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Unite New Mexico v. Oliver

Supreme Court of New Mexico

February 7, 2019

MAGGIE TOULOUSE OLIVER, Secretary of State of New Mexico Respondent.


          Peifer, Hanson & Mullins, P.A. Carter B. Harrison IV Albuquerque, NM SaucedoChavez, P.C. Christopher Saucedo Albuquerque, NM Western Agriculture, Resource and Business Advocates, LLP A. Blair Dunn Albuquerque, NM for Petitioners

          Hector H. Balderas, Attorney General Sean M. Cunniff, Assistant Attorney General Dylan Kenneth Lange, Assistant Attorney General Jane B. Yohalem, Special Assistant Attorney General Santa Fe, NM for Respondent

          Hendricks Law Michael E. Hendricks Albuquerque, NM for Amici Curiae

          Ginger Grider, Rep. Paul Bandy, Rep. Jimmie C. Hall, Rep. James Townsend, Rep. Greg Nibert, Rep. Ricky L. Little, Rep. Bob Wooley, Senator Stuart Ingle, Senator Mark Moores, Senator Cliff Pirtle, Senator Steven P. Neville, Senator William E. Sharer, Senator William Payne, Senator Carroll H. Leavell, Senator James P. White, Senator Gay G. Kernan, Senator Candace Gould, Senator Ron Griggs, Senator William F. Burt, Senator Craig W. Brandt, Commissioner Will Cavin, Commissioner Robert Corn, Keith Riddle, Keith Manes Amicus Curiae Dr. Gavin Clarkson, Pro-Se Las Cruces, NM



         {¶ 1} The Secretary of State (Secretary) sought to reinstate straight-ticket voting in the November 2018 general election. A coalition of voters, political parties, and political organizations (Petitioners) filed a petition for writ of mandamus asking this Court to order the Secretary to stop and make no further efforts to reinstate the straight-ticket option on grounds that she does not possess authority to do so. We agree with Petitioners. Whether straight-ticket voting shall once more be a ballot option in general elections in New Mexico is a policy question for our Legislature. The Legislature cannot delegate election policy determinations. The Secretary's efforts to reinstate straight-ticket voting without legislative approval violates separation of powers principles and is unlawful. The petition for writ of mandamus is granted.[1]

         I. DISCUSSION

         {¶ 2} "The New Mexico Constitution gives this Court the power to issue writs of mandamus 'against all state officers.'" State ex rel. League of Women Voters v. Herrera, 2009-NMSC-003, ¶ 12, 145 N.M. 563, 203 P.3d 94 (citing N.M. Const. art. VI, § 3). The Secretary is a "state officer." Id. We have exercised our "original jurisdiction in mandamus in instances where a petitioner sought to restrain one branch of government from unduly encroaching or interfering with the authority of another branch in violation of Article III, Section 1 of our state constitution." State ex rel. Sandel v. N.M. Pub. Util. Comm'n, 1999-NMSC-019, ¶ 11, 127 N.M. 272, 980 P.2d 55. This case presents this exact circumstance. Petitioners ask us to restrain the Secretary, an executive branch official, from encroaching upon the authority of the legislative branch to make the election laws.

         {¶ 3} Petitioners contend that the Secretary cannot reinstate straight-ticket voting in the general election because only the Legislature may decide this question and that the Legislature has already decided that straight-ticket voting shall not be available to voters in the general election. The Secretary responds that "the New Mexico Legislature has never prohibited the inclusion of a straight-party voting option on the ballot," and that the Legislature "left this option, like other options involved in formatting the ballot, to be determined by the [Secretary]." She emphasizes that "the Election Code quite clearly gives the [Secretary] discretion on the formulation of the ballot" and directs us to NMSA 1978, Section 1-10-12(F) (2009) which provides that "[p]aper ballots shall: . . . be in the form prescribed by the [Secretary]."

         {¶ 4} The Secretary's arguments require us to examine (A) whether the Legislature may delegate to the Secretary the authority to decide whether to include the straight-ticket option on ballots in the general election, (B) the rich and complex history of straight-ticket voting in New Mexico, and (C) the text and history of Section 1-10-12(F).[2]

         A. Separation of Powers and Nondelegation

         {¶ 5} The Secretary's position in this case is not that the Legislature decided that the straight-ticket option should be included on the ballot in the upcoming general election and delegated to her the task of implementing this policy choice. Rather, she contends that the Legislature intended "to allow the [Secretary], in the exercise of her discretion, to decide whether to include a straight-party voting option on the uniform ballot." It is her position that the Legislature delegated to her the threshold determination of whether to embrace straight-ticket voting at all. This claim is highly problematic.

         {¶ 6} The New Mexico Constitution grants to each of the three branches of state government distinct and exclusive powers. N.M. Const. art. III, § 1. ("The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted."). The Constitution further provides that "[t]he [L]egislature . . . shall regulate the manner, time and places of voting" and "shall enact such laws as will secure the secrecy of the ballot and the purity of elections and guard against the abuse of elective franchise." N.M. Const. art. VII, § 1(B). This language vests our Legislature with plenary authority over elections, an authority limited only by the Constitution itself. See Chase v. Lujan, 1944-NMSC-027, ¶ 24, 48 N.M. 261, 149 P.2d 1003 ("[E]xcept as prohibited, the [L]egislature has plenary power to regulate the manner of voting . . . ."); see also People's Constitutional Party v. Evans, 1971-NMSC-116, ¶ 10, 83 N.M. 303, 491 P.2d 520 ("Elections of necessity must be organized and controlled to protect the right of suffrage, secrecy of the ballot, and against confusion, deception, dishonesty and other possible abuses of the elective franchise. The Legislature is charged with the duty of enacting laws to accomplish the purity of elections and protect against abuses."); City of Raton v. Sproule, 1967-NMSC-141, ¶ 76, 78 N.M. 138, 429 P.2d 336 ("We are of the opinion that our constitution expressly contemplates and directs that the legislature shall provide the proper machinery for conducting elections for different purposes . . . .").

         {¶ 7} It is well understood that straight-ticket voting has meaningful impact on elections. See Erik J. Engstrom and Jason M. Roberts, The Politics of Ballot Choice, 77 Ohio St. L.J. 839, 839-41, 864-65 (2016) (discussing attempts in several states to impose or abolish straight-ticket voting and observing that "ballot laws have become a new weapon in the quest for political power" and that, "in almost all cases, the actors who advocate for changes to the form of the ballot pursue changes that are likely to strengthen their hold on political power"). Whether to include the straight-ticket option in elections is a policy decision of some magnitude.

         {¶ 8} "The nondelegation doctrine limits, but does not completely prevent, the Legislature from vesting a large measure of discretionary authority in administrative officers and bodies." Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶ 41, 140 N.M. 77, 140 P.3d 498. "The Legislature may not vest unbridled or arbitrary authority in an administrative body . . . and must provide reasonable standards to guide it." Id. This is because "[l]egislative power cannot be delegated, and the Legislature cannot confer upon any person, officer, or tribunal the right to determine what the law shall be. This is a function which the Legislature alone is authorized under the Constitution to exercise." State v. Spears, 1953-NMSC-033, ¶ 10, 57 N.M. 400, 259 P.2d 356 (quoting State v. Briggs, 77 P. 750, 750 (Or. 1904)). This is not to say, of course, that the Legislature is precluded from delegating the implementation of a legislatively determined "sch eme, policy, or purpose[.]" Cobb, 2006-NMSC-034, ¶ 41. This form of delegation is common in our modern, regulatory state. See generally 1 Jacob A. Stein, et al., Administrative Law, § 3.03[5], at 128-42 (2013). Rather, what the Legislature cannot do is delegate the right to determine, in the first instance and wholesale, what that scheme, policy, or purpose will be. See Yakus v. United States, 321 U.S. 414, 426 (1944) ("Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose . . . .").

         {¶ 9} The Secretary's position in this case is precisely what the nondelegation doctrine forbids-that the Legislature delegated to her the authority to make the binary choice of whether to embrace straight-ticket voting or not. In other words, to decide what the election law shall be. The Legislature cannot delegate this authority, and to conclude otherwise would result in a violation of the separation of powers. Our review of the history of straight-ticket voting in New Mexico assures us that our Legislature has never delegated this authority to the Secretary.

         B. History of Straight-Ticket Voting in New Mexico

         {¶ 10} There are three facets to the history of straight-ticket voting in New Mexico: (1)our Legislature's former authorization of straight-ticket voting in general elections and its practice of carefully articulating how voters may exercise this ballot option, (2) the emergence and repeal of a statute requiring the straight-ticket option be included on emergency paper ballots, and (3) the introduction of voting machines in New Mexico and the passage and subsequent repeal of a statute requiring those machines to have straight-ticket voting capability. We address each of these matters separately. We begin at a period of time before straight-ticket voting appeared in our Election Code.

         1. Straight-ticket voting in general elections

         {¶ 11} In 1852, the Territorial Legislature passed an enactment that authorized the Governor to "prepare proper forms for the uniform and proper conducting of all elections to be conducted and held under the laws of this Territory[.]" 1882 General Laws of N.M., § 64 (Act of January 9, 1852). The act required the "secretary of the Territory" to "have all such forms . . . printed and distributed, as occasion may require." Id. This enactment appears in the 1884 Compiled Laws of New Mexico with minimal alteration. Section 1182, C.L. 1884. The 1884 compilation also includes a provision specifying that "[a]ll votes shall be by ballot, each voter being required to deliver his own vote by person" and that "[e]ach ticket shall be numbered and the number placed opposite the name of the voter[.]" Section 1142, C.L. 1884.

         {¶ 12} In 1891, the Territorial Legislature passed an enactment that provided additional, specific guidance regarding ballots. 1891 N.M. Laws, ch. 85, § 2. The enactment mandated that

all tickets or ballots used at any general election held in this Territory shall be printed on plain white paper, three inches in width and eight inches in length, or within one quarter of an inch of that size. No such ticket or ballot shall have any mark or number or designating device on the back so that its character may be known when folded.

Id. This enactment appeared in the 1897 Compilation of the Territorial Laws. Section 1634, C.L. 1897. As before, the 1897 compilation also included the provision authorizing the Governor to prepare the "proper forms" for elections. Section 1673, C.L. 1897.

         {¶ 13} By the time of the 1915 compilation (after New Mexico had become a state), the provision authorizing the Governor to "prepare proper forms" was no more. Our Legislature expanded its treatment and control over ballots considerably. Ballots were now addressed in several different articles and sections within a chapter of our laws dedicated entirely to elections. See generally §§ 1976-2080, C.L. 1915. Each section included a heading generally stating that section's purpose.

         {¶ 14} One section, entitled "Ballots-How furnished-Form[, ]" specified that "[e]very ballot printed under the provision of this article shall be headed by the name and emblem of the political party by whom the candidates whose names appear on the ballots were nominated, and each of said ballots shall contain only the names of the candidates nominated by said party." Id. § 1993. Another section entitled "Ballots-Size-Contents-False headings, etc." restated the requirements that ballots "be printed on plain white paper, three inches in width and eight inches in length, or within one quarter of an inch of that size." Id. § 1994. Two other sections entitled "Candidates-Filing list-Names on ballots" and "Emblem" addressed the supremacy of the official ballot and gave instructions as to how the emblems of political parties were to be submitted. Id. §§ 1995, 1996.

         {¶ 15} In 1927, a comprehensive set of provisions expressly designated as an "Election Code" was passed for the first time. 1927 N.M. Laws, ch. 41, §§ 101-321. The 1927 Election Code significantly increased legislative control over the ballot. Provisions within that code specified that ballots must be printed on "good quality of plain white paper, and all printing thereon shall be in black ink." Id. § 306(1). The code also specified the font types for the ballot: "nonpareil caps" for the varying offices at stake in the election and a font "not smaller than brevier nor larger than small pica caps" for candidate names. Id. § 306(4). Most crucially, the code expressly embraced straight-ticket voting as a ballot option, incorporated a ballot-design scheme predicated upon the availability of the option, and included instructions for voters specifying how the option could be utilized. Id. §§ 306, 311.

         {¶ 16} Section 306 of The 1927 Election Code specified that "[t]he names of all candidates of any party shall be printed on the ballot in the column under the party name and emblem of such party." Id. § 306(3). It further specified that the ballot must include "a circle three-fourths of an inch in diameter under the emblem of each party and a one-quarter inch square opposite and to the right of the name of each candidate." Id. § 306(4). A pictorial representation of a sample ballot-showing how these symbols should appear-was included at Section 306(9). See app. A, fig. 1. Voting instructions prepared by the Legislature and included in The 1927 Election Code made clear to voters that marking the circle, the square, or both had consequence. See 1927 N.M. Laws, ch. 41, §§ 306, 311, 312; see also app. A, fig. 2.

         {¶ 17} One set of instructions to be printed on the back of each ballot, instructed voters as follows:

Mark with pen and ink or indelible pencil a cross in the" under the party name and emblem of the party for all or most of whose candidates you wish to vote, and if you wish to vote for any candidate other than a candidate whose name appears in the column under such" mark a cross in the first G to the right of the name of the candidate in any other column for whom you wish to vote. . . . If you do not wish to make a cross in any circle you may make a ...

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