September 12, 2018

NM Supreme Court strikes down straight-party voting

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Andy Lyman

The New Mexico Supreme Court

The New Mexico Supreme Court unanimously struck down a controversial proposal to add a straight-party option to November’s ballot.

Secretary of State Maggie Toulouse Oliver announced last month that she would reinstate an option on November’s ballot to allow people to vote for all candidates of a given party with one mark on the ballot. That decision was challenged by the Libertarian and Republican parties of New Mexico, along with a Utah-based political action committee, a non-profit advocate group for independent candidates and one Democratic write-in candidate.

On Wednesday, Chief Justice Judith Nakamura called it a tough decision, but said only state lawmakers can add add straight-party voting to the ballot.

“Until the legislature makes a decision one way or the other, the Secretary of State cannot,” Nakamura said. She said the justices found no written support that the Legislature “intended to delegate its authority to the Secretary of State” on the issue.

A disappointed Toulouse Oliver said she hoped a straight-party option would streamline the voting process. But she added she fully respected the court’s decision and was happy to get clarification on an issue that goes back to 2001.

“I think it’s actually really helpful for the Supreme Court to finally weigh-in on this question,” Toulouse Oliver said.

Republican Secretary of State candidate Gavin Clarkson was part of a separate filing with the high court, known as an amicus brief, on behalf of almost 20 Republican legislators, some county clerks and county commissioners. Clarkson praised the court’s decisions but also took a moment to criticize his Democratic opponent.

“Secretaries of State do not make law, their job is to enforce the law and we have so many instances of this Secretary of State ignoring that,” Clarkson said.

Libertarian Attorney General Candidate Blair Dunn filed the initial petition with the court, challenging Toulouse Oliver’s decision.

“This is a longer-standing, much more complete decision than I thought we would probably get today,” Dunn said.

Dunn said he had expected the Supreme Court to focus on the rulemaking process and possibly allow the Secretary of State to make the ballot change, but with public hearings. Statewide officials often promulgate rules, but do so after listening to public comment and holding public hearings. There were no such hearings on this issue.

The case united Libertarians, Republicans and independents Wednesday afternoon.

Justice Charles Daniels pointed out to Toulouse Oliver’s contract attorney that the Democratic Party was the only group supporting the change.

“Is that just a coincidence?” Daniels asked.

Other justices hammered the Secretary of State’s legal counsel with questions and critical comments.

Nakamura asked hypothetically, and with some snark, whether a future ballot might include other all-encompassing options for things like bonds or judge retentions.

“We could reduce the ballot to four questions,” Nakamura said.

Opponents of straight-party voting argued the practice was eliminated in 2001 when then-Governor, and now Libertarian U.S. Senate candidate, Gary Johnson signed a bill that allowed the state to switch from manual, lever-operated voting booths, to paper ballots with bubbles. But New Mexico continued to keep the straight-party option on the ballot until Republican Secretary of State Dianna Duran removed it in 2012. Since then, some legislators unsuccessfully tried to reinstate the option through statute.

One question during Wednesday’s proceedings was whether an absence of wording allowing straight-party voting meant the law allowed a Secretary of State to add it through rules.

Toulouse Oliver’s attorney Jane Yohalem argued that since the Legislature failed to pass laws to allow straight-party voting, the Secretary of State can make the decision.

Justice Barbara Vigil disagreed.

“To me it infers the opposite,” Vigil said.

Toulouse Oliver said the decision, coming less than 60 days before the election, will not harm her office’s ability to finalize ballots. She said the office still has ten days to print ballots and mail them to overseas voters before the Nov. 6 election.

Opponents accused her of protecting other Democrats running for office, a charge Toulouse Oliver said was false

“It’s very easy to cast stones and to accuse somebody of being a partisan,” Toulouse Oliver said. “Really my goal is at the heart of voter participation. I want to see the most broad, widespread, robust voter participation we can have in the state.”