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, Citizens CommitteeFor Eliot Gould, First Judicial Attorney Petitioners v. USDC Civ 08-505Governor Bill Richardson, MV/DJSJoseph E. Campbell,Mary Herrera ( Secretary of State) RespondentsObjection to Defendant Mary Herrera’s “ Motion to Dismiss” In accordance to the Federal rules of civil procedure and the local rules of the Court, Plaintiff Eliot Paul Gould objects to the Defendant Mary Herrera’s“Motion to Dismiss”. The motion is specious, misleading and omits substantive facts and issues.
The duties and office of the District attorney are derived from the state constitution.
The pertinent articles in creating the office is found at Article VI Sec. 24 of the state
constitution: [ District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24)
A Second Article of the state constitution relating to the elective franchise including:
Article VII: [Qualifications for holding office.] A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.
The language and specific term “learned in the law” has not been changed or amended to any other qualification relative to the District office qualification. Interpreting away from the straight forward and honest reading of the constitution and its
ambiguity in remaining unchanged proposes not order but confusion. It is not a nebulas of questions, but the result of deliberate and intentional consideration. The qualification is clear with the language “except as otherwise provided in this constitution’ gives emphasis to the straight and honest reading of the clear language of the constitution.
By comparison, the constitutional language related to judges as members of the bar presents itself defined number of years experience in its own section of the constitution. Art IV related to the office and duties of the District attorney provides that ambiguity for the flexibility which defined understanding of “learned in the law” and its meaning falls upon an oath, faithful service and subject to judicial scrutiny .
Further, as constitutionally derived, related to elective office, the qualification as might be with an interpretive of the constitution is an argument of the moot. It is not a matter of license, but of election franchise, direct from the constitution itself, and without exception or interpretation, except by the constitution itself. The ambiguity in the language is assurance of choice on the ballots of the people, government of the people. That is the genuine purpose for the democratic way of governance , the so-called ‘new federalism”
The motion confuses the clear reading of the constitution with the requirements of appointive office, standardized merit selection and performance of public employees.
“The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive office. ”
The distinction is to remain integrity of the office direct of the people and upon their approval in the election franchise. That is in contrast with “Assistant District attorneys,”
and other appointed public servants. Legislative enactment requires the license for the performance of their duties and the public integrity. That still,however, falls into a different constitutional class and the qualifications are derived separately.
The Petitioner holds to those points, that he was legally qualified for ballot placement and removed under a specious practice. The Respondent Mary Herrera’s “motion to dismiss’ is thus objected to. Accompanying is a memorandum in support of that position. The Petitioner notes that by Agreement the parties seek to have heard the question of the motion as it may be heard. Respectfully submitted, Dated:
Memorandum in Support The complaint here is not an abstract exercise. It holds a solemn purpose. The fundamental interest herein is the Equal Protection Clause.Fundamental is the right to seek public office in accordance to the prescribed constitutional requirements.
I. New Mexico’s constitution provides: [District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24)
The essence of this case evolves from when the State District Court found the Petitioner “learned in the law” then directed the Secretary of State to remove him by ballot placement for not being a “licensed attorney”. By doing so the District Court added additional qualification to the state constitution.
At the same time, it also extended an order contrary the equal protection assured under the Voter Rights Act as amended: A violation of a subsection(a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity to participate in the political process and to elect representatives of their choice.
In the particular, the requiring of a license as a prerequisite for office or a suitable foundation for removal from enfranchisement, absent the explicit qualifications of the state constitution, by the district court acts as a “hybrid poll tax/literacy test” which results in a denial or abridgement or be arbitrarily dispensed. In this case, the contravention may be measured with the equal treatment with the other candidates who declared for the office and placed on the ballots being voted upon by the people.
There were four candidates who submitted their declarations of candidacy for the Democratic primary of June 4, 2008. Two candidates, Joe Campbell and Eliot Gould, challenged one another’s nomination petition. The other two candidates, Anthony “AJ” Salazar and “Angela “Spence” Pacheco petition signatures and declaration met no challenge; and thus presumed correct.
The Campbell petition, along with a second petition ( the “Sena petition” ) challenging the Gould nomination petitions complained “ that the Supreme Court in Chavez equated “learned in the law” as substantially the same as “licensed”; and thus, Gould was not qualified. Gould’s challenge upon the Campbell petitions were that it did not contain the required number, included fraudulent and irregular signatures, and other improprieties. The Sena petition challenging the Gould petitition mirrored the Campbell objection, citing the shorthand “learned in the law” equates as “licensed attorney” and therefore the Gould candidacy must be stricken.
Taken with a totality of circumstances, including that New Mexico statutes prohibit change of registration subsequent to the date of a proclamation by the Governor to hold the elections, and thus any effort to seek the office as an independent or other party and that the fact that the State Supreme court denied without reason or explanatory the petition for mandamus,(“no state compelling reason”), the result is not only the absence of equal ballot placement, but practically acts to foreclose the petitioner from active participation in the (future) government of the state.
Further, the majority the over 950 signatures (by axiom a minority of the First District population) are denied their opportunity to elect their candidate of choice. Many had expressed that proposals to improve the court and justice system . Others expressed a dissatisfaction by personal experiences.
Clearly, the result of the Court proceedings was to disenfranchise. The proceedings were not intended to any legitimate purpose of the State. The record is filled with parallels to practices of the post Reconstruction South and contrasts a specious use of nomination objections.
In Harper v. Virginia Board of Elections (383 U.S. 663 1966) the U.S. Supreme Court held 6-3 that state poll taxes (for both federal and state elections) were officially declared because they violated the Equal Protection Clause of the Fourteenth Amendment.
Harper followed a series of voting rights cases over states statutory techniques that had been used to disenfranchise along racial lines. These techniques included direct disenfranchisement and indirect disenfranchisement. "Direct" disenfranchisement refers to actions that explicitly prevent people from voting or having their votes counted, as opposed to "indirect" techniques, which attempt to prevent people's votes from having an impact on political outcomes (e.g., gerrymandering, ballot box stuffing, stripping elected officials of their powers).
In 1965 the Voter Rights Act of 1965 was enacted to provide a comprehensive and direct solution to protecting the rights guaranteed by the Fifteenth Amendment. With the support of President Lyndon B. Johnson, the Voting Rights Act of 1965 was specifically designed to combat racial discrimination in voting. The Voting Rights Act was used to register millions of Americans who had never been allowed to vote. Unfortunately, once the registration of new voters increased, many schemes were developed in an attempt to cancel out the effect of the new voters. Attempts such as changing elected positions to appointed positions, gerrymandering election boundaries, and changing single-member districts to at-large elections became commonplace.
The Voting Rights Act was crafted with two main areas of coverage. The first area governed special remedies for specific areas of the country where statistics showed large differences between the number of eligible voters and the number of persons actually registered to vote. These special provisions authorized the United States Attorney General to provide for examiners and observers to register voters and monitor elections, banned the use of tests, and also required these certain areas to submit any changes in their voting laws to the federal government for approval . The second aspect of the Act generally prohibited discriminatory voting practices throughout the entire nation.
The Voting Rights Act has been extended three times since 1965 -- in 1970, in 1975, and in 1982. While provisional section related to ‘pre-clearance provisions’ expired in 2007, the Voting Rights Act provision against discriminatory practices is permanent.
Extended the right to vote is a right to seek public office. In New Mexico, “Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. (Article VII, New MexicoState constitution)
The threshold of qualification is direct of the state constitution. While the qualification is determinant for judges having been in the actual practice of law for 6 years or the attorney or that the attorney general of the State be a licensed attorney of the supreme court, those thresholds are direct of the state constitution under different sections. Applying the same standard of qualifications for those offices to displace the direct language of the State constitution upon the qualifications for the district attorney is a breach of the direct language and meaning of the qualifications.
Chavez v. Evans,[79 N.M. 587, 446 P.2nd 445 ] the state Supreme court case introduced and underlying the objections to the candidacy and leading to the candidacy being stricken from the ballots of the June 4, 2008 Democratic primary, while holding to the effect that “learned in the law” is substantially the same as “licensed attorney’ did not simply equate “licensed and learned” as interchangeable ( as is commonly understood). It did not attempt to raise itself to substantially amend the express state constitution. It presented the state’s compelling rationale as to why certain candidates were withheld from the ballots in 1968.
Chavez was written in the era Harper and voting rights expanse. It established a review of the threshold qualifications of the slate of “People Constitutional Party”. “Petitioners, eight in number, seek mandamus to require to certify their names… for the offices to which they were nominated….The remaining candidates of that party have already been certified.
Chavez articulated the questions involving each of the Peoples Constitutional party candidates separately. The Court noted that the “constitution must be read as a whole’ and that two sections must be read together. In ordering the mandamus to for the candidates for President, Vice –president, (a state board of education member) and (at that time) the two Congressional District candidates, Chavez provided that the refusal to certify those candidates was erroneous. “The constitutional qualifications for membership in the lower house of Congress exclude all other qualifications, and state law can neither add nor subtract from them”. “The state may provide such qualifications and restrictions as it may deem proper for offices created by the state; but for offices created by the United States Constitution, we must look to the creating authority for all qualifications and restrictions.” Thus it followed that the ‘statute unconstitutionally adds additional qualifications.
With respect to the candidates of the Peoples Constitutional state offices of Governor, Lt Governor and District attorney, Chavez provided that those candidates did not meet the qualifications as provided for office. Gubernatorial candidate Tijerina was denied certification because ‘a conviction of a felony within the constitutional prohibition. As Tijerina was disqualified , so to was the candidate for Lt. Governor ‘as those offices are elected jointly”.
Finally, Chavez dealt with the question of Preston Monongye, the candidate for District Attorney of the Peoples Constitutional Party. It pointed out that Montagye was denied certification ‘for the announced reason that he is not learned in the law as required by the New Mexico Constitution for one to hold that office.” ‘While providing “to our minds to hold that “learned in the law” and being a licensed attorney are synonymous as indicated”, it more importantly showed that the denied certification of Monongye was because of an absence of any showing of “learned in the law” as constitutionally required.
“By affidavit the petitioner sets forth his qualifications which do not include the completion of a law course or graduation from an approved law school. Neither does he claim that h has been admitted or is qualified to be admitted to practice law in this or any other state. Under these circumstances, can he be learned in the law”?
We would answer unhesitantly in the negative were it not for the different qualifications contained in our constitution, as noted above, for the holding of the offices of district attorney, attorney general and justice of the Supreme Court… It follows that in light of the statute and the surrounding circumstances present when our constitution was adopted, an interpretation such as argued for by petitioner Monongye is unreasonable and incongruous and will not be adopted by us.
Chavez per se is not the fault. In no manner did it attempt to provide an undeclared amendment to the state constitution. Rather categorically, Chavez provided a straight-forward and direct interpretation. It dealt with circumstances which were specific to that time and those events, stated the questions and provided a rationale direct upon those questions.
Chavez per se is not at fault. It is the practices such as introducing excerpts and concluding that the excerpt gives the full meaning.
The instant case, however, is a different set of circumstances than were present in 1968. The state district court added additional qualification when it found the candidate “learned in the law” and then proceeded to disqualify the candidate for not being a “licensed attorney.” The state District court provided no rationale nor any compelling reason of the State in its decision. The District Court decision merely took a bareface order to disqualify the candidate.
Appeal under the election code was made to the Supreme Court of the State. The appeal provided that the District Court was ‘adding qualification” to an otherwise qualified candidate. It provided that the candidate was “invoking his right”, that time was essential, and that there was an imperativeand principle to the state Supreme court appeal.
Given that the address to the state Supreme Court was denied without rationale or reason, the change is invidious discrimination—a classification which is arbitrary, irrational, and not reasonably related to a legitimate purpose. (McLaughlin v Florida; 379 US 1984 (1964)
Invidious discrimination applies a differentiation scale to people who belong or appear to belong group or another group. The group being discriminated against is generally seen as being lower, lacking or deficient in some way. (This type of discrimination is an unfair and often illegal practice that can go on daily in many different forms.) Relative to the specifics of the instant case, it is based upon the ‘assumption that a license is required’ rather than a right assured by state and federal constitutions and statutes.
The right to seek public office of a future government cannot be so disregarded. It fundamentally breaches the Equal Protection Clause .
The persons who filed for the office of First Judicial District Attorney on March 18, 2008 constitute a group or class—those persons who filed for the office. Differentiating the results of those filings, only one person was stricken from the ballot. He was not stricken for age requirement nor residency requirements, nor upon the requirements explicit in the election code. Those would be factual issues which apply. The foundation for striking from equal balance placement was upon a “legal issue”—licensing as a requirement. The end result is that result that the candidates for primary election are only of those that are “pre-qualified’ upon an arbitrary or less than transparent standard.
The desire to harm a politically unpopular group” is not a legitimate interest of the State. (Thompson v. Colorado, 278 F3rd 1020; 10th Circuit 2001).“ When a state acts with invidious intent there is an equal protection violation even if no facial distinction has been made.” The apparatus of the state’s courts to give legitimacy to such desires, but must be upon conformity with are consistent to the constitutional standard. “Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the equal Protection Clause of the Fourteenth Amendment. Thus, state measures which have the effect of denying or diluting a citizen’s vote must be justified with a compelling state interest.( Harper at 670, 86 Supreme Court 1079) (striking down the State Poll tax ); Reynolds v. Sims, 377 US 533.
Title 42, Section 1973 (h) provides: Congressional finding and declaration of policy against enforced payment of poll taxes as a device to impair voting rights. The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting.
Taking the events of “licensing requirement” as the abstract of a payment of a tax, along requiring that as a measure to precondition operates as a “poll tax”. The Gould candidacy was not fulfilled but for the additionalnon-constitutional qualification. While a license for which a fee is paid is necessary in the absence of a right, the absence of a license as a rationale for the removal of a right is a undue, burdensome and while appearing “neutral”, it is discriminatory.
“To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context - that is, as a condition of obtaining a ballot - the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U.S. 535, 541 ) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in [383 U.S. 663, 669] Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." Id., at 283. Harper v. Virginia Board of Elections (1966)
It results in the abridgement of "the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” v. Jones (99-401) 530 U.S. 567 (2000), Justice Stevens in dissent.
Combining and enforcing the requirement of State Bar examiners, and rules thereof, merely blurs beyond the constitutional qualifications as a measurement of the knowledge beyond “ learned in the law” also violates another section of Federal statutes related to voting rights.
Section 1973aa provides: Application of prohibition to other States; "test or device" defined (a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. (b) As used in this section, the term "test or device" means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.
Thus it cannot be employed as a device to prevent equal treatment in the phase of the ballot process. This section of law also extends the contravening practice (as has been intertwined upon a racial or color ) which would be the strict application of Sec.2 of the Voter Rights Act. It is more akin to the lone dissenter in Plessy v Ferguson, the landmark case that upheld the separate but equal doctrine. The lone dissenter, Justice John Harlan, declared, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law."
II.
There are also several “burdensome issues” which were intertwined to the methods determining that the “candidate as not qualified for equal ballot placement. The procedural processes including appeal present issues of due process. The District Court in the proceedings alleging “fraudulent signatures” repeatedly denied the introduction of each tool and witness toward the full investigation. At the same time, it “excused” without comment the statutory requirements which the election code provided upon the Secretary of State. That “due process” seems arbitrary and prejudicial.
The very “appeal rights” whereby the determination of the vitality of the candidacy is required to pay the fee for an appeal, and theeafter spend precious days before receiving an “unreasoned” state Supreme Court decision is by axiom an unreasonable deprivation. The garb of “interpretation of the constitution” without reason is a naked affront to the transparency required in bona-fide review . The garb simply is a cloak without statement that impermissibly amends the constitution which those justices are to uphold.
That silence is death to the construct that the constitution “speaks for itself”. “Every citizen of the United States who is a legal resident and is a qualified elector therein shall be qualified to hold any elective public office except as otherwise provided herein.
The state courts are required to uphold the qualifications articulated therein as dutiful to limiting the arbitrary (political) processes. The silence clouds the distinction between those laws that abridge participation from those that encourage participation. It blurs a statutory scheme in which laws are routinely used to exclude the minority or “less than serious candidate” in contrast to the preserving elections free of fraud. Such invites future frauds and schemes as it perpetuates a decision without reason.
It is the failure of the state Courts to uphold that which not only the clear and concise language of its constitution, but the solemnest to uphold the laws of the United States and its constitution (as provided in State constitutional Article I that bears this matter be brought to the Federal District.
Certainly it is not an ordinary request, but integrity in the election process is of pillars set upon the Federalism which constitutes the American working order. The role of the Court should be to protect the people’s right, not to thwart it. The equitable principle in light of the actions, even “when the plaintiff’s are likely to prevail weigh heavily against the nullification of election results.(Cardonna v. Oakland Unified School District , 785 F.Supp 837).
The “well established” rule is that courts will not block a scheduled election. Clark v. Roemer, 500 U.S. 646 (1991) But there is a compelling reason “for the clear and unequivocal direction by the United States District Court toward a compliance affirming the right of the candidate toward participation. The process is likely to repeat if not corrected.
Additionally, for with the disqualification by the State court decisions, and with so much time passed, yet still 120 days before the general election , how can it be that the candidate is stands foreclosed from seeking the office by other means? And would it be met with the same circular actions that have been present? It may be an extraordinary relief request but the “totality” includes the New Mexico’s statutory scheme is askew. In part, that reliance bars the change of party and or independent candidate status by virtue of a “governor’s proclamation” [NM state election code 1-18-12.] The governor shall issue a public proclamation calling a primary election to be held in each county on the date prescribed by the Primary Election Law [1-8-10 NMSA 1978]. The proclamation shall be filed with the secretary of state on the last Monday in January of each numbered year.
1-8-13 Primary Election law, contents of proclamation. The proclamation calling a primary election shall contain: A. the names of the major political parties participating in the primary election;
B. the offices for which each political party shall nominate candidates; provided that if any law is enacted by the legislature in the year in which the primary election is held and the law does not take effect until after the date of the proclamation but prior to the date of the primary election, the proclamation shall conform to the intent of the law with respect to the offices for which each political party shall nominate candidates; C. the date on which declarations of candidacy and nominating petitions for United States representative, any office voted upon by all the voters of the state, a legislative office, the office of district judge, district attorney, state board of education, public regulation commission or magistrate shall be filed and the places where they shall be filed in order to have the candidates' names printed on the official ballot of their party at the primary election ;
D. the date on and place at which declarations of candidacy shall be filed for any other office and filing fees paid or, in lieu thereof, a pauper's statement of inability to pay; E. the final date on and place at which candidates for the office of United States representative and for any statewide office seeking preprimary convention designation by the major parties shall file petitions and declarations of candidacy; F. the final date on which the major political parties shall hold state preprimary conventions for the designation of candidates; and
G. the final date on and place at which certificates of designation of primary election candidates shall be filed by political parties with the secretary of state.
As used in the primary Election law [1-8- 10 NMSA 1978], "statewide office" means any office voted on by all the voters of the state.
And the foreclosing measures that :
1. If a person has been a candidate for the nomination of a major political party in the primary election, he shall not have his name printed on the ballot at the next succeeding general election except under the party name of the party designated on his declaration of candidacy filed for such primary election [1-8-19 NMSA 1978].
2. The restriction defined upon “minor political party” in qualification; removal; requalification.
A. To qualify as a political party in New Mexico, each political party through its governing body shall adopt rules and regulations providing for the organization and government of that party and shall file the rules and regulations with the secretary of state. Uniform rules and regulations shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks. At the same time the rules and regulations are filed with the secretary of state, the governing body of the political party shall also file with the secretary of state a petition containing the hand-printed names, signatures, addresses of residence and counties of residence of at least one-half of one percent of the total votes cast for the office of governor or president at the preceding general election who declare by their signatures on such petition that they are voters of New Mexico and that they desire the party to be a qualified political party in New Mexico. B. Each county political party organization may adopt such supplementary rules and regulations insofar as they do not conflict with the uniform state rules and regulations or do not abridge the lawful political rights of any person. Such supplementary rules shall be filed with the county clerk and the secretary of state in the same manner as other rules are filed. C. All political parties that appeared on the 1988 New Mexico general election ballot shall continue to be qualified political parties unless disqualified in accordance with this subsection. Beginning with the general election in 1990, a qualified political party shall cease to be qualified for the purposes of the Election Code [1-1-1 NMSA 1978] if two successive general elections are held without at least one of the party's candidates on the ballot or if the total votes cast for the party's candidates for governor or president of the United States, provided that the party has a candidate seeking election to either of these offices, in a general election do not equal at least one-half of one percent of the total votes cast for the office of governor or president of the United States, as applicable. After giving notice by registered mail to the state chairman of the party at his last known address, the secretary of state shall remove all material dealing with the political party from his file of parties qualified in New Mexico. D. The secretary of state shall then notify all county clerks of the removal and nonqualification of the political party. The county clerk is then authorized to remove such rules and regulations from the county files. The county clerk shall immediately notify by mail all voters registered as members of such party of the removal and nonqualification of the party. E. To requalify, the party must again comply with the provisions of the Election Code dealing with filing requirements for political parties. When if fact that such measures have been used to keep able candidates from ballot positions in the general election. ( In the case of the “green party”, it was removed under this statute despite it remaining with over 3 times the threshold requirement of the now statutory requirement of 3 per cent of the last general election vote. Those restrictive measures constitute a totality of circumstances. But in each, they are to use of exclusion rather than the momentum of inclusion. The result is a perpetuation of “delay, deny, defer”. Equitable principles preclude the continued promotion of the “plan of elections” as proclaimed by the state governor. The legitimate interests of the state are to per
