State ex rel. League of Women Voters v. Advisory Comm. to the N.M. Compilation Comm'n

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:22:29 2017.09.13
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2017-NMSC-025Filing Date: August 3, 2017
Docket No. S-1-SC-35524
STATE OF NEW MEXICO, ex rel.
LEAGUE OF WOMEN VOTERS OF NEW MEXICO,
Petitioner,
v.
ADVISORY COMMITTEE TO THE
NEW MEXICO COMPILATION COMMISSION,
Respondent.
ORIGINAL PROCEEDING
In Accord, P.C.
Daniel A. Ivey-Soto
Albuquerque, NM
for Petitioner
Hector H. Balderas, Attorney General
Ari Biernoff, Assistant Attorney General
Regina A. Ryanczak, Assistant Attorney General
Santa Fe, NM
for Respondent
New Mexico Association of Counties
Grace Philips
Santa Fe, NM
For Amicus Curiae New Mexico Association of Counties
Disability Rights New Mexico
Tim Gardner
Alice Liu Cook
1
Albuquerque, NM
for Amicus Curiae Disability Rights New Mexico
James E. Harrington, Jr.
Santa Fe, NM
The Duhigg Law Firm
Katy M. Duhigg
Albuquerque, NM
for Amicus Curiae Common Cause New Mexico
Egolf, Ferlic & Harwood, LLC
Katherine M. Ferlic
Jamison Barkley
Santa Fe, NM
for Amicus Curiae Drug Policy Alliance New Mexico
OPINION
MAES, Justice.
{1} Article VII, Sections 1 and 3 of the New Mexico Constitution set forth the elective
franchise, which is among the most precious rights in a democracy. The two provisions
work in tandem to establish and guarantee the right to vote. Section 1, among other things,
identifies who is qualified to vote; and Section 3 protects the right from being “restricted,
abridged or impaired on account of religion, race, language or color, or inability to speak,
read or write the English or Spanish languages . . . .” N.M. Const. art. VII, §§ 1, 3.
{2} To protect the elective franchise even further, the framers declared in two separate
constitutional provisions that Article VII, Sections 1 and 3 “shall never be amended except
upon a vote of the people of this state in an election at which at least three-fourths of the
electors voting in the whole state . . . shall vote for such amendment.” N.M. Const. art. VII,
§ 3; see N.M. Const. art. XIX, § 1. These heightened protections have led this Court to
describe Article VII, Section 1, as the “unamendable section” of the Constitution. See State
ex rel. Witt v. State Canvassing Bd., 1968-NMSC-017, ¶ 8, 78 N.M. 682, 437 P.2d 143.
{3} Petitioner, League of Women Voters of New Mexico, sought a writ of mandamus
directing Respondent, Advisory Committee to the New Mexico Compilation Commission,
to effectuate the compilation of three constitutional amendments to the so-called
unamendable section. The proposed amendments to Article VII, Section 1 were submitted
to the electorate in 2008, 2010, and 2014, and each received more than a majority, but less
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than a three-fourths super-majority, of the vote. The Compilation Commission did not
compile the amendments into the Constitution.
{4} Petitioner asked this Court to clarify that under a separate constitutional provision,
the 2008, 2010, and 2014 amendments required the approval of only a simple majority of the
voters. See N.M. Const. art. XIX, § 1 (1996) (setting forth general requirements for
amending the Constitution and specific requirements for amendments that “restrict the rights
created” in Article VII, Section 1, among others). As such, Petitioner contended that
Respondent has a non-discretionary duty to advise the Compilation Commission to compile
the amendments into the Constitution. Respondent took no position on the merits of the
question presented, but asked that we deny the petition on the grounds that Respondent was
not a proper party. After full briefing by the parties and by numerous amici curiae and after
hearing oral arguments, we granted the petition and issued a writ of mandamus as requested
by Petitioner. We now issue this formal opinion to explain our reasoning.
I. Facts and Procedural History
{5} In 2008, Constitutional Amendment 4 was placed on the ballot for the general
election. The amendment proposed to amend Article VII, Section 1 to permit school
elections to be held with other, non-partisan elections:
Every citizen of the United States, who is over the age of twenty-one years,
and has resided in New Mexico twelve months, in the county ninety days,
and in the precinct in which [he] the person offers to vote thirty days, next
preceding the election, except idiots, insane persons and persons convicted
of a felonious or infamous crime unless restored to political rights, shall be
qualified to vote at all elections for public officers. The legislature may enact
laws providing for absentee voting by qualified electors. All school elections
shall be held at different times from [other] partisan elections.
2008 N.M. Laws, S.J. Res. 4, § 1 at 1554 (showing original language of Article VII, Section
1 in brackets and strikethrough; showing proposed language with underlining). The
proposed amendment received 512,962 votes in favor of passage or 74.48 percent of the
votes cast on the amendment. See N.M. Sec’y of State, Canvass of Returns of General
Election Held on November 4, 2008 - State of New Mexico, at 11,
http://www.sos.state.nm.us/uploads/files/Election%20Results/StatewideGen08.pdf (last
visited July 20, 2017). The amendment was not compiled into the Constitution.
{6} In 2010, Constitutional Amendment 3 was placed on the ballot for consideration by
the voters. The 2010 amendment proposed to substantially revise the first sentence of
Article VII, Section 1 to account for various changes in federal voting law and to remove the
provision’s offensive use of the terms “idiots” and “insane persons”:
[Every citizen of the United States, who is over the age of twenty-one years,
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and has resided in New Mexico twelve months, in the county ninety days,
and in the precinct in which he offers to vote thirty days, next preceding the
election, except idiots, insane persons and persons convicted of a felonious
or infamous crime unless restored to political rights, shall be qualified to vote
at all elections for public officers.] Every person who is a qualified elector
pursuant to the constitution and laws of the United States and a citizen
thereof shall be qualified to vote in all elections in New Mexico, subject to
residency and registration requirements provided by law, except as restricted
by statute either by reason of criminal conviction for a felony or by reason
of mental incapacity, being limited only to those persons who are unable to
mark their ballot and who are concurrently also unable to communicate their
voting preference.
2010 N.M. Laws, S.J. Res. 6, § 1 at 1229 (showing first sentence of original language of
Article VII, Section 1 in brackets and strikethrough; showing proposed language with
underlining). The proposed amendment received 290,593 votes in favor of passage or 56.92
percent of the votes cast on the amendment. See N.M. Sec’y of State, Canvass of Returns
of General Election Held on November 2, 2010, at 8, http://www.
sos.state.nm.us/uploads/files/StatewideResults_Gen_2010.pdf (last visited July 20, 2017).
Again, the amendment was not compiled into the Constitution.
{7} In 2014, Constitutional Amendment 1 was placed on the ballot for consideration.
Like the 2008 amendment, Constitutional Amendment 1 sought to amend Article VII,
Section 1 to allow for school elections to take place in conjunction with non-partisan
elections. 2013 N.M. Laws, H.R.J. Res. 2, § 1 at 2569. The language of the proposed
amendment was substantively identical to the amendment proposed in 2008. Compare id.
with 2008 N.M. Laws, S.J. Res. 4, § 1 at 1554. The amendment received 258,673 votes in
favor of passage or 57.68 percent of the votes cast on the amendment. See N.M. Sec’y of
State, Canvass of Returns of General Election Held on November 4, 2014 - State of New
Mexico, at 9, http://www.sos.state.nm.us/uploads/files/Statewide%20Summary.pdf (last
visited July 20, 2017). Like the amendments proposed in 2008 and 2010, the 2014
amendment was not compiled into the Constitution.
{8} On September 24, 2015, more than ten months after the election on the 2014
amendment, Petitioner filed a Petition for a Writ of Mandamus. Petitioner asked this Court
to direct Respondent to advise the Compilation Commission to compile the 2008, 2010, and
2014 amendments into Article VII, Section 1 of the New Mexico Constitution. We ordered
Respondent to file a response and subsequently denied the petition without further briefing
or argument. See State ex rel. League of Women Voters v. Advisory Comm. to the N.M.
Compilation Comm’n, writ granted, No. 35,524, Sept. 29, 2015). Petitioner then filed a
motion for rehearing, which we granted and ordered full briefing and oral argument on four
issues, three that are procedural and one that poses questions of substantive law: whether the
petition is timely or time-barred, whether Petitioners have standing to raise the issues
presented in the petition, whether the Advisory Committee is the proper respondent to the
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petition, and the interpretation of any conflicts or inconsistencies in the constitutional
provisions at issue. See State ex rel. League of Women Voters v. Advisory Comm. to the
N.M. Compilation Comm’n, writ granted, No. 35,524 (Mar. 7, 2016). We assert original
jurisdiction under Article VI, Section 3 of the New Mexico Constitution over extraordinary
writs for mandamus against state officers, boards, and commissions. See State ex rel. Bird
v. Apodaca, 1977-NMSC-110, ¶ 3, 91 N.M. 279, 573 P.2d 213.
II. Discussion
A. Petitioner Has Standing to Petition for Mandamus
{9} We first address whether Petitioner has standing to raise the issues presented in this
proceeding. We need not address here whether Petitioner meets the traditional requirements
for standing of an organization because this Court has inherent authority to confer standing
when the issue brought by a party presents a matter of great public importance. See ACLU
of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 33, 144 N.M. 471, 188 P.3d 1222 (“It
is clear that this Court can ‘confer’ standing and reach the merits of a case regardless of
whether a plaintiff meets the traditional standing requirements, based on a conclusion that
the questions raised involve matters of great public importance.”).
{10} “Assuming mandamus would otherwise lie, we exercise our power of original
jurisdiction in mandamus if the case presents a purely legal issue that is a fundamental
constitutional question of great public importance.” Cty. of Bernalillo, N.M. v. N.M. Pub.
Reg. Comm’n, 2000-NMSC-035, ¶ 6, 129 N.M. 787, 14 P.3d 525. The substantive question
raised by the petition here—whether the 2008, 2010, and 2014 amendments were properly
approved by the voters and therefore should be compiled into the Constitution—is a matter
of great public importance. The right of qualified electors to vote is fundamental to the
integrity of state government. So too is the question of whether a constitutional provision
has been validly amended, particularly when the provision in question directly implicates
the right to vote. See, e.g., Cobb v. N.M. State Canvassing Bd., 2006-NMSC-034, ¶ 39, 140
N.M. 77, 140 P.3d 498 (“[T]he issue of clarifying our Election Code, especially in the
current political climate, make this a case of great public importance.”). We therefore
conclude that Petitioner has standing in this proceeding, regardless of whether the traditional
elements of standing have been satisfied. Cf. Gunaji v. Macias, 2001-NMSC-028, ¶ 20, 130
N.M. 734, 31 P.3d 1008 (conferring third-party standing in an election case implicating the
guarantee of free and open elections under Article II, Section 8 of the New Mexico
Constitution).
B. The Substantive Question in This Proceeding Is Not an Election Contest and
Therefore Is Not Time-barred by the Election Code
{11} We next consider whether the petition presents an untimely election contest under
the Election Code’s thirty-day statute of limitations. See NMSA 1978, § 1-14-3 (1971).
Respondent emphasizes that the petition was filed approximately one, five, and seven years
5
after the elections at issue were certified—well beyond the thirty days permitted to file an
election contest under Section 1-14-3. Petitioner counters that Section 1-14-3 is inapposite
because the substantive issue presented, whether a simple majority of the voters was enough
to approve the 2008, 2010, and 2014 amendments, is not an election contest. We must
resolve the question because if the petition amounts to an untimely election contest under
Section 1-14-3, we need not reach the merits of the constitutional issue presented. See
Morris v. Brandenburg, 2016-NMSC-027, ¶ 14, 376 P.3d 836 (noting that if a statutory
determination will resolve the case, “we need not address [p]etitioners’ constitutional
claims”); Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 (“It is an enduring
principle of constitutional jurisprudence that courts will avoid deciding constitutional
questions unless required to do so.”).
{12} Section 1-14-3 provides, “Any action to contest an election shall be commenced by
filing a verified complaint of contest in the district court . . . . Such complaint shall be filed
no later than thirty days from issuance of the certificate of . . . election to the successful
candidate.” The thirty-day limit “accords with the need for speedy resolution of election
contests[.]” Gunaji, 2001-NMSC-028, ¶ 26. The thirty-day limit does not apply, however,
to just any challenge to governmental action associated with or following an election that
might render “virtually every lawsuit against a governmental entity . . . subject to the
Election Code’s thirty-day statute of limitations.” Glaser v. LeBus, 2012-NMSC-012, ¶ 11,
276 P.3d 959.
{13} Instead, in Dinwiddie v. Bd. of Cty. Comm’rs, 1985-NMSC-099, ¶ 7, 103 N.M. 442,
708 P.2d 1043, we identified certain features of these challenges crucial for characterizing
the challenges as election contests invoking the Section 1-14-3 thirty-day limit. The
plaintiffs in Dinwiddie sought a declaratory judgment to: (1) invalidate a special bond
election due to allegedly faulty election procedures and (2) disallow certain “[i]nvalid”
ballots. Dinwiddie, 1985-NMSC-099, ¶ 1. The district court dismissed the complaint
because, among other things, it was not verified as required by Section 1-14-3. Dinwiddie,
1985-NMSC-099, ¶¶ 1-2. The plaintiffs argued on appeal that their claim to invalidate the
election was distinct from their claim to invalidate certain ballots and therefore was not an
election contest subject to the requirements of Section 1-14-3. Dinwiddie, 1985-NMSC-099,
¶ 7. This Court disagreed and held both issues raised in the district court were election
contests under Section 1-14-3, explaining:
A challenge to the validity of an election is also a challenge to its result, for
if it is successful, the result is changed. Similarly, a challenge to the result
contests the inherent validity of the election. Both seek to alter the certified
result of the election. An election is a process, not a single event, and the
whole process or any part of it, may be subject to contest.
Dinwiddie, 1985-NMSC-099, ¶ 7 (emphasis added); see also Glaser, 2012-NMCA-028, ¶
20 (“We thus view New Mexico case law as defining an election contest as a challenge to
the result of an election, as well as a challenge to the inherent validity of an election when
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the challenge would necessarily require overturning the results or effects of the election.”).
{14} By contrast, the contentions Petitioner presses in this case—namely, that the 2008,
2010, and 2014 amendments were validly approved by the voters—do not “seek to alter the
certified result of the election[s]” or contest “the whole process or any part of [the
elections].” Dinwiddie, 1985-NMSC-099, ¶ 7. There is no question in this case that each
of the elections conformed with the requirements of the Election Code and no question that
the 2008, 2010, and 2014 amendments received 74.48 percent, 56.92 percent, and 57.68
percent of the votes, respectively. See NMSA 1978, §§ 1-1-1 to 1-24-4 (1969, as amended
through 2016). The sole question is whether the three amendments—having received more
than a simple majority, but less than a three-fourths super-majority, of the votes cast—were
duly ratified and therefore should have been compiled into the Constitution. Rather than
seeking to alter the certified results of the elections, the petition seeks clarity about the
meaning and effect of the uncontested certified results of the elections under our
Constitution. Accordingly, the petition does not present an election contest and therefore
is not untimely under Section 1-14-3.
C. The Advisory Committee Is a Proper Respondent
{15} We next turn to whether the Advisory Committee is a proper respondent in this
proceeding. Petitioner candidly admits it is unsure who the proper respondent should be
because “[n]either the constitution nor the statutes assign the duty of declaring the winner
of a constitutional amendment.” Petitioner contends, however, that “the Advisory
Committee has been performing that function [declaring the winner of an election for a
constitutional amendment], even if it has been doing so unwittingly.” Petitioner therefore
asserts that the Advisory Committee is the proper respondent for a writ of mandamus.
{16} The Advisory Committee disagrees. It argues that it has no responsibility to declare
the results of an election and it therefore has not failed to fulfill any legal duty to Petitioner.
According to the Advisory Committee, the State Canvassing Board is the proper respondent
for the relief being sought by Petitioner, as the Canvassing Board is the entity charged under
the Constitution and the Election Code with the duty to “canvass and declare the result of
the election.” N.M. Const. art. V, § 2; NMSA 1978, § 1-13-15 (“The Canvassing Board
‘shall also canvass and declare the result of the vote on any constitutional amendment . . . .’
”
{17} The Advisory Committee is appointed by this Court and tasked with providing
“advice and approval” to the Compilation Commission. See NMSA 1978, § 12-1-3 (2006)
(providing that the Compilation Commission “act[s] on the advice and approval of an
advisory committee appointed by the New Mexico supreme court”). Without the Advisory
Committee’s advice and approval, the Compilation Commission cannot fulfill its statutory
responsibilities, which include compiling, certifying, and publishing the various laws of the
state of New Mexico. See id.; NMSA 1978, § 12-1-7 (2006) (providing that the Commission
shall, “with the advice and approval of the advisory committee[,]” certify the 1978
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compilation); see also § 12-1-3.1 (setting forth additional powers of the Commission). In
other words, the Advisory Committee’s advice and approval is a condition precedent to the
valid exercise of the Compilation Commission’s authority. Cf. NMSA 1978, § 12-1-7 (2006)
(“Upon the certification of the compilation of 1978 or any supplement by the New Mexico
compilation commission, with the advice and approval of the advisory committee of the
supreme court, the compilation or supplement shall be in force . . . .”).
{18} Thus, the Advisory Committee must provide advice and approval for any action
necessary for the Compilation Commission’s execution of its statutory responsibilities. The
duty necessarily extends to advising and approving the compilation of duly ratified
constitutional amendments. The duty would extend to advising and approving the
compilation of the 2008, 2010, and 2014 amendments, if they were properly approved by the
electorate. But the Committee has not so advised the Commission here, and the amendments
have therefore not been compiled. Thus, if we agree in this proceeding that the amendments
were properly approved, it would be incumbent upon the Advisory Committee to advise and
approve their compilation by the Commission. We therefore hold that the Advisory
Committee is the proper Respondent, and we need not consider whether the State
Canvassing Board also may be a proper respondent. We turn to the merits of the petition.
D. The 1996 Amendment to Article XIX, Section 1 Preserved Historic Protections
for the Political and Educational Rights of Minorities While Making Article
VII, Section 1 and Its Sister Provisions Easier to Amend in General
{19} The substantive question before us is whether the 2008, 2010, and 2014 amendments
to Article VII, Section 1 were effective, having received more than a simple majority, but
less than a three-fourths super-majority, of the vote. To answer this question, we must
interpret two constitutional provisions that address how Article VII, Section 1 may be
amended. “Interpretation of constitutional clauses begins with the language of the text.”
State v. Lynch, 2003-NMSC-020, ¶ 15, 134 N.M. 139, 74 P.3d 73. We seek to construe
constitutional provisions in harmony, but when “provisions cannot be harmonized, the
specific section governs over the general regardless of priority of enactment.” City of
Albuquerque v. N.M. State Corp. Comm’n, 1979-NMSC-095, ¶ 6, 93 N.M. 719, 605 P.2d
227. If “one section is not readily identifiable as the more specific one of the two[,] . . . the
latter provision governs ‘as the latest expression of the sovereign will of the people, and as
an implied modification pro tanto of the original provision of the Constitution in conflict
therewith.’ ” Id. ¶ 6 (quoting Asplund v. Alarid, 1923-NMSC-079, ¶ 11, 29 N.M. 129, 219
P. 786).
1. Article XIX, Section 1, as Amended in 1996, Controls the Outcome of This
Proceeding
{20} The requirements for amending Article VII, Section 1 are prescribed in two
constitutional provisions—Article XIX, Section 1 and Article VII, Section 3. Article XIX,
Section 1 sets forth the requirements for amending the Constitution and provides, in general,
8
that an amendment becomes part of the Constitution once it has been approved by a simple
majority of both houses of the Legislature and ratified by a simple majority of the voters in
a popular election. Article VII, Section 3 protects the rights of New Mexicans “to vote, hold
office or sit upon juries” and declares that those rights “shall never be restricted, abridged
or impaired on account of religion, race, language or color, or inability to speak, read or
write the English or Spanish languages.”
{21} Both provisions also impose heightened requirements for amending several
constitutional provisions, including Article VII, Section 1, that guarantee certain political
and educational rights. Article XIX, Section 1, amended in 1996, provides in relevant part:
[n]o amendment shall restrict the rights created by Sections One and Three
of Article VII hereof, on elective franchise, and Sections Eight and Ten of
Article XII hereof, on education, unless it be proposed by vote of
three-fourths of the members elected to each house and be ratified by a vote
of the people of this state in an election at which at least three-fourths of the
electors voting on the amendment vote in favor of that amendment.
Article VII, Section 3 similarly provides:
the provisions of this section [Section Three] and of Section One of this
article [Article VII] shall never be amended except upon a vote of the people
of this state in an election at which at least three-fourths of the electors voting
in the whole state, and at least two-thirds of those voting in each county of
the state, shall vote for such amendment.
Thus, rather than the simple majorities required to amend other constitutional provisions,
Article XIX, Section 1 and Article VII, Section 3 both require an amendment to Article VII,
Section 1 to pass with at least three-fourths of the votes cast on the amendment in a statewide
election. See N.M. Const. art. XIX, § 1; N.M. Const. art. VII, § 3; see also Witt, 1968-
NMSC-017, ¶ 38 (holding that the requirement in Article VII, Section 3 for “ ‘at least
three-fourths of the electors voting in the whole state’ ” was met when the amendment
received the vote of at least three-fourths of the electors who voted on the amendment). For
ease of reference, we refer to this threshold as the three-fourths requirement for the
remainder of this opinion.
{22} Despite sharing the three-fourths requirement, these provisions differ in several ways
with respect to how Article VII, Section 1 may be amended. One of these differences,
according to Petitioner, is outcome-determinative in this proceeding. Specifically, Petitioner
asserts that Article XIX, Section 1 imposes the three-fourths requirement only on an
amendment that “restrict[s] the rights created by Sections One and Three of Article VII
hereof, on elective franchise . . . .” (emphasis added). Article VII, Section 3, by contrast,
imposes the three-fourths requirement on an amendment to “the provisions of this section
[Section Three] and of Section One of this article [Article VII] . . . .” (emphasis added). The
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difference, according to Petitioner, is that under the former provision, an amendment that is
neutral or that expands the rights set forth in Article VII, Section 1 takes effect like an
amendment to any other constitutional provision, when it receives a simple majority of the
votes in the Legislature and in an election.
{23} We agree that these two provisions conflict about when the three-fourths requirement
applies to an amendment to Article VII, Section 1. Further, the general-specific rule is of
little help because the two provisions address distinct aspects of Article VII, Section 1:
Article XIX, Section 1 protects the rights created in the provision, whereas Article VII,
Section 3 protects the language used to create those rights. Cf. State v. Santillanes, 2001-
NMSC-018, ¶ 7, 130 N.M. 464, 27 P.3d 456 (“[I]f two statutes dealing with the same subject
conflict, the more specific statute will prevail over the more general statute absent a clear
expression of legislative intent to the contrary. The specific statute operates as an exception
to the general statute . . . .” (emphasis added) (citation omitted)). The question before us,
therefore, is answered by the simple rule that “the latter provision governs as the latest
expression of the sovereign will of the people, and as an implied modification pro tanto of
the original provision of the Constitution in conflict therewith.” City of Albuquerque, 1979-
NMSC-095, ¶ 6 (internal quotation marks and citation omitted).
{24} As we explain more fully below, the conflicting language between Article XIX,
Section 1 and Article VII, Section 3 resulted from amendments to the former provision that
were approved by the voters in 1996. See 1996 N.M. Laws, H.R.J. Res. 2, § 1 at 1074-76
(proposing various amendments to Article XIX). Prior to the 1996 amendments, both
provisions imposed the three-fourths requirement on any amendment “to the provisions of”
Article VII, Section 1. See N.M. Const. art. XIX, § 1 (1911); N.M. Const. art. VII, § 3. The
amended language of Article XIX, Section 1 therefore is controlling as the most recent
expression of the sovereign will of the people. See City of Albuquerque, 1979-NMSC-095,
¶ 6. To fully understand the meaning and effect of the 1996 amendments, we review the
history of the three-fourths requirement as it has evolved to its present formulation in Article
XIX, Section 1.
2. Article VII, Section 1 Is One of Four Provisions Intended to Protect Political
and Educational Rights of Minorities
{25} The three-fourths requirement featured in the original Constitution was submitted to
Congress after the constitutional convention of 1910. See The Constitution of the State of
New Mexico, H.R. Doc. No. 1369, at 25-26, 38-39, 1911 Leg., 3d. Sess. (1911). The
requirement protected four constitutional provisions from easy amendment: “sections one
and three of article seven hereof on elective franchise and sections eight and ten of article
twelve hereof on education . . . .” H.R. Doc. No. 1369, at 39 (Article XIX, Section 1,
requiring an amendment to Article VII, Sections 1 and 3 and Article XII, Sections 8 and 10
to pass with three-fourths of the votes of both houses); H.R. Doc. No. 1369, at 25-26 (Article
VII, Section 3, requiring an amendment to Article VII, Sections 1 and 3 to receive at least
three-fourths of the popular vote in a statewide election); H.R. Doc. No. 1369, at 35-36
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(Article XII, Section 10, requiring an amendment to Article XII, Section 10 to receive at
least three-fourths of the popular vote in a statewide election).
{26} Three of the four provisions protected by the three-fourths requirement explicitly
guarantee certain political and educational rights for Spanish-speakers. See N.M. Const. art.
VII, § 3 (“The right of any citizen of the state to vote, hold office or sit upon juries, shall
never be restricted, abridged or impaired on account of religion, race, language or color, or
inability to speak, read or write the English or Spanish languages except as may be otherwise
provided in this constitution . . . .”); N.M. Const. art. XII, § 8 (“The legislature shall provide
for the training of teachers in the normal schools or otherwise so that they may become
proficient in both the English and Spanish languages, to qualify them to teach
Spanish-speaking pupils and students in the public schools and educational institutions of
the state, and shall provide proper means and methods to facilitate the teaching of the
English language and other branches of learning to such pupils and students.”); N.M. Const.
art. XII, § 10 (“Children of Spanish descent in the state of New Mexico shall never be denied
the right and privilege of admission and attendance in the public schools or other public
educational institutions of the state, and they shall never be classed in separate schools, but
shall forever enjoy perfect equality with other children in all public schools and educational
institutions of the state, and the legislature shall provide penalties for the violation of this
section.”).
{27} The fourth provision protected by the three-fourths requirement—Article VII,
Section 1, which is the subject of this proceeding—sets forth voter eligibility and addresses
other voting-related matters. While the provision does not explicitly mention Spanish-
speakers, it has always guaranteed the right to vote without reference to a person’s ability
to speak, read, or write in English. See N.M. Const. art. VII, § 1 (1911) (providing in part
that “[e]very male citizen . . . shall be qualified to vote at all elections for public officers”);
Witt, 1968-NMSC-017, ¶ 39 (holding that Article VII, Section 1 was successfully amended,
thereby extending the right to vote by absentee ballot and repealing the language restricting
the voting rights of women and “Indians not taxed”).
{28} Scholars and historians agree that these four provisions were intended to safeguard
the political and educational rights of Spanish-speaking citizens in the aspiring state. See,
e.g., 2 Ralph Emerson Twitchell, The Leading Facts of New Mexico History, at 587
(facsimile of original 1912 ed., Sunstone Press 2007) (observing in the new Constitution that
“the Spanish-speaking citizen was so thoroughly protected in his rights”); Robert W. Larson,
New Mexico’s Quest for Statehood 1846-1912, at 279, (The University of N.M. Press 1968)
(“Constitutional safeguards of the rights of Hispanos were made nearly impossible to
amend.”); David V. Holtby, Forty-Seventh Star, at 243-44 (University of Okla. Press 2012)
(“The constitution also ensured the civil rights of Nuevomexicanos in politics and education,
which made it unique among such documents and an early promoter of equality . . . . [T]he
constitution afforded strong protections for Nuevomexicanos in the use of their language,
including in public affairs, in voting, and in schools.”). As one scholar has explained, “The
stringent provisions regarding equality for the Spanish-speaking citizen were intended to
11
overcome the fears and apprehensions of the native population that they might be
discriminated against by the Anglo majority.” Larson, supra, at 279.
{29} The history surrounding New Mexico’s attempts to become a state—and the
language repeatedly employed to block statehood—reveal the source of the framers’ concern
for the political and educational rights of Spanish-speakers. To be sure, a number of factors
delayed New Mexico’s admission to the Union as a state until 1912, including the growing
controversy over slavery. See id. at 50-57 (describing events leading to the Compromise of
1850 in which California was admitted as a free state and New Mexico and Utah were
organized as territories without reference to slavery). But from the time New Mexico was
annexed to the United States in 1848 from Mexico, its “Spanish-speaking, Roman Catholic
people” were the subject of prejudice and ridicule. See id. at 12, 303.
{30} In 1848 for example, Senator Daniel Webster of Massachusetts argued on the Senate
floor that the people of New Mexico were unfit to govern themselves as a state. See Holtby,
supra, at 4. He implored, “Have they [New Mexicans] any notion of popular government?
Not the slightest. . . . It is farcical to talk of such people making a constitution for
themselves.” Id. (internal quotation marks omitted) (omission in original) (quoting 10
Daniel Webster, The Writings and Speeches of Daniel Webster, at 21, 29-30, 27-28 (1903)).
As support for his views, Senator Webster quoted from the writings of an Englishman who
recently had visited New Mexico and had found its people lacking: “[Nuevomexicanos] are
as deficient in energy of character and physical courage as they are in all the moral and
intellectual qualities. In their social state but one degree removed from the veriest savages.”
Holtby, supra, at 4 (alteration in original). Fifty years later, aspiring Senator Albert J.
Beveridge echoed these sentiments in his imperialistic “March of the Flag” speech at the
Republican National Convention, describing New Mexico as having a “savage and alien
population.” Id. at 42. Mr. Beveridge won his election and later, as chair of the Senate
Committee on Territories from 1901-1911, blocked several of New Mexico’s last attempts
at statehood. Id. at 95.
{31} In the first decade of the twentieth century, similar attitudes were on display,
particularly about voting rights for the territory’s non-Anglo population. In 1906, for
example, after the Republican candidate won in a closely contested election to become New
Mexico’s congressional delegate, one prominent territorial newspaper accused non-Anglo
New Mexicans of being under gang control and argued that they should not be permitted to
vote. Holtby, supra, at 118-119. The paper declared that “it emphatically would remove the
privilege of voting from anyone . . . whose moral nature is so low, whose intellectual
capacity is so limited that it cannot exercise this privilege with intelligence, virtue, and
honesty, but instead falls under the whip of the [political] party and of a partisan lackey.”
Id. (alteration in original). The paper elaborated, “[T]here is but one race on the earth
qualified by its nature to manage and govern man’s destiny—the pure Anglo-Saxon.” Id.
Far away in the Senate, there was similar talk of adding a literacy requirement to the
Enabling Act to deny the vote to Spanish-speaking New Mexicans, most of whom were
presumed to be illiterate. See id. at 239; see also id. at 54 (summarizing the views of a then-
12
leading educational expert who claimed that the illiteracy rate in the New Mexico territory
circa 1900 was “scandalously high” and approaching 60 percent).
{32} Despite decades of hostility toward New Mexico’s Spanish-speaking population,
Congress passed the Enabling Act for New Mexico in 1910, free from literacy tests and other
measures that would have restricted the political rights of Spanish-speaking New Mexicans.
See Enabling Act for New Mexico, ch. 310, 36 Stat. 557 (1910). New Mexico held a
constitutional convention that same fall in Santa Fe, and nearly a third of the convention’s
one hundred elected delegates were native Spanish-speakers. See Larson, supra, at 274.
Their influence on the final document was clear, as evidenced by the four provisions
protected by the three-fourths requirement and the inclusion of the three-fourths requirement
itself. See N.M. Const. art VII, § 3; N.M. Const. art. XIX, § 1; see also, e.g., N.M. Const.
art. II, § 5 (“The rights, privileges and immunities, civil, political and religious guaranteed
to the people of New Mexico by the Treaty of Guadalupe Hidalgo shall be preserved
inviolate.”).
{33} Congress’s response to the proposed Constitution has been well-documented, and we
need not revisit it here in detail. See, e.g., Witt, 1968-NMSC-017, ¶¶ 1-6 (comparing the text
of Article XIX, Section 1, as originally proposed to Congress and as amended after a
statewide popular vote required by Congress before New Mexico would be admitted as a
state). Suffice it to say, Congress generally approved of the proposed Constitution but
conditioned New Mexico’s admission on holding an election for a proposed amendment to
Article XIX, Section 1 to make the general provisions of the Constitution easier to amend.
See S.J. Res. 57, 62nd Cong. § 3, 37 Stat. 39 (1911) (enacted). Congress prescribed the
language of the proposed amendment and required the ballots to be printed separately “on
paper of a blue tint, so that they may be readily distinguished from the white ballots provided
for the election of county and State officers.” See id. §§ 3, 4.
{34} But Congress’s “blue ballot” proposal did not affect the three-fourths requirement
for amending Article VII, Section 1 and its sister provisions. See id. Indeed, the proposal
arguably fortified the protections in Article XIX, Section 1 for the four protected provisions.
Compare The Constitution of the State of New Mexico, H.R. Doc. No. 1369, at 39 (requiring
an amendment to the four protected provisions to pass with the support of three-fourths of
the vote of both houses) with S.J. Res. 8, 62nd Cong. (1911) (enacted) (requiring such an
amendment to pass with three-fourths of the vote of both houses and three-fourths of the
vote in a statewide popular election). Thus, while Congress sought to make the Constitution
easier to amend in general, it respected New Mexicans’ desire to protect the political and
educational rights of Spanish-speakers in the aspiring state. See Chase v. Lujan, 1944-
NMSC-027, ¶¶ 74-78, 48 N.M. 261, 149 P.2d 1003 (Mabry, J., dissenting) (explaining that
Congress conditioned New Mexico’s admission on a popular vote to amend Article XIX,
Section 1 due to concern “that we should have a more easily amended Constitution, as to all
general amendments, but not to include those relating to the elective franchise, equal
educational opportunities and equal right to hold office”). New Mexicans approved the
amendment to Article XIX, Section 1 in November 1911, and New Mexico was admitted
13
to the Union in January 1912 after more than six decades as a territory. See Proclamation
No. 62, 37 Stat. 1723 (Jan. 6, 1912); see also Chuck Smith, The New Mexico State
Constitution, A Reference Guide 1, 12 (Greenwood Press 1996).
3. The Heightened Protections for Article VII, Section 1 Proved to Be an Effective
Deterrent to Amending That Section
{35} Since New Mexico became a state, the heightened protections for Article VII,
Section 1 have frustrated numerous attempts to expand voting rights, despite expansions at
the federal level. See, e.g., U.S. Const. amend. XIX (extending the franchise to women);
U.S. Const. amend. XXVI (extending the franchise to citizens over the age of 18). As early
as 1920, New Mexicans made their first of many attempts to amend the Constitution to
permit absentee voting. See generally Baca v. Ortiz, 1936-NMSC-054, 40 N.M. 435, 61
P.2d 320 (considering whether a 1920 amendment to Article VII that permitted absentee
voting for members of the military was validly enacted); see also Witt, 1968-NMSC-017, ¶
8 (observing that prior to 1967 “no less than ten unsuccessful attempts were made . . . to
amend the constitution so as to make absentee voting possible”). The 1920 amendment was
thought to have passed, but sixteen years later, this Court held that it was void “because [the
amendment was] never constitutionally adopted.” See Baca, 1936-NMSC-054, ¶¶ 10, 13
(noting that the amendment had passed with 6,742 votes in favor and 5,069 against, or 57.08
percent of the vote, and thus had failed to satisfy the three-fourths requirement).
{36} Similar attempts to amend Article VII, Section 1 failed, not only because of the three-
fourths requirement, but also because of the requirement that an amendment to that provision
must receive two-thirds of the votes cast in each county. See N.M. Const. art. VII, § 3; N.M.
Const. art. XIX, § 1 (1911). This additional requirement was the subject of this Court’s
opinion in Witt. In that case, more than 81 percent of the voters in a statewide election had
voted in favor of an amendment to Article VII, Section 1 to permit absentee voting and to
repeal the provision’s original language that restricted the right to vote for women and for
“Indians not taxed.” See Witt, 1968-NMSC-017, ¶¶ 2, 9, 14. Nonetheless, the amendment
would have failed because despite having met the three-fourths requirement, it had not
received the requisite two-thirds majority of the votes cast in every county. See id. ¶ 9 n.11
(“[A] change of 634 votes in twelve counties was needed to meet the requirement of Art.
VII, Sec. 3, and Art. XIX, Sec. 1.”). Witt held the two-thirds requirement to be an
unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment.
Witt, 1968-NMSC-017, ¶ 20 (“Where, as here, a vote in Harding County outweighs a
hundred votes in Bernalillo County, the ‘one person, one vote’ concept announced in Gray
v. Sanders, [372 U.S. 368 (1963)], certainly is not met.”). The amendment therefore was
effective, having satisfied the three-fourths requirement by passing with more than 81
percent of the vote. See Witt, 1968-NMSC-017, ¶ 39.
{37} Witt thus left the three-fourths requirement as the sole protection against amending
Article VII, Section 1 and its sister provisions. Even by itself, however, the three-fourths
requirement has proven difficult to overcome. Despite numerous attempts to amend Article
14
VII, Section 1, no proposed amendment has met the 75 percent threshold since Witt,
including the amendments in this proceeding, which received 74.48 percent, 56.92 percent,
and 57.68 percent of the votes cast in their respective elections. See also, e.g., 1973 N.M.
Laws, H.R.J. Res. 31, § 1 at 2040 (proposing to amend Article VII, Section 1 by, inter alia,
lowering the voting age to 18); N.M. Const. art. VII, § 1 compiler’s notes (noting that the
proposed 1973 amendment “was defeated by a vote of 25,198 for and 16,455 against”).
4. The 1996 Amendments to Article XIX, Section 1 Clarified That the Three-
fourths Requirement Applies Only to Amendments That Restrict the Right to
Vote
{38} Against this historical backdrop, the Legislature created a Constitutional Revision
Commission in 1993 and tasked it with reviewing the Constitution of New Mexico and other
states and to recommend changes “as it deems desirable and necessary.” See NMSA 1978,
§§ 12-15-1 to -7 (1993, expired prior to the convening of the second session of the forty-
second Legislature in 1996). After completing its review, the commission recommended
revisions to ten of the Constitution’s twenty-four articles. See Report of the Constitutional
Revision Commission Table of Contents (Dec. 1995) [hereinafter Report]. The
recommendations were separated by importance, ranging from “Highest Priority” to “Lower
Priority.” See id. at i-iv. Significantly, all of the “Highest Priority” recommendations were
directed at the “Amendment Process” set forth in Article XIX, which the commission
described as “the major defect in the current constitution.” Report, supra, at i-ii, 98.
{39} The commission recommended a number of “Highest Priority” amendments to
Section 1 of Article XIX, in particular, to allow for greater flexibility in amending the
Constitution. Report, supra, at 101 (recommending the creation of “an additional
mechanism which allows substantial constitutional revision without the necessity of calling
a constitutional convention”). For purposes of this proceeding, the most notable
recommendation was to amend the requirements for amending Article VII, Section 1 and its
sister provisions protected by the three-fourths requirement. Report, supra, at 102. The
commission acknowledged the importance of the heightened requirements, which “stem
from the historic sensitivity to minority rights which were clearly articulated in the 1910
constitution.” Id. at 102. The commission nonetheless recommended replacing the phrase
“no amendment shall apply to or affect the provisions of Sections One and Three of Article
VII hereof, on elective franchise” with “[n]o amendment shall restrict the rights created by
Sections One and Three of Article VII hereof, on elective franchise.” Report, supra, 100.
This change, according to the commission, “would maintain the historic rights-protection
purpose of the original provision, while also allowing expansion of such rights without the
restrictions of the supermajority requirement.” Id. at 102; see also id. at ii (recommending
an amendment to Article XIX, Section 1 “[t]o eliminate the 75 % requirement to bring about
general change in voter qualifications, while preserving that important requirement for the
protection of minority rights”). The commission also recommended eliminating the
requirement for two-thirds of the vote in each county, which had been held unconstitutional
in Witt. Report, supra, at 102. And the commission recommended parallel amendments to
15
Article VII, Section 3 so that the two provisions would remain consistent with each other
with respect to the three-fourths requirement. Report, supra, at 56-57; see also id. at 89-90
(recommending similar revisions to Article XII, Section 10).
{40} Based on the commission’s report, the Legislature submitted several proposed
amendments to the voters in 1996, including Constitutional Amendment 4, a proposal to
amend Article XIX for the first time since the blue ballot amendment of 1911. See 1996
N.M. Laws, H.R.J. Res. 2, § 1 at 1074-77 (proposing various amendments to Article XIX);
see also Piecemeal Amendment of the Constitution of New Mexico 1911 to 2010, at 16, N.M.
Leg. Council Serv. (18th. Rev. Apr. 2011). The amendment to Article XIX, Section 1 passed
with nearly 64 percent of the vote which changed the language to: “[n]o amendment shall
restrict the rights created by Sections One and Three of Article VII hereof, on elective
franchise . . . .” as described above. See 1996 N.M. Laws, H.R.J. Res. 2, § 1 at 76 (emphasis
added); see also N.M. Sec’y of State, Canvass of Returns of General Election Held on
November 5, 1996 - State of New Mexico, at 13,
http://www.sos.state.nm.us/uploads/files/1996%20General%20Summary.pdf (last visited
July 2017). As previously explained, the three-fourths requirement in Article XIX, Section
1 now safeguards “the rights created by” Article VII, Section 1, rather than “the provisions
of” that section. The Legislature, however, did not submit to the voters the commission’s
recommended parallel amendments to Article VII, Section 3. The 1996 amendments to
Article XIX, Section 1 thus created the disparity at issue in this proceeding.
{41} In light of the foregoing history, we hold that the 1996 amendment to Article XIX,
Section 1 effectuated a deliberate, long-overdue refinement of the three-fourths requirement.
The requirement continues to protect against amendments that would restrict the voting
rights of any non-English speaking minority who is otherwise qualified to vote. Accord
N.M. Const. art. VII, § 3 (providing that the right to vote “shall never be restricted, abridged
or impaired on account of religion, race, language or color, or inability to speak, read or
write the English or Spanish languages” (emphasis added)); Cf. State v. Rico, 2002-NMSC-
022, ¶ 11, 132 N.M. 570, 52 P.3d 942 (“Although the state constitution speaks of an inability
‘to speak, read or write the English or Spanish languages,’ we construe the provision to
require reasonable accommodation for a language barrier posed by competency only in a
language other than English.”). But the requirement can no longer frustrate the will of a
majority of the voters to expand the right to vote or to make other changes to general voter
qualifications that do not restrict the elective franchise. Under the controlling language of
Article XIX, Section 1, such an amendment requires only a simple majority of the vote to
become part of the Constitution. Having clarified the intended meaning of the 1996
amendment, we consider whether the 2008, 2010, and 2014 amendments were effective.
E. The 2008, 2010, and 2014 Amendments Did Not Restrict the Rights Created in
Article VII, Section 1 and Therefore Became Effective With a Simple Majority
of the Popular Vote
1. The 2008 and 2014 Amendments Were Effective
16
{42} The 2008 and 2014 amendments to Article VII, Section 1 were straightforward and
identical. See 2008 N.M. Laws, S.J. Res. 4, § 1 at 1554; 2013 N.M. Laws H.R.J. Res. 2, §
1 at 2569. Both replaced the pronoun “he” with “the person,” consistent with the modern
convention of replacing gender-specific language with gender-neutral language whenever
possible. See NMSA 1978, § 2-3-13.1(C) (2013) (“Whenever current laws and other
published legislative documents are the subject of a legislative request to the legislative
council service for amendment or revision, the legislative council service as part of its work
shall replace gender-specific language with gender-neutral language where appropriate and
reasonable.”). This change is neutral with respect to the rights created in Article VII, Section
1 and therefore was validly approved by a simple majority of the voters. Accord Witt, 1968-
NMSC-017, ¶ 14 (setting forth amendments to Article VII, Section 1, including the repeal
of language that restricted the right to vote for women).
{43} More substantively, the 2008 and 2014 amendments also provided, “All school
elections shall be held at different times from other partisan elections.” 2008 N.M. Laws,
S.J. Res. 4, § 1 at 1554; 2013 N.M. Laws, H.RJ. Res. 2, § 1 at 2569. Petitioner contends that
this change allows “school elections [to] be combined with non-partisan elections, but [to]
remain separate from partisan [elections].” As such, Petitioner argues that this change is
neutral with respect to voting rights because it is a “scheduling matter and not a change to
the elective franchise.” Amicus curiae Common Cause New Mexico agrees that the change
implicates the timing of school elections. Common Cause further argues that permitting
school elections to be consolidated with other non-partisan elections will improve voter
turnout and participation and thereby expand access to the elective franchise.1 See Zoltan
L. Hajnal et al., Municipal Elections in California: Turnout, Timing, and Competition vii-viii
(2002), http://ppic.org/content/pubs/report/R_302ZHR.pdf (last visited July 20, 2017)
(concluding, based on a study of municipal elections in California, that the timing of
elections affected voter turnout more than any other factor and that “a move to concurrent
elections has the greatest potential to expand voter participation in California’s local political
arena”). Id. ix. We take no position on whether improving participation by already-
registered voters represents an expansion of the right to vote. Nevertheless, we are satisfied
that allowing school elections to take place with other non-partisan elections, at a minimum,
is neutral with respect to the rights created in Article VII, Section 1. As the 2008 and 2014
amendments did not restrict voting rights, only a simple majority was required for
ratification.
2. The 2010 Amendment Was Effective
1
Common Cause New Mexico is a self-described “non-partisan, grassroots
organization dedicated to fair elections and making government at all levels more
democratic, open, and responsive to the interests of all people.” They persuasively
demonstrate that voter turnout over the past decade in Albuquerque, Las Cruces, and Santa
Fe has been far lower at school elections than at non-partisan municipal elections.
17
{44} A close comparison of the existing language of Article VII, Section 1 with the
proposed language of the 2010 amendment similarly reveals that the amendment would
either expand or be neutral with respect to voter qualifications. Since Article VII, Section
1 was amended in Witt, the first sentence has read as follows:
Every citizen of the United States who is over the age of twenty-one years
and has resided in New Mexico twelve months, in the county ninety days,
and in the precinct in which he offers to vote thirty days, next preceding the
election, except idiots, insane persons and persons convicted of a felonious
or infamous crime unless restored to political rights, shall be qualified to vote
at all elections for public officers.
N.M. Const. art. VII, § 1(A).
{45} These qualifications and exclusions are rooted in the original Constitution submitted
to Congress after the constitutional convention of 1910. See The Constitution of the State
of New Mexico, H.R. Doc. No. 1369, at 25. As such, they do not reflect significant
developments in federal voting law over the past century. See, e.g., U.S. Const. amend.
XXVI, § 1 (1971) (“The right of citizens of the United States, who are eighteen years of age
or older, to vote shall not be denied or abridged by the United States or by any State on
account of age.”); 52 U.S.C. § 10502 (1970) (providing that no United States citizen shall
be denied the right to vote for President or Vice President “because of the failure of such
citizen to comply with any durational residency requirement”); 52 U.S.C. § 20507(a)(3)(B)
(2002) (providing that a registered voter’s name may not be removed from a state’s voter
rolls except, inter alia, “as provided by state law, by reason of criminal conviction or mental
incapacity”). Moreover, the terms used to exclude otherwise-qualified voters are outdated
and do not provide clear constitutional standards. Terms like “infamous crime[s]” and
“idiots [and] insane persons” are of little help in determining who should be permitted to
vote. See Carroll v. Cobb, 354 A.2d 355, 359 (N.J. Super. Ct. App. Div. 1976) (“[I]t should
be abundantly evident that a lay person is completely unequipped to determine whether an
applicant is either an ‘idiot’ or an ‘insane person,’ . . . and thus disenfranchised. Indeed, we
suspect that those imprecise terms may be troublesome to experts in the fields of psychiatry
or psychology.”). Worse still, the latter are deeply offensive by modern standards to
describe individuals who suffer from a mental illness or disability.
{46} The 2010 amendment therefore proposed to “modernize” the first sentence of Article
VII, Section 1 by rewriting it as follows:
Every person who is a qualified elector pursuant to the constitution and laws
of the United States and a citizen thereof shall be qualified to vote in all
elections in New Mexico, subject to residency and registration requirements
provided by law, except as restricted by statute either by reason of criminal
conviction for a felony or by reason of mental incapacity, being limited to
only those persons who are unable to mark their ballot and who are
18
concurrently also unable to communicate their voting preference.
See 2010 N.M. Laws, S.J. Res. 6 at 1229 (“Proposing an Amendment to Article 7, Section
1 of the Constitution of New Mexico to Modernize Language on Qualified Electors by
Removing Language Denigrating Persons With Developmental Disabilities, Adopting
Federal Requirements to Vote, Defining Mental Incapacity for Voting Purposes and
Restricting Felons From Voting Except as Restored by Statute.”). If effective, the
amendment would extend the right to vote to those who (1) are qualified electors under the
Constitution and laws of the United States, (2) are citizens of the United States, and (3) meet
residency and registration requirements as provided by law. The amendment would exclude
an otherwise-qualified voter who is restricted by statute from voting because the voter (1)
is a convicted felon or (2) lacks mental capacity, limited to an inability to mark one’s ballot
and to communicate one’s voting preference.
{47} By modernizing the language in Article VII, Section 1, the 2010 amendment would
simplify a confusing web of federal and state laws regarding voter qualifications. In doing
so, the amendment would expand, or at least would not restrict, the right to vote in several
ways. First, the amendment would align the right to vote under the New Mexico
Constitution with federal voting laws. The practical effect of such an alignment would be
minimal because federal law already supersedes Article VII, Section 1 to the extent that
federal law is more expansive. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the
Laws of the United States which shall be made in Pursuance thereof; . . . shall be the
supreme Law of the Land . . . .”). But the change would eliminate confusion that may result
from inconsistencies between the antiquated language of Article VII, Section 1 and other
controlling law. Compare N.M. Const. art. VII, § 1 (limiting the right to vote to a citizen
“over the age of twenty-one”) with U.S. Const. amend. XXVI, § 1 (“The right of citizens of
the United States, who are eighteen years of age or older, to vote shall not be denied or
abridged by the United States or by any State on account of age.”).
{48} Second, the amendment would recognize the right of the legislative and executive
branches to craft laws to define and expand the right to vote. Currently, any state law that
would expand voting qualifications beyond Article VII, Section 1 must be based in federal
law. See, e.g., Uniform Military and Overseas Voters Act, NMSA 1978, §§ 1-6B-1 to -17
(2015) (setting forth procedures for complying with the federal Uniformed and Overseas
Citizens Absentee Voting Act, Pub. L. No. 99-410, 100 Stat. 928-29 (1986)). The
amendment would permit voting rights to be expanded via the legislative process without
having to wait for a change in controlling federal law.
{49} And third, the amendment would shift to the legislative and executive branches the
authority to define the circumstances under which an otherwise qualified voter may be
excluded from voting as a result of a felony conviction or mental incapacity. In doing so,
the amendment would eliminate the exception in Article VII, Section 1 for a person
convicted of an “infamous crime,” and would provide a more precise—and far-less
offensive—description of who may be excluded due to mental incapacity. These changes
19
would empower the political branches to define the voting rights of convicted felons and
mentally incapacitated individuals, consistent with the narrower restrictions of the amended
constitutional provision.
{50} None of these changes would restrict the right to vote as previously set forth in
Article VII, Section 1. We therefore conclude that the 2010 amendment was effective,
having passed with more than 50 percent of the popular vote.
3. Article VII, Section 1, as Amended, Incorporates the 2010 and the 2014
Amendments
{51} As a final matter, we clarify that Article VII, Section 1, as amended through this
proceeding, incorporates both the 2010 and the 2014 amendments. We emphasize the point
to avoid confusion about the effect of the 2014 amendments, which were approved by the
voters with the amended language about the timing of school elections and with the pre-2010
language about voter qualifications in the first sentence of Article VII, Section 1. See 2013
N.M. Laws, H.R.J. Res. 2, § 1 at 2569. Taken in context, the most sensible explanation for
including the pre-2010 language in the 2014 amendment is the Compilation Commission’s
failure to compile the 2010 amendment. But an alternate reading of the 2014 amendment
could lead to the conclusion that the Legislature—or perhaps even the voters—intended to
repeal the 2010 amendment and restore the previous language about voter qualifications.
We therefore clarify that the 2014 amendment had no effect on the 2010 amendment.
{52} Under well-established law, the 2014 amendment, which was initiated by the
Legislature, could not have amended the language about the timing of school elections and
repealed the 2010 amendment without being submitted separately to the voters. See N.M.
Const. Art. XIX, § 1 (“If two or more amendments are initiated by the legislature, they shall
be so submitted as to enable the electors to vote on each of them separately.”); see also State
ex rel. Clark v. State Canvassing Bd., 1995-NMSC-001, ¶ 8, 119 N.M. 12, 888 P.2d 458(“The purpose of this provision [in Article XIX, Section 1] is to prevent the abusive practice
of ‘logrolling’ . . . .”).
{53} Moreover, even if the two amendments could have been submitted as a single ballot
question, the 2014 amendment did not suggest to the voters that the amendment was
intended to affect anything but the timing of school elections. See 2013 N.M. Laws, H.R.J.
Res. 2 at 2569 (“A Joint Resolution Proposing to Amend Article 7, Section 1 of the
Constitution of New Mexico to Provide That School Elections Shall Be Held at Different
Times From Partisan Elections”). Without such notice, the effect of the 2014 amendment
was limited to the timing of school elections. Cf. Clark, 1995-NMSC-001, ¶ 25 (“[A] ballot
title should be intelligible, and impartial . . . [and] complete enough to convey an intelligible
idea of the scope and import of the proposed law[,] and be free from any misleading
tendency whether of amplification, of omission, or of fallacy.” (alteration in original)
(internal quotation marks and citation omitted)).
20
{54} We therefore ordered Respondent to advise and approve the compilation of Article
VII, Section 1 to include both amendments as follows:
A. Every person who is a qualified elector pursuant to the constitution
and laws of the United States and a citizen thereof shall be qualified to vote
in all elections in New Mexico, subject to residency and registration
requirements provided by law, except as restricted by statute either by reason
of criminal conviction for a felony or by reason of mental incapacity, being
limited only to those persons who are unable to mark their ballot and who are
concurrently also unable to communicate their voting preference. The
legislature may enact laws providing for absentee voting by qualified
electors. All school elections shall be held at different times from partisan
elections.
B. The legislature shall have the power to require the registration of the
qualified electors as a requisite for voting and shall regulate the manner, time
and places of voting. The legislature shall enact such laws as will secure the
secrecy of the ballot and the purity of elections and guard against the abuse
of elective franchise. Not more than two members of the board of
registration and not more than two judges of election shall belong to the same
political party at the time of their appointment.
State ex rel. League of Women Voters v. Advisory Comm. to the N.M. Compilation Comm’n,
writ granted, No. 35,524 (Sept. 21, 2016).
III. Conclusion
{55} IT IS SO ORDERED.
____________________________________
PETRA JIMENEZ MAES, Justice
WE CONCUR:
____________________________________
JUDITH K. NAKAMURA, Chief Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
____________________________________
CHARLES W. DANIELS, Justice
____________________________________
21
BARBARA J. VIGIL, Justice
22