Part One of Election Code Challenge

BACKGROUND 

New Mexico has a culture of corruption. At the core of it lies an election code and procedures. They act as a key to legitimacy of its perpetuation, with imbalanced applications contrary to the very principles of “one man, one vote.” They often rely upon obsolete, antiquated out dated methods which are politically motivated. Historically, the outcome of elections are foregone conclusions, often the result of uncontested elections, weighted primaries and insider selections. The process of ballot access, whether Federal or State, is wrought with exclusionary devices, special interests and party influences. New Mexico’s election code promotes its legitimacy in part through classification of candidates and parties.

For example, the United States Constitution provides:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. US Constitution, Amendment XVII

About a hundred years ago, there was a widespread belief throughout America that at the state level there was manipulation in the process of the method of electing Senators to the United States Senate in the proceedings of the various State legislatures. Evidence arose that the result of the Legislative selections were often influenced by corrupt political organizations and special interest groups through the purchase of legislative seats. Often, when what these organizations and groups did could not get their candidate selected, there was a deadlock in the Legislatures with the result that US Senate seats were unfilled and vacant.

Throughout the United States there was an increasing popular dissatisfaction. The belief became widespread that Senators ought to be popularly elected, in the manner which members of the US House were elected. By 1912, as the proposed Amendment was being circulated through States and as New Mexico was being proclaimed the 47th State of the Union, 29 States amended their state laws making it necessary to nominate Senators on a more popular basis. Many States afforded the voters more effective control through a primary election to designate their preference for one of several party candidates. The results were “unofficially” transmitted to the Legislatures where legislators elected the winning candidates of the majority. Until the ratification, which came in May 1913, the foundation of the nomination process was a “common understanding” that popular representation should eliminate corrupt practices and no more. The Amendment used the same language as found in Article I of the Constitution with respect to the election of House members of Congress.

It was not long after its ratification that the Supreme Court determined that if a person possessed the qualifications requisite for voting for a Senator, that right to vote for the office was not derived from State constitutions and statutes, but the Constitution itself.

States were given the discretion to set reasonable methods to establish voting qualifications. The method selected needed to act “neutrally” amongst the candidates and without an abridgment or discrimination.

The full meaning of “the right to vote” includes a right to seek public office without onerous qualifications. Most states adopted nominating processes which included a primary election for the nomination of party candidates. However, many had “onerous requirements,” such as a poll tax, literacy requirements, and or residual residency requirements. Others implicitly promised Court examination in the consideration of the registration to vote, often with criminal charges. Some, like a South Carolina political party, required as a prerequisite to voting that the voter “take an oath that he understands and believes in and will support social, religious, and educational separation”-- though in 1948, the US Supreme Court struck down that requirement as invalid and a disregard of the right of the American citizen to exercise his own views and opinions (see Brown v Baskin).

Until the 1960’s Warren Court, such election controversies were few before the Supreme Court-- averaging about 10 per year. During the years of the Warren Court, the number rose to about 60 per year as the “principle of one man, one vote” was taking hold. Amendment XXIV prohibited the States from requiring property ownership or “Poll tax” type qualifications to vote in any primary or other election for “President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, [the right to vote] shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

In 1966, the Court struck down a Virginia statute which eliminated the poll tax as an absolute qualification for voting in federal elections and gave federal voters the choice either of paying the tax or of filing a certificate of residence six months before the election. Viewing the latter requirement as imposing upon voters in federal elections an onerous procedural requirement which was not imposed on those who continued to pay the tax, the Court unanimously held the law to be in conflict with the new Amendment by penalizing those who chose to exercise a right guaranteed (Forsennius v. Harmon).

(Part of the reason for the ratification of amendment XXIV was lack of constitutional challenges to onerous provisions, such as the poll tax.)

As a result of the repeated decisions and the adoption of the Voter Rights Act of 1966 (VRA) which provided for “one man, one vote,” and “free and proper in every phase of the ballot process,” the several states revised their respective state election codes. The revision, either by new state constitutional process or legislative statutes was often not as altruistic and principled as the clarity of the VRA and other Court decisions.

The “reform” measures were often enacted with new, subtler and unchallenged obstacles. In New Mexico, where Constitutional challenges in the past are few, the election code provides for a proclamation by the Governor on the last Monday in January:

1-8-12. Primary Election Law; proclamation.

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