May 20, 2021

Secretary of State and state Libertarian Party, argue legal ballot challenge lacks merit

Despite a special congressional election well underway, with many absentee ballots already returned and early in-person votes cast, the New Mexico Supreme Court may consider a case that challenges the validity of one of the candidates whose name is on the ballot. 

In April, a state district judge dismissed a claim that Chris Manning, the Libertarian candidate for First Congressional District, should not be on the ballot. Petitioners Ginger Grider and James Clayton, who are both members of the Libertarian Party of New Mexico, argued that the Libertarian Party should not have been granted major party status in the special election and that the party went against its own rules when nominating Manning. Grider and Clayton, through their attorney Blair Dunn, asked in April for the state supreme court to overturn the lower court’s decision. Dunn argued in the petition that the Libertarian Party should not be granted major party status since no gubernatorial or presidential candidate received at least five percent of the vote in the 2020 general election. 

It’s unclear when the high court may make a determination or whether it will call for oral arguments, but the New Mexico Secretary of State’s office filed a response on Tuesday that argues the Libertarian Party of New Mexico rightfully holds major party status.

In the response, General Counsel for the Secretary of State’s office Dylan Lange cited a 1996 opinion from then-New Mexico Attorney General Tom Udall that states major political parties can maintain their status if any candidate from the party gets at least 5 percent of the vote on a presidential or gubernatorial election ballot. Udall’s opinion states that “…any candidate of the qualified political party, in any partisan race, may satisfy the requirement by receiving the required number of votes.”

Lange also argued that New Mexico’s election law pluralizes “candidates” in the section that spells out major party status candidates. 

“This is the clearest reading because a political party will only have one canddate in a general election for a presidential or gubernatorial race; they will never have ‘candidates,’ as is used in the statute,” Lange wrote. 

The Libertarian Party also filed a response this week arguing similar points as the Secretary of State’s office. 

But Dunn argued in the petition to the state supreme court that a broad reading of that statute could lead to a crowded ballot and could risk the integrity of state elections. 

“It is hard to imagine that the Legislature really meant that as long as a party has membership in the political party of not less than one-third of one percent of the statewide registered voter file, and a candidate in the general election for county dog catcher that gets 5% of the vote, gets to be a major party as long as their dog catcher candidate gets 5% in each subsequent election for governor and president,” Dunn wrote in April. 

Interestingly, the viewpoints of Dunn and the Secretary of State’s office seem to have been reversed since 2018. 

In 2018 the Libertarian Party of New Mexico ran a slate of candidates in the general election, but none for governor. That year Dunn ran for New Mexico Attorney General and former Gov. Gary Johnson ran for U.S. Senate, both as Libertarians. At the time, the Secretary of State’s office said the Libertarian Party would need a candidate for governor that also received at least five percent of the vote in order to keep its major party status

“Secretary [of State] Toulouse Oliver interprets the statute to mean that in order for a party to qualify as a major party, they must receive at least five percent of the vote for the office of governor or president only during the last general election,” a spokesperson for the office said at the time. 

Dunn, at the time, argued that state election law would have allowed the party to keep its status through 2020, despite not having a gubernatorial or presidential candidate on the ballot in 2018.

It is still unclear if or when the high court may call for additional responses or oral arguments, but Election Day for the special First Congressional District election is less than two weeks away and election officials have already begun mailing out ballots and early voting is well underway. 

Dunn, whose father Aubrey Dunn is running in the special election as an independent candidate, told NM Political Report in April that the issue is less about who is on the ballot and more about challenging the lower court’s decision to throw the case out without considering evidence from him and his clients. 

“It’s the principle of the process,” Dunn said. “It’s denying these people their opportunity in court in order to prop up the party system.”