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State ex rel. League of Women Voters of New Mexico v. Advisory Committee to the New Mexico Compilation Commission

Supreme Court of New Mexico

August 3, 2017

STATE OF NEW MEXICO, ex rel. LEAGUE OF WOMEN VOTERS OF NEW MEXICO, Petitioner,
v.
ADVISORY COMMITTEE TO THE NEW MEXICO COMPILATION COMMISSION, Respondent.

         ORIGINAL PROCEEDING

          InAccord, P.C. Daniel A. Ivey-Soto Albuquerque, NM for Petitioner

          Hector H. Balderas, Attorney General Ari Biernoff, Assistant Attorney General Regina A. Ryanczak, Assistant Attorney General Santa Fe, NM for Respondent

          New Mexico Association of Counties Grace Philips Santa Fe, NM For Amicus Curiae New Mexico Association of Counties

          Disability Rights New Mexico Tim Gardner Alice Liu Cook Albuquerque, NM for Amicus Curiae Disability Rights New Mexico

          James E. Harrington, Jr. Santa Fe, NM The Duhigg Law Firm Katy M. Duhigg Albuquerque, NM for Amicus Curiae Common Cause New Mexico

          Egolf, Ferlic & Harwood, LLC Katherine M. Ferlic Jamison Barkley Santa Fe, NM for Amicus Curiae Drug Policy Alliance New Mexico

          OPINION

          PETRA JIMENEZ MAES, Justice

         {1} Article VII, Sections 1 and 3 of the New Mexico Constitution set forth the elective franchise, which is among the most precious rights in a democracy. The two provisions work in tandem to establish and guarantee the right to vote. Section 1, among other things, identifies who is qualified to vote; and Section 3 protects the right from being "restricted, abridged or impaired on account of religion, race, language or color, or inability to speak, read or write the English or Spanish languages . . . ." N.M. Const. art. VII, §§ 1, 3.

         {2} To protect the elective franchise even further, the framers declared in two separate constitutional provisions that Article VII, Sections 1 and 3 "shall never be amended except upon a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state . . . shall vote for such amendment." N.M. Const. art. VII, § 3; see N.M. Const. art. XIX, § 1. These heightened protections have led this Court to describe Article VII, Section 1, as the "unamendable section" of the Constitution. See State ex rel. Witt v. State Canvassing Bd., 1968-NMSC-017, ¶ 8, 78 N.M. 682, 437 P.2d 143.

         {3} Petitioner, League of Women Voters of New Mexico, sought a writ of mandamus directing Respondent, Advisory Committee to the New Mexico Compilation Commission, to effectuate the compilation of three constitutional amendments to the so-called unamendable section. The proposed amendments to Article VII, Section 1 were submitted to the electorate in 2008, 2010, and 2014, and each received more than a majority, but less than a three-fourths super-majority, of the vote. The Compilation Commission did not compile the amendments into the Constitution.

         {4} Petitioner asked this Court to clarify that under a separate constitutional provision, the 2008, 2010, and 2014 amendments required the approval of only a simple majority of the voters. See N.M. Const. art. XIX, § 1 (1996) (setting forth general requirements for amending the Constitution and specific requirements for amendments that "restrict the rights created" in Article VII, Section 1, among others). As such, Petitioner contended that Respondent has a non-discretionary duty to advise the Compilation Commission to compile the amendments into the Constitution. Respondent took no position on the merits of the question presented, but asked that we deny the petition on the grounds that Respondent was not a proper party. After full briefing by the parties and by numerous amici curiae and after hearing oral arguments, we granted the petition and issued a writ of mandamus as requested by Petitioner. We now issue this formal opinion to explain our reasoning.

         I. Facts and Procedural History

         {5} In 2008, Constitutional Amendment 4 was placed on the ballot for the general election. The amendment proposed to amend Article VII, Section 1 to permit school elections to be held with other, non-partisan elections:

Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which [he] the person offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers. The legislature may enact laws providing for absentee voting by qualified electors. All school elections shall be held at different times from [other] partisan elections.

2008 N.M. Laws, S.J. Res. 4, § 1 at 1554 (showing original language of Article VII, Section 1 in brackets and strikethrough; showing proposed language with underlining). The proposed amendment received 512, 962 votes in favor of passage or 74.48 percent of the votes cast on the amendment. See N.M. Sec'y of State, Canvass of Returns of General Election Held on November 4, 2008 - State of New Mexico, at 11, http://www.sos.state.nm.us/uploads/files/Election%20Results/ StatewideGen08.pdf (last visited July 20, 2017). The amendment was not compiled into the Constitution.

         {6} In 2010, Constitutional Amendment 3 was placed on the ballot for consideration by the voters. The 2010 amendment proposed to substantially revise the first sentence of Article VII, Section 1 to account for various changes in federal voting law and to remove the provision's offensive use of the terms "idiots" and "insane persons":

[Every citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers.] Every person who is a qualified elector pursuant to the constitution and laws of the United States and a citizen thereof shall be qualified to vote in all elections in New Mexico, subject to residency and registration requirements provided by law, except as restricted by statute either by reason of criminal conviction for a felony or by reason of mental incapacity, being limited only to those persons who are unable to mark their ballot and who are concurrently also unable to communicate their voting preference. The legislature may enact laws providing for absentee voting by qualified electors. All school elections shall be held at different times from other elections.

2010 N.M. Laws, S.J. Res. 6, § 1 at 1229 (showing original language of Article VII, Section 1 in brackets and strikethrough; showing proposed language with underlining). The proposed amendment received 290, 593 votes in favor of passage or 56.92 percent of the votes cast on the amendment. See N.M. Sec'y of State, Canvass of Returns of General Election Held on November 2, 2010, at 8, http://www. sos.state.nm.us/uploads/files/StatewideResults_Gen_2010.pdf (last visited July 20, 2017). Again, the amendment was not compiled into the Constitution.

         {7} In 2014, Constitutional Amendment 1 was placed on the ballot for consideration. Like the 2008 amendment, Constitutional Amendment 1 sought to amend Article VII, Section 1 to allow for school elections to take place in conjunction with non-partisan elections. 2013 N.M. Laws, H.R.J. Res. 2, § 1 at 2569. The language of the proposed amendment was substantively identical to the amendment proposed in 2008. Compare id. with 2008 N.M. Laws, S.J. Res. 4, § 1 at 1554. The amendment received 258, 673 votes in favor of passage or 57.68 percent of the votes cast on the amendment. See N.M. Sec'y of State, Canvass of Returns of General Election Held on November 4, 2014 - State of New Mexico, at 9, http://www.sos.state. nm.us/uploads/files/Statewide%20Summary.pdf (last visited July 20, 2017). Like the amendments proposed in 2008 and 2010, the 2014 amendment was not compiled into the Constitution.

         {8} On September 24, 2015, more than ten months after the election on the 2014 amendment, Petitioner filed a Petition for a Writ of Mandamus. Petitioner asked this Court to direct Respondent to advise the Compilation Commission to compile the 2008, 2010, and 2014 amendments into Article VII, Section 1 of the New Mexico Constitution. We ordered Respondent to file a response and subsequently denied the petition without further briefing or argument. See State ex rel. League of Women Voters v. Advisory Comm. to the N.M. Compilation Comm'n, writ granted, No. 35, 524, Sept. 29, 2015). Petitioner then filed a motion for rehearing, which we granted and ordered full briefing and oral argument on four issues, three that are procedural and one that poses questions of substantive law: whether the petition is timely or time-barred, whether Petitioners have standing to raise the issues presented in the petition, whether the Advisory Committee is the proper respondent to the petition, and the interpretation of any conflicts or inconsistencies in the constitutional provisions at issue. See State ex rel. League of Women Voters v. Advisory Comm. to the N.M. Compilation Comm'n, writ granted, No. 35, 524 (Mar. 7, 2016). We assert original jurisdiction under Article VI, Section 3 of the New Mexico Constitution over extraordinary writs for mandamus against state officers, boards, and commissions. See State ex rel. Bird v. Apodaca, 1977-NMSC-110, ¶ 3, 91 N.M. 279, 573 P.2d 213.

         II. Discussion

         A. Petitioner Has Standing to Petition for Mandamus

         {9} We first address whether Petitioner has standing to raise the issues presented in this proceeding. We need not address here whether Petitioner meets the traditional requirements for standing of an organization because this Court has inherent authority to confer standing when the issue brought by a party presents a matter of great public importance. See ACLU of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 33, 144 N.M. 471, 188 P.3d 1222 ("It is clear that this Court can 'confer' standing and reach the merits of a case regardless of whether a plaintiff meets the traditional standing requirements, based on a conclusion that the questions raised involve matters of great public importance.").

         {10} "Assuming mandamus would otherwise lie, we exercise our power of original jurisdiction in mandamus if the case presents a purely legal issue that is a fundamental constitutional question of great public importance." Cty. of Bernalillo, N.M. v. N.M. Pub. Reg. Comm'n, 2000-NMSC-035, ¶ 6, 129 N.M. 787, 14 P.3d 525. The substantive question raised by the petition here-whether the 2008, 2010, and 2014 amendments were properly approved by the voters and therefore should be compiled into the Constitution-is a matter of great public importance. The right of qualified electors to vote is fundamental to the integrity of state government. So too is the question of whether a constitutional provision has been validly amended, particularly when the provision in question directly implicates the right to vote. See, e.g., Cobb v. N.M. State Canvassing Bd., 2006-NMSC-034, ¶ 39, 140 N.M. 77, 140 P.3d 498 ("[T]he issue of clarifying our Election Code, especially in the current political climate, make this a case of great public importance."). We therefore conclude that Petitioner has standing in this proceeding, regardless of whether the traditional elements of standing have been satisfied. Cf. Gunaji v. Macias, 2001-NMSC-028, ¶ 20, 130 N.M. 734, 31 P.3d 1008 (conferring third-party standing in an election case implicating the guarantee of free and open elections under Article II, Section 8 of the New Mexico Constitution).

         B. The Substantive Question in This Proceeding Is Not an Election Contest and Therefore Is Not Time-barred by the Election Code

         {11} We next consider whether the petition presents an untimely election contest under the Election Code's thirty-day statute of limitations. See NMSA 1978, § 1-14-3 (1971). Respondent emphasizes that the petition was filed approximately one, five, and seven years after the elections at issue were certified-well beyond the thirty days permitted to file an election contest under Section 1-14-3. Petitioner counters that Section 1-14-3 is inapposite because the substantive issue presented, whether a simple majority of the voters was enough to approve the 2008, 2010, and 2014 amendments, is not an election contest. We must resolve the question because if the petition amounts to an untimely election contest under Section 1-14-3, we need not reach the merits of the constitutional issue presented. See Morris v. Brandenburg, 2016-NMSC-027, ¶ 14, 376 P.3d 836 (noting that if a statutory determination will resolve the case, "we need not address [p]etitioners' constitutional claims"); Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 ("It is an enduring principle of constitutional jurisprudence that courts will avoid deciding constitutional questions unless required to do so.").

         {12} Section 1-14-3 provides, "Any action to contest an election shall be commenced by filing a verified complaint of contest in the district court . . . . Such complaint shall be filed no later than thirty days from issuance of the certificate of . . . election to the successful candidate." The thirty-day limit "accords with the need for speedy resolution of election contests[.]" Gunaji, 2001-NMSC-028, ¶ 26. The thirty-day limit does not apply, however, to just any challenge to governmental action associated with or following an election that might render "virtually every lawsuit against a governmental entity . . . subject to the Election Code's thirty-day statute of limitations." Glaser v. LeBus, 2012-NMSC-012, ¶ 11, 276 P.3d 959.

         {13} Instead, in Dinwiddie v. Bd. of Cty. Comm'rs, 1985-NMSC-099, ¶ 7, 103 N.M. 442, 708 P.2d 1043, we identified certain features of these challenges crucial for characterizing the challenges as election contests invoking the Section 1-14-3 thirty-day limit. The plaintiffs in Dinwiddie sought a declaratory judgment to: (1) invalidate a special bond election due to allegedly faulty election procedures and (2) disallow certain "[i]nvalid" ballots. Dinwiddie, 1985-NMSC-099, ¶ 1. The district court dismissed the complaint because, among other things, it was not verified as required by Section 1-14-3. Dinwiddie, 1985-NMSC-099, ΒΆΒΆ 1-2. The plaintiffs argued on appeal that their claim to invalidate the election was distinct from their claim to invalidate certain ballots and therefore was not an election contest ...


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