Despite arguments that voters did not understand that they would lose the ability to elect state utility regulators, the New Mexico Supreme Court upheld the constitutional amendment that changes the New Mexico Public Regulation Commission from an elected body to an appointed body.
The court heard oral arguments on Monday and, after a brief recess, the judges returned to the room and announced their decision. A written opinion will be issued that explains the reasoning.
The change goes into effect in January and a nominating committee is currently considering about fifteen candidates. The nominating committee meets Friday and is expected to choose which names to submit to the governor for consideration.
The Indigenous groups argue that the appointment rather than election of PRC commissioners will disenfranchise them by potentially eliminating representation. They pointed specifically to District Four, which comprises northwestern New Mexico. District Four is a predominantly Native American district and has been at the center of many of the more controversial decisions the PRC has made in recent years. District Four has typically been an energy powerhouse for the state and is home to the shuttered Escalante Generating Station and San Juan Generating Station, which were both coal-fired power plants. The only remaining coal-fired power plant, the Four Corners Power Plant, is also within District Four.
Was the petition timely?
The timing of the case was one of the central points of discussion on Monday. A trio of Indigenous groups challenged the constitutionality of the change based on the ballot language in late August. The groups said the ballot language did not make it clear that voters would lose representation.
“We’re here today on the eve of the transition to the PRC because petitioners waited two years to challenge the results of a democratically-held election,” Kyle Duffy, an attorney for the governor’s office, said.
The governor’s office intervened in the case.
The constitutional amendment passed during the November 2020 election. The appointed body will consist of three commissioners rather than five commissioners. The new PRC will not be divided into districts, which means the commissioners could conceivably all live in metropolitan areas like Albuquerque or Santa Fe.
In general, the election code allows for a 30-day window of time when people can challenge the results of an election.
Justice David Thomson questioned arguments that the results should have been challenged within those 30 days.
“You’re basically putting a very short statute of limitation on the constitutional claim,” he said.
Chief Justice Shannon Bacon also questioned the argument that even if the ballot language was unconstitutional, the fact that it wasn’t challenged within 30 days means that it cannot be challenged now. She described that as a “pretty extreme position to tell the Supreme Court of the State of New Mexico to turn a blind eye to that which might be unconstitutional.”
Sarah Shore, an attorney for the Indigenous groups, said that in certain instances there are time limitations to challenging constitutional amendments after an election occurs.
“But this is not that case. The main effect of the amendment hasn’t gone into effect,” she said. “A constitutional right was repealed from the people and this court is the only recourse that people have in a circumstance like this.”
Did the ballot measure consist of confusing language, logrolling?
In addition to calling the ballot language confusing, the petitioners described the measure as logrolling—or pairing unpopular measures with a popular measure in an attempt to get the unpopular measures passed.
“It’s illuminating to go through how many things are missing from this ballot question, including which parts of the constitution are being modified, the repeal of an existing right to vote, the repeal of an existing right to geographic representation, the repeal of large areas of the PRC’s constitutional jurisdiction,” Shore said.
She said she isn’t arguing that every single omitted detail should have been included in the ballot language, but that the repeal of the right to vote for commissioners from geographical districts of New Mexico should have been.
The ballot language came from the legislation passed that enabled the constitutional amendment to be placed on the ballot.
Thomson said a lot of the concerns surround what language was not in the constitutional amendment on the ballot.
He said the petitioners argue that “if you are going to take an existing right, that is the right to elect rather than the governor to appoint, that must be specifically spelled out.”
However, Thomson said he could not find any authority for that argument.
Duffy said that while the ballot question did not say that voters would lose the right to vote for members of the PRC, it was implicit that if the governor was picking the commissioners, the voters would not be.
“I don’t think that this is a case where the legislature was hiding the ball,” he said.
Duffy said the petitioners did not provide evidence that any voter was misled and that nearly 100,000 voters would have had to have been misled to alter the results of the election.
Justice Brianna Zamora asked Shore about whether specific evidence that voters were misled should be required rather than just speculation.
Shore said that it isn’t just speculation. She said the court needs to ask what the average voter would have understood from the wording.
In terms of logrolling, Justice Michael Vigil read the ballot language out loud during the oral arguments.
“It seems to me that there are three separate independent proposals in that title,” he said.
But Duffy argued that all the proposals were connected by the single main purpose of reforming the PRC.
Zamora asked why it wasn’t logrolling if a voter supported part of the measure, such as reducing the number of commissioners and limiting its jurisdiction, but opposed giving up the right to elect the commissioners.
“That could be argued in almost any constitutional amendment,” Duffy said. “It’s very rare that there’s just one explicit change in the amendment.”