September 1, 2015

What can cause a Secretary of State vacancy? And what then?

Secretary of State Dianna Duran

Secretary of State Dianna Duran, courtesy photo

Secretary of State Dianna Duran is in the headlines lately, and not for good reasons.

Secretary of State Dianna Duran

Secretary of State Dianna Duran

Duran faces 64 counts related to transferring campaign funds to her personal account. This has prompted some to call for her resignation; House Democratic leadership said that if she does not resign then they will explore impeachment.

If Duran does leave the position before the end of her term, then it would not only allow Gov. Susana Martinez to pick a replacement, but could trigger an election at the next general election; in this case, that is 2016, two years earlier than originally scheduled.

This is because of Article V, Section 5 of the New Mexico Constitution.

The governor shall nominate and, by and with the consent of the senate, appoint all officers whose appointment or election is not otherwise provided for and may remove any officer appointed by him unless otherwise provided by law. Should a vacancy occur in any state office, except lieutenant governor and member of the legislature, the governor shall fill such office by appointment, and such appointee shall hold office until the next general election, when his successor shall be chosen for the unexpired term.

This all has to take place at least 63 days before the general election in 2016. It would need to take place earlier for a more traditional primary season, or at least as traditional as a statewide seat being up for grabs in a presidential election year.

If it takes place too late in the calendar, then the parties would choose candidates to appear on the ballot.

Before we get to that, let’s step back and see the different ways that this can lead to Duran leaving office.

The simple options

There are basically four ways that this can play out. She can serve out her term, she can resign, she can be removed from office by the Legislature or she can be removed from office after a conviction.

The idea that Duran can serve out her term until 2018 seems increasingly unlikely. But it is self-explanatory—business as usual except the constant drone of those urging her to resign. And remember, a trial could take place in months or even years.

The resignation is another simple option, and one that could take place at any point in the process while attempts to remove her from office take place.

And the other options are already being talked about.

“While we hope that Secretary Duran will choose to leave office, we in the House must be prepared to proceed in the event she does not,” Minority Leader Brian Egolf, D-Santa Fe, said in a statement.

What could the Legislature do about it?

But the House Democrats being “prepared to proceed” would mean being prepared to impeach Duran. This would start the process of removing her from office.

Again, from the state constitution, this time Article IV, Section 35.

The sole power of impeachment shall be vested in the house of representatives, and a concurrence of a majority of all the members elected shall be necessary to the proper exercise thereof. All impeachments shall be tried by the senate. When sitting for that purpose the senators shall be under oath or affirmation to do justice according to the law and the evidence. When the governor or lieutenant governor is on trial, the chief justice of the supreme court shall preside. No person shall be convicted without the concurrence of two-thirds of the senators elected.

RoundhouseYes, Duran is subject. Article IV, Section 36 outlines who can be impeached.

“All state officers and judges of the district court shall be liable to impeachment for crimes, misdemeanors and malfeasance in office,” the section states.

OK, so what would actually have to happen in the House?

The impeachment would require a majority vote of the full House. It would then move to the Senate for trial of the impeachment, which would require a two-thirds vote from the full Senate. That’s a very high bar to clear.

To get the ball rolling, a member of the House would need to introduce a resolution during a session. This likely would be a special session, one that Martinez would need to call. It could also be an extraordinary session (which members of the Legislature would call) or a regular session.

From there, a subcommittee of the House Rules & Order of Business Committee would consider articles of impeachment. The subcommittee would hire outside counsel to investigate and provide evidence to the subcommittee. After hearing testimony, the subcommittee would vote on whether or not to send it to the full House.

An impeachment could be looked at as analogous to an indictment. It is not any sign of guilt, but it does show that there is enough evidence to go to trial.

If the House votes to impeach, then it would go to the Senate side, which would sit as the jury for the trial.

A member of the House or—more likely—the outside counsel would prosecute in the Senate. It would require the two-thirds vote of the entire Senate to remove from office.

How likely is this to happen?

This would be highly unusual if it got this far. No statewide officer has even been impeached.

The closest New Mexico came to removing a statewide official was Robert Vigil, a State Treasurer. Vigil was convicted in 2007 of, among other things, receiving kickbacks for government investments and spent 26 months in federal prison and another six months in a halfway house.

The Roundhouse Rotunda. Photo by Matthew Reichbach

Matthew Reichbach

The Roundhouse Rotunda. Photo by Matthew Reichbach

However, Vigil was never really close to being removed from office by the Legislature. He resigned before the House Rules & Order of Business impeachment subcommittee could vote. He was replaced in 2005 by Doug Brown, who agreed to serve and not run for reelection.

Vigil resigned a year and change ahead of his conviction. But if Vigil had played the string out (and somehow won reelection in 2006 with the federal charges hanging over his head), he would have been removed from office at the time of his conviction.

New Mexico law says that elected officials with felonies are immediately removed from office.

Has removal from office after a conviction happened before?

No. At least, not to statewide officials.

But it did happen relatively recently to a Public Regulation Commissioner.

In 2010, a court found Carol Sloan guilty of two felonies, for aggravated battery and aggravated robbery.

From a Santa Fe New Mexican story on her conviction:

Prosecutors said Sloan attacked another woman, Brenda Yazzie, with a rock July 14, accusing Yazzie of having an affair with her husband.

“I was devastated because of the fact I was betrayed,” Sloan testified Wednesday.

Yazzie was left bruised and bloodied from a head wound, but Sloan told jurors she never struck Yazzie with a rock and had no knowledge of the woman’s injuries.

Leaders of both the Democratic and Republican parties said Sloan should not be able to serve. However, the Democrat decided to fight the removal from office.

The State Supreme Court was not convinced with her argument and said she was no longer qualified to hold office in New Mexico.

A more recent example was Tommy Rodella, the former Rio Arriba County sheriff. He was removed from office a year ago after a conviction from a road rage case.

So how would an election happen in 2016?

If there is a vacancy—and all of the following applies whether it is a resignation or a removal from office—before Jan. 26, 2016, then things are straightforward.

First of all, the governor would name a new Secretary of State. But that person would only serve until the next general election (remember that snippet of the New Mexico constitution way up there?), which would be in 2016.

register-to-voteThe governor would issue a primary election proclamation which would include the Secretary of State position. Unusual in that this is off-cycle for statewide positions, but other than that it would be business as usual.

If it takes place after this date, Martinez could still issue an amended primary election proclamation at least until March 1.

The state commissions would place a candidate on the primary ballot in the case of a resignation after this date but before the primary in June.

If the vacancy doesn’t occur until after the primary, the state central committees for each major party would choose a candidate to appear on the general election ballot.

But this can only occur until 63 days before the session; at that point, ballots must be ready to head to the printers or PDFs must be ready to head to voting convenience centers.

Correction: This story originally said that the Supreme Court Justice would preside over the trial. That would be if the Governor or Lieutenant Governor were on trial; it isn’t clear who would preside over the trial in the case of a Secretary of State.