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Crum v. Duran

Supreme Court of New Mexico

February 6, 2017

DAVID G. CRUM, Plaintiff-Appellant,
v.
DIANNA J. DURAN, New Mexico Secretary of State, MAGGIE TOULOUSE OLIVER, Bernalillo County Clerk, REPUBLICAN PARTY OF NEW MEXICO, and DEMOCRATIC PARTY OF NEW MEXICO, Defendants-Appellees, and STATE OF NEW MEXICO, ex rel. HECTOR BALDERAS, Attorney General, Intervenor-Appellee.

         CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS Denise Barela-Shepherd, District Judge.

          J. Edward Hollington & Associates, P.A. J. Edward Hollington Albuquerque, NM for Appellant.

          Holland & Hart, L.L.P. John C. Anderson Larry J. Montano Santa Fe, NM for Appellee.

          Republican Party of New Mexico Hector H. Balderas, Attorney General Nicholas M. Sydow, Assistant Attorney General Santa Fe, NM for Intervenor.

          OPINION

          EDWARD L. CHÁVEZ, Justice.

         {1} Petitioner David Crum is a resident of Albuquerque, Bernalillo County, New Mexico and is registered to vote in New Mexico as a qualified voter who declines to designate or state his political party affiliation (DTS). He sought to vote during the 2014 primary election by selecting either a Democratic or a Republican ballot without having to amend his voter registration. Crum was not permitted to vote during the June 3, 2014 primary election because he was not registered as either a Democrat or a Republican[1] on or before May 6, 2014. See NMSA 1978, § 1-4-5.1(F) (2007) (requiring voters to register at least twenty-eight days before an election to be eligible to vote during that election). Under New Mexico's closed primary election system, a voter who wants to vote during the primary election must be affiliated with a major political party, see NMSA 1978, § 1-12-7(B) (2003), and can only vote for candidates of a party which is designated on the voter's current voter registration certificate, see NMSA 1978, §1-12-7(C) (2003).

         {2} Crum contends that the Free and Open Clause of Article II, Section 8 of the New Mexico Constitution entitles him to vote during primary elections without registering with a major political party because he is a qualified voter under Article VII, Section 1. We disagree. Although the Free and Open Clause is intended to promote voter participation during elections, the Legislature has the constitutional power to enact laws that "secure the secrecy of the ballot and the purity of elections and guard against the abuse of [the] elective franchise." N.M. Const. art. VII, § 1(B) (2014). Requiring voters to designate their affiliation with a major political party at least twenty-eight days before the primary election, and only allowing voters to vote for candidates of a party which is designated on their voter registration, are reasonably modest burdens which further the State's interests in securing the purity of and efficiently administering primary elections. We therefore affirm the district court's grant of the motion to dismiss Crum's complaint for failing to state a claim upon which relief could be granted.

         I. DISCUSSION

         {3} Crum sued the Secretary of State and the Bernalillo County Clerk (Defendants), seeking an injunction to enjoin them from prohibiting DTS voters from voting during the primary election. The New Mexico Attorney General intervened on behalf of the State. The district court ordered that the Democratic Party of New Mexico (DPNM) and the Republican Party of New Mexico (RPNM), New Mexico's two major political parties, should be joined as party defendants under Rule 1-019 NMRA. Only RPNM entered an appearance. RPNM filed a motion to dismiss Crum's lawsuit for failure to state a claim under Rule 1-012(B)(6) NMRA, based on the contention that allowing DTS voters to vote in the primary election without designating a major political party would unconstitutionally infringe on RPNM's freedom of association.

         {4} The district court granted RPNM's motion to dismiss, concluding that the Legislature had the authority to enact Section 1-12-7(B) and (C) under its manner, time, and place of voting power in the second paragraph of Article VII, Section 1 of the New Mexico Constitution. The district court also found that the requirement to affiliate protects political parties' freedom of association. Crum timely appealed the district court's decision to the Court of Appeals, which then certified the case to this Court pursuant to Rule 12-606 NMRA and NMSA 1978, Section 34-5-14(C) (1972). Crum v. Duran, No. 34, 586, order of certification at 1-5 (N.M. Ct. App. Aug. 8, 2016) (non-precedential).

         {5} Whether New Mexico's closed primary system violates Article II, Section 8 and Article VII, Section 1 is a question of statutory and constitutional interpretation which we review de novo. Tri-State Generation & Transmission Ass'n, Inc. v. D'Antonio, 2012-NMSC-039, ¶ 11, 289 P.3d 1232. An appeal of an order dismissing a case under Rule 1-012(B)(6) is also reviewed de novo with the reviewing court accepting "all well-pleaded factual allegations as true and determin[ing] whether the plaintiff might prevail under any state[ment] of facts provable under the claim." Sambrano v. Savage Arms, Inc., 2014-NMCA-113, ¶ 4, 338 P.3d 103 (internal quotation marks and citation omitted).

         A. The Free and Open Clause Provides a Broad Protection of the Right to Vote; However, the Legislature May Constitutionally Impose Safeguards to Protect the Integrity of Elections

         {6} Article II, Section 8 of the New Mexico Constitution provides that "[a]ll elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." Crum contends that the Free and Open Clause requires all elections, including primary elections, to be free and open to all voters who meet the age, residency, and competency qualifications in the first paragraph of Article VII, Section 1.[2]

         {7} The Free and Open Clause is intended to promote-not restrict-citizen participation in New Mexico elections. State ex rel. Walker v. Bridges, 1921-NMSC-041, ¶ 8, 27 N.M. 169, 199 P. 370 (clarifying that a citizen's supreme right is to vote in public elections, and therefore election regulations should be construed in favor of a citizen's right to vote). Whether the Free and Open Clause of Article II, Section 8 was intended to apply to primary elections is unclear because at the time of the adoption of the New Mexico Constitution on January 21, 1911, primary elections did not exist in New Mexico. See State ex rel. Palmer v. Miller, 1964-NMSC-072, ¶¶ 9-10, 74 N.M. 129, 391 P.2d 416 (per curiam) (explaining ...


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