintiffs contend

that the practices of State of New Mexico violate the Qualifications Clause of the United States

Constitution.

None of the cases that predated Anderson, and none of the later cases that have applied

the Anderson test to individual candidacies for the U.S. House of Representatives, involved

Qualification Clause challenges. However, where the impact of state election laws have been

challenged on Qualification Clause grounds, the courts have consistently applied strict scrutiny.

See Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); 514 U.S. 779, 115

S.Ct. 1842, 131 L.Ed.2d 881 (1995); Cartwright v. Barnes, 304 F.3d 1138, 1142 (11th Cir, 2002);

Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000).

III: STATE INTERESTS AND “RIGHTS” TO BE CONSIDEREDIN BALLOT-ACCESS CHALLENGES:

Because Anderson requires a weighing of interests, it is necessary to begin with a

determination of just what the relevant rights and interests are.

A State’s authority to limit ballot access is generally found in Article 1, Section 4, of the

United States Constitution, commonly referred to as the “Elections Clause,” which provides, in

relevant part, that:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;”

9 In particular, the court held that strict scrutiny must be applied when the rights of potential petition circulators are restricted. Quoting from an earlier Tenth Circuit decision, Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000), it said that strict scrutiny must be “employed where the quantum of speech is limited due to restrictions on ... the available pool of circulators or other supporters of a candidate or initiative.”

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The Supreme Court has “long [] recognized that states have important and compelling

interests in regulating the election process and in having ballot access requirements.”  Green v.

Mortham, 155 F.3d 1332, 1335 (11th Cir. 1998) (Citations omitted). In is not, however, entirely

clear what the limits of the State’s interests are.

The majority of the relevant cases have done little more than acknowledge a state interest

and then gone on to examine the challenges statute in the context of that amorphous interest.

However, as discusses infra, dramatic changes in the political climate have resulted in significant

voter disenchantment with the established parties—Republican and Democratic--and increasing

support for minor parties. Therefore, it is necessary to determine exactly what the state’s

interests in limiting ballot access are.

In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881

(1995) the Court explained that:

“The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candidates from federal office. During the Convention debates, for example, Madison illustrated the procedural focus of the Elections Clause by noting that it covered “[w]hether the electors should vote by ballot or via voice, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district.” 2 Farrand 240. Similarly, during the ratification debates, proponents of the Constitution noted: “[T]he power over the manner only enables them to determine how these electors shall elect-whether by ballot, or by vote, or by any other way.” 4 Elliot's Debates 71 (Steele statement at North Carolina ratifying convention).” 514 U.S. at 833, 115 S.Ct. at 1869. [Emphasis added]

In Cook v. Gralike, 531 U.S. 510, 523-24, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001) , the

Supreme Court further explained that regulation of the “manner of elections” by a state, pursuant

to the Elections Clause, Art. 1, sec. 4, “encompasses matters like ‘notices, registration,

supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of

votes, duties of inspectors and canvassers, and making and publication of election returns.’”

(quoting Smiley v. Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 76 L.Ed. 795 (1932) ). Other courts

have recognized a state interest in maintaining fairness, honesty, and order, Burdick v. v.

Takushi, 504 U.S. at 433; minimizing frivolous candidacies, Lubin v. Panish, 415 U.S. 709, 715,

94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974), “avoiding confusion, deception, and even

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frustration of the democratic process,” Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29

L.Ed.2d 554 (1971) and “temper[ing] the destabilizing effects of party-splintering and excessive

factionalism.”  Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367, 117 S.Ct. 1364,

1374, 137 L.Ed.2d 589 (1997)10.

In each of these respects, the state actually has two separate interests.

FIRST, States have an interest in maintaining the integrity of elections for the benefit of

voters. This interest reflects the need for an electoral system that accurately reflects to desires of

the voters.

SECOND, States have an interest in maintaining the integrity of elections for their own

benefit. This interest reflects the fact that candidates elected to state and local offices will be

responsible for making, and carrying out, the laws of the states and its various jurisdictions.

This distinction between the various state interests reflected in ballot access laws is

significant because, as discussed infra, these interests are not both present in all case.

Specifically, the second of the above-identified state interests in controlling elections has no

relevance to elections to federal office. Therefore, whatever justification a state may put forth

for its ballot-access limiting laws, the court must weigh that justification separately when

considering its impact of state/local elections and election to federal offices.

“The first instinct of power is the retention of power,” and those who hold public office

can be expected to attempt to insulate themselves from meaningful electoral review. McConnell

v. FEC, 540 U.S. 93, 263, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (Scalia, J., concurring in part

and dissenting in part). “It is therefore necessary for an independent and co-equal branch of

government-the judiciary-to ensure that incumbents are unable to create a system where the “'ins'

... will stay in and the 'outs' will stay out.”  Miller v. Cunningham, 512 F.3d 98, 103 (4th Cir.

2007) quoting from John Hart Ely, Democracy and Distrust 103 (1980).

10 States have also argued that limiting the number of candidates on the general election ballot is necessary to avoid the need for run-off elections. However, such arguments suffer from two inherent flaws.

First, the only state interest in avoiding run-off elections is that holding run-off elections cost money. However, the potential that multiple candidates on the ballot will result in additional costs is irrelevant when weighed against the importance of ensuring a truly democratic electoral process.

Second, there is no statutory or constitutional requirement that a candidate be elected by a majority of the voters. In fact, in 1992 President Clinton was elected by substantially less than a majority of the voters and in virtually every state, the candidate on the major parties is determined by a mere plurality of the votes in the primary election.

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States clearly have an interest in maintaining the integrity of their elections. Nonetheless,

it is important to recognize that a State’s interest is limited to maintaining the integrity of their

elections. It is not the place of the State to “take sides” by enacting legislation that favors one

party over another, or that inherently favors established parties over new parties. As the court

said in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006),

“[W]hile states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion.” 459 F.3d at 590, quoting Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999) .

IV: COUNT I

NEW MEXICO’S BALLOT-ACCESS LIMITINGSTATUTES VIOLATE THE NEW MEXICO

STATE CONSTITUTION:

Section 8 Article II of the New Mexico Constitution specifically provides that:

“All elections shall be free and open and no power, civil or military, shall interfere with the right of suffrage.”

Section 8 Article II of the New Mexico Constitution actually gives candidates a greater

right of ballot access than the United States Constitution. Specifically, the well established

principle that the rights of candidacy for office and the right to vote are “fundamental” rights

under the United States Constitution are rights that are merely inferred by the language of the

Constitution. However, the fact that elections are to be “open” is made express in the language

of the New Mexico Constitution. This distinction is critical to an interpretation of the New

Mexico Constitution. Specifically:

For purposes of testing ballot access laws under the United States Constitution, the right of states impose ballot access restrictions is only weighed against an implied fundamental right.

However,

The language of New Mexico Constitution is absolute and leaves no room for an exception to further any state interest, whether real or imagined. Moreover, the New Mexico State Constitution has no provision comparable to the Elections Clause.

By definition, the “free and open” requirement of the New Mexico Constitution means that

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elections must be open all candidates. There is no possible reading of this provision of the State

Constitution that can be deemed to permit the State to enact any laws that impair access to the

ballot or render elections to be anything less that “free and open.”

Plaintiff’s concede that in Dillon v. King, 87 N.M. 79, 529 P.2d 745 (N.M. 1974) the

Court held that Article 7, Section 1 of the New Mexico Constitution–the State Constitution

equivalent of the “Elections Clause” of Article 1, Section 4, of the United States Constitution—

gives the State the power to limit ballot access. However, Plaintiffs contend that the New

Mexico Supreme Court erred in its reliance on “Elections Clause” cases because the express and

absolute right of ballot access conferred by the New Mexico Constitution differs in kind and

degree from the rights implied by the United States Constitution.

Defendant will undoubtedly ague that the “free and open” language of the New Mexico

Constitution refers only to the rights of voters to vote in a free and open manner. This argument

may be readily dismissed based on a recognition of the fact that the “and” in the middle of

Section 8 Article II divides the section into two parts—the first relating to the structural character

of elections, and the second relating to the actual process of voting. E.g. the right of suffrage.

Any other reading of Section 8 Article II would render the second phrase a mere redundancy.

It is a fundamental rule of construction that a statute, or constitutional provision, "must be

construed so that effect is given to all of its provisions, so that no part will be inoperative or

superfluous, void or insignificant." Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir. 1993).

In Ganji v. Macias, 130 N.M. 734, 31 P.3d 1008 (N.M. 2001) the New Mexico Supreme

Court specifically held that the “free and open” language of Section 8 Article II had been

violated when a candidates name had been had been inadvertently omitted from the ballot. Thus,

Ganji clearly established that the “free and open” language of Section 8 Article II applies to the

rights of candidates to be listed on the ballot, not merely to the rights of voters.

As previously discussed, before the era of printed ballots and ballot-access restricting

laws, all elections were free and open—meaning that citizens could individually nominate

anyone at virtually any time. This “town hall meeting” format and forum of elections was what

existed when Section 8 Article II was first adopted, and the only reasonable interpretation of this

provision is that it was intended to guarantee and preserve the right of citizens to vote for anyone

from among their number without any State interference.

V: COUNT II

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NEW MEXICO IMPOSES IMPERMISSIBLE QUALIFYING REQUIREMENTS ON CANDIDATES FOR THE

U.S. HOUSE OF REPRESENTATIVES

Article 2, Section 2, clause 2. of the United States Constitution, generally referred to as

the “Qualifications Clause” for Representatives, provides that:

“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”

States have no authority to impose any additional qualifications on candidates for Representative

and Senator. See Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001) (States

“simply lack[] the power to impose any conditions on the election of Senators and

Representatives, save neutral provisions as to the time, place, and manner of elections pursuant

to Article I, § 4.”); Cartwright v. Barnes, 304 F.3d 1138, 1142 (11th Cir, 2002) (“States may not

impose additional qualifications for election to the House of Representatives beyond those

contained in the Qualifications Clause.) See also Campbell v. Davidson, 233 F.3d 1229 (10th

Cir. 2000) (Holding unconstitutional a Colorado statute that impermissibly imposed a residency

requirement on candidates for Representative.).

V-A: New Mexico Imposes an Unconstitutional Residency RequirementOn Candidates for Election to the U.S. House of Representatives:

NMSA § 1-8-18(A) provides that:

“No person shall become a candidate for nomination by a political party or have his name printed on the election ballot unless the record of voter registration shows:

o Affiliation with that political party on the date of the Governor’s proclamation for the Primary Election;

. . .o The certificate of voter registration is the only document or means by

which the requirement shall be satisfied.

That is, being a registered voter is a requirement for being on the ballot for every office--

including Representative to the United States House of Representatives. There are two

problems with these requirements.

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FIRST: There is no constitutional requirement that anyone seeking election to

the U.S. House of Representatives be a registered voter.

SECOND: In requiring that a candidate be affiliated with his nominating party—

an affiliation that can only be proved by his voter registration—a candidate must

necessarily satisfy New Mexico’s voter residency requirement at some date well

before the date of the general election.

In Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000) the Tenth Circuit considered a

factually indistinguishable case in which a Colorado statute required that candidates for the U.S.

House of Representatives be registered voters. The Court held that statute unconstitutional on

the grounds that it impermissibly imposed a qualifying requirement not found in the

Constitution. Specifically, nothing in the Qualifications Clause requires a Representative to

even be eligible to vote, much less a registered voted.

The requirement that a candidate for Representative be a registered voter also violates the

Qualification Clause because, to be a registered voter a candidate must necessarily be a resident

of New Mexico at the time nomination signatures are collected and nominating petitions are

filed. However, the Constitution only requires Representatives to be residents of the state when

elected.

New Mexico’s requirements that minor party candidates file their Declaration of

Candidacy on the second Tuesday of July further renders the New Mexico election schema

unconstitutional because the filings required by the New Mexico Election Code require that a

candidate be a registered voter on that date. A factually indistinguishable situation was

presented in Schafer v. Townsend, 215 F.3d 1031 (9th Cir. 2000) where the Ninth Circuit struck

down a California statute requiring that candidates for the U.S. House of Representatives reside

in California when their nominating petition papers were filed because the Qualifications Clause

only requires that that a Representative be a resident of the State when elected.

That New Mexico would impose any eligibility requirement not found in the Constitution

on candidates for federal office is rendered particularly egregious in light of the fact that

provisions of its Election Code have twice previously been held unconstitutional on the grounds

that they impermissible added candidate qualification requirements. See Dillon v. Fiorina, 340

F.Supp. 729 (D.N.M.1972) (Striking down a New Mexico statute that prevented any person from

becoming a candidate for United States Senator  because the statute required residency for two

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years within New Mexico and thereby added an “impermissible requirement” to the

qualifications for candidacy.);  State ex rel. Chavez v. Evans, 79 N.M. 578, 446 P.2d 445, 448

(1968) (holding that provision requiring candidate to be a resident and qualified elector

“unconstitutionally adds additional qualifications”).

Finally, in U.S. Term Limits, Inc. v. Thornton, the Court held that any state statute that

establishes an absolute bar to ballot access by an otherwise qualified candidate is

unconstitutional. 514 U.S. at 828. New Mexico’s requirements that candidates for the House of

representative be registered voters constitutes such an absolute bar to the candidacy of anyone

who is not a registered voter. Plaintiff Daniel Fenton, who is not a registered voter, is just such a

candidate.

NMSA § 1-8-18(A) also indirectly imposes an impermissible qualification clause on

candidates seeking the nomination of a minor party by requiring candidates to be registered with

that party on the specified date as a condition for being the nominee of that party.

In Roberts v. Cleveland, 48 N.M. 226, 149 P.2d 120 (N.M. 1944) the New Mexico

expressly recognized that statutes limiting who a party can nominate for the office of U.S.

Representative are “Qualification” requirements.

In Roberts, the issue presented was whether that State can justifiably prevent a candidate

who was not previously registered as a member of a particular party from running as a candidate

of that party after changing his party affiliation within 12 months of the election. The Court held

that the state law in question was addressed only to the qualification of the candidate to present

himself as the candidate of a particular party—and did not establish a Qualification for the

office of U.S. Representative. In particular, the Court explained:

“[W]e think the difficulty arises from a failure to keep clearly in mind the difference between the qualifications of a person to hold the office of Congressman and the qualifications to enter the contest in the Primary Election for the nomination of the Republican Party as its candidate for said office.”

The relevant facts in Roberts was the Plaintiff had filed his declaration of candidacy as a

Republican, even though he had no prior affiliation with the republican party. In defense of its

ruling upholding the statute, the Court further explained:

“[N]o political party under our system can be compelled to put forward as its

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candidate one who does not affiliate with it.”

But no such issue is presented when the State statute limits who a party itself can choose to

offer as its candidate. For the sake of argument only, Plaintiffs concede that the state has an

interest in preventing candidates from “jumping parties” and “defrauding” voters by claiming

affiliation with a party whose views they do not actually represent. But the state has no interest

in preventing minor parties from affirmatively nominating candidates that do represent their

views – even if the candidate had not previously declared his affiliation with the party.

Virtually by definition, when a minor party chooses to nominate a candidate that

nomination constitutes a “certification” that the candidates represents the views of the party.

Thus, the minor party nominating process alone satisfies and interest the state has in assuring that

candidates do not misrepresent themselves to voters.

By requiring that a candidate be registered as a member of a party on the date of the

Governor’s proclamation, the state is imposing a condition of who can “qualify” to be nominated

as the candidate of a minor party. It can hardly be argued that a statute that limits who can

“qualify” to be a nominated for the office of Representative imposes a qualification on the

candidate himself. Any such requirement violates the Qualification Clause.

V-B: New Mexico’s Nomination Petition Signature Requirementsare Unconstitutional When Applied to Candidates

for U.S. Senators and Representatives.

It is undisputed that States have the power, under the Elections Clause, to enact

legislation that established reasonable procedures for attaining ballot access11. However, when

those statutes cross the line and impose substantive requirements on candidates for Senator and

Representative they become unconstitutional as violations of the Qualification Clauses. New

Mexico’s petition signature requirements cross this line.

As discussed in Section VIII, Part I, petition signature requirements designed to establish

a “modicum of support” are proper procedural requirements, but only if they are actually

designed to show the requisite “modicum of support.” However, as discussed in detail infra,

New Mexico’s petition signature requirements make no pretense of actually trying to gauge

support for a candidate. To the contrary, their sole actual function is to establish an additional 11 see  Libertarian Party of Illinois v. Rednour, 108 F.3d 768, 777 (7th Cir. 1997) (“[W]here requirements are procedural in nature and do not add substantive qualifications, they do not violate the Qualifications Clause.”) (Emphasis added)

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criteria that a minor party candidate must satisfy before being deemed qualified to be on the

ballot for the general election. There is nothing impermissible about New Mexico’s requirement

when applied to candidates for state and local offices. But when this additional requirement is

applied to candidates for Senator and Representative, it violates the Qualification Clause and is

unconstitutional12.

As a general premise, candidate petition signature requirements will be upheld if they are

designed to serve a compelling state interest. The State of New Mexico will undoubtedly argue

that the petition signature requirement is merely a ballot access requirement, not a Qualification

requirement. However, that argument must be rejected on two grounds.

FIRST, as the Supreme Court said in Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct.

1493, 23 L.Ed.2d 1 (1969), “[t]he use of nominating petitions … is an integral part of [the]

elective system. All procedures used by a State as an integral part of the election process must

pass muster …” Based on this principle, the Court must find that the State’s nominating petition

requirement is a precondition to election and, therefore, a violation of the Qualification clause13.12 Jenness provides no relief for the State of New Mexico because Jenness was addressed exclusively to the relationship between the state statute at issue and the First and Fourteenth Amendments. The affect of the challenges statute on the Qualifications Clause was not presented to, or addressed by, the Court. 

13 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) has occasionally been referenced for the proposition that a signature requirement for ballot access does not present a Qualifications Clause” question. Even conceding that Thornton can be so construed, the proposition the Thornton establishes such a principal must be rejected for at least three reasons.

FIRST, the question of whether a signature requirement for ballot access constituted a qualification requirement was not presented in Thornton. Therefore, any reference to the issue was mere dicta.

SECOND, any rule that might be inferred from the dicta in Thornton is necessarily subordinate from the express language of Moore v. Ogilvie.

THIRD, accepting the general proposition that conditions imposed on ballot access are inherently distinguishable from Qualification requirements would, as noted above, open the floodgates to State claims that otherwise impermissible restrictions on candidacies –such as status as a registered voter -- were merely permissible procedural ballot access restrictions.

Concededly, in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) the Court rejected the proposition that conditions imposed on candidate ballot access inherently violate the “Qualifications Clause.” However, Storer is inapplicable to this case because it discussed petition requirements only as they applied to major party candidates (for whom petitions were required as a predicate for occupying a place on the ballot for primary elections) and independent candidates (for whom petitions were required as a predicate for occupying a place on the ballot for the general election.) For these classes of candidates, the petition was the candidates “ticket” to the ballot. However, as discussed infra, for minor party candidates, the “ticket” to the ballot is the nomination of their party to fill its allotted spot on the ballot. That is, in this case the issue is not specifically the candidate’s own ability to appear on the ballot. Rather, the issue is that the challenged New Mexico statute limits who a party can nominate—e.g. who qualifies for the party’s place on the ballot.

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SECOND, even if petition signature requirements for individual candidates of a minor14

party are not facially invalid—on the grounds that they constitute the addition of an

impermissible “qualification” for federal offices, they do constitute such a constitutional

violation as they are applied in New Mexico.

New Mexico requires both a minor party and a minor party candidate to “qualify” for

ballot access. However, as discussed in detail infra, the “qualification” of a minor party is all that

is required to entitle it to have its candidate included on the ballot. This right to have its

candidate included on the ballot is a right of the party—a right earned by “qualifying” as a party.

The requirement that an individual minor party candidate satisfy a petition signature

requirement does not alone entitle him to ballot access. Therefore, this requirement cannot be

characterized as a ballot access requirement. Rather, when applied to individual candidates, the

only significance of the candidate petition signature requirement is to place a qualification on

who the minor party can nominate. Because the candidate petition signature requirement is

particularized to an individual candidate--independent of any consideration regarding the party’s

right to occupy a place on the ballot—it is a qualification requirement and violates the

Qualification Clause of the Constitution.

The same conclusion is compelled if the nominating petition requirements applied to

minor party candidates is examined in terms of procedural versus substantive requirements.

As the Supreme Court explained in U.S. Term Limits, Inc. v. Thornton, procedural

14 NMSA §1-1-9 distinguishes major parties from minor parties as follows:

A.     "major political party" means any qualified political party, any of whose candidates received as many as five percent of the total number of votes cast at the last preceding general election for the office of governor, or president of the United States, as the case may be and whose membership totals not less than one-third of one percent of the statewide registered voter file on the day of the governor's primary election proclamation; [Emphasis added] and    B.     "minor political party" means any qualified political party, none of whose candidates received five percent or more of the total number of votes cast at the last preceding general election for the office of governor, or president of the United States, as the case may be.

The primary significance of this distinction between major and minor political parties is found in the different procedures provided for the nomination of candidates under the Election Code. Specifically, the eventual candidate of the major parties is determined in a primary election, conducted at Sate expense, while minor party candidates are chosen through party conventions or other means that receive no pubic attention. The available legislative history of the New Mexico Election Code does not disclose why the legislature chose the 5% distinction between major and minor parties or even why it believes that such a distinction was necessary. Inasmuch as the State holds a primary election for the major parties, there is no readily apparent reason why it cannot include all parties in the primary election.

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requirements that exist solely for purposes of satisfying legitimate interests in controlling ballot

access are constitutionally permitted. However, the power to create procedural regulations does

not “provide states with license to exclude classes of candidates from federal office,” 514 U.S. at

835-36, 115 S.Ct. 1842, and a requirement that may be deemed procedural in some instances can

be found to violate the Qualification Clause if has the effect of “creating additional qualifications

indirectly” after the threshold requirements for ballot access have been satisfied. 514 U.S. at

835-36, 115 S.Ct. 1842. Therefore, whether or not a ballot access limiting provision is deemed to

be procedural (permitted) or substantive (not permitted) depends on the context in which it is

applied.

When considered by themselves, ballot access petition requirements applied to minor

party candidates have generally been held to be procedural. However, no identified decision has

considered the effect of a minor party candidate petition requirement in the context of the

argument presented here because no other state has petition signature qualifying

requirements for both minor parties and minor party candidates.

Any interest the state has in controlling ballot access to limit the number of candidates on

the ballot are satisfied once a minor party has qualified to have it’s nominee included on the

ballot. Therefore, any additional condition imposed on an individual candidate is, by definition,

a substantive—and is prohibited by the Qualification Clause15.

The requirement that individual candidates file nominating petitions represents an

instance in which a ballot-access law can be both procedural and substantive.

When applied to major party candidates, the candidate petition requirement is a procedural because it gives the candidate a place on the ballot for the party primary election—a place that was not otherwise allocated. States conduct the primary elections, so they have an interest in regulating that election.

When applied to independent candidates, the candidate petition requirement is also procedural because it gives the candidate a place on the ballot for the general election—a place that was not otherwise allocated. States conduct the general elections, so they have an interest in regulating that election. When applied to minor party candidates, the candidate petition requirement is a substantive because it determines who can fill a place on the ballot that has

15 Requiring the candidates of a major party to individually qualify for ballot access remains a permitted procedural requirement, because those candidates are entering into a process that includes a primary election. Because an election is involved, the state has a legitimate interest in controlling their access to the ballot in the primary election. But the same interest is not present for minor party candidates because they do not participate in primary elections.

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already been allocated to a minor party by virtue of it own qualification for ballot access.

VI: COUNT III

WHEN APPLIED TO CANDIDATES FOR FEDERAL OFFICE , NEW MEXICO’S NOMINATING PETITION REQUIREMENTS

VIOLATE THE ELECTIONS CLAUSE OF THE U.S. CONSTITUTION.

Article 1, Section 4, of the United States Constitution, generally referred to as the

“Elections Clause,” provides, in relevant part, that:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;”

There is no ambiguity in this provision. Only the legislature of a state may establish any

provisions governing the conduct of elections.

In Libertarian Party of Ohio v. Bruner, 567 F.Supp.2d 1006 (S.D. Ohio 2008) the Court

considered a case in which the Secretary of State had issued a Directive setting forth the

requirement for nominating petitions filed by minor party candidates. That Directive was

necessary because the relevant state statute had been declared unconstitutional by the Sixth

Circuit in Libertarian   Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) and the state

legislature had not acted to cure the defect. In fact, the Directive issued by the Secretary of State

did cure the statutory defect ruled on by the Sixth Circuit in Blackwell. However, in Brunner

the court held that, because Article I, Section 4 only authorizes the State legislature to establish

the time, place and manner of conducting elections, the Ohio Secretary of State lacked the

authority to issue a Directive regarding ballot access requirements even though that Directive

cured a constitutional defect in the state statute16.

As the Supreme Court said in Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23

L.Ed.2d 1 (1969),

“[t]he use of nominating petitions … is an integral part of [the] elective system. All procedures used by a State as an integral part of the election process must pass muster …”

16 The principle stated in Brunner effectively precluded the Secretary of State from offering any defense based on her compliance with the provisions of the New Mexico Administrative Code because the Code is the product of the actions of administrative agencies, not the legislature.

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Therefore, any requirement imposed by the New Mexico Secretary of State on the petitions

required by minor parties and/or minor party candidates is unconstitutional if it lacks express

authority in a statute as enacted by the legislature.

The Elections Clause has been violated by the Secretary of State as discussed in the

following topics

VI-A: The Nominating Petition Forms Publishedfor Minor Party Candidate are Unconstitutional.

The nominating petitions17 that the Secretary of State requires minor party candidates to

use for collecting the requisite numbers of signatures are unconstitutional because minor party

candidate nominating petition forms do not conform with the requirements of NMSA §1-8-2.

NMSA §1-8-29 contains a legislative statement of the exact language and form required

in a nominating petition to be filed by a major party candidate prior to the primary election—and

the form provided by the Secretary of State to major party candidates follows this language.

NMSA §1-8-50 contains a legislative statement of the exact language and form required in a

nominating petition to be filed by an independent candidate—and the form provided by the

Secretary of state to independent candidates follows this language. There is no statutory

statement of the required form of a nominating petition to be filed by a minor party

candidate18.

In the absence of a statute specifying the form and content requirements for nominating

petitions for minor party candidates, the Secretary of State has chosen use the form prescribed by

statute [NMSA §1-8-29] for major party candidates.

The nominating petition form required for major party candidates requires both the

signature and printed name of persons signing the form. However, NMSA §1-8-2(C), which

defines the petition requirement for minor party candidates, requires only that the petition

contain the signatures and addresses of nominating voters. That is, NMSA §1-8-2(C) does not

require that the petition signer include his printed name in addition to his signature.

17 The requisite candidate petitions are referred to as “nominating petitions” in NMSA §1-8-31 [major party candidates] and NMSA §1-8-48 [independent candidates] but only as “petitions” in NMSA [ minor party candidates.] In the absence of any indication that the terms are intended to have different meanings, the terms are used interchangeably herein.

18 NMSA §1-8-3(C) requires only that the petitions of minor party candidates contain the signatures and addresses of nominating voters. That is, there is no additional requirement that the signer also print his name.

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In further reliance on the nominating petition form for major party candidates in NMSA

§1-8-29, the Secretary of State requires minor party candidate petition to include the signer’s

address “as registered” to vote. However, no such specificity is found in the address

requirements of NMSA §1-8-2(C).

The Secretary of State’s requirement that persons signing a nominating petition identify

their address “as registered” is further rendered improper because NMSA §1-8-31(B) provides

that:

“A person who signs a nominating petition shall indicate his residence as his address. If the person does not have a residential address, he may provide his mailing address.” 

The reason for including a printed name, in addition to a signature, is obvious--and

completely understandable. Signatures alone are often difficult to read, and the printed signature

is reasonably deemed necessary to enable the Secretary of State to verify that persons signing a

petition are registered voters. Likewise, the inclusion of a signer’s address as registered is

reasonable because it enables the Secretary to confirm that the signer is a voter. But the

reasonableness of these requirements is irrelevant because they were not established by the

legislature. By requiring signers of minor party candidate petitions to include information not

required by NMSA §1-8-2--the Secretary has added a requirement to NMSA §1-8-2 that the

legislature did not include.

Furthermore, the minor party candidate nominating petition form published by the

Secretary of State requires that it include the identification of the party whose nomination the

candidate seeks. While there is a requirement for this information in the nominating petition

form prescribed by statute for major party candidates, there is no such requirement for minor

party candidates. [This deviation from the requirements of statute has especially severe

consequences for minor party candidates whose party fails to “qualify” under NMSA §1-7-2.

These consequences are discussed in the following topic.]

In addition to constituting a violation of the Elections Clause, the Secretary’s practice

violates a fundamental principle of statutory construction. As the court held in United States v.

Jordan, 915 F.2d 622, 628 (11th Cir. 1990):

"Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion."

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That is, there is a legal presumption that the differences between petition form content prescribed

by NMSA §1-8-29 and NMSA §1-8-2(C) was intentional and not subject to change by the

Secretary.

Furthermore, as noted above, the petition form used by the Secretary of State for minor

party candidates is an adaptation of the form specifically prescribed by statute for major party

candidates. However, there is no statutory basis for this practice.

NMSA §1-8-17(A) provides that:

“The Primary Election Law19 [ 1-8-10 to 1-8-52 NMSA 1978] applies to major political party nominations for all offices that are to be filled at the general election with the exception of presidential electors.”

That is, NMSA §1-8-17(A) defines a sub-set of the New Mexico statutes as the “Primary

Election Law” and expressly states that the identified provisions of the New Mexico Election

Code applies to major political party nominations.

The form used by the Secretary of State as the basis for minor-party candidate

nominating petitions is found in NMSA §1-8-30.20 NMSA §1-8-30 is part of the “Primary

Election Law” which is, by definition, applicable only to major political party candidates.

There is no statutory provision authorizing the Secretary of State to incorporate any provision of

the Primary Election Law into the nominating petition requirements for minor party candidates.

In State ex rel. Chavez v. Evans, 79 N.M. 578, 586, 446 P.2d 445, 453 (1968) , the New Mexico

Supreme Court expressly held that requirements applicable to candidates nominated by a

political party that holds a primary election cannot be imposed on candidates whose parties do

not hold primary elections. In requiring minor party candidates to comply with the statutory

requirements established major party candidates who participate in primary elections, the actions

of the Secretary of State violate this established and controlling principle of law.

Even though the New Mexico statutes do not prescribe the form of a nominating petition

for minor party candidates, all minor party candidates are required to use the specific form

promulgated by the Secretary of State , and the Secretary of State refuses to accept signatures

presented in any other way or on any other form. Because NMSA §1-8-2(C) does not prescribe 19 NMSA §1-8-10 states that “[NMSA] Sections 1-8-10 through 1-8-52 NMSA 1978 may be cited as the "Primary Election Law".   

20 NMSA §1-8-30 “Primary Election Law; declaration of candidacy; nominating petition; filing and form.”

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the form of a petition to be filed by minor party candidates, the Secretary of State lacks the

constitutional authority to require that minor party candidates file petitions in any specific form.

That is, the Secretary of State cannot refuse to accept petitions filed in any form that satisfies the

content requirements of NMSA §1-8-2(C).

Finally, NMSA §1-8-2(E) provides that: “No voter shall sign any petition … for more

persons than the number of minor party candidates necessary to fill the office at the next ensuing

general election.”  Pursuant to NMSA §1-8-31, no party can nominate more than one candidate

for any office. Therefore, voters can only sign the nominating petition for one minor party

candidate21, and petition signers are required to declare that have not signed, and will not sign,

nominating petitions for more than one candidate.

As a practical matter, all minor party candidates must begin collecting signatures long

before their party holds its nominating convention. Obviously, the signatures gathered by the

candidate who does not receive his party’s nomination become irrelevant. However, by virtue of

NMSA §1-8-2(E) the people who signed the petition for a candidate who did not receive his

party’s nomination cannot sign the nominating petition for the candidate that did receive that

nomination.

By definition, minor parties have fewer members, and fewer potential supporters for its

candidates, than major parties. Therefore, there are fewer people from whom to solicit

signatures. Where there is more than one potential candidate, this limitation on the number of

petitions that can be signed by any individual voter significantly “waters down” the pool of

signatures that may be collected by either candidate and diminished the possibility that any one

of several candidates will be able to qualify for the ballot.

If the purpose of nominating petitions is really to require candidates to show a “modicum

of support,” everyone who supports them should be allowed to sign their petition.

Although the major party candidate nominating form prescribed by NMSA §1-8-30(C)

contains similar “one nominating petition per voter” provision, the vast differences in the size of

the pool from which major and minor party candidates must draw means that the “one

nominating petition per voter” provisions of NMSA §1-8-30(C) and §1-8-2(E) have an unequal 21 The nominating petition requirements for nominating candidates for major parties also preclude anyone from signing the nominating petitions of more than one candidate. [NMSA §1-8-30] The significance of this limit is discussed in grater detail infra.

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effect on minor party candidates. It is beyond any reasonable dispute that the “one nominating

petition per voter” requirement was established to manage the multi-stage nominating process of

the major parties. This requirement has no application at all to minor parties and serves only to

impair the ability of minor party candidates to obtain access to the ballot.

VI-B: The Procedures by Which Nominating Petitions areMade Available to Candidates is Constitutionally Flawed.

Assuming that the court finds that New Mexico nominating petition for minor party

candidates is constitutional, it must consider the further question of the means by which that

petition form is made available to minor party candidates.

The New Mexico Secretary of State accepts only signatures on the form that it

disseminates.22 NMSA §1-8-30(D) specifies that the Secretary of State must make appropriate

forms available in October of each odd-numbered years.23 As previously noted, NMSA §1-8-

30(D) is found in the portion of the New Mexico Code that applies only to major political party

nominations.

Furthermore, NMSA §1-8-30(A) specifically defines a “nominating petition” as

“the authorized form used for obtaining the required number of signatures of voters, which is signed on behalf of the person wishing to become a candidate for a political office in the primary election requiring a nominating petition.” [Emphasis added]

As a sub-part of NMSA §1-8-30, the statutory provision requiring the distribution of nominating

petitions in October of each odd-numbered years cannot be construed as a legislative provision

applicable to any other statutory petition24 requirements.

Although this section of the New Mexico Elections Code only applies to primary

elections, the Secretary of State does not publish the forms required for obtaining nominating

petitions for minor party candidates until the date it publishes the forms required by major party

22 The “State of New Mexico 2008 Candidate Guide” states, on page 20, that “Persons must use a nominating petition form prescribed by the Secretary of State or can use an exact reproduction of the form authorized for use by the Secretary of State.”

23 The Secretary of State rarely disseminates the required forms by that date.

24 As previously noted, petition form published by the Secretary of State for minor party candidates is specifically denoted a “nominating petition.” However, NMSA §1-8-2(B) refers only to the “petition” required of minor party candidates. The term “nominating petition.” As defined by the states, applies only to petitions for inclusion on the ballot of the primary elections of the major parties.

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candidates. Therefore, minor party candidates cannot begin collecting signatures until the

Secretary of State promulgates the applicable form in October of the year preceding an election.

Nowhere in the New Mexico statutes is there any statement of when minor parties and

minor party candidates can begin collecting nominating petition signatures. Nonetheless, the

Secretary of States refusal to accept signatures on any form other than the form promulgated by

her, when combined with the fact that the approved form is not disseminated until at least

October of the year preceding an election, imposes a time limit on the signature gathering

activities by minority party candidates—even though no such limit has been established by the

legislature. That is, the Secretary of State has determined when minor parties can begin

collecting petition signatures--even though the legislature has not addressed the issue. For

reasons previously stated, the Secretary of State lacks constitutional authority to make such

determinations with respect to candidacies for federal office.

The injury attendant with the Secretary of State’s refusal to publish necessary petition

forms until October is further compounded by the provisions of NMSA § 1-8-18 and NMSA §

1-8-12.

NMSA § 1-8-18 provides that:

A. “No person shall become a candidate for nomination by a political party -- unless the record of voter registration shows:

1. Affiliation with that political party on the date of the Governor’s proclamation for the Primary Election;

NMSA § 1-8-12 provides that the Governor’s proclamation “shall be filed with the secretary of

state on the last Monday in January of each even-numbered year.”

When considered together, these provisions establish that a candidate seeking the

nomination of a party must know before the date of the Governors proclamation that his party

is qualified for ballot access. This is a particularly significant consideration in this case because

the Libertarian Party of New Mexico and the Green Party of New Mexico have lost their status

as a “qualified party.” Therefore, before any candidate can obtain access to the ballot as the

candidate of the Libertarian Party of New Mexico or the Green Party of New Mexico, the party

itself must be qualified by filing petitions containing the number of signatures prescribed by

NMSA §1-7-2.

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Even if the Secretary of State made her determination that a minor party was qualified for

ballot access the moment the petitions were filed, minor parties would have limited time – from

an indeterminate date in October until the third Monday of January --to qualify so as to assure

candidates that they could be listed as the candidate of a minor party. This is an

unconstitutionally short period of time.

The fact that the signatures need by a minor party must be collected between October and

January represents a further practical, and unconstitutional, impediment based simply on the

particular time ot the year during which petition signatures must be collected. The Supreme

Court has repeatedly recognized early signature collections requirements burden candidates and

parties. For instance, in Anderson v. Celebreze, the Court explained:

“When the primary campaigns are far in the future and the election itself is even more remote, the obstacles facing an independent candidate's organizing efforts are compounded. Volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.” 460 U.S. at 792

Considering the fact that the Secretary of State’s practice means that signatures must be collected

during that includes the Thanksgiving and Christmas holidays, her practice becomes especially

suspect.

Moreover, the limits imposed by the Secretary of State on signature collection by minor

party is only part of the problem.

As previously noted, the nominating petition form published by the Secretary of State for

minor party candidates requires that the candidate’s party affiliation be included in the form –

even though there is no such requirement in the applicable statute. IF it is later determined that

the candidate’s party is not qualified for ballot access (and the candidate is required to run as an

independent) all of the signatures collected on petitions containing the candidate’s party

affiliation become worthless. In fact, once a candidate is required to run as an independent, he is

required to use the petition form prescribed by statute for independent candidates and he will

have lost the benefit of three months of petition collecting25.

All of these consequences flow directly from the Secretary’s refusal to publish the

necessary petition forms until October.

25 In addition to loosing the benefit of all previously collected signatures, the change in a candidate’s status from party candidate to independent significantly increases the number of signatures the candidate must collect to obtain a place on the ballot.

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Furthermore, the loss of signature collecting time by candidates is not the only

impermissible consequence of Secretary’s delay. Specifically, if, as a result of the Secretary’s

delay a “party” candidate is required to run as an “independent,” the candidate can only be

identified on the ballot as an “independent.” That is, the candidate cannot be identified on the

ballot as the candidate of his party. As a result, he is deprived of any and all benefits that may be

derived from his party affiliation.

As a general principle, and set of requirements that has the consequences of forcing a

party-affiliated candidate to run as an independent must be viewed with skepticism. As the court

noted in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 2006)

“A candidate's appearance without party affiliation is not a substitute for appearing under a party name.”

[NOTE: In section VI-D, Plaintiffs challenge the constitutionality of identifying any candidates

on the ballot by their party affiliation. It the Court eventually chooses to adopt any argument the

State may offer supporting party-affiliation identification on the ballot, the Court must also

consider the loss of the benefit of such identification in determining the extent of the injury

suffered by a candidate who is denied a ballot listing as a party-affiliated candidate.]

VI-C: The Secretary of State Impermissibly Requires ALLCandidates for Representative to file a “Declaration of Candidacy.”

The Secretary of State requires all party candidates to file a “Declaration of Candidacy.”

The requirement for filing a Declaration of Candidacy for major party candidates is found in

NMSA §1-8-29. The requirement for filing a Declaration of Candidacy by independent

candidates in NMSA §1-8-48. There is no statutory requirement for minor party candidates

to file a “Declaration of Candidacy.”

The “Declaration of Candidacy” form published by the Secretary of State also requires

candidates to declare that they reside in the district they intend to represent. However, residency

in the district they intend to represent is not required for candidates for the offices of United

States Senator and Representative.26

VI-D: The New Mexico Ballot Listing and Voting Option System is Unconstitutional

26 The inclusion of this requirement in the Declaration of Candidacy is made especially troublesome by the fact that NMSA §1-8-18 expressly exempts the offices of Senator and Representative from any district residency requirement.

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New Mexico employs three practices that Plaintiff’s contend are unconstitutional.

Specifically, Plaintiffs content that:

(1) New Mexico’s “Straight Party” voting option is unconstitutional.

(2) New Mexico’s practice of identifying candidates for state and federal office by their party affiliation is unconstitutional.

(3) New Mexico’s statute requiring that major party candidates be listed on the ballot ahead of minor party candidates is unconstitutional.

Each of the challenged practices favor the major parties and their candidates over the minor

parties and their candidates. As such, they violate the Equal Protection Clause of the Fourteenth

Amendment.

VI-D-(1): New Mexico’s “Straight Party”Voting Option is Unconstitutional:

VI-D-(1)-(a): New Mexico’s “Straight Party” Voting Option Unconstitutionally

Favors the Major Parties: It is undeniably true, and undeniably sad, that the American

electoral system has deteriorated to the point where many voters cast their votes based solely on

a candidate’s party affiliation—without regard to the candidate’s qualifications or positions on

the issues27. In Republican Party of North Carolina v. Martin, 980 F.2d 943, 948 (4th Cir. 1992),

the court specifically noted that, under a system of straight party voting, “voters have little

incentive to focus on individual candidates …”

The fact that significant numbers of voters do vote a straight party ticket is sufficiently

obvious as to justify judicial notice without further proof. The mere fact that voters registered

with the major parties significantly outnumber the voters registered with minor parties28

compels the conclusion that New Mexico’s straight party voting option favors the major parties.

27 In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 589 (6th Cir. 2006), the court recognized this sad state of affairs when it said that “in many cases party affiliation has the same, if not more, importance than the identity of the candidate.”

28 Congressional Registered

VotersDistrictDemocratsRepublicanOtherFIRST200,868135,76382,700SECOND169,018125,67664,311THIRD201,46986,56358,934Source: ___________________________________

- 32 –

VI-D-(1)-(b): New Mexico’s “Straight Party” Voting Option is Contrary to Public

Policy: The inevitable consequence of “straight party” voting is that those who control the

machinery of the parties – rather than the voters -- determine who will represent the voters. The

corollary to this consequence is that elected officials owe their loyalty party leaders – not the

voters.

It is popular, today, to decry the influence of “special interests.” However, in the sea of

finger pointing at lobbyists and corporate influence, we overlook the fact that those who control

the machinery of party politics are the most influential of all “special interests.”

In the final analysis, the “blame” for the trend toward straight party voting lies with the

voters who take “the easy way out” and vote for parties rather than taking to time to educate

themselves about the candidates. This is not the place to address that flaw in our electoral

system. However, this is the place to address the system by which the State makes such voting

practices possible – and even encourages it.

Any State practice that diminishes the need to consider the qualifications and positions of

candidates strikes at the heart of principle of a democratically elected government. Any State

practice the diminishes the importance of candidate qualifications and positions diminishes the

quality of government. But most importantly, any State practice that promotes voting based on

party affiliation diminishes the right and ability of the minor parties -- and the candidates of

lessor known minor parties – to present their message to the voters.

The national injury caused by the dominance of “party politics” is too obvious to need

documentation. Legislators who vote their party’s position – which is all to often dictated by

political considerations with little regard to the nation’s needs – are clearly not what the

Founding Fathers had in mind hen they established a representative form of government.

While the Constitution grants the state broad authority to manage elections, whatever the

State does must be politically neutral. Clearly, the major parties have an interest in capitalizing

on voter willingness to vote for a party without regard to the qualifications of its candidate 29.

29 Even the Libertarian Party is “guilty” of use party labels to advance its party identity and promote its candidates through the identification, on the ballot, of its candidates’ party affiliation. For example, in Schrader v. Blackwell, 241 F.3d 783 (6th Cir. 2001), the Libertarian Party of Ohio and its candidate sued to have its candidate’s party affiliation identified on the ballot, even though the Libertarian Party of Ohio had not qualified for the ballot and its candidate was not eligible to run as the candidate of the Libertarian Party.

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However, the State has no such interest. Therefore, there is no justification for any state action

that promotes, or even enables, voting based on party affiliation.

VI-D-(1)-(c): Mexico’s “Straight Party” Voting Option is Unconstitutional Undermines

Free Speech: Freedom of speech means more than just the freedom to say something. Freedom

of speech is meaningless if there is no one listening to what is being said.

No one can dispute the proposition that any state action that prevented a candidate from

delivering his message would be unconstitutional. Similarly, no one can dispute the proposition

that any state action that prevented voters from having access to a candidate’s message would

be unconstitutional. But neither of these conditions are presented here. Rather, the question here

is whether a state action that discourages voters from paying attention to a candidate’s message

represents an unconstitutional impairment of the right of free speech.

Plaintiffs contend that, in the political arena, a candidate’s freedom of speech is rendered

functionally meaningless if the State, through its “straight party” voting option invites, and

encourages, voters to ignore that speech.

The fact that the State has historically used a system of “straight party” voting is alone

enough to inform “party voters” that there is no need for them to become informed about the

candidates of the issues.

In Harman v. Forssenius, 380 U.S. 528, 540, 85 S.Ct. 1177, 1185, 14 L.Ed.2d 50 (1965) ,

the Supreme Court explained that “Constitutional rights would be of little value if they could

be ... indirectly denied.” Likewise, in Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125,

129, 5 L.Ed.2d 110 (1960) the Supreme Court explained that “[i]t is inconceivable that

guaranties embedded in the Constitution of the United States may [] be manipulated out of

existence. ” Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 129, 5 L.Ed.2d 110 (1960) .

These cases make it clear that direct interference with a constitutionally protected right is not

necessary as a predicate to funding that practice is unconstitutional.

New Mexico’s “straight party” voting option has the indirect effect of rendering a

candidate’s “message” [political free speech] meaningless and effectively manipulates it out of

existance.

VI-(D)-(2): New Mexico’s Practice of Identifying Candidateson the Ballot by their Party Affiliation is Unconstitutional.

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Before considering the following argument, the Court should stand advised that this argument is offered by Plaintiffs Woodruff, Fenton, and the Green Party of New Mexico. The Libertarian Party of New Mexico does not join in this argument

For offices for which elections are held on a “partisan” basis, New Mexico identifies all

candidates on the ballot by their party affiliation. Plaintiffs contend that this practice is

unconstitutional because:

(1) The STATE has no Compelling Interest in identifying candidates by party-affiliation.

(2) Identifying candidates by party affiliation leads to voter confusion and constructive fraud on the voters.

VI-D-(2)-(a): The State has no Compelling Interest in Promoting Party Identity:

Political have an obvious interest in having their candidates identified on the ballot by their

party affiliation. This party interest is found in the fact – far too well known to need discussion –

that many voters cast their votes based solely on a candidate’s party affiliation – without regard

to the candidate’s qualifications or positions on the issue.

On the other hand, the State of New Mexico – which is supposed to be neutral as to

election outcomes -- has no interest that is advanced by identifying the party affiliation of

candidates.

The mere fact that the major parties have more members (likely to vote based solely on a

candidate’s party affiliation) than minor parties means that this practice of identifying candidates

by party affiliation favors the candidates of major parties over the candidates of minor parties.

The Secretary of State will undoubtedly argue that considerations such as the need to

maintain “political stability” justify practices that favor the major parties. However, as discussed

in detail in section VI [Part I]-B, this argument has little merit. Moreover, New Mexico’s own

practices with respect to local elections render this argument irrelevant. Specifically:

In New Mexico, most local elections are non-partisan. That is, candidates are not

identified on the ballot by their party affiliation. This simple fact is alone sufficient to establish

that the identification of a candidate’s party affiliation is not necessary to achieve any legitimate

objective.

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In contrast, election to State offices are partisan, and candidates for state office are

identified on the ballot by their party affiliation.

The reason for this discrepancy is obvious. The laws are made by State level office

holders—members of the State Senate and the State House of Representatives and the Governor.

These officials have an undeniable interest (discussed more fully in the following topic) in

promoting their party identity30.

The distinction between New Mexico’s practices as they apply to elections for local and

State (and federal) offices readily establishes that the only justification for identifying candidates

by party affiliation is to advance political interests in general—and the political interests of those

who make the laws in particular.

The Secretary of State will also undoubtedly argue that identifying candidates by party

affiliation benefits the voters by giving them additional information about the candidate. This

proposition finds support in the notions that (a) candidates represent parties and (b) party

platforms are understood by voters. This argument suffers from two flaws:

FIRST: As discussed in the following topic, in modern politics, candidates rarely

represent all the aspects of a party platform that may be of concern to voters.

SECOND: The State has no inherent interest in assisting candidates in identifying

their positions of philosophies.

The Court must also recognize that any argument the Secretary of State may offer in support of

identifying candidates by party affiliation has another side. Specifically, if party affiliation

serves an important function in helping voters identify to identify the policies and political

philosophies of ANY candidates, it must have the same significance in helping voters identify to

identify the policies and political philosophies of ALL candidates31. Therefore, any practice that

denies any candidate of the right to be identified by his party affiliation denies such a candidate

all the benefits of such identification. For example, if a candidate’s party does not itself qualify

30 The interest of State level office-holders in frustrating the efforts of alternative parties and candidates through ballot-access limiting laws is discussed in detail infra.

31 Any “value” the State may attribute to its practice of identifying candidates by party-affiliation must be weighed as “value” that is denied to candidates by other portions of the Election Code that prevent minor party candidates from running for office as the nominee of their party. That is, the deprivation of the value of a party affiliation label must be considered by the court in applying the Anderson balancing test.

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for ballot access, that candidate – if he collects sufficient signatures – can only be listed on the

ballot as an “Independent” even though he has a bona fide party affiliation.

In Dart v. Brown, 717 F.2d 1491 (5 th Cir. 1983) , cert. denied, 469 U.S. 825, 105 S.Ct.

105, 83 L.Ed.2d 49 (1984), the Fifth Circuit upheld a Louisiana statute which permitted the

political party affiliation of recognized party candidates to be printed on the ballot next to their

name but required the space to be left blank for candidates not affiliated with recognized political

parties. However, the Fifth Circuit went on to note that if it were true to a significant extent that

the lack of party designation impaired the ability to cast a meaningful vote or to meaningfully

associate, it would reach a different result. Id. at 1505. In Rosen v. Brown, 970 F.2d 169 (6th Cir.

1992) the court was presented with evidence the lack of a party-designation does impair a

candidate’s right of free speech because it denies a candidate the benefit the statement of

ideology associated with a party identification. Accordingly, the court held unconstitutional the

provision in Ohio's election law that “prohibit[ed] nonparty candidates for elective office from

having the designation Independent or Independent candidate placed on the ballot next to their

name.” Id. at 171.

In Schrader v. Blackwell, 241 F.3d 783 (6th Cir. 2001), the Sixth Circuit modified its

Rosen analysis in holding that a candidate whose party had not qualified for ballot-access could

be denied the benefit of a party-affiliation designation on the ballot if the party has not

demonstrated a showing of sufficient support. Implicit in the court’s decision is the proposition

that a party that cannot demonstrate sufficient support to gain ballot access in its one right does

not have a sufficiently identifiable message to make a candidate’s party-affiliation label

meaningful. That is, if the party-affiliation label is not itself meaningful, the candidate’s free

speech rights are not unconstitutionally if he is denied the benefit of that label.

Whatever merit there is to the proposition advanced by the court in Schrader, it is not

relevant in this case because Plaintiffs are not basing their argument entirely on the effect of a

party label—or its absence—on the right of free speech found in the First Amendment. To the

contrary, Plaintiffs’ contend that New Mexico’s practice of denying a party-affiliation label to

some candidates while including it for others – e.g. the Republican and Democratic candidates –

violates the Equal Protection Clause of the Fourteenth Amendment.

Lastly, the proposition that party-affiliation labels is truly beneficial to voters is fundamentally

suspect in the context of modern political campaigns.

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Even conceding that there was a time when candidates had limited opportunity to present

their individual messages to voters, that time is long past. In today’s political campaigns, the

airways are saturated with campaign ads and hardly a newscast goes by without some mention of

what candidates have said in one forum or another. Today we have televised “debates” that draw

significant audiences, and the internet is flooded with commentaries on the candidates’ positions.

In Fishbeck v. Hechler, 85 F.3d 162 (4th Cir. 1996), the court specifically stated that:

“the Supreme Court has recognized that the effect of the drastic changes in communications technology, the literacy rate, and the degree to which citizens are informed about events and issues lessen the need for the state to provide broad protections to ensure voter education.” Id. at 173 [Citations omitted.]

This observation clearly renders suspect any suggestion that voters have a need for an additional

“tag” – e.g. the identification of a candidate’s party affiliation – to educate them.

Given these facts, it is irrational to suggest that voters who care about the issues and the

candidates need any additional “tag” to assist them is selecting a candidate. The only voters

who are assisted by including a candidate’s party-affiliation along with his name on the ballot are

those voters who base their vote solely on party-affiliation. Even conceding that these voters

have a right to base their vote on nothing more than party-affiliation, the State has no interest in

affirmatively facilitating such practices.

In balancing whatever interest the State may assert in providing some voters with a “tag”

to assist them in the selection of their candidate, the Court must also weigh the injury that such a

practice causes to other voters – voters who are concerned enough about the affairs of the nation

to inform themselves about the issues and the candidates. Our system of representative

democracy is predicated on the election of public officials who actually represent the will of the

people. This goal cannot be achieved through an electoral system that functionally eliminates

the importance of a candidate’s personal positions. Any electoral system that endorses the

tendency of any portion of the voters to ignore their duty to cast an informed vote undermines

this principle and injures all voters.

- 38 –

There is nothing the State can, or should, do to require that voters be informed about the

issues and the positions of the candidates. But it is contrary to the interests of the nation for the

State to adopt measures that excuse the voters from being informed32.

VI-D-(2)-(b): Party Labels are Misleading and Result in Voter Confusion and

Constructive Fraud: There probably was a time in American political history when parties

represented a narrowly defined philosophy. and ideology. that was shared by their candidates. In

those days, party-affiliation was a surrogate indicator of a candidate’s philosophy and ideology.

But that time is long past.

Today, few party candidates represent, or even agree with, all aspects of their party

platform33. Even the parties themselves do not represent monolithic philosophies, policies and

ideologies. For example, the Republican Party is generally identified with a “conservative”

political ideology. But even within the Republican Party there are vast differences between

those who espouse a philosophy of fiscal conservatism and those who represent to social

conservatism of the “religious right.” A voter who casts his vote based on a candidate’s

identification as a “Republican,” and bases that vote on his identification of the Republican Party

as the advocate of Biblical teachings, is just as likely as not to be voting for a candidate who does

not believe in anything the voter believes in.

The value of the “party” system is that parties provide a place where like-minded people

can rally to promote a common belief. This quality serves the national interest. But party

designations serves the national interest only as long as it fulfils the need for a rallying place of

the association of like-minded voters. As the Supreme Court said in Tashjian:

“To the extent that party labels provide a shorthand designation of the views of party candidates on matters of public concern, the identification of candidates with particular parties plays a role in the process by which voters inform themselves for the exercise of the franchise.” 479 U.S. at 220, 107 S.Ct. at 552.

32 Free Speech challenges to state election laws have long been decided on the grounds that a challenged statute impairs the rights of candidates and parties to impart their message and insure that the voters case an “informed vote”. Implicit in these decisions is the proposition that assuring that voters vast an “informed vote” is essential to a democracy.

33 Any doubt about the irrelevancy of party affiliation--or the fact that candidates adopt party labels based on political expediency rather than political belief, is readily demonstrated by Senator Arlan Specter’s recent abandonment of the Republication Party and declaration that he is a “Democrat” based solely on the fact that we was likely to loose his senate seat in a challenge in the Pennsylvania Republican primary election.

- 39 –

It is, however, important to recognize that the benefit of identifying candidates by their party

affiliation serves a permissible purpose only “to the extent that party labels provide a shorthand

designation of the views of party candidates …” When a party label ceases to have any meaning

as the identifier of a philosophy or ideology, it ceases to serve a purpose justifying New

Mexico’s practice of identifying candidates by their party affiliation.

To the extent that party-affiliation does not fully reflect a candidate’s political ideology, a

candidate’s claim of affiliation with a party that the candidate does not completely agree with

also constitutes constructive fraud on the voters.

In addition to giving “Party” candidates the benefit of a party-affiliation without regard to

the accuracy of that implied identification, New Mexico practices affirmatively mislead voters

regarding the philosophy and ideology of party-affiliated candidates whose parties do not qualify

for ballot access. Specifically, as previously noted, a party-affiliates candidate whose party does

not qualify for ballot access can only be listed on the ballot as an “Independent.” However, the

identification of a candidate as an “Independent” has significance in and of itself.

In Rosen v. Brown, the Court attributed to the State of Ohio the believe that:

“[T]here really is such a thing as an Independent voter; rather, Independent voters are really “disguised” Republicans or Democrats.”

Whether or not this is true is not important. What is important is that labeling a candidate an

“Independent” attributes to that candidate a philosophy or ideology that may not accurately

portray the candidate. Thus, “forcing” a label – “Independent” -- on a candidate whose party has

not qualified for ballot access actually imposes on the candidate the burden of certain

philosophies that the candidate does not have.

“Constructive fraud is the breach of a legal or equitable duty which the law terms

fraudulent because of the tendency to deceive others.” Parker v. E.I. DuPont De Nemours, 121

N.M. 121, 132, 909 P.2d 1, 13 (N.M. 1995). That New Mexico’s applicable equitable duty to the

voters is readily established by its own contention that its ballot-access restrictions are intended

to prevent voter confusion. In-as-much as identifying candidates by party-affiliation has the

“tendency to deceive” voters, the inclusion of party labels on the ballot constitutes constructive

fraud.

VI-D-(3): NMSA §1-10-8.1 Impermissible Gives Major Party Candidates Priority in Ballot Placement.

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NMSA §1-10-8.1(A) provides that the order of ballot placement of the names of major

party candidates “shall be determined by lot … in the manner prescribed by the secretary of

state.” However, NMSA §1-10-8.1(C) requires that the names of minor party candidates be

listed on the ballot below the candidates of major parties. This practice inherently, and

unconstitutionally, favors the candidates of the major parties over the candidates of minor

parties.

VII: COUNT IV

NEW MEXICO’S NOMINATING PETITION SIGNATUREREQUIREMENTS ARE CONSTITUTIONALLY VAGUE

Pursuant to NMSA §1-7-2, nominating petitions for new political parties can only be

signed by “voters of New Mexico.” Likewise, NMSA §1-8-2 requires that nominating petitions

for minor party candidates be signed by “voters.”

The New Mexico Election Code does not define the term “voters” as used in NMSA §1-

8-2(B) or the term “voters of New Mexico” as used in NMSA §1-7-2(A). So who is a “voter” or

a “voter in New Mexico”? Conceivably, those terms can refer to:

A currently registered voter. Someone who is eligible to be a registered voter. A previously registered voter who has been removed from the record of registered

voters34. Someone who will be eligible to register and vote by the date of the election.

It is also significant that NMSA §1-8-2(A) uses only the term “voter,” whereas NMSA

§1-7-2 uses the term “voter in New Mexico.”

For purposes of NMSA §1-7-2(A), the form published by the Secretary of State for use

in “qualifying” minor parties [Exhibit ___] uses the phrase “qualified electors,” not “voters.”

NMSA §1-1-4 defines a “Qualified Elector” as follows:

34 The merits of making a distinction between “active” and “inactive” registered voters in determining a candidate’s compliance with nominating petition signature requirements was specifically addressed in Maryland Green Party v. Maryland Board of Elections, 377 Md. 127, 832 A.2d 214 (Md. App. 2003). In that case, the court held that the term “voter” used in the relevant statutes included all registered voters and enjoined the Board of Elections from refusing to count the signatures of “inactive” voters.

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“As used in the Election Code [Chapter 1 NMSA 1978], "qualified elector" means any person who is qualified to vote under the provisions of the constitution of New Mexico and the constitution of the United States.”   

But this statute is itself ambiguous when used as the basis for signing the minor party nominating

petition. Specifically, does the term “qualified to vote” mean qualified to vote at the time the

minor party nominating petition is signed, or qualified to vote at the next election.

NMSA §1-4-2 provides that:

Any person who will be a qualified elector at the date of the next ensuing election shall be permitted within the provisions of the Election Code [Chapter 1 NMSA 1978] to register and become a voter, provided, however, he shall not register in New Mexico without canceling his registration in the state of previous residence if such there be. [Emphasis added]  

That is, New Mexico statute recognizes that a person’s status at the date of the next ensuing

election determines whether or not a person can register to vote. By definition, that person is

qualified to vote—when the opportunity to do so arises—upon registration. The fact that such a

person has not yet registered to vote does not change his status as a “voter” or “qualified

elector.” Therefore, the terms “voter,” as used in the statute, and “qualified elector,” as used by

the Secretary of State in the published form used for qualifying a minor party, can both be

construed to mean anyone who would be eligible to register and vote at the next general

election35.

Notwithstanding this ambiguity, Plaintiffs do not quibble with the Secretary of State’s

use of the term “qualified voter,” as defined by NMSA §1-1-4, as the definition of a “voter” for

purposes of the party qualifying petition requirements of NMSA §1-7-2.

The problem is that the form published by the Secretary of State for nominating minor

party candidates pursuant to NMSA §1-8-2 requires that signers declare that they are “registered

35 Voting in a general election is not limited to people who were voters at the time nominating petitions have to be filed to “qualify” a minor party or a minor party candidate. Some of those who are able to vote in a general election will not have been old enough to register to register to vote by the time nominating petitions have to be filed. Others who are not registered to vote may decide to do so only after having been learned about a particular minor party candidate in the course of his nominating petition signature collection efforts. Others, particularly immigrants, who may qualify to vote in the general election may not have yet so qualified by the time nominating petitions have to be filed. These people all have just as much interest in who appears on the ballot for the general election as registered voters. However, because nominating petitions for both minor parties and minor party candidates must be signed and filed well before the general election, these prospective voters are denied that voice.

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voters”—even though NMSA §1-8-2 only requires that signers be “voters.”36 , 37

It is a normal rule of statutory construction that identical words used in different parts of

the same act are intended to have the same meaning. Commissioner v. Keystone Consolidated

Industries, 508 U.S. 152, 113 S.Ct. 2006, 124 L.Ed.2d 71 (1993); Brooke Group Ltd. v. Brown &

Williamson Tobacco Corp., 509 U.S. 206, 113 S.Ct. 2578, 2591, 125 L.Ed.2d 168 (1993).

However, the Secretary of State has not attributed the same meaning to the term “voter” as used

in NMSA §1-7-2 and NMSA §1-8-2.

A corollary to the rule that the same words, when used in different statutes, as presumed

to have the a same meaning, is the rule that "[w]here Congress includes particular language in

one section of a statute but omits it in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposefully in the disparate inclusion or exclusion." United

States v. Jordan, 915 F.2d 622, 628 (11th Cir. 1990). Therefore, the fact that the New Mexico

legislature included the modifier “in New Mexico” in NMSA §1-7-2, but not in NMSA §1-8-2,

the Court must hold that the legislature intended the two statutes to be signed by two different

classes of voters. Therefore, whatever meaning may be attached to the word “voter,” the absence

of the modifier “in New Mexico” from NMSA §1-8-2 compels the conclusion that individual

candidates can collect petition signatures from any who has voted anywhere.

Because the Secretary of State has construed the term “voter,” as used in NMSA §1-8-

2(B) to mean “registered voter,” that same term, when equated to “eligible elector” for purposes

of NMSA §1-7-2(A), must be construed to mean something other than a registered voter. This

means that minor parties seeking signatures for their nominating petitions must seek out people

who are “voters” but not “registered voters.” But since the term “eligible voters” includes

“registered voters,” the term “eligible voters” as used in the form required to be used to qualify

minor parties becomes ambiguous.

Only one conclusion can be drawn from these fact: the term “voter” as used in NMSA

36 The reason for this is probably that the nominating petition form for minor party candidates published by the Secretary of State is based on the form described in NMSA §1-8-30 for major party candidates—and that form uses the term “registered voters.”

37 The Secretary of State’s requirement that minor party candidate petitions be signed by registered voters—a requirement that is not found in NMSA §1-8-2--is also flawed by the fact that the Secretary has added a requirement to NMSA §1-8-2 that the legislature did not include. As the court held in United States v. Jordan, 915 F.2d 622, 628 (11th Cir. 1990), "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion."

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§1-7-2 and NMSA §1-8-2 is vague. In fact, the term is so vague as to make the statutes

constitutionally unenforceable.

Additional vagueness is found in the fact that NMSA §1-8-2(B) requires that minor party

petition signers state their “address”—without stating what address must be provided.

For purposes of the nominating petition for minor party candidates, the form published by

the Secretary of State requires minor party petition signers to show their “address as registered.”

This requirement is found in the form nominating petition prescribed in NMSA §1-8-29(C) for

major party candidates. However, NMSA §1-8-31(B) provides that:

“A person who signs a nominating petition shall indicate his residence as his address. If the person does not have a residential address, he may provide his mailing address.”  

Thus, even within the New Mexico Election Code there is a conflict regarding the address that

must be provided.

Since petition signatures can be challenged on the grounds that the nominating petition

does not contain sufficient information to determine that a signer is a qualified voter [NMSA §1-

8-31(C)], the address a petition signer includes on a nominating petition can be critical. The

inherent ambiguity in the address requirement of the statute makes it virtually impossible for a

candidate to know what address is required.

In Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222

(1972), the Supreme Court enunciated standards for evaluating a vagueness claim to include the

requirement that “laws must provide explicit standards for those who apply them.”  In Hynes v.

Mayor of Oradell, 425 U.S. 610, 621-22, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976) , the Supreme

Court added the requirement that the applicable coverage of the statute must be clear. A statute

found to be vague will be held unconstitutional because it violates due process of law. Baggett v.

Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 (1964)

The standard for determining vagueness is especially strict where constitutionally

protected freedoms are involved. As the Supreme Court stated in Cramp v. Board of Public

Instruction, 368 U.S. 278, 287, 82 S.Ct. 275, 281, 7 L.Ed.2d 285 (1961) :

“The vice of unconstitutional vagueness is further aggravated where ... the statute in question operates to inhibit the exercise of individual freedoms affirmatively

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protected by the Constitution.... “

The application of a stringent vagueness test was also described by the Supreme Court in Village

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186,

1193, 71 L.Ed.2d 362 (1982):

“The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement-depend in part on the nature of the enactment....  [P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.   If, for example, the law interferes with the right of free speech or association, a more stringent vagueness test should apply.” (Emphasis added).  

Because the ability to “qualify” a minor political party and a minor party candidate has been

recognized as a constitutionally protected right, the most stringent vagueness test must be

applied.

Fortunately, it is not necessary for the court to determine if the term “voter” as used in

NMSA §1-7-2(A) and NMSA §1-8-2(B) is vague because the Secretary of State’s use of two

different definitions of the terms proves that it is. That is, the Secretary having construed the

term voters as used in NMSA §1-7-2(A) and NMSA §1-8-2(B) to mean two different things

—“eligible electors” in NMSA §1-7-2(A) and “registered voters” in NMSA §1-8-2(B)—she has

proven that the term in inherently vague—and an unconstitutionally vague statute cannot be

enforced. As the Court explained in Stromberg v. People of State of California , 283 U.S. 359,

369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931):

‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is vague and indefinite … is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.” It is apparent that the Secretary of State has used her subjective judgment in determining

how to construe the term “voter” as it appears in NMSA §1-7-2(A) and NMSA §1-8-2(B).

However, this is the sine qua non of an unconstitutionally vague statute. See Citizens to

Establish a Reform Party in Arkansas v, Priest, 970 F.Supp. 690 (1996) (Holding

unconstitutional a state statute that required a “subjective judgment” for interpretation of its

meaning.”)

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This discussion is far from academic. If a minor party cannot know for certain whose

signatures to collect, or whether the signatures it collects satisfy the requirements of the

applicable statutes, it has no effective means of access to the ballot.

On this point it is significant that the Candidate Guide published by the Secretary of State

specifically emphasizes that “the candidate should act carefully to obtain only qualified

signatures.38” (Emphasis in original)

Arguably, the Secretary of State is bound by whatever definition she has chosen to use.

That is, she cannot reject any petitions containing signatures satisfying her interpretation of the

statutes. But the Secretary’s interpretation of the relevant terms is not binding on anyone else.

That is, even though the Secretary cannot reject petitions containing signatures satisfying her

interpretation of the statutes, another party, or the candidate of another party, is not prevented

from challenging the qualifying signatures submitted by a minor party or its candidate.

Therefore, potential for injury to minor parties and minor party candidates by the ambiguities in

NMSA §1-7-2 and NMSA §1-8-2 are both real and significant. Therefore, the court must find

that NMSA §1-7-2 and NMSA §1-8-2 are unconstitutionally vague – and unenforceable.

Finally, while it may be argued that the Secretary of State has the authority to construe

statutory terms for purposes of elections involving only state and local offices, she has no such

authority with respect to elections to federal office. Article I, Section 4 of the United States

Constitution states that:

“the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof....” [Emphasis added]

As discussed in later sections, this provision of the Constitution precludes the Secretary of State

from adding to, altering or amending in any way a provision of the state Election Code as

enacted by the legislature. Therefore, while her “interpretation” of the statute may be acceptable

when applied to state elections alone, it is impermissible when applied to the election of Senators

or Representatives.

VIII: COUNT V38 State of New Mexico, 2008 Candidates Guide, p-21

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NEW MEXICO’S BALLOT ACCESS REQUIREMENTSDISCRMINATE AGAINST MINOR POLITICALPARTIES AND MINOR PARTY CANDIDATES

For more than thirty years, the courts have wrestled with challenges to ballot-access

limiting laws. For the most part, these challenges have been based on assertions that the

challenged statutes are facially unconstitutional because they do not advance a permissible state

interest. In response to these challenges, the states have asserted, and the courts have generally

adopted, several different arguments for their ballot-access limiting laws.

In this case, Plaintiff’s do not challenge the facial validity of the relevant provisions of

the New Mexico Election Code. Rather, they contend that: (a) the relevant provisions of the

New Mexico Election Code are unconstitutional as applied, and (b) the judicially adopted

defenses to ballot-access challenges are not available to the State of New Mexico because New

Mexico’s practices are inconsistent with the requirements of the judicially accepted justifications

for ballot-access limiting laws.

Because of the uniqueness of New Mexico’s ballot-access system – e.g. the requirement

for both minor parties and minor party candidates to file petitions as a precondition to ballot

access – case precedent is only marginally relevant. Nonetheless, the Secretary of State will

undoubtedly rely on precedent in support of her practices. Therefore, it is necessary to present

this discussion of New Mexico’s petition signature requirements in two parts.

PART I examines the law as it has developed in ballot-access challenges and identifies the critical aspects of the case law that must be considered in this case.

PART II discusses the application of this law to the New Mexico Election Code.

VIII – PART I:

THE LAW OF BALLOT ACCESS:

Before examining the flaws in New Mexico’s ballot access laws, it is important to

understand how the relevant law developed. Such an understanding is necessary for two reasons.

FIRST: Many of the principles that have become enshrined in election law cases originated as dicta in early cases and have come to be applied to circumstances far beyond its original intent.

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SECOND: Many of the arguments that States offer as justifications for their limitations on ballot access are founded on nothing more that “logical assumptions.” [For example, the propositions that ballot access limitations are necessary to promote “political stability” and avoid “voter confusion” began this way.] However, Anderson v. Celebrezze, 460 U.S. 780, 787-88, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983) mandates that States support their arguments with evidence. See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 594 (6th Cir. 2006) (Rejecting the State’s argument that its laws were necessary to maintain “political stability” because “the State has put forth no evidence that [its] interests are compelling or that they are advanced by [its practices.].”

THIRD: Having a valid reason for a ballot-access limiting statute is not enough. Nor is it enough that the “problem” the State seeks to avoid is real. Today, the State has the burden of proving that its actions actually mitigate the problem. See Reform Party of Allegheny County v. Allegheny County Dep't of Elections, 174 F.3d 305, 315 (3d Cir. 1999) (Holding unconstitutional a state action because, even though the action was justified as an effort to respond to a real problem, the state failed to specifically demonstrate how its action served its interests.”)

VIII [PART I]-A: Ballot Access Requirements for “Candidates”

vs. Ballot Access Requirements for “Parties”:

In commenting on the importance of political parties, in California Democratic Party v.

Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), the Supreme Court said:

“Representative democracy [] is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.”

But political parties do not appear on ballots. Rather, parties only exist to advocate positions and

philosophies and as a “gathering point” where like-minded persons can assemble. As vehicles

for bringing together voters, parties do not have to be “qualified” for ballot access. That is, they

can advocate for their positions and promote their message through means other than offering

candidates for office. When viewed in this context, and this context alone, an argument can be

made that restricting ballot access does not per se impair the ability of a minor party to promote

the views shared by its members.

However, the ability of a party to gather attract voters is ultimately dependent on its

ability to advance its causes through candidates it nominates for office. As the Supreme Court

said in Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968):

“The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to

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win votes. . . . In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that ‘only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms.” [Emphasis added] [Citation omitted]

On the subject of restricting party access to the ballot, in Anderson the Supreme Court said:

“[I] is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint…” 460 U.S. at 793

The Court then went on the explain that:

“A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and--of particular importance--against those voters whose political preferences lie outside the existing political parties. By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas.” Id. at 794

As previously noted, in New Mexico, minor parties are required to submit nominating

petitions to qualify the party to nominate candidates and minor party candidates are required to

submit nominating petitions to qualify to be the candidate of that party on the ballot. These

requirements for the separate qualification of parties and candidates reflect different state

interests and differences in the significance of qualifying a party and qualifying individual

candidates39. These differences are found principally in the temporal differences in the interests

of parties and candidates. Specifically,

Candidates seek office in a specific election. Their candidacies are generally based on issues of immediate concern, and their support by potential signers of nominating petitions is based on those issues.

Parties exist to represent a philosophy and to serve as an instrument for promoting that philosophy over an extended period of time encompassing many elections.

Therefore, while ballot access by a minor party candidate is, for all practical purposes, a one-

39 In Libertarian Party of New Mexico v. Herrera, CIV-06-0615, fn 7 (Sept. 18, 2006), aff’d, 506 F.3d 1303 (10th Cir. 2007), this Court specifically recognized the distinction between the statewide support required to qualify a minor party and the need to demonstrate local support by a minor party candidate.

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time event, a minor party’s continuing status as a “qualified” party is vital to its ability to serve

the important social function as a place of association -- even in the absence of the regular and

continuing presence of its candidates on the ballot. The significance of this fact is that

restrictions on party “qualification” must necessarily be subject to examination based on

standards that differ from those applicable to ballot access by individual candidates seeking

office in a particular election. Stated in terms of the Anderson test, a minor party’s interest in

retaining its “qualified” status, and a minor party’s candidate’s interest in being listed on the

ballot, must be considered separately when being weighed against a State’s interest in controlling

its elections.

VIII [PART I]-B: Ballot Access Limitations and “Political Stability”:

Ballot access limiting legislation based on the potential for voter confusion and the need

to for a showing of a “modicum of support” before being granted ballot access apply to both the

qualification of minor parties and to their candidates. However, before examining these general

arguments [in the next section] it is appropriate to consider the argument, applicable only to

minor parties, that limiting party access to the ballot is needed to maintain “political stability40.

The argument that ballot access restrictions imposed on minor parties are needed to

maintain “political stability” is based on the premise that the consistency found in perpetuating

the monopolistic control of the established parties is necessary to an effective elective process41.

However, an examination of the origins of the argument for “political stability” readily

establishes that it is, as it is applied today, is a far cry from what it was intended to mean.

When the concept of “political stability” was initially raised in defense of state election

laws, it was primarily in the cases where members of one of the major parties was pursuing an

independent candidacy after breaking with their party. See e.g. Storer v. Brown, 415 U.S. 724,

40 According to Oliver Hall, Executive Director of the Center for Competitive Democracy, “[N]o evidence supports the conclusion that modern ballot access laws are necessary to promote political stability in the United States today.” Hall, Oliver, “Death by a Thousand Signatures: The Rise of Restrictive Ballot Access Laws and the Decline of Electoral Competition in the United States Today,” Seattle University Law Review, Vol. 29, Winter 2006, No. 2.

41 Those who advocate this position generally point to Justice Scalia’s dissenting opinion in Rutan v. Republican Party of Ill., 497 U.S. 62, 107, 110 S.Ct. 2729, 2754, 111 L.Ed.2d 52 (1990) (“The stabilizing effects of such a [two-party] system are obvious”) and/or Justice O’Conner’s concurring opinion in Davis v. Bandemer, 478 U.S. 109, 144-145, 106 S.Ct. 2797, 2816-2817, 92 L.Ed.2d 85 (1986) (“There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government”). However, when read in the proper context it is clear that these comments were mere dicta.  

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94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (recognizing a state interest in discouraging “independent

candidacies prompted by short-range political goals, pique, or personal quarrel”). In that context,

election laws were seen as instruments for maintaining party stability and compelling

“contending forces within the party [to] employ the primary campaign and primary election to

finally settle their differences” and preventing “intra-party feuds” from carrying over from

primaries to general elections. Storer, 415 U.S. at 73542.

Claims of the need to maintain “political stability” have continued to be popular as

justification for ballot access limiting laws. However, they are now being asserted—

unabashedly in some instances—merely in defense of the two-party system consisting of

Republicans and Democrats alone. But such arguments run counter to the changing demands of

the voters.

With increasing frequency, minor parties are seeking ballot access precisely because

voters are frustrated with the “politics as usual” practices of the established parties. It is hardly

surprising that the established (Republican and Democratic) Parties are doing whatever they can

to stifle this movement. But is precisely because the voters are losing faith with the established

parties that the interests of minor parties, and minor party candidates, have to be given greater

weight in applying the Anderson test.

In Williams v. Rhodes, the court observed that:

“In our political life, third parties are often important channels through which political dissent is aired: ‘All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. … The absence of such voices would be a symptom of grave illness in our society.” 393 U.S. at 39, citing  Sweeny v. State of New Hampshire , 354 U.S.

42 Even the rationale presented in Storer has since been clarified and limited. For instance, in Eu v. San Francisco County Democratic Party Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), the court explained:

“Our decision in Storer [], does not stand for the proposition that a State may enact election laws to mitigate intra-party factionalism during a primary campaign. To the contrary, Storer recognized that contending forces within the party employ the primary campaign and the primary election to finally settle their differences. A primary is not hostile to intra-party feuds; rather it is an ideal forum in which to resolve them.  Tashjian [v. Republican Party of Connecticut, 79 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)] recognizes precisely this distinction. In that case, we noted that a State may enact laws to ‘prevent the disruption of the political parties from without’ but not [] laws ‘to prevent the parties from taking internal steps affecting their own process for the selection of candidates.’” [Emphasis added]   

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234, 250-251, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957)

In view of this basic reality, it is essential to recognize that election laws are enacted by the

parties in power. As the Sixth Circuit noted in Libertarian Party of Ohio v. Blackwell, 462 F.3d

579, 587 (6th Cir. 2006),

“the State may not be a wholly independent or neutral arbiter as it is controlled by the political parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit.”

The courts have repeatedly recognized the importance of providing voters an alternative

to the established parties. In Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 12, 21 L.Ed.2d 24

(1968) the Supreme Court explained:

“There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.”

In Anderson, the Court clarified its position when it explained that:

“In Williams v. Rhodes we squarely held that protecting the Republican and Democratic parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena.” 460 U.S. at 802

Anderson also emphasized that:

“the primary values protected by the First Amendment ... are served when election campaigns are not monopolized by the existing political parties.” 460 U.S. at 794.

But the importance of minor parties is not limited to their value in promoting alternative views.

The existance of alternative parties also mitigates the problem of disruptive candidacies and the

potential for voter confusion in the general election. In Blackwell, the Sixth Circuit express a

preference for the “political dialogue and free expression” engendered by the presence of

multiple parties on the ballot when it noted that:

“By making it more difficult for parties to access the political arena, the state actually increases the possibility that issue-specific independent candidates will emerge to fill this void.  These candidates do not offer the stability of a political party, and the sheer number leads to a greater likelihood of political instability

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and voter confusion.” 462 F.3d at 594 [Emphasis added]

Claims of the need to maintain “political stability” are little more than a subterfuge for

maintaining the dominance of the established parties and stifling the emergence of competing

voices. The exclusion of parties and candidates having alternative views limits voter choice and,

when institutionalized in practices that frustrate the emergence of new parties, disenfranchises

voters. However, as the court said in Libertarian Party of Ohio v. Blackwell:

“A state may not legitimately claim that preventing other parties from accessing the ballot is needed to protect political stability.” 462 F.3d at 595

Likewise, in Timmons the Court said:

“The State's strong interest in the stability of its political systems does not permit it to completely insulate the two-party system from minor parties' or independent candidates' competition and influence.” 520 U.S. at 353, 117 S.Ct. 1367,

The importance of this fact increases every year as people become increasingly more frustrated

with politics in general and view elections as little more than an opportunity to choose the lessor

of two evils. “Party politics” have become more important that the needs of the nation, and the

people are fed up with the resulting “gridlock.” Now, more than at any time in the past, voters

want a choice; someone other than just another Republican or just another Democrat. Now,

more than at any time in the past, the people need a choice, if only assure them that ours is truly

a government of the people and not merely a government of the reigning Parties.

The Supreme Court has consistently noted the fundamental interest of citizens to create

and develop new political parties. In Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d

711 (1992):

“To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, [the Court has] called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation ....”  502 U.S. at 288-89, 112 S.Ct. 698 (internal citation omitted).

As previously noted, because of the importance associated with the mere existance of

minor parties, statutes impairing such party’s access to the ballot are subject to “strict scrutiny.” 

Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992).

VIII [PART I]-C: Justifications for Ballot-Access Limiting Statutes:

Ballot-access limiting provisions, particularly those requiring candidates to file

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nominating petitions signed by a specified number of voters, are generally supported with a two

part argument:

FIRST: States have an interest in reducing “voter confusion” by limiting the number of party and/or candidate choices.

SECOND: As a means of maintaining a “simple” ballot without unduly restricting ballot assess, States have an interest in requiring a parties and/or candidates to show a “modicum of support”43 before their names are placed on the ballot.

The second of these arguments has no relevance if the first of these arguments lacks merit. And

even if the first argument can be found to have merit, the second must withstand scrutiny on its

own. In fact, neither of these arguments stands up well against scrutiny.

VIII [PART I]-C-1: Argument 1: Limiting the Number of Candi-dates on the Ballot Prevents Voter Confusion:

States frequently “justify” requirements limiting ballot access by individual candidates on

the grounds that a multiplicity of candidates confuses voters44. This has become a familiar

mantra uttered by States in defense of their practices--and recited by the courts in adopting the

State’s argument. But the true relevance of this argument is questionable.

The genesis of the “voter confusion” argument can be found in Justice Harlan’s

concurring opinion in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 12, 21 L.Ed.2d 24 (1968)

where he said:

“[T]he only legitimate interest the State may invoke in defense of this barrier to third-party candidacies is the fear that, without such a barrier, candidacies will proliferate in such numbers as to create a substantial risk of voter confusion.”

43 The origin and development of the “modicum of support” argument is discussed in detail in the following section.

44 Significantly, many of the early cases reciting the “voter confusion” argument for limiting ballot access did not concern the number of candidates on the ballot. Rather, they were concerned with statutes designed to prevent disgruntled or splinter candidates from within one party from conducting an “independent” campaign while still proclaiming their party identity. In this context, the concern over “voter confusion” was not based on the number of candidates on the ballot but, rather, with the fact that that splinter candidates having positions inconsistent with the party platform would impair a Party’s ability to define itself and confuse the voters about the character of the Party itself. See e.g. Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 122, fn22, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981) (“Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being.”); Ripon Soc'y, Inc. v. National Republican Party, 525 F.2d 567, 586-87 (D.C. Cir. 1975) (The Party's effort to limit the list of candidates who can represent themselves to the voters as members of that Party “rationally advance[s the] legitimate interest of the party in winning elections.”). This dimension of “voter confusion” is clearly different in kind for voter confusing resulting from a multiplicity of candidates.

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All subsequent cases have recited the “voter confusion” mantra as a “truism” without ever

critically examining whether a multiplicity of candidates really resulted in voter confusion.

Until a term can be defined with at least some degree of specificity, it cannot be used as

the basis for defending a state practice. Therefore, before considering the merits of a defense

based on a claim of “voter confusion,” it is necessary to first determine what is actually meant by

“voter confusion.”

One alternative interpretation of the term may be that voters might be deemed unable to

determine which candidate stands for any given set of positions on the issues. However, in

modern campaigns, where candidates claim that they stand for whatever voters want to hear, and

where candidates consistently attack their opponents on what they claim to stand for--the

addition of candidates to the ballot is unlikely to add to the confusion.

Alternatively, it might be argued that additional candidates—particularly those

representing minor parties—may confuse voters regarding the principles represented by multiple

parties. However, in today’s political climate, it is virtually impossible attribute any single,

unambiguous philosophy to either of the established Parties, let alone to their respective

candidates.

Presumably, the term “voter confusion” can have still other meanings. But if those

meanings are no more valid as grounds for limiting ballot access that the meanings suggested

above, they cannot be used as justification for limiting ballot access.

When the “voter confusion” argument was asserted by the State of Ohio in Libertarian

Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006), the Court noted that, in the 2004

election, the Ohio ballot contained thirteen independent candidates and in 2002, eleven

independent candidates were on the state ballot. In rejecting the State’s “confusion” argument,

the Court held that:

“The State has made no showing that the voters of Ohio, who are able to cast an effective ballot featuring several independent candidates, would be flummoxed by a ballot featuring multiple political parties.” Id. at 59445.

45 In his concurring opinion in Williams v. Rhodes, which also concerned Ohio’s election law, Justice Harlan also stated “the presence of eight candidacies cannot be said, in light of experience, to carry a significant danger of voter confusion. As both Ohio's electoral history and the actions taken by the overwhelming majority of other States suggest, opening the ballot to this extent is perfectly consistent with the effective functioning of the electoral process.”

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Throughout the world, elections are characterized by a multiplicity of candidates

representing many different parties. Whatever else might be said about such election, it is clear

that other countries have no difficulty in allowing their citizens a wide choice of candidates. The

proposition that the voters of New Mexico are more easily confused that the voters of third-

world countries, or that New Mexico is less able to manage an election having a multiplicity of

candidates than third-word countries, is untenable.

There is little doubt that contemporary campaign practices result in voter confusion.

Candidates regularly misrepresent the positions of their opponents with half-truths and outright

lies. The prevalence of such negative campaign tactics means that voters are inevitable confused

about where all the candidates really stand. If states were really concerned about voter

confusion, they would enact “truth in campaigning” legislation. Until they do that, and claim

that they are concerned about voter confusion cannot be accepted as anything but a smokescreen

justification for limiting ballot access.

A State’s only legitimate interest is maintaining a fair election process—nothing more.

The State has no business acting as “Big Brother” and deciding for the people when they will

and will not be confused by frivolous or extraneous candidates. As the court explained in

Maryland Green Party v. Maryland Board of Elections, 377 Md. 127, 164, 832 A.2d 214, 236

(Md. App. 2003):

“[I]n a democracy, the appropriate judges of which candidates are frivolous, and which candidates have the greater commitment ... are the voters on election day.”46 [Emphasis added]

Under the principles established by Anderson, a court cannot merely accept a “voter

confusion” argument and move on. Rather, Anderson requires a court to critically examine the

“strength and legitimacy” of the claim that voters will be confused by having a choice from

among too many candidates.

There is no empirical evidence unambiguously supporting the claim that a multiplicity

of candidates causes voter confusion. In fact, in the 2004 general election, the ballot contained

six candidates for President47, and there is no evidence that voters were confused by this many

46 If the State of New Mexico is concerned about voter confusion, it should improve its educational system, not limit voter choices.

47 The 2004 ballot contained Presidential candidates representing the Republican Party, the Democratic Party, the Green Party, the Libertarian Party, the Constitution Party and one independent candidate.

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choices. Therefore, in the absence of tangible evidence presented by the State of New Mexico

that limiting the number of candidates on the ballot is actually necessary to reduce voter

confusion, and mantra based argument that the State may offer must be rejected48.

Even an acceptance of the proposition that too many candidates can lead to voter

confusion does not inherently justify applying that premise to exclude minor parties from the

ballot. To withstand scrutiny, any limitation on ballot access based on a “voter confusion”

argument can only be accepted if the relevant statute advances the state’s interest in avoiding

voter confusion in a “politically neutral” way. The simple fact is that the “voter confusion”

argument is used only in defense of practices that exclude minor parties from the ballot. E.g. It

is not politically neutral.

If the “voter confusion” argument was applied in a politically neutral way, the State

would begin with the presumption that all parties have an equal right of ballot access. Then, if

“voter confusion” justified elimination of the candidates, the candidate of the Republican or

Democratic Party should be equally subject to elimination. But this is not the case in practice.

Rather, there is a presumption, on the part of the States, that only the addition of a minor party

candidate will produce “voter confusion.” This is not political neutrality.

48 The State of New Mexico will undoubtedly rely on Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986) where the Court stated that a state is not required to “prove” actual voter confusion as support for ballot access restrictions. However, in Williams v. Rhodes, 393 U.S. 23, 34, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the Court rejected the proposition that voter confusion would result from having too many candidates on the ballot on the grounds that “the danger seems []no more than ‘theoretically imaginable.’” 393 U.S. at 33. Later ballot access cases have even more specifically held that “Reliance on suppositions and speculative interests is not sufficient to justify a severe burden on First Amendment rights.” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 2006) citing Reform Party of Allegheny County v. Allegheny County Dep't of Elections, 174 F.3d 305, 315-16 (3d Cir. 1999)

Munro presents several serious problems. The most obvious of these is that a presumption of voter confusion imposes the burden of proving that the presumption is false on any party opposing a ballot access law. For the same reasons given by Munro that a State is not required to “prove” voter confusion – e.g. the prospect for arguments over what constitutes “evidence” of voter confusion--an opponent of the proposition an cannot be required to produce empirical evidence establishing that the proposition is false.

The only possible answer to this problem is that the Court must also consider the equally valid presumption that limiting voter choices injures voters by depriving them of alternatives to the candidates of the established parties. Therefore, in applying the Anderson test, the Court is required to weight two theoreticals—e.g. the state’s interest in protecting the voters against the voters’ interest in having.

In this case, however, the issues are not theoretical. Specifically, in the 2004 Presidential election, there were six candidates on the ballot—and there is no evidence that voters were confused. In the face of experience that in which a multiplicity of candidates did not result in voter confusion, the State’s theoretical argument to the contrary cannot be accepted.

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The proposition that limiting ballot access is necessary to avoid voter confusion is also

rendered suspect by that fact that many elections are uncontested. That is, there is only one

candidate on the ballot because one of the major parties chose not to even bother running a

candidate49. In the face of such statistics, it is difficult to imagine why allowing a minor party

candidate access to the ballot would result in voter confusion.

It is also relevant than in the three decades since Jenness was decided, more than 10

candidates have appeared on the general election ballot as candidates for President in no less

than 50 instances50—and there is no evidence that voter confusion resulted in any of these

instances.

Any argument that the Secretary of State my make about avoiding voter confusion is also

negated by the fact that New Mexico does NOT require candidates for county offices to file

nominating petitions as a precondition for being included on the ballot. Rather, candidates for

these offices are only required to pay a nominal filing fee. This fact alone established that

signature petitions are not necessary to satisfy a compelling state interest.

Lastly, the suggestion that the addition of a few candidates seeking election to individual

offices leads to voter confusion is rendered virtually meaningless when considered in the context

of elections where ballot are many pages long and contain a plethora of issues ranging from

candidate elections to votes on bond issues and constitutional amendments and where voting

procedures are so complicated that even poll workers frequently do not know the rules. As long

as states cannot even prepare a ballot that is not confusing to voters, or conduct an election in a

way that does not confuse voters, it cannot justify excluding parties and candidates based on the

mere hypothetical assumption that the occasional additional of an individual candidate for an

individual office may confuse voters.

VIII [PART I]-C-2: Argument 2: Nominating Petition Requirements Are Necessary to Establish a “Modicum of Support”:

49 The national average for uncontested seats in state legislatures is almost 40%. [The Center for Voting and Democracy, reported that in 2002 and 2004, 36.9% and 38.7% of all state legislature elections were uncontested.]

In the 2008 general election in New Mexico, 21 of 42 state senate elections were uncontested, and 35 of 70 representative elections were uncontested. [http://www.sos.state.nm.us/08GenResults/Statewide.pdf]

50 Winger, Richard, “How Many Candidates Ought to be on the Ballot?” Election Law Journal, Vol. 5, Nov. 2, 2006

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The need for a showing of a “modicum of support” as a pre-condition for ballot access

remains one of the most popular justifications for ballot-access limitation—for both minor

parties and their candidates. However, a critical examination of the merits of this argument, and

its relevance in today’s electoral landscape, raises serious questions about its merit.

VIII [PART I]-C-2(a): Origin of the “Modicum of Support” Argument: All states

require that candidates for party nominations file petitions containing the signature of some

percentage of either the registered voters or the total vote in the preceding election in order to be

eligible to participate in the primary elections of manor parties or be included on the ballot for

the general election as the candidate of a minor party. The vast majority of the cases concerning

ballot access restrictions have presented challenges to the formula used in determining the

signature requirements for nomination petitions required to “qualify” minor parties and their

candidates.

None of these cases has critically examined either the real meaning of the “modicum of

support” standard. More importantly, none of these cases have critically examined the question

of whether a state’s petition signature requirement is really intended to determine whether there

is a modicum of support for a party (or candidate) or whether the state’s proffered “modicum of

support” defense of its practices is merely a ruse –an effort to rely on judicial precedent without

regard to the relevance of that precedent to its own effort to limit ballot access. Therefore,

before addressing the application of the “modicum of support” argument to the facts of this case,

it is necessary to understand the origins of the argument and how it has developed. Such an

examination is necessary because the judicial application of the argument has strayed far from its

intent.

The magic words, “modicum of support,” used to justify ballot access restrictions can be

traced to Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) where

Supreme Court said that a state has an “important state interest in requiring some preliminary

showing of a significant modicum of support before printing the name of a political

organization's candidate on the ballot…” (Emphasis added). Although the “modicum of

support” language in Jenness has become a familiar “mantra” in ballot access cases, its precise

meaning, and limits, remain far from clear.

VIII [PART I]-C-2(b): Jenness and the Changing Standard of Review: In Jenness,

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the Court did not discuss the standard of review applicable to ballot access cases. Presumably,

this is because Jenness was decided at a time when the applicable standard of Constitutional

review in cases involving ballot-access contests was the traditional spectrum of strict scrutiny,

heightened standard of review etc. However, when Anderson v. Celebrezze was decided in 1983,

the traditional multi-level standard of review in First and Fourteenth Amendment challenges to

ballot access limiting statutes was generally replaced with a balancing test. Under the Anderson

test, a court may no longer accept, without critical examination, a naked claim that a prior

showing of a “modicum of support” for a candidate is a necessary (or even appropriate)

requirement for giving him access to the ballot. Instead, court is required to critically examine

the “strength and legitimacy” of those arguments and balance the state’s interest against the

burdens imposed by state law.

For purposes of preparing the Count to address this question, it needs to be emphasized

that the Anderson test requires:

FIRST: A determination of the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.

SECOND: An identification of the precise interests put forward by the State as justifications for the burden imposed by its rule.

THEN: A weighing of the interests.

This restatement of what Anderson calls for is made necessary by the fact that in Libertarian

Party of New Mexico v. Herrera, CIV-06-0615, 10 (Sept. 18, 2006), aff’d, 506 F.3d 1303 (10th

Cir. 2007), the Court wrote:

“[T]he rigor of a court’s inquiry into the propriety of the state election law depends on the extent to which the challenges regulation burden’s first and Fourteenth Amendment rights.”

This is NOT a correct statement of the Anderson test. To the contrary, the Court must first

engage in a rigorous inquiry into the “precise interest” put forward by the State, without regard

to the burden imposed by the State’s action, and THEN, and only then, the court should weigh

the interests of the respective interests of the plaintiff’s and the State.

VIII [PART I]-C-2(c): The Relevance of Jenness Today: Even in the context of

Anderson, the Courts have continued to recite the Jenness “modicum of support” mantra as if it

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was alone sufficient to overcome all opposition arguments. When the only issue before a court is

the effect of a ballot-access limiting provision on the constitutional rights and interests of minor

parties and their candidates, this practice is not technically improper. However, in limiting the

inquiry to these issues, the courts have failed to give weight to the important rights represented

by minor party candidacies.

It has long been recognized that:

“The law must be stable, yet it cannot stand still.”51

When Jenness was decided in 1972, there were few minor parties—especially on the

national level, because the people were generally satisfied with the choice between Republican

and Democratic candidates. In those days, the platforms of the major parties were relatively well

defined, and their candidates represented those platforms. But this is not the case today. Even

within the major parties, there are significant differences in the basic political ideology of Party

candidates. Today, Party affiliation has little value as an indicator of a candidate’s philosophy

and has meaning only in the maintenance of a “voting block” in an increasingly partisan political

world.

In response to this trend away from a “core” Party philosophy, voters are forming new

parties that have the kind of clear platform that the Republicans and Democrats once had. Not

surprisingly, there is a movement toward a variety of parties having different, but still narrowly

defined, core principles52.

At the same time, voters are becoming increasingly frustrated with their electoral choices

—which are generally limited by state ballot-access laws denying deny them any real choice--

and affirmatively choosing not to participate in the political process. This is not a healthy trend

for the nation. Reversing this trend requires a re-examination of the standards against which

ballot-access limiting legislation is examined. At least one of the tools for such a re-examination

may be found in the changes in the judicial standard for evaluating ballot-access laws since

Jenness was decided.

51 Roscoe Pound, Interpretation of Legal History, p.1 (1923), recited, without attribution, in Horn v. Kean, 796 F.2d 668, 678 (3rd Cir. 1986)

52 For example: the Libertarian Party, formed in 1971, has as its core principle the promotion of individual freedom; the Green Party, formed in 2001, has as its core principle the promotion of responsible environmental policies; the Reform Party, formed in 1995, has its core principle the promotion of fiscal responsibility in government and campaign finance reform and the Constitution Party, formed (as the U.S. Taxpayers Party) in 1991, has its core principle the promotion of a government based on a “strict construction” of the Constitution.

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In applying the Anderson balancing test, it is essential that a court recognize the

fundamental importance of “alternative” candidates. As the Court explained in Johnson v.

Austin, 595 F.Supp. 1073 (E.M. Mich. 1984):

“Regardless of the potential for success of independent candidates, their very existence contributes to the extremely important work of issue identification and policy or platform development by our major parties or candidates. State laws which prevent the presentation of such candidates to the voting citizenry do injustice to the free exchange of ideas upon which our nation is built, and constitute a form of censorship which is forbidden in our society.”

The continued value of the “modicum of support” standard initially established in Jenness in

highly questionable. Anderson clearly changes the rules of the game; and the subsequent

changing political climate of the nation require that the Court give increased weight to factors

that weigh against a strict application of Jenness. These considerations have not been considered

by any court for the simple reason that the question has not been raised. Plaintiffs raise this

question in this case.

VIII – PART II:

NEW MEXICO’S BALLOT ACCESS PETITIONSIGNATURE REQUIREMENTS UNCONSTITITIONAL

Even assuming, arguendo, the general validity of “voter confusion” and “modicum of

support” arguments for limiting ballot access, the manner in which New Mexico has chosen to

administer its election laws render them inapplicable and unavailable as defenses in this action.

VIII [PART II]--A: New Mexico Statutes Are Not Consistent witha State Interest in Preventing Voter Confusion:

To the extent that the potential for “voter confusion” has any legitimacy as the basis for

ballot-access limiting legislation, it must be examined in terms of two different aspects of the

New Mexico Election Code:

(1) “Voter Confusion” as justification for MINOR PARTY petition signature requirements.

(2) “Voter Confusion” as justification for CANDIDATE petition signature requirements.

VIII [PART II]-A (1): “Voter Confusion” as justificationfor MINOR PARTY petition signature requirements:

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As previously discussed, parties do not appear on the ballot – only the names of their

candidates appear on the ballot. Therefore, any interests the state may have in avoiding “voter

confusion” is necessarily limited to reducing the number of names that appear on the ballot. As

long as the State has procedures – such as its candidate petition signature requirements -- for

limiting the number of candidates who can gain access to the ballot, its sole interest has been

addressed. The State has no interest whatsoever in limiting the number of parties who can

engage in political activities.

Political parties who are not “qualified” to have the names of their candidates included on

the ballot are severely limited in their ability to attract supporters and promote their message.

Therefore, ballot access is critical to the growth of new political parties. That is, “qualification”

for ballot assess is a threshold requirement for new party development, and the state has no

right to stifle party development.

Because party qualification for ballot access is an issue totally apart from candidate

access to the ballot, any impediments to party qualification must be justified on some grounds

other than those used to justify limitations on candidate access to the ballot. Whatever those

justifications may be, “voter confusion” is not one of them53.

VII [PART II]-A (2): “Voter Confusion” as justificationfor CANDIDATE petition signature requirements:

Any argument that the State of New Mexico may offer for reducing voter confusion by

limiting the number of candidates on the ballot is rendered spurious by the fact that its

nominating petition signature requirements do little to limit the number of candidates who could

53 For the same reasons that “voter confusion” cannot justify any impediment to the “qualification” minor parties, the “modicum of support” argument is inapplicable as a justification for stifling minor party development. In fact, the requirement that a party show a “modicum of support” as a precondition for “qualification” is contrary to the principle underlying the development of minor parties. Specifically:

The ability of minor parties to have their candidates included on the ballot is a predicate to party development.

If a party cannot develop, it cannot establish the requisite “modicum of support” by its candidates to have their names included on the ballot.

If a “modicum of support” must be shown by a party before it can even nominate candidates, it cannot develop the support needed to enable its candidates to demonstrate the “modicum of support” required to obtain ballot access.

In short, any effort the State may make to justify its limitation on party qualification based on a “modicum of support” argument requires an application of circular logic.

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earn a place on the ballot. For example, New Mexico requires independent candidates to file

nominating petitions containing the signatures of voters representing 3% of the number votes

case in the preceding election for governor. [NMSA §1-8-51] Therefore, even if the only people

signing the petition were people who voted in the prior election for governor, more than 30

independent candidates could qualify for each office54. If this many candidates (or more) can

properly qualify for the ballot, the proposition that ballot access restrictions prevent any voter

confusion that might result from too many candidates cannot be given any weight55.

VIII [PART II]--B: The “Modicum of Support” ArgumentIs Inapplicable to New Mexico:

Even assuming, arguendo, that the “modicum of support” argument has merit, it is unavailable to New Mexico because:

(1) New Mexico’s Nominating Petition System Does Not Measure “Support.”

(2) New Mexico Makes Exceptions to its Ballot Access Requirements for Major Parties Only.

(3) New Mexico only requires a showing of a “modicum of support” for offices above the county level.

VIII [PART II]--B-1: New Mexico’s Nominating Petition System Does Not Measure “Support.”

The “modicum of support” justification for requiring minor parties and candidates to

petition for ballot access is unavailable to the State of New Mexico because its nominating

petition forms make no effort to measure “support” for either a minor party or its candidates .

Specifically, New Mexico’s minor party, and minor party candidate, nominating petitions only

require signers to represent that they are “residents of the state, district, county or area to be

54 Although parties, including minor parties, can each only offer one candidate for each office, there is no limit on the number of minor parties who can offer candidates.

55 It is also relevant that under NMSA §1-8-21.1(C), any major party candidate receiving 20% of the vote in party caucuses advances to the primary election. Under this provision, five candidates can receive the requisite 20% and all advance to the party primary election. This fact further established that five candidates on the ballot for an office is not deemed to be too confusing. If the two major parties—who together (jointly) had absolute control over the New Mexico legislature when the relevant provisions of the State Election Law were enacted—concluded that five candidates per office was not too many for a party primary election, it cannot be reasonably argued that having as many as three minor party candidates and independents seeking any particular office in the general election is too many.

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represented by the office for which the person being nominated is a candidate.”56 The statutes do

not require signers to represent that they actually support the party or candidate whose petition

they are signing. Petitions do not even require that the signer know anything whatsoever about

the candidate. All that is required is that petition signers be registered voters.

In many cases, this means that a signature on a nomination petition signifies only that the

signer is frustrated (or angry) with the major parties, their candidates, and the choices those

parties give them. This has nothing to do with support for the candidate—and any right-minded

jurist knows this. Nonetheless, the “modicum of support” language of Jenness continues to

appear in every decision relating to nominating petition requirements.

If states really wanted to require a showing of a modicum of support, they could, and

would, require some declaration of support by signatories to the nomination petition. The simple

fact is, the nominating petition signature requirements are merely a hurdle to be jumped by

parties and prospective candidates, and the courts have given states a convenient, albeit

irrelevant, label on which to hang the defense of the State practice.

In People's Constitutional Party v. Evans , 83 N.M. 303, 305, 307, 491 P.2d 520, 522, 524

(1971), the New Mexico Supreme Court recognized that:

“The State has a legitimate interest, in trying to determine some degree of good faith on the part of electors who sign nominating petitions and in assuring at least a modicum of support for a political party and its nominees whose names are placed on the general election ballot.” [Emphasis added.]

IF New Mexico was actually “trying to determine some degree of good faith on the part of

electors who sign nominating petitions” its practice might be defensible. However, the state of

New Mexico making no effort whatsoever to measure the actual support for either a minor

party of the candidate of a minor party.

Having chosen to require minor parties and minor party candidates to collect the requisite

number of signatures using a form that does not contain any suggestion that the signer “supports”

the party or candidate, New Mexico has waived any right to defend its practice based on a claim

that it’s petition requirements are intended to demonstrate a “modicum of support” for the party

or candidate.

VIII [PART II]--B-2: New Mexico Makes Exceptions to its Ballot-Access Requirements for Only Major Parties and Major Party Candidates:

56 See NMSA §1-8-2(C) and NMSA §1-8-30(C)

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NMSA §§1-8-7 and 1-8-8 provide that, in the event of the death or resignation of a

candidate after the primary election, the vacancy on the ballot may be filled “by the central

committee of the state or county political party.” The candidate so nominated is not required to

show any independent support prior to having his name placed on the ballot.

NMSA §§1-8-7 and 1-8-8 make it clear that a candidate’s demonstration of a “modicum

of support” is not always necessary. Therefore, whatever weight is assigned to the State’s

“modicum of support” justification for limiting ballot access cannot be given significant weight

in weighing its interests against the rights of candidates.

Furthermore, is it important to recognize that NMSA §§1-8-7 and 1-8-8 give preferential

treatment to major parties. Both NMSA §§1-8-7 and 1-8-8 provide means for filling ballot

vacancies after the primary elections. However, minor parties do not have primary elections.

Therefore, these statutes do not provide a means of filling ballot vacancies my minor parties. In

fact, NMSA §§1-8-7 specifically provides for the filling of a ballot vacancy . . .

“if after a primary election there is no nominee of a major political party for a public office to be filled in the general election.”

Statutory provisions that give a right to major parties that is not equally available to minor parties

are unconstitutional on their face.

Concededly, the discriminatory provisions of NMSA §§1-8-7 and 1-8-8 are not at issue

on the facts of this case. Nonetheless, they clearly establish the intent of the New Mexico

Election Code to impair the rights of minor parties are relevant to a determination of whether any

argument the State may offer in defense of its ballot-access limiting provision are true

expressions of a State interest or merely fabricated justifications for suppressing the rights of

minor parties.

VIII [PART II]--B-3: New Mexico Only Requires a Showing of a“Modicum of Support” for Offices Above the County Level.

The New Mexico Election Code specifically provides for major party candidates for

county offices to obtain access to the ballot by paying a specified filing fee. That is, they are not

required to file nominating petitions as a precondition for being included on the ballot.

The reasons for this distinction are irrelevant. The simple fact is that New Mexico is

required to uniformly apply any justification it may offer for requiring candidates file nominating

petitions.

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Local elections are every bit as important as elections to State (and federal) office—and

maybe even more important. The New Mexico legislature has (quite properly) determined that

simplified, and virtually unrestricted, ballot access is appropriate for local elections, but has

chosen to retain impediments to challenges to the established parties in elections to State offices.

No rational person can conclude that this distinction is intended solely to protect the interests of

the legislators who enacted the law.

It is also relevant that the law permitting candidates to gain ballot access by paying a

filing fee only applies to candidates of the major parties. Minor party candidates must still

comply with applicable petition signature requirements—even for local offices. This distinction

is clearly intended to favor the major parties and frustrate the election hopes of minor party

candidates and represents an unconstitutional discrimination against minor parties and their

candidates.

VIII [PART II]--C: New Mexico’s Petition Signature Requirements Are Inconsistent:

Under all applicable New Mexico statutes, the signature requirements for nominating

petitions for minor parties and minor party candidates are determined by reference to the total

votes cast in the relevant preceding election57. However, determining the degree of support for a

party or an individual candidate based on aggregate turnout at a prior election is a fundamentally

flawed system because it changes the ballot access requirements based on factors that have no

identifiable relationship to the extent of support for a candidate.

For example, assume that in 2006, a year in which there was an election for governor only, total voter turnout was 500,000. Assume further, that in 2008, a presidential election year in which the election was of monumental significance and social concern, total voter turnout was 1,000,000. Based on these figures, a candidate wanting to run for the U.S. House of Representatives in 2010 would be required to collect twice the number of signatures that were required for a candidate wanting to run for the same office from the same district in 2008—even though there were exactly the same number of registered voters.

57 Pursuant to NMSA §1-7-2, minor parties are required to file petitions containing the signatures representing “at least one-half of one percent of the total votes cast for the office of governor or president at the preceding general election…” Pursuant to NMSA §1-8-2(B), minor party candidates are required to file petitions containing the signatures representing “not less than one percent of the total number of votes cast at the last preceding general election for the office of governor or president of the United States . . .”

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If the true reason for requiring a minimum number of nominating petition signatures is

demonstrate a “modicum of support,” the number of signatures required to be collected from the

same number of registered voters should be the same at all times. A “modicum of support” is a

“modicum of support.” It has to be an absolute number to which all candidates are subject at all

times. There is simply no reasonable justification or rational basis for making petition signature

requirements dependent on prior voter turnout—especially the signature requirements can be

even more easily established by applying the applicable percentage to the records of registered

voters and that means of determining signature requirements will yield requirements that are

consistent over time.

Plaintiff’s concede that this argument was addressed in Rainbow Coalition of Oklahoma

v. Oklahoma State Election Board, 844 F.2d 740 (10th Cir. 1988) where the Tenth Circuit

accepted, as legitimate, the Oklahoma Election Board’s assertion that “voter turnout at the

previous general election because that is the most recent gauge of those voters who are

politically interested and therefore most likely to sign a new party petition.” Id. at 744.

However, Plaintiff’s contend that this conclusion was improper. Specifically, Plaintiff’s contend

that it is contrary to public policy to increase the burden of ballot access based on increased

political interest. Indeed, increased political interests is more likely to represent a measure of

voter desire for more political choices. Increasing the burden of ballot access in response to

increased political interest is tantamount to saying that the established Parties need more

protection against competition in times when the voters are becoming politically active. This

isn’t the way a democracy is supposed to work.

Petition signature requirements for 2008 also demonstrate the inconsistency in

requirements between Congressional Districts.

  Signatures Required Minor Party asCongressional Democrat Republican Minor Percentage of:

District     Party Democrat RepublicanFIRST 607 329 2,107 347 640SECOND 593 402 1,559 263 388THIRD 959 328 1,926 201 587

Source: State of New Mexico 2008 Candidate Guide.

As these figures show, in 2008, a minor party candidate was required collect (a) AT LEAST

TWICE the number of signatures as a candidate of a major party [Minor party compared to

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Democratic candidate in Third Congressional District] and (b) AS MANY AS SIX TIMES the

number of signatures as a candidate of a major party [Minor party compared to Republican

candidate in First Congressional District]. There is no reasonable or logical jusification for this

discrepancy

VIII [PART II]--D: New Mexico’s System for DeterminingPetition Signature Requirements Discriminate

Against Minor Party Candidates

Under the New Mexico Election Code, the number of signatures required to establish the

requisite “modicum of support” depends on a candidate’s party affiliation. Specifically, the

nominating petitions of minor party candidates for the U.S. House of Representatives must

contain the signatures of 1% of the total votes in the district in preceding general election

[NMSA §1-8-2(B)]. However, major party candidates are only required to submit petitions

containing the signatures of 2% of the votes for that party’s candidate in the relevant district in

the preceding primary election58. Almost by definition, the voter turnout in primary elections is

only a fraction of turnout at a general election. Therefore, even though the percentage used in

determining major party candidate signature requirements is higher than the percentage used in

determining minor party candidate signature requirements, the actual number of signatures

required of major party candidates is significantly less than the number required of minor party

candidates. The discriminatory consequence of this shown by the petition signature

requirements for the 2008 elections.

First District Second District Third District

Democratic 607 592 959Republican 329 402 328Minor Party 2,107 1,559 1,926

These figures demonstrate two constitutional failings.

FIRST: To the extent that a ballot access schema is intended to demonstrate a “modicum of support” for a candidate, the same number of signatures should be required of all candidates seeking a place on the ballot. See Citizens to Establish a Reform Party in Arkansas v, Priest, 970 F.Supp. 690 (1996) (holding unconstitutional an Arkansas statute that imposed a signature requirement on minor parties that was substantially in excess of the signature requirement for

58 Voter turnout for primary elections being notoriously low relative to voter turnout at general elections, the used of different basis’ for determining petition signature requirements is inherently suspect.

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independent candidates on the grounds that the number of signatures required to show a “modicum of support” should be the same in all instances.)

SECOND: The well-established constitutional mandate, commonly referred to as the one person-one vote principle, requires “that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) . Likewise, in Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court stated that: “[w]eighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.”59 As the above figures, readily demonstrate, there is a significant difference in the “weight” accorded to the measure of “support” represented by signatures of petition signers depending on the party whose candidate is being “supported”60.

Concededly, major party candidates proceed through a party caucus [pre-primary] and a primary

election before being entitled to appear on the ballot in the general election. But that does not

change the fact that a member of a major party can gain access to the process with only a fraction

of the number of signatures required by the candidate of a minor party61.

The only possible justification for the difference in nominating petition signatures

between major and minor party candidate is that the major parties have established their boni

fides and the previously established support for the major party may be “attributed” to its

candidates. Whether or not such a contention can withstand scrutiny requires a return to the 59 Colegrove v. Green, 328 U.S. 549 at 569-71, 66 S.Ct. 1198 , 90 L.Ed.2d 1932 (1946) (Black, J., dissenting) (“The Constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast.”); Bush v. Gore, 531 U.S. 89, 104-05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) , (indicating that having one's vote counted on equal terms with others in the relevant jurisdiction is the quintessential “right to vote” case); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) , (holding that Georgia’s county unit system in primary elections was unconstitutional because it diluted the weight of votes cast by certain Georgia residents based on where they lived.)

60 New Mexico will undoubtedly attempt to justify the differences between signatures requirements with the argument that argue only members of a particular party can sign the nominating petitions of major party candidates whereas any voter can sign the nominating petition of a minor party candidate. While this may be the way the Secretary of State has construed and applied the nominating petition requirements for major party candidates, it is not what the law says. Specifically, while the nominating petition form for major party candidates described in NMSA § 1-8-30(C) requires petition signers to declare their party affiliation, nothing in the “form” nominating petition prescribed by the legislature require signers to declare that they are members of the same party as the candidate that are nominating. 61 As the Supreme Court said in Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) ,

“[t]he use of nominating petitions … is an integral part of [the] elective system. All procedures used by a State as an integral part of the election process must pass muster …”

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distinction between the requirements for qualifying a party and the requirements for qualifying

party candidates.

As previously discussed, there is a difference between the arguments for qualifying a

party and qualifying a candidate. Plaintiffs concede that a substantial vote for the candidates of

a party in the preceding election supports the conclusion that the party enjoys more than a

“modicum of support.” But prior support for the party is not alone sufficient to justify that any

of its members, individually, enjoy sufficient support to justify their candidacy62.

In Morse v. Cunningham, 517 U.S. 186, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) the

Supreme Court specifically addressed the question of whether prior demonstrated support for a

party should be imputed to a party’s candidate. The Court explained:

“The Party argues that automatic ballot access is merely a practical accommodation to political reality because the major parties have shown, through their performance in previous elections, significant levels of voter support. According to the Party, the Party nominee need not demonstrate personal support because he or she is credited with the Party's showing.

Such “crediting” does not answer the question why the Party nominee should receive automatic ballot access. The fact that the Party has polled well in previous elections does not logically entail any conclusion about the success of its present candidate.”

It may, of course, be argued that a major party candidate’s ultimate performance in the

Party primary satisfies the requirement for a showing of the requisite “modicum of support” for

inclusion on the ballot for the general election63. But that does not explain why that candidate

should have been given access to the process with based on only a fraction of the signatures

required by a minor party candidate. This is a particularly important consideration given that it

the State that has determined that minor parties should not be given the opportunity to hold

primaries.64 That is, the State cannot deny a minor party the use of a primary election, and then 62 Significantly, in the 2008 election cycle, Democrat Robert Pidcock did not even receive enough votes in the democratic primary election for the House of Representatives, District 1 [4,272] to have qualified as an independent candidate for that office, for which 6.320 nominating petition signatures were required.

63 There is, however, no guarantee that even a major party candidate will show significant support in the party primary. For example, what if no one shows up to vote in the primary in that district.

64 There is, in fact, no continuing justification for not allowing minor parties to participate in primary elections just as the major parties do. The reality is that minor parties will rarely, if ever, have more than one candidate for any particular office and are unlikely to have more than a few candidates running for any offices. Therefore, the cost to the state of preparing additional ballots for minor party candidates participating in a primary election is minimal. Moreover, in this day when election results are processed by computers, the cost of compiling

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turn around and make ballot access easier for major party candidates than for minor party

candidates because the major party holds a primary election.

The mere fact that major parties are given the opportunity to establish the “modicum of

support” needed by their candidates in a primary election, while minor parties are denied that

opportunity and compelled to establish their “modicum of support” through the cumbersome

process of soliciting signatures, represent an unconstitutional favoring of established parties.

Moreover, because the major party candidates who survive their respective Party caucuses

continue to campaign through the date of the primaries means that the eventual nominees of the

major parties will have had additional opportunities to establish the “name recognition” that

frequently the basis for voter action in the general election. Thus, the fact that the State has

chosen to hold primary lections only for the major parties impermissibly favors the candidates of

those parties and serves to perpetuate their control over the machinery of government.

Furthermore, the fact that the major parties permit easier access to their nomination casts

doubt on the merits of any argument the State may offer for restricting the ballot access of minor

party candidates.

FIRST: If the major parties—who control the legislature and enact the Election Code—do not believe that the members of their party will be confused by a multiplicity of candidates, there is little merit to the contention that voters in the general election will be confused by having too many choices.

SECOND: If the major parties—who control the legislature and enact the Election Code—believe that it is good for the members of the party to be able to select from among a variety of candidates having different views, they cannot argue that voters in the general election are not entitled to an equal diversity of choices.

A State’s only legitimate, recognized interest in regulating ballot assess is founded on is

interest in maintaining the integrity of the electoral process.

An election is an election. When viewed in terms of a State’s interest in maintaining the

integrity of elections, the same State interests must be reflected in its policies relating to both

primary and general elections. As the Supreme Court said in Wells v. Edwards, 409 U.S. 1095,

primary election results for minor parties is also minimal. As long as New Mexico is going to hold a primary election for the major parties, there is no reasonable justification for not allowing minor parties to participate in that same election.

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1098, 93 S.Ct. 904, 906, 34 L.Ed.2d 679 (1973), “there is no discernible, valid reason why

constitutional distinctions should be drawn on the basis of the purpose of the election.”

If “voter confusion” represents a legitimate justification for limiting ballot access, that that justification must be applied to both primary and general elections.

If the “modicum of support” argument represents a legitimate justification for limiting ballot access, that argument must be applied to both primary and general elections.

To satisfy constitutional standards, ballot-access laws must apply uniformly to all candidates.

No legitimate State interest is served by ballot-access laws that impose different burdens on candidate based on their party affiliation.

No legitimate State interest is served by ballot-access laws that impose different burdens on candidate seeking access to the ballots for primary versus general elections.

VIII [PART II]--E: Determining Petition Signature Requirements forCandidates for the House of Representatives by Reference to

Prior Voter Turnout in the District is Unconstitutional:

Determining the signature requirements for a candidate for the United States House of

Representatives by reference to the previous election’s voter turnout in the prospective

candidate’s District creates an impermissibly discriminatory petition signature requirement.

Congressional districts are established by total population. In principle, all Congressional

districts are the same size and contain approximately the same number of voters. Therefore, the

requirements to be a candidate for the House of Representatives should be the same for all

prospective candidates in all Districts, and there is no justification for any provision that imposes

different requirements on candidates for the U.S. House of Representatives from different

Districts. Unfortunately, the New Mexico petition signature requirement statute does just this.

For example, assume that in the last presidential election the voter turnout in the Third

Congressional District was three times the total voter turnout in the Second Congressional

district. Based on NMSA §1-8-2, a prospective candidate for the House of Representatives in

the Third Congressional District would be required to obtain three times the number of

signatures required by a prospective candidate in the Second Congressional District.

The citizens of each of New Mexico’s Congressional District have equal rights to be

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represented by a candidate of their preferred party. In fact, the Supreme Court has interpreted

this to require all participants in an election have an equal vote, regardless of where their home is

in a geographical unit. In Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821

(1963), the Supreme Court explained.

“The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote.”

The Supreme Court expanded the one person, one vote concept to signature collection on

nominating petitions in Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) .

In Moore, the Court specifically held that nominating petition system that gave different weight

to the signatures of voters in different parts of the state was unconstitutional. See also See also

Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) . (“[I]f a State should

provide that the votes of citizens in one part of the State should be given two times, or five times,

or 10 times the weight of votes of citizens in another part of the State, it could hardly be

contended that the right to vote of those residing in the disfavored areas had not been effectively

diluted.”); Gjersten v. Board of Election Commissioners, 791 F.2d 472 (7th Cir. 1986) (Holding

unconstitutional an Illinois statute that imposed a greater signature requirement on candidates

seeking office in the City of Chicago than on those seeking office on a state-wide basis.)

Any rule that has the effect of establishing signature different requirements in different

Congressional Districts based on turnout in the prior election produces the same result--and is

equally unconstitutional. Voter turnout in a prior election is simply not an appropriate basis for

determining petition signature requirements. This is especially true when a more meaningful

basis--such as voter registration lists--is readily available and can be applied with no additional

effort by the state.

Although not all voting regulations receive strict scrutiny review, strict scrutiny applies to

“regulations that contravene the principle of ‘one person, one vote’ by diluting the voting power

of some qualified voters within the electoral unit.”   Green v. City of Tucson, 340 F.3d 891, 896,

899-900 (9th Cir. 2003)65. New Mexico’s use of prior election voter turnout as the basis for

65 See also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 n. 78, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (recognizing as “implicit in our constitutional system, [a right] to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population”);     Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (“[T]his Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”);

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establishing petition signature requirements clearly can result in giving different voting power to

voters in different Congressional Districts. Therefore, it fails the requirement that all candidates

for federal office from a single state be subject to the same nominating requirements.

IX: COUNT VI

MINOR PARTY CANDIDATE PETITION REQUIRMENTS IMPERMISSIBLY INTERFERE WITH RIGHTS AND

PROCEDURES OF MINOR PARTIES

New Mexico requires that a minor party and a minor party candidate each qualify for

ballot access by obtaining the requisite number of petition signatures. As discussed previously,

the justification typically offered for limiting ballot access by candidates – e.g. “voter confusion”

and the requirement for a showing of a “modicum of support” – cannot be used to justify petition

signature requirements as a precondition for qualifying political parties to have the names of

their candidates included on the ballot. However, IF they can be used as justification for limiting

a minor party’s right of access to the ballot, they cannot be used again to limit the right of a party

to nominate the candidate of its choice66.

IX-A: “Dual Qualification” Cannot BeJustified by “Voter Confusion” Argument:

Whatever other argument can be made for impairing a minor party candidate’s ballot

access, this practice cannot be justified on by a “voter confusion” argument because:

(1) A political party, whether major or minor, can only offer one candidate for each office.

(2) Once a minor party has qualified for ballot access, its right to one place on the

ballot has been secured—and nothing will change that.

(3) No requirement further limiting who the minor party chooses to identify as its candidate reduce voter confusion.

Once a minor party has qualified to have a candidate on the ballot, all the arguments for limiting

66 The constitutionality of requiring both parties and party candidates to independently qualify for ballot access was not addressed in Libertarian Party of New Mexico v. Herrera¸ CIV-06-0615, 10 (Sept. 18, 2006), aff’d, 506 F.3d 1303 (10th Cir. 2007) because the Libertarian Party was already qualified for ballot access at the time of that suit. Because the Libertarian Party has since been de-qualified, the circumstances of this case are markedly different. In any event, this case includes parties who were not participants in Libertarian Party of New Mexico v. Herrera.

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the ballot are satisfied. Once the minor party has been qualified for ballot access, the only effect

of a nominating petition signature requirement for the individual candidate is to add an additional

qualification on who the party can nominate.

The proposition that the placement of a candidate’s name on the ballot is a right of a

“qualified” party is unambiguously established by NMSA §§1-8-7 and 1-8-8. These provisions

of the New Mexico Election Code provide that, in the event of the death or resignation of a

candidate after the primary election, the vacancy on the ballot may be filled “by the central

committee of the state or county political party.” That is, NMSA §§1-8-7 and 1-8-8 assures that

parties to which §§1-8-7 and 1-8-8 are applicable can have a candidate on the ballot. There is

no statutory requirement that the candidate named to fill a vacancy demonstrate a modicum of

support as a condition for having his name on the ballot as the candidate of the party.

Concededly, a candidate petition signature requirement for major party candidates makes

sense because major parties have a primary election and there is arguably an interest in limiting

the confusion associated with the selection of their candidate for the general election. Therefore,

a two-part petition qualifying requirement—one for the party and one for candidates—is

appropriate and constitutionally justified. This was established in Libertarian Party of New

Mexico v. Herrera.

Plaintiffs do not contend that the two-part party/candidate qualifying is unconstitutional

in design67. They do, however, contend that it is in its application to parties that do not

participate in primary elections.

IX-B: “Dual Qualification” Cannot Be Justifiedby “Modicum of Support” Argument:

Minor parties establish their right of ballot access—e.g. their right to have a candidate on

the ballot—by filing petitions containing the relevant number of signatures. Once they have

filed such a petition, they have demonstrated the requisite “modicum of support” for the party

and “qualify” to nominate a candidate. Requiring that a party qualify for ballot access is

meaningless if the party’s ability to offer the candidate of its choice is further impaired by the

State.

The statutory requirement that a minor party candidate independently qualify for 67 In Libertarian Party of New Mexico v. Herrera, 506 F.3d 1303 (10th Cir. 2007), the Court upheld, as constitutional, the principle of a two-part qualification process. However, the facts and legal principles argued here were neither presented to, not considered by, the court in that case.

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inclusion on the ballot--even after the minor party has qualified to offer its candidate—clearly

burdens the ability of minor parties to offer the candidates of their choice. Because the minor

party has secured its right to offer a candidate by qualifying in its own right, no reasonable state

interest is served by further limiting the candidate the minor party can offer to fill its allotted slot

on the ballot.

In Maryland Green Party v. Maryland Board of Elections, 377 Md. 127, 832 A.2d 214

(Md. App. 2003), the court specifically considered the constitutionality of Maryland’s “dual”

qualification requirement and held it to be unconstitutional. The court supported its holding on

two grounds.

FIRST, the court held that:

“[T]he requisite “significant modicum of support” for a principal political party's candidate is derivative of his or her party's support at the last preceding general election. This is so even if the principal political party's current candidate is new to the political scene or did not run in the last preceding general election.” (Emphasis in original.) 832 A.2d at 232

In this regard, the court held that there was no state interest justifying the requirement for

candidates to show individual support because support for the party is all that is required to

justify ballot access68.

SECOND, the court specifically noted that the candidates of major parties can obtain

access the ballot for the general election without satisfying the same “modicum of support”

requirement imposed on minor party candidates. Specifically, the Court explained:

“Under the present statutory scheme, a candidate from one of the two “principal political parties” is deemed to have a significant modicum of support, regardless of the voter turnout at the party's primary election. For instance, if a Democrat runs unopposed in the Democratic Party's primary election, he or she will become the Democratic candidate on the general election ballot even if that candidate

68 The applicability of Green Party of Maryland to New Mexico is limited by two facts. FIRST, the Maryland signature requirement ot qualify a minor party was 10,000, but the signature requirement for minor party candidates was only 3,411. The court relied on this discrepancy in support of its holding precisely because the signature requirement for parties was greater than the requirement for individuals and attribution of support for the party wholly satisfied the state requirement for a showing of support for individual candidates. HOWEVER, in New Mexico, the number of signatures required to qualify a minor party does not unambiguously exceed the signature requirement for individual candidates. This renders reliance on Green Party of Maryland moderately suspect. SECOND, in Green Party of Maryland the court did not expressly discuss the difference between the statewide qualification for parties and the district qualification for candidates for U.S. Representative. That is, a party can become qualified on a statewide basis without showing any support in the district a specific candidates seeks to represent.

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receives only one vote at the primary. The Maryland statutes provide that candidate nomination by primary is only available to two political parties.” Id.

In Maryland Green Party, supra, the court made a particular point of the fact that “primary

elections are completely closed to minor political parties.” Id. That is, the court particularly

emphasized that the state relied on primarily elections to enable major parties to establish their

candidate’s “modicum of support” while denying minor parties the use of that same means of

establishing the support for their candidates.

As previously noted, NMSA §§1-8-7 and 1-8-8 permit major parties to fill vacancies on

the ballot with a candidate chosen “by the central committee of the state or county political

party” without a showing that there is a modicum of support for the designated candidate. That

is, the “qualification” of the party is deemed, as a matter of statute, to be all that is needed to

justify placing a party’s candidate’s name on the ballot.

IX-C: “Dual Qualification” UnconstitutionallyIntrudes into Minor Party Affairs:

Minor parties make their candidate selection by means a party convention—or as

otherwise determined by their own rules and regulations. Those rules are required to satisfy

certain statutory requirements set forth in NMSA §1-7-3 and must be filed with designated state

and local authorities. As long as minor parties comply with their rules, the State has no further

interest in the selection of minor party candidates.

Concededly, the State may have an interest in controlling the procedures by which major

parties select their candidates. This interest exists because the major parties hold primary

elections, and the state has an interest in elections. Because the major parties do hold primary

elections, it may reasonable be argued that the “voter confusion” and “modicum of support”

arguments are applicable to major party candidates. But the State’s interest in the nominating

procedures for major parties exists only because major parties employ the election system to

choose their candidates.

Unlike major parties, who select their candidates through primary elections, minor parties

have no need for the State to simplify their candidate selection process—and the State’s effort to

do so only constitutes an impermissible intrusion into the internal affairs of minor parties.

As the Supreme Court explained in Democratic Party of the United States v. Wisconsin,

450 U.S. 107, 123-24, 101 S.Ct. 1010, 1020, 67 L.Ed.2d 82 (1981), “A State, or a court, may not

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constitutionally substitute its own judgment for that of the Party . . .” See also Tashjian v.

Republican Party of Conn., 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (Holding

unconstitutional a state statute that interfered with the rights of a political party to define its own

associations and engage in effective political association.); Cousins v. Wigoda, 419 U.S. 477, 95

S.Ct. 541, 42 L.Ed.2d 595 (1975) (Holding that a party, not State, has right to decide who will

represent the party.); Republican Party of Arkansas v. Faulkner County, 49 F.3d 1289, 1294 (8th

Cir. 1995) (“[T]he internal affairs of political parties are off-limits to state regulation . . .”).

In Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct.

1013, 103 L.Ed.2d 271 (1989), the Supreme Court specifically explained that:

“It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments.... Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, ... but also that a political party has a right to identify the people who constitute the association, ... and to select a standard bearer who best represents the party's ideologies and preferences.” Id. at 224 [Emphasis added]

In his dissenting opinion in Tashjian, Justice Scalia specifically noted that “[t]he ability

of the members of [a political p]arty to select their own candidate ... unquestionably implicates

an associational freedom”. 479 U.S. at 235-236, 107 S.Ct. at 559-560. Justice Scalia

unambiguously recognized that the candidate nominating process of a party presented a different

kind of “right of association” that the right implicated by an election—which implicates the

associational rights of voters. Therefore, any attempt by the State to interfere with the separate

right of association represented by a party nominating system must necessarily be justified by

some State interest other than the interest used to justify State interference with the right of

association that existed between voters and parties (and party candidate.) There is simply no

State interest that can justify State interference with the right of a party to nominate the candidate

of its choice after the party has qualified to have its candidates on the ballot .

The major parties are not perpetually subject to a two-petition requirement—e.g. one for

the party and one for the candidates. Presumably, this is because the major parties are already

qualified—and has retained its qualified status by obtaining sufficient votes for its candidates in

preceding elections. Therefore, major parties only have to select the candidate who will

represent them on the general election ballot.

Once a minor party has become qualified--by filing the a petition containing the requisite

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number of signatures--it is on an equal footing with the major parties with regard to its right to

offer one candidate for each relevant office. Once it is “qualified,” a minor party must also

select the candidate who will represent it on the general election ballot.

The question is, does the state have an interest justifying its interference with the way a

party selects its candidates. For major parties, the answer is YES. For minor parties, the answer

is NO.

So why is the state’s interest in candidate selection different for major parties and minor

parties? The answer is simple:

Major parties select their candidates through primary elections conducted by the State. The State’s interest is not founded on the facts that the party is a major party. Rather, the State’s interest in founded on the fact that major party candidates are selected through a procedure--the primary elections--that affirmatively involves the State. Therefore, the State has an interest in assuring the integrity of the primary election.

On the other hand, minor parties select their candidates through procedures established by their own rules and regulations. Because there is no primary election for minor parties, the State has no role in the selection of minor party candidates—and no compelling interest is limiting the number of candidates a minor party can consider.

X: COUNT VII

THE SPECIFIC FILING DATE REQUIRED BY NMSA § 1-8-2 PREJUDICES MINOR PARTY CANDIDATES:

NMSA § 1-8-2 requires than minor party candidates file their appropriate documents “on

the second Tuesday in July.” Significantly, the statute does not provide for the filing of the

appropriate nominating papers “on or before” the second Tuesday of July69. By requiring that

papers be filed on a specific date, without any provision for filing papers at any other time,

NMSA § 1-8-2—which applies only to minor party candidates—can result in the exclusion of a

minor party candidate if, for example, a natural disaster or a special declaration of holiday

caused the State offices to be closed on that specific day.

69 In Libertarian Party of New Mexico v. Herrera, CIV-06-0615 (Sept. 18, 2006), aff’d, 506 F.3d 1303 (10th

Cir. 2007), this Court incorrectly recited the relevant provision of the statute to read “by the second Tuesday of July.” Although the Court’s misquote in Herrera is not itself relevant to this case, the mere fact that the Court mis-cited the statute does illustrate how easy it is for a statute can be construed to say something that it does not say.

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New Mexico’s July petition filing requirement also presents problems associated with the

sufficiency of time available for signature collection. Specifically, New Mexico’s Primary

Elections for major parties occur in June, only one month before the July filing requirement.

Voter’s whose candidate lost in the primaries are, almost by definition, voters likely to be

interested in supporting another candidate. Limiting the candidates of a minor party to only one

month the solicit the support of these voters—who previously endorsed the candidate of one of

the major parties and were not previously ready to endorse an alternative candidate—inherently

impairs the candidacy of a minor party candidate70.

XI: COUNT VIII

NMSA §1-8-18 UNCONSTITUTIONALLYIMPAIRS THE RIGHTS OF PARTIES.

NMSA § 1-8-18 provides that:

B. “No person shall become a candidate for nomination by a political party -- unless the record of voter registration shows:

2. Affiliation with that political party on the date of the Governor’s proclamation for the Primary Election;

The principle purpose of political parties is to advance a political agenda71. A party’s

political agenda is advanced by candidates who believe in the principles of the party—who may

or not be identified as members of the party in their voter registration.

Not all parties limit their choice of nominees to candidates who are registered as

members of the party—and there is no compelling reason why they should. However, NMSA §

1-8-18 effectively precludes any party from nominating a candidate who is not a member of that

party – as shown on his voter registration. Therefore, NMSA § 1-8-18 imposes on parties a

candidate nominating requirement that the party itself may find to be undesirable. Such

70 See Swanson v. Worley, 490 F.3d 894, 898 (11th Cir. 2007) specifically reciting uncontroverted testimony expert witness that “polling places are the best locations to gather signatures and that [limits on the signature collection time following a primary election] would have a ‘very significant effect’ on [] candidates attempting to qualify for ballot access.”

71 While political parties also seek to promote party identity, this is primarily the objective of the party leadership—not the rank-and-file members of the party.

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interference with the internal affairs of a party is, for reasons discussed in section IX-C,

unconstitutional.

NMSA § 1-8-18 is further rendered unconstitutional when it is applied to candidates for

constitutional offices – U.S. Senator and U.S. Representative. That is, NMSA §1-8-18

establishes a party nominating requirement that cannot be constitutionally imposed as a

requirement for election.

As previously discussed, status as a registered voter is not constitutional requirement for

the office of U.S. Senator and U.S. Representative. Therefore, NMSA § 1-8-18 effectively

prevents a party from nominating a candidate by imposing a condition that is unconstitutional as

applied to an individual candidate. Imposing such a limitation on who a party can nominate is

equally unconstitutional72.

An examination of the constitutionality of NMSA § 1-8-18 necessarily requires the court

to consider whether NMSA § 1-8-18 represents a procedural or substantive limitation on who

may be a party candidate.

When NMSA § 1-8-18 applied to candidates for state and local offices, the

procedural/substantive distinction is irrelevant because thee is no constitutional impediment to

the imposition of substantive conditions for election to those offices.

When NMSA § 1-8-18 is applied with respect to candidates for the office of U.S.

Representative, the distinction is not determinative of its constitutionality. Rather, the distinction

is only determinative of the grounds on which it is held to be unconstitutional. Specifically:

IF NMSA § 1-8-18 is deemed to be procedural, it is unconstitutional because impermissibly impairs the right of association between candidates and parties and constitutional interferes with the internal procedures of a political body73.

IF NMSA § 1-8-18 is deemed to be substantive, it is unconstitutional because it violates the “Qualifications Clause.” 74

72 The argument presented here, while seeming to be duplicative of the argument discussed previously regarding violations of the Qualifications Clause, is of a distinctly different character. That is, whereas the argument presented in section V-A was New Mexico Election Code impairment of the rights of a candid ate , as presented here, the issue is the impact of NMSA §1-8-18 on a party.

73 The basis for this necessary finding is more fully discussed in section IX-C.

74 The basis for this necessary finding is more fully discussed in section V-A.

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Even when applied to candidates for local and state office, NMSA § 1-8-18 poses

important constitutional problems. Specifically, the First Amendment right of association means

little if it is construed to mean that, in nominating candidates for political office, parties can only

associate with registered voters. While political parties are free to require their nominated

candidates to be registered with their parties, the State has no such right.

XII: COUNT IX

NEW MEXICO ELECTION CODE PROVISIONS“DE-QUALIFYING” MINOR PARTIES

ARE UNCONSTITUTIONAL.

NMSA § 1-7-2, provides, in relevant part, that:

C. Beginning with the general election in 1990, a qualified political party shall cease to be qualified for the purposes of the Election Code if two successive general elections are held without at least one of the party's candidates on the ballot or if the total votes cast for the party's candidates for governor or president of the United States, provided that the party has a candidate seeking election to either of these offices, in a general election do not equal at least one-half of one percent of the total votes cast for the office of governor or president of the United States, as applicable.  After giving notice by registered mail to the state chairman of the party at his last known address, the secretary of state shall remove all material dealing with the political party from his file of parties qualified in New Mexico. 

D.    The secretary of state shall then notify all county clerks of the removal and non-qualification of the political party.  The county clerk is then authorized to remove such rules and regulations from the county files. The county clerk shall immediately notify by mail all voters registered as members of such party of the removal and non-qualification of the party.  

E. To requalify, the party must again comply with the provisions of the Election Code dealing with filing requirements for political parties.   

 A minor party, once having established its bona fides and qualified for a place on the

ballot, needs time to grow. As the Supreme Court explained in Williams v. Rhodes,

“New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.”  393 U.S. at 23, 89 S.Ct. at 10-11.

The ability of such a party to grow is substantially impaired if it is denied a continuing presence

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on the ballot.75 NMSA §1-7-2(C) operates to deny a minor party that opportunity76. Plaintiffs

contend that NMSA §1-7-2(C) is overly burdensome and unconstitutional for five reasons:

FIRST: The “two election” basis for determining continuing party qualification has no rational basis.

SECOND: There is no justifiable reason for de-qualifying a party once it has been qualified.

THIRD: NMSA §1-7-2(D) Unconstitutionally Impairs Minor Parties:

FOURTH: Votes for Candidates are not valid measures of support for a Party:

FIFTH: The absence of Candidates on the ballot is not a valid Party disqualifying event.

SIXTH: New Mexico’s minor party qualifying requirements are incomplete.

SEVEN: NMSA §1-7-2(C) Lacks Adequate Notice Provisions and is Not Complied with by Applicable Authorities.

XII-A: The “Two Election” Basis for DeterminingContinuing Party Qualification has No Rational Basis

NMSA §1-7-2(C) essentially requires a minor party, even after having shown the

requisite “modicum of support” needed for initial “qualification,” to show “immediate” progress

to retain its qualified status.

The Libertarian Party of New Mexico was first “qualified” as a minor party in April

2006. By virtue of the failure of any of its candidates to satisfy the requirements of NMSA §1-7-

2(C) in the general elections of 2006 and 2008, it status as a qualified minor party has been

75 See also Patriot Party of Pa. v. Mitchell, 826 F.Supp. 926 , fn 19 (E.D. Pa. 1993) (“If a party cannot consistently maintain ballot access for its candidates, then the party cannot gain public support.”) 76 Virtually by definition, NMSA §1-7-2(C) will never result in the loss of “qualified” status by one of the major parties—the Republican and Democratic Parties. Therefore, there can be little doubt that its sole purpose is to impair the ability of a minor party to grow. “A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment.” Anderson, 460 U.S. at 793.

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revoked and it is now burdened with the requirement to obtain the necessary number of

signatures to become re-qualified77.

As the Supreme Court has explained, the First and Fourteenth Amendments establish

“[t]he right of citizens to create and develop new political parties…” Norman v. Reed, 502 U.S.

at 288, 112 S.Ct. at 705. Significantly, the Court did not merely say that the Constitution merely

confers a right to “create” new parties. Rather, the Court said that the Constitution establishes

right to create “and develop” new parties. NMSA §1-7-2(C) impairs that right.

Two years is simply to short a period of time to require a minor party to develop a

sufficient base to attract qualified candidates and the support needed to enable its candidates to

comply with the petition requirements needed to be listed on the ballot. In short, NMSA §1-7-

2(C) imposes an impermissible burden on minor party that outweighs and State interest.

XII-B: There is no Justifiable Reason forDe-qualifying a Party Once it has been Qualified:

Political parties do not appear on the ballot, only their candidates appear on the ballot.

Once a political party has “qualified,” it merely exists as an entity having the capability of

nominating candidates who, under existing law, must later independently qualify for ballot

access. Unless and until the party raises a certain amount of money (and becomes obligated to

submit financial reports) it does not even have to make filings with the State78. Therefore,

allowing a party to retain its qualified status does not impose any burden on the State. That is,

the State has no inherent interest one way or the other in whether or not a party is “qualified.”

The only entities having any interest in whether or not there are multiple qualified political

parties are the established parties. But it is not the place of the State to look out for the interests

of more established parties to the detriment of minor parties.

On the other hand, parties that have incurred the time and expense of attaining

“qualified” status have a distinct interest in retaining their qualified status because that status is

77 Perhaps more importantly, the de-qualification of a party means that future candidates wishing to represent that party on the ballot must not only obtain sufficient petition signature support for their own candidacy, they must obtain sufficient petition signature support to re-qualify their party. Thus, de-qualification imposes two impediments to access to future ballots.

78 Even a party that is not “qualified” for ballot access is required to comply with applicable campaign finance reporting laws.

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essential if it is to be able to recruit candidates79. Moreover, de-qualifying a previously qualified

party requires that party to then devote time and money to obtaining the signatures required to

regain “qualified” status. This diverts the party’s time and money from disseminating its

message. That is, de-qualifying a party interferes with its right of free speech.

As previously noted, because of the importance associated with the mere existance of

minor parties, statutes impairing such party’s access to the ballot are subject to “strict scrutiny.” 

Therefore, NMSA §1-7-2(C) can be upheld only if it’s provisions are necessary to serves a

legitimate state interest and the statute serves that state interest in the least restrictive way.

“To survive strict scrutiny [] a State must do more than assert a compelling state interest-

it must demonstrate that its law is necessary to serve the asserted interest.” Burson v, Freeman,

504 U.S. 191, 112 S.Ct. 1846, 1852, 119 L.Ed.2d 5 (1992) (Holding unconstitutional a

Tennessee state law limiting activities near voter polling places on the grounds that the statute

was not the least restrictive means of furthering the state objective.). See also Illinois State Bd. of

Elections v. Socialist Workers Party, 440 U.S. 173, 184-86, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979)

(finding high signature requirements that “burden[ed]” First and Fourteenth Amendment rights

unconstitutional because they were “not the least restrictive means of protecting the State's

objectives.”).  

In this case, it is unnecessary to determine whether or not NMSA §1-7-2(C) satisfies the

“least restrictive means” test because it does not even advance a legitimate state interest. That is,

while the established parties may have an interest in reducing competition, the State has no such

interest. Therefore, the statute must be found to be unconstitutional. [This same result must be

reached even under the Anderson balancing test. A balancing of interests clearly compels the

conclusion that a minor party’s interest in retaining its qualified status is far superior to any

interest the State may have in de-qualifying that party.]

XII-C: NMSA §1-7-2(D) Unconstitutionally Impairs Minor Parties:

NMSA §1-7-2(D) requires county clerks to notify all voters registered as members of a

“disqualified” party of the removal and non-qualification of the party.  There is, however, no

79 Analogously, as the court said in Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 224, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), “[f]reedom of association means [] that an individual voter has the right to associate with the political party of her choice.” Therefore, State action that ends the practical existance of a political party also impairs the freedom of association of the members of the party.

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compelling need to tell the voters registered with the minor party that the party has been

disqualified.

Status as a “qualified” party is relevant only for purposes of ballot access. It has nothing

to do with the status of the party as an organization and it does not affect the right of voters to

register as members of that party. Nonetheless, affirmatively informing voters registered with

that party that the party has lost its “qualified” status has the effect of telling them that the party

itself has ceased to exist. Such notice obviously interferes with the Constitutional right of free

association because they suggest that there is no longer any party to associate with. The obvious

and inevitable consequence of notifying voters who have declared a party affiliation in their

voter registration that the party has lost its qualified status is that the party itself will have

difficulty increasing its membership, and candidates of that party will face increased difficulty

obtaining petition signatures and campaign contributions.

In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) the Court held

that “[r]estrictions that do not affect a political party's ability to perform its primary functions-

organizing and developing, recruiting supporters, choosing a candidate, and voting for that

candidate in a general election-have not been held to impose a severe burden.” It necessarily

follow that actions that do affect a party’s ability to perform these functions do impose severe

burdens. Notice to a party’s registered voters that the party has ceased to be “qualified” very

definitely does affect a political party's ability to perform its primary functions.

Even if it could be argued that the state has come ephemeral interest in de-qualifying a

party, such an action is only significant to party leaders and potential candidates. Therefore, any

such interest as the State may have can be satisfied by notifying the party officers and current

party candidates of its action. Beyond that, notice to all voters registered with the party serves

only to impair the future development of the party.

Absolutely no State interest is advanced by notifying all of the voters registered with a

party that the party has been de-qualified. The only consequence of the action required by

NMSA §1-7-2(D) that the de-qualified party will be impaired in its efforts to grow. As

previously noted, a challenged restriction that “unfairly or unnecessarily burdens the availability

of political opportunity” is inherently unconstitutional.80

XII-D: Votes for Candidate s are Not Valid 80 Anderson, 460 U.S. at 793, 103 S.Ct. at 1572 .

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Measures of Support for a Party :

The provisions of NMSA §1-7-2 make the continued qualification of a party contingent

on the support obtained by a party candidate. The use of votes for a candidate as the basis for

disqualifying a party is improper for two reasons:

FIRST: NMSA §1-7-2 encourages a voting practice that is contrary to the purpose of the electoral process.

SECOND: New Mexico’s “Straight Party” ballot option biases voters against minority party candidates.

XII-D-1: NMSA §1-7-2 Encourages a Voting PracticeThat is Contrary to Public Policy:

The purpose of elections is to select the most qualified candidates to serve the public

interest.

Presumably, the purpose of NMSA §1-7-2 is to remove from the electoral system those

parties that fail to demonstrate the continuing “modicum of support” deemed necessary to remain

“qualified.” However, a vote for a candidate representing another party is not the same as a lack

of support for your own party. It is not wholly inconceivable for a party to have thousands of

voters registered with the party and yet have all of them decide that the candidate of another

party was more qualified than the candidate of their own party. Application of NMSA §1-7-2(C)

to these facts would lead to the conclusion that the party lacked sufficient support to justify its

continued “qualification.” But an examination of voter registration records would lead to the

opposite conclusion. Obviously, voter registration is a far truer indicator of support for a party.

To justify the proposition that support for a candidate is synonymous with support for a

party, one must assume that voters vote for parties, not candidates. Unfortunately, this happens

far too frequently. That is, voters do vote for candidates based on their party affiliation. But this

is not the way it should be, and this circumstance, however real it may be, cannot be the basis for

government policy and legislation. In fact, any provision that has the effect of causing voters to

support a less qualified representative of their party solely for the purpose of retaining the party’s

“qualification” is contrary to the purposes of the elective process.

It may be that other candidates are more qualified than a party’s candidate, so the party

members vote for that other candidate—as they should. However, NMSA §1-7-2 encourages

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party voters to vote for their party’s candidate solely to avoid having the party lose its status as a

“qualified” party. Any statute having this consequence is contrary to the fundamental purposes

of the democratic election process—and contrary to public policy

The only true measure of support for a party is the number of voters registered as

members of that party. Reliance of voting patterns as the only measure of support for a party

justifying its continued qualification for access to the ballot is unjustifiable.

XII-D-2: New Mexico’s “Straight-Party” VotingOption Unconstitutional Impairs Minor Parties:

New Mexico’s reliance on prior election results as the basis for maintaining minor party

qualification is also rendered suspect by the fact that New Mexico employs a “straight Party”

election option. That is, voters can elect to vote a straight-party ticket without casting a vote for

each office. In fact, the “straight party” option was the first choice presented on the ballot in the

2008 general election—ahead of the list of candidates. The problem is that “Libertarian” was

not one of the straight party options made available to voters. Even conceding that the only

Libertarian Party candidate was the candidate for President of the United States, the clear

implication of limiting the straight party choices to Republican and Democrat was that these

were the only parties represented anywhere on the ballot.

Merely making it possible for voters to vote a straight party ticket creates a bias against

minority parties not identified as an option and inherently reduces the changes of a minority

party candidate receiving sufficient votes to enable the party to retain its status as a “qualified”

party. Thus, New Mexico’s straight-party voting option—by its design--increases the likelihood

that a minor party will lose it “qualified” status pursuant to NMSA § 1-7-2.

To allow New Mexico to maintain a voting system that effectively biases voting patterns

against minor party candidates, and then use the consequences of that voting system to serve as

the basis for de-qualifying the minority party, would be unconscionable.

But this is not the only problem with New Mexico’s “straight-party” ballot option. The

mere fact that New Mexico has adopted a “straight-party” ballot option, but chosen list the

Republican and Democratic Parties as options while exclude the Libertarian Party as one of the

options—even though a Libertarian Party candidate was on the ballot—represents an

unconstitutional discrimination against the Libertarian Party. Having unconstitutionally

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discriminated against the Libertarian Party, it cannot be permitted to use the consequences of that

unconstitutional act to de-qualify the state party.

XII-E: The Absence of Candidates on the Ballot is Not a Valid Party Disqualifying Event.

There are many reasons why a Party may choose not to run a candidate in any particular

series of elections. The Party, and its various members, may be very happy with the choices they

are offered by other parties, including other minor parties. The Party may realize that the

candidacy of its members would be fruitless and elect not to invest its resources in a fruitless

effort. But none of these circumstances indicates that the Party is no longer active—either as a

Party or as a force in the elective process.

In any given election, or series of elections, a minor party may choose to endorse the

candidate of another party rather than run its own candidate. If the “voter confusion” argument

previously discussed is really a State objective in limiting ballot access, the decision to endorse

another candidate rather than run its own candidate should be viewed as a good thing. However,

because NMSA §1-7-2(C) requires parties to run candidates just to retain their status as a

qualified party, NMSA §1-7-2(C) has the effect of encouraging a party to add its own candidates

to the ballot—for the wrong reason.

XII-F: New Mexico’s Minor Party Qualifying Requirements are Unconstitutionally Incomplete.

The New Mexico Election Code contains specific provisions regarding the filing of Party

rules and regulations, and the required content of those rules and regulations, which must be

satisfied to qualify as a political party in New Mexico81. However, nowhere in the New Mexico

81 NMSA §1-7-2(A) provides that: “To qualify as a political party in New Mexico, each political party through its governing body shall adopt rules and regulations providing for the organization and government of that party and shall file the rules and regulations with the secretary of state. Uniform rules and regulations shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks.  At the same time the rules and regulations are filed with the secretary of state, the governing body of the political party shall also file with the secretary of state a petition containing the hand-printed names, signatures, addresses of residence and counties of residence of at least one-half of one percent of the total votes cast for the office of governor or president at the preceding general election who declare by their signatures on such petition that they are voters of New Mexico and that they desire the party to be a qualified political party in New Mexico.”   

NMSA §1-7-4(A) further provides that: “Each political party shall file its rules and regulations within thirty days after its organization and no later than the first Tuesday in April before any election in which it is authorized to participate.”

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Election Code is there any provision for notifying a minor party that it has satisfied the

requirements for qualifying to have its candidates included on the ballot—let alone any provision

stating when a necessary determination must be made by the Secretary of State.

Of course, a minor party does not itself appear on a ballot. But its candidates do. And

those candidates must file their own nominating petitions containing a designation of the party

they intend to represent82. In the absence of any established date by which a party’s

“qualification” must be established, a candidate can never know if he has a party to represent.

The absence of any means of knowing that the party has qualified impermissibly impairs the

ability of a minor party candidate to effectively seek ballot access.

An individual candidate cannot qualify for ballot access as the candidate of a party if the

party does not itself qualify. If his party does not qualify for ballot access, his only alternative is

to run as an independent candidate. Thus, there are two consequences to a failure of a party to

qualify for ballot access.

FIRST, if a candidate is required to run as an independent, the number of signatures he is

required to submit is increased dramatically.

SECOND, the form disseminated by the Secretary of State for colleting petition

signatures for minor party candidacies requires the inclusion of a designation of the candidate’s

party affiliation at the time the petition is signed. If a member of a minor party is later required

to run for office as an independent, all signatures collected on a form that designates his party

affiliation become worthless.

Even if a determination that the minor party did not qualify for ballot access was made

instantly on the first Tuesday of April, when the part is required to file its own qualifying forms,

this would leave candidates with less than 90 days to collect the requisite number of signatures

prior to the filing date for candidate nominating petitions on the second Tuesday of July—as

required by NMSA §1-8-2(B).

NMSA §1-7-3 enumerates the required content of the party rules and regulations and requires the Secretary of State to refuse to accept any filings unless they satisfy the prescribed requirements.

82 As discussed infra, candidate nominating petitions must be filed on the second Tuesday of July.[ NMSA §1-8-2.]

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[Significantly, this result is the consequence of a decision by the Secretary of State to require

minor party candidates to use a variation of a form, whose contend is defined by statute, intended

for use by major party candidates. NMSA §1-8-2, which establishes the petition requirement for

minor party candidates does not require a designation of party affiliation. Therefore, it is the

Secretary of State’s unauthorized addition of a requirement to minor party candidate nominating

petition forms that threatens the candidacy of a minor party candidate. But for the Secretary’s

improper action previously collected signatures could still be used by a candidate to qualify as an

independent candidate]

XII-G: Requirement to Qualify A Party STATEWDE As Predicatet o Nominating Candidates for LESS THAN STATEWIDE

OFFICE is Unconstitutional:

Before a candidate can run for office as the candidate of a minor party, that party must

itself be “qualified” by petitions submitted on its behalf.

Pursuant to NMSA § 1-7- 2, a political party can only qualify as a state political party.

To qualify, it must obtain the petition signatures of one-half of one percent of the identified votes

statewide. Although the statute acknowledges that a political party can operate through county

organizations, it makes no provision for a party to “qualify” only within the county or district a

candidate desires to represent.

There is no cognizable reason why a party cannot, or should not, be qualified to be

included on the ballot in a district or region smaller than the state as a whole; and the state has no

compelling justification for requiring a party to be qualified statewide if its only intent is to place

a candidate on the ballot in one district. The requirement that a candidate seeking office within

only one district qualify the party on a statewide basis imposes an unreasonable signature

collection burden.

Admittedly, in Libertarian Party of Florida v. Florida, 710 F.2d 790, 794 (11th Cir.

1983), cert. denied, 469 U.S. 831, 105 S.Ct. 117, 83 L.Ed.2d 60 (1984), the court addressed an

analogous question in a challenge to the Florida stature requiring local candidates having a party

affiliation to obtain statewide qualification of the party, while independent candidates only had to

qualify in the district they sought to represent. In that case, the court held that the disparity in

treatment was justified because the requirement of statewide support for minor-party candidates

achieved the goal of assuring the voters that “particular party designation has some meaning in

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terms of a ‘statewide, ongoing organization with distinctive political character.” However,

whatever merit that argument may have, it is only available to the State of New Mexico if the

State concedes the importance of a minor party maintaining an ongoing presence83. That is,

the State cannot both (a) require a party to demonstrate statewide support and (b) deny it the

ability to expand its constituency and, thereby, demonstrating its statewide support.

Furthermore, while Plaintiff’s do not dispute the general logic of the court’s reasoning in

Libertarian Party of Florida v. Florida, that court ignore a very important basic principle.

Specifically, minor parties, by definition, start out small and grow over time. They cannot be

expected to begin their existance with statewide support. For proof of this fact, and evidence of

the flaw in the Eleventh Circuit’s analysis, it is only necessary to look to the 2008 presidential

election. In that election, Robert Barr was the national Libertarian Party candidate for president.

But Robert Barr was not required to show national support to be the candidate of the national

Libertarian Party. In fact, he was not even on the ballot in every state because the Libertarian

party was not a qualified party in every state. Nonetheless, he was on the ballot in those subparts

of the United States where the party was qualified and where he otherwise satisfied the state

requirement for ballot access. If a party can run a candidate for national office without having to

demonstrate support everywhere in the country, why should a party offering candidate for office

representing only a portion of a state have to demonstrate statewide support?

As previously noted, a political party is only represented on the ballot by its candidates,

and a political party’s name only appears on the ballot where its candidates qualify for the ballot.

What is the compelling state interest in assuring that a party has support statewide if it only

intends to offer candidates in select parts of the state? What is the state’s interest that justifies

telling the citizens of, for instance, northern New Mexico that they cannot band together to sent a

representative to Congress under the banner of the High Mountain Party of Northern New

Mexico unless their party agency includes gaining support from the citizens Los Cruces and

Riudosa84. Plaintiffs’ contend that there is no such interest. Notwithstanding the frequency with

83 Such a concession necessarily defeats any argument the State may make in support of de-qualifying minor parties [pursuant to NMSA §1-7-2, as discussed is section VIII] after they have attained “qualified” status.

84 Concededly, such a party could “qualify” as a political party merely by obtaining sufficient nominating signatures from the people of northern New Mexico. But this fact does not answer the underlying question of why it is necessarily correct to presume that a new party is intended to operate on a statewide basis.

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which courts recite the mantra that political parties exist to spread their message statewide, the

state has no right to tell a party that it must have statewide support when its only intent is to offer

candidates for election within a single region or Congressional district.

In Jenness v. Fortson, supra, the court recognized the excessive burden placed on minor

parties when they are required to “qualify” on a statewide basis. Specifically, the Court noted

that the ability of a new party to advance its agenda is compromised is it is required to establish

itself on a statewide basis before its candidates can be included on the ballot for any elected

office85.

XII-H: NMSA §1-7-2(C) Lacks Adequate Notice Provisions and is Not Complied with by Applicable Authorities.

NMSA §1-7-2(C) has no provision requiring the Secretary of State to notifying parties of

the loss of their qualification for ballot access. Although the statute makes provision for what

must be done “after” the Secretary of State gives notice to the party chairman, it makes no

provision establishing when such notice must be given. The obvious and inevitable result of this

is that parties have no way of knowing whether they do or do not continue to be “qualified” and

whether they do or do not have to engage in the activities necessary to regain their status as a

“qualified” party.

In the absence of any express requirement regarding when the Secretary of State must

give notice to parties of their loss of “qualified” status, the statute implicitly gives the Secretary

of State discretion regarding when this determination must be made and when the “de-qualified”

party must be given notice.

It is beyond dispute that notice of the need to regain its “qualified” status is a material

requirement for ballot access. It is equally obvious that vesting the Secretary of State with

85 Specifically, what the Court said was:

“[] we can hardly suppose that a small or a new political organization could seriously urge that its interests would be advanced if it were forced by the State to establish all of the elaborate statewide, county-by-county, organizational paraphernalia required of a ‘political party’ … Indeed, a large reason for the Court's invalidation of the Ohio election laws in Williams v. Rhodes, was precisely that Ohio did impose just such requirements on small and new political organizations.” 403 U.S. at 441, 91 S.Ct. at 1976.

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implicit authority to make a discretionary determination of when such notice is given effectively

empowers the Secretary of State to determine how much time a “de-qualified” party has to

comply with NMSA §1-7-2 and regain its “qualified” status for the following general election.

When applied to elections of Representatives and Senators, NMSA §1-7-2 clearly

violates the “Elections Clauses” of the United States Constitution.

XIII: COUNT X

NEW MEXICO’S BALLOT ACCESS REQUIREMENTSUNCONSTITUTIONALLY IMPAIR THE RIGHTS OF VOTERS.

As noted previously, the right to associate for political purposes and the right to be a

political candidate are fundamental constitutional rights protected by the First and Fourteenth

Amendments. Virtually every challenge to State ballot-access laws, has been brought by a minor

party or a minor party candidate (or an independent candidate). Therefore, the only “rights”

against which the challenged state laws have been tested are the rights of parties and candidates.

However, as the Supreme Court said in Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320,

39 L.Ed.2d 702 (1974)

“The interests involved [in ballot access cases] are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters.” 86

The general ballot-access rights of parties and candidates, as established by the United

States Constitution, have been well addresses in previous sections of this memorandum.

However, this case also requires the court to weight the interests of the State in limiting ballot

access against the rights of voters. Because these “rights” have not been previously addressed by

the courts, it is necessary to determine just what there rights are so that the Court can engage in

an appropriate weighing of interests, as required by Anderson.

XIII-A: Voters Rights—Generally:

The Fourteenth Amendment to the U.S. Constitution provides, in part, that:

86 See also Swanson v. Worley, 490 F.3d 894, 902 (11th Cir. 2007) (“Ballot access restrictions also implicate the constitutional rights of voters, especially those with preferences outside the existing parties, to associate and cast their votes effectively.’)  

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“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …”

The Fourteenth Amendment establishes an absolute bar to any State action that abridges a

privilege of citizenship. The right to vote is a fundamental right guaranteed by the United States

Constitution and a privilege of citizenship.

Prior to 1888, elections were completely free and open. There were no government

printed ballots, and all citizens were free to nominate and vote for anyone from among their

number. In this context, the right to vote was not limited to the right to cast a vote for a

candidate whose name appeared on a ballot. Rather, the right to vote encompassed the entire

penumbra of rights associated with the placement of the name of candidates before the people –

and the unfettered right to cast a vote for any citizen.

“Constitutional rights would be of little value if they could be ... indirectly denied.”

Harman v. Forssenius, 380 U.S. 528, 540, 85 S.Ct. 1177, 1185, 14 L.Ed.2d 50 (1965) , and “[i]t

is inconceivable that guaranties embedded in the Constitution of the United States may [] be

manipulated out of existence. ” Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 129, 5

L.Ed.2d 110 (1960).

As previously noted, State authority to regulate elections is founded on the “Elections

Clause,” Article 1, Section 4, of the United States Constitution. However, whatever other power

the Elections Clause may be deemed to confer on the States:

“The constitution expressly provides that the choice shall be by the people, which cuts off both from the general and state Legislatures the power of so regulating the mode of election, as to deprive the people of a fair choice.” “The Republican,” Connecticut Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, 713, quoted in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 883, fn. 47, 115 S.Ct. 1842, 1869, 131 L.Ed.2d 881 (1995) (Emphasis added.)

In 2002, Saddam Hussein was elected President of Iraq with 100% of the vote. He was,

of course, the only candidate on the ballot. Would any one of us even suggest that the people of

Iraq actually have a right to vote in any meaningful sense?

The right to vote is a fundamental right guaranteed by the Constitution. However, this

right is meaningless if voters have no real choices.

The interest of voters in having a choice of candidates is not something that is merely

incidental to a ballot access questions. As the Supreme Court explained in Anderson v.

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Celebrezze,

“The exclusion of candidates ... burdens voters' freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens.” 460 U.S. at 787-88, 103 S.Ct. 156487

Similarly, in Reynolds v. Sims, supra, the Supreme Court said,

“The right to vote freely for the candidate of one's choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. at 555, 84 S.Ct. at 1378.

And in her concurring opinion in opinion Clingman v. Beaver, 544 U.S. 581, 125 S.Ct. 2029, 161

L.Ed.2d 920 (2005) Justice O’Conner said:

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” (quoting from Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534-535, 11 L.Ed.2d 481 (1964).)

In Williams v. Rhodes , 393 U.S. 23, 31, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968) , the Supreme Court

“quantified” the voters’ rights affected by ballot access laws when it said:

“The right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot.” 

By its express terms, Rhodes establishes that limitations on candidate choice represent a “heavy

burden” on voters.

A recognition of the fact that voters have rights independent of the rights of minor parties

and minor party candidates is important because voters rights are impaired by ballot access

limitations in ways that the rights of minor parties and minor party candidates are not. Because

of these differences, the rights of voters cannot be weighed against state interests (as required by

the Anderson test) using the same standards that are applied to weighing the interests of minor

parties and minor party candidates. For example:

In weighing the rights of minor parties and minor party candidates against the

87 See also  Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (stating that “[f]ull and effective participation by all citizens in [] government requires ... that each citizen have an equally effective voice in the election of members of his [] legislature”)

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interests of states, the courts have frequently noted that minor parties and minor party candidates can gain access to the ballot merely by collecting the required number of petition signatures. That is, ballot access is within the control of the person or entity seeking ballot access. But voters have no such alternative means of obtaining the right to vote for an alternative to the candidates of the established parties88.

In Reynolds v. Sims , 377 U.S. 533, 562, 84 S.Ct. 1362, 1382 (1964) the Supreme Court

explained:

“As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.” [Emphasis added]

This proposition leads directly to the conclusion that any significant impediment to free voter

choice is impermissible—and free voter choice requires unrestricted ballot access89.

In weighing the interests of States in controlling their elections against the rights of voters

to a choice of candidates, it is also important to bear in mind that the core argument for State

control over elections is found in the principle that States have a right to maintain the “integrity”

of their elections. The corollary to this proposition is that voters have a right to rely on the

integrity of the election process. Ballot access provisions that limit voter choices compromise

the integrity of the electoral system ever bit as much as events—such as frivolous candidacies—

that ballot-access limiting laws are intended to prevent.

The law has long recognized that the “appearance of impropriety” is grounds for, for

example, disqualifying attorneys and judges in the interest of maintaining public confidence in

the judicial system. This same principle is equally (if not more) applicable to the electoral

process. Allowing states to perpetuate the stranglehold of the established (Republican and

Democratic) Parties over government also undermines public confidence in government. This is

88 In Anderson v. Celebreze, 460 U.S. 780, 800, fn. 25, 103 S.Ct. 1564, 1576, 75 L.Ed.2d 547 (1983), the court expressly rejected the proposition that the alternative of a “write-in” is not a substitute for a name on the ballot.

89 It has often been argued that limitations on ballot access on the part of candidates does not deprive voters of free choice because they have the right to vote for their candidates of their choice as “write-in” candidates. However, as the Supreme Court noted in Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) , “[t]he realities of the electoral process ... strongly suggest that ‘access' via write-in votes falls far short of access in terms of having the name of the candidate on the ballot.” Id., at 719, n. 5, 94 S.Ct., at 1321, n. 5.

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especially true today because electoral politics have come to so completely dominate the public

perception of the entire political process that voters have little faith in the integrity of either

Party.

XIII-B: Voters Rights—Congressional Elections:

Applying the Anderson “weighing of interests” test is subject to even further refinement

when applied in the context of voters’ rights in a Congressional election. This refinement is

necessitated by the fact that the State interest in Congressional elections is not the same as the

State interests in elections for state and local offices. Specifically:

In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881

(1995), the Supreme Court also stated that:

“Nothing in the Constitution or The Federalist Papers ... supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives.” 514 U.S., at 842, 115 S.Ct. 1842. (Emphasis added)  

More recently, in different from the Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d

44 (2000), the Supreme Court emphasized that:

“… Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside.” 531 U.S. at 528, 121 S.Ct. at 1029) Emphasis added)

That is, the State has no interest whatsoever in the outcome of Congressional elections.

As previously noted, the state has two interests in maintaining the integrity of elections—

one of which operates for the benefit of the voters as a whole and one of which reflects the

state’s interests in assuring that there is no taint associated with state and local elected officials.

Only one of these interests is present in elections for Congressional offices. Therefore, the

weight given to the state’s interest in limiting ballot access in Congressional elections is

significantly less than the weight given to the state’s interest in other elections.

The right to vote is so fundamental in a democratic society that no interference with that

right can be tolerated. Therefore, any impediment to citizens' rights to vote for candidates that

represent their interest must be stricken.

No reasonable person can dispute the proposition that limiting voter choices to the

candidates of the Republican and Democratic Parties deprives the voters of the opportunity to

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vote for candidates representing the full range of interests and ideologies held by the voting

public. The issues of concern to voters today are simply far to varied the expect that both sides

of all the issues can be represented by only two candidates.

In a democratic society, the right to vote does not mean that voters have a right to be

represented by public officials who represent their particular interests. But the right to vote

does mean that all voters have a right to have the opportunity to elect candidates who represent

their particular interests.

Even the most casual follower of the daily news knows that voter frustration is

fermenting the seeds of radical anti-government action by those who feel they have been denied

a voice in government. This is not good for the nation.

When ballot-access limiting statutes that frustrate the efforts of minor parties are viewed

from the perspective of their impact on voters, it is important to recognize that, as the court said

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 589 (6th Cir. 2006).

“A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates-and of particular importance-against those voters whose political preferences lie outside the existing political parties.” [Emphasis added.]

Application of the Anderson test requires the court to consider the consequences of public

outrage with the political system in determining whether any State interest in limiting ballot

access is justified. There is simply no State interest that is great enough to outweigh the outright

rebellion that is the inevitable consequence perpetuating the present system of total control of

government by two parties.

XIV: RELIEF

Plaintiffs seek three forms of relief in this action:

(A) Declaratory relief.

(B) Injunctive relief.

(C) Mandamus.

XIV-A: Declaratory Relief:

For reasons more fully discussed in the preceding topics, Plaintiffs ask that the Court:

(1) Find that the NMSA § 1-8-18 imposes an unconstitutional qualification on

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candidacies for the position of U.S. Representative and unconstitutionally impairs

the right of association candidates of a political party for the position of U.S.

Representative.

(2) Finding that the Declaration of Candidacy requirements of the New Mexico

Election Code as applied by the Secretary of State to minor party candidates

impose an unconstitutional qualification on candidacy for the position of U.S.

Representative and unconstitutionally impair the rights of minor party candidates

to be included on the ballot for the 2010 general election.

(3) Finding that NMSA §1-8-2 imposes an unconstitutional “Qualification” on

candidates for the U.S. House of Representatives and unconstitutionally impair

access to the ballot by minor party candidates.

(4) Finding that the nominating petition requirements established by the Secretary of

State constitute a violation of the Elections Cause of the United States

Constitution when applied to candidates for the office of U.S. Representative.

(5) Finding the New Mexico practice of identifying candidates by Party affiliation

violates the Equal Protection clause of the Fourteenth Amendment of the U.S.

Constitution.

(6) Finding unconstitutional New Mexico’s “straight party” voting option.

(7) Finding that (a) the terms “voter” and “address” as use in NMSA §1-7-2(A) and

NMSA §1-8-2(A) is unconstitutionally vague and that (b) the nominating petition

requirements of NMSA §1-7-2(A) and NMSA §1-8-2(A) are unenforceable.

(8) Finding that New Mexico’s ballot-access signature requirements (a)

unconstitutionally discriminates in favor of major parties and against minor

parties in violation of the Equal Protection Clause of the Fourteenth Amendment

to the U. S. Constitution; (b) unconstitutionally favor the candidates of major

parties over the candidates of minor parties and (c) unconstitutionally impairs the

rights of minor parties to nominate candidates for local and non-statewide offices.

(9) Finding that NMSA § 1-8-18(A) (1) impermissibly interferes with the rights of

minor parties to nominate the candidate of their choice.

(10) Finding that New Mexico’s requirement that the individual candidates of minor

parties comply with statutory petition signature requirements as a precondition to

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nominating by their party impermissibly interferes with the rights of minor parties

to nominate the candidate of their choice.

XII-H: NMSA §1-7-2(C) Lacks Adequate Notice Provisions and is Not Complied with by Applicable Authorities.

XIV-B: Injunctive Relief:

Based on findings that the above identified portions of the New Mexico Election Code, as

written and/or as applied, are unconstitutional, Plaintiff asks that the Court enter its Order and

Judgment:

(1) Enjoining the Secretary of State from applying the provisions of NMSA §1-8-18

to candidates for the office of U.S. Representative.

(2) Enjoining the Secretary of State from requiring minor party candidates from filing

a Declaration of Candidacy as a precondition for being included on the ballot for

the general election

(3) Enjoining the Secretary of State from requiring candidates for the office of

Representative to comply with the requirements of NMSA §1-8-2.

(4) Enjoining the Secretary of State from requiring that minor party candidates for the

office of U.S. Representative to file petitions as a precondition for being included

on the general election ballot.

(5) Enjoining the Secretary of State from identifying candidates on the ballot by party

affiliation.

(6) Enjoining the Secretary of State from enforcing the provisions of NMSA §1-7-

2(A) and NMSA §1-8-2(A) as conditions precedent to qualifying the minor

parties and minor party candidates for the ballot for the 2010 general election.

(7) Enjoining the Secretary of State from requiring that candidates nominated by the

Libertarian Party of New Mexico and Green Party of New Mexico in accordance

with their party rules and Regulations independently qualify for inclusion on the

2010 general election ballot.

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(8) Enjoining the Secretary of State from de-qualifying Plaintiffs Libertarian Party of

New Mexico and Green Party of New Mexico under the provisions of NMSA §1-

7-2 and denying them their right to nominate candidates for the office of U.S.

Representative in the 2010 general election.

XIV-C: Mandamus:

Certain injuries suffered by the Plaintiffs cannot be cured by injunctive relief. The most

significant of these are found in those provisions of the New Mexico Election Code that impair

the constitutional rights of the Plaintiff-candidates for the U.S. House of Representatives.

Although the flaws in the New Mexico Election Code discussed herein can be corrected

by the New Mexico legislature, they can only be corrected by the legislature. That is, the Court

has no authority to re-write the flawed provisions of the New Mexico Election Code. See

Colorado Right To Life Committee, Inc. v. Coffman, 498 F.3d 1137, 1155 (10th Cir. 2007) (A

federal court “cannot re-write state laws to conform with constitutional requirements.”).

Whatever action the New Mexico legislature may choose to take to remedy the flaws in the New

Mexico Election Code, it cannot take that action in time correct the infirmities as they affect the

2010 election.

The courts have consistently held that where an impediment to ballot access is found to

be unconstitutional, the proper relief is to order that the injured party be given access to the

ballot. See Williams v. Rhodes , 393 U.S. 23, 89 S.Ct. 1, 21 L.Ed.2d 69 (1968) (ordering

Independent Party candidate placed on the ballot after finding the state election law provisions

failed to provide a constitutionally proper means of access to the ballot.); McCarthy v. Briscoe,

429 U.S. 1317, 1323, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976) (Upholding lower court order placing a

plaintiff’s name on the ballot was an appropriate remedy where the State has failed to provide

constitutionally appropriate means of access to the ballot.) 90; Goldman-Frankie v. Austin, 727

F.2d 603, 607 (6th Cir. 1984) (placing candidates name on ballot after Michigan legislature

failed to correct a constitutional defect in its statutory provision of providing ballot access to

independent candidates.): Libertarian Party of Ohio v. Bruner, 567 F.Supp.2d 1006 (S.D. Ohio

2008) (Following Goldman-Frankie and ordered the name of the Libertarian Party candidate

90 Following the Supreme Court’s decision, district courts in three other states ordered Presidential candidate Eugene McCarthy’s name placed on the ballot. See also McCarthy v. Noel , 420 F.Supp. 799 (D. R.I. 1976) (same); McCarthy v. Tribbitt , 421 F.Supp. 1193 (D. Del. 1976) (Same); McCarthy v. Askew , 420 F.Supp. 775 (N.D. Fla. 1976) (Same).

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placed on the ballot in the state of Ohio after the Ohio legislature failed to amend the provisions

of its election law found to be unconstitutional in Libertarian Party of Ohio v. Blackwell, 462

F.3d 579, 595 (6th Cir. 2006).91.

Plaintiffs Alan Woodruff and Daniel Fenton are clearly entitled to be included on the

ballot for the 2010 General Election because the New Mexico Code imposes requirements on

their candidacies that violate the Qualification Clause of the U.S. Constitution. That is, they are

entitled to be included on the ballot individually without regard to the qualification of the

Libertarian Party of New Mexico.

However, because party affiliation is a relevant factor considered by voters in their

selection of a candidate, a candidate is entitled to be identified on the ballot as the candidate of

the party in which he is a member. To require Woodruff’s or Fenton’s name to be listed on the

ballot without identifying his party affiliation would deprive him of the benefit of his party

affiliation. Therefore, Woodruff and Fenton must be identified on the ballot as a member of their

chosen regardless of whether or not the Party is otherwise found to be qualified for ballot access.

91 But see Campbell v. Buckley, 46 F.Supp.2d 1115 (D. Colo. 1999), in which the court refused the Plaintiff’s request for an injunction placing his name on the ballot after the court had found the Colorado statutes imposed an unconstitutional residency requirements on candidates for the U.S. House of Representatives. There the court said: “To impose Campbell's candidacy on voters who may participate in the next election in Colorado's Second Congressional District would be an unwarranted intrusion on the freedom of the electorate to select their candidates.” However, Campbell was an independent candidate, and requiring the Secretary of State to place his name on the ballot might have been proper under the reasoning of the court. In this case, however, Plaintiff Alan Woodruff is not, as was the plaintiff in Campbell, and independent candidate. He is the chosen candidate of a recognized political party whose members support his candidacy. Therefore, refusing to order his name placed on the ballot would deprive the members of the Libertarian Party of New Mexico of their right to offer their candidate for the U.S. House of Representatives. These facts being entirely different from those in Campbell v. Buckley, the court should follow the cases cited above and order Mr. Woodruff’s name placed on the ballot.

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