The background and references in Part I of this memorandum attempt to
present to the Court that there is winnowing in the candidate selection
” founded in New Mexico election scheme. The process include :
A. Additional Qualification for ballot access to Federal
B. Statutory Barriers upon small parties and unaffiliated
including State supported litigations
C. Challenge Nomination proceeding for Compliances and
rather than Fraud or any State interest
D. Complacent and Negligent Oversight by Election Officials
E. Statutory Restrictions on Change of Parties for
The result in the election races is more often than not ‘uncontested
race’ or “predictable” two person races throughout the State and Federal
election since the 2000 election. Further presented is that the election
code of New Mexico requires reform and necessitates revision as there is a
pattern of outdated, antiquated processes and practices counter purity in
The background and references in Part I were presented to display a
backdrop for which the instant case, Gould v. Campbell. The instant
case provides its own set of circumstances .The backdrop is purposed
to present an atmosphere of several of the restriction of the
election that counter the principle brought forth in Harper . ( 383
In the recent decision, Crawford v. Marion County Board of Elections (
related to the voter identification .Justice Stevens, joined by The
Chief Justice and Justice Kennedy, concluded that the evidence in the
record does not support a facial attack on SEA 483's validity.…..
(a) Under Harper, even rational restrictions on the right to vote are
invidious if they are unrelated to voter qualifications. However, "even
handed restrictions" protecting the "integrity and reliability of the
electoral process itself" satisfy Harper's standard. Anderson v.
Celebrezze, 460 U. S. 780, 788, n. 9. A state law's burden on a political
party, an individual voter, or a discrete class of voters must be
justified by relevant and legitimate state interests "sufficiently weighty
to justify the limitation." Norman v. Reed, 502 U. S. 279, 288-289. Pp.
The instant case, Gould v. Campbell, necessitates required review. It
provides actual circumstance and instances additional qualification
being applied, arbitrary judicial review with illusionary appeal
processes, and burdensome requirements that are in the statutes of
New Mexico. While the time has passed since the June 4, 2008
Democratic Party primary, the Petitioners fear that the “those
processes which by design are intended provide exclusion would persist
declaration for candidacy was filed with the Secretary of State, along
with over 950 signatures and proper ethics compliance by Eliot P. Gould
for the office of First Judicial Attorney on March 18, 2008.
On that same date, Joseph E. Campbell also filed declaration with 675
signatures for the same office. Joseph Campbell serves as an Asst.
District Attorney in the first Judicial District.
The First Judicial District Attorney’s Office is located in Santa Fe,
New Mexico. However, the judicial district encompasses three counties: Santa Fe, Los Alamos, and Rio Arriba. These counties cover a large area--7,876 sq. miles-- and have a very diverse population.
Santa Fe County is 1,909 square miles and has a population of about
120,000. The only urban area in the county is the city of Santa Fe, which serves as a haven for tourists year round. The county is primarily Hispanic with a small Anglo population. The city of Santa Fe has a significant population of gay, lesbian, bi-sexual, and transgender individuals.
Los Alamos is a very small in land size, 109 square miles, but has a population of 18,200. Government scientists live and workin Los Alamos. Nuclear weapons are created and tested there. The community is very “closed” and employees have high-level security clearances. The population is largely Asian and Anglo, although there are a few Hispanics.
Rio Arriba is the largest of the three counties, 5,858 square miles, and extends north to the Colorado border. This county has nine Indian reservations, one Apache and eight northern pueblos. Each reservation has it’s own government and court system. Tribes enjoy a tax-free income from casinos that on their reservations. There is also a large Hispanic population, and there has recently been an influx of Mexican nationals to this area. Rio Arriba County is often in the top ten counties in the nation when it comes to illegal drug use. Heroin is the primary drug of choice.
The cities of Santa Fe, Los Alamos, and Espanola have municipal courts, which enforce city ordinances. The ordinances cover most of the misdemeanor crimes. Municipal courts have jurisdiction for crimes that carry penalties of 90 days or less. Police officers prosecute cases in municipal court and there are no victim advocates assigned to the court.
Magistrate Court is run by the state and has jurisdiction in a specific county for misdemeanor cases. Judges in this court are required to have a high school diploma and are elected officials. This court hears cases for crimes that carry a punishment up to 364 days.
Preliminary hearings for felonies also take place here. Since there is such a backlog of cases in Magistrate Court, judges have requested that prosecutors take cases directly to the grand jury.
District Court hears felony cases that carry a punishment of more than one year. A fourth degree felony is punishable for 18 months or more, third degree for 3 years, second degree for 9 years, and first degree for 18 years.
Native American reservations in the area each have their own court
system. Tribal organizations handle their own misdemeanor domestic
violence cases. Felony domestic violence cases are sent to the U.S. Attorney’s Office and the Bureau of Indian Affairs investigates these cases. If a crime is committed on a reservation by a non-tribal member, the local law enforcement agency is called and the District Attorney handles the case.
On March 25, 2008, Secretary of State Mary Herrera issued a certificate find the candidate Eliot P. Gould ‘qualified’ to be on the ballots of the Democratic Party primary of June 4, 2008 for the First Judicial District. The Secretary of State also issued a certificate of qualification
Judicial District Attorney the Campbell petition prayed. (0-01-CV 2008-0845, First Judicial District Court of New Mexico)
Also on March 28, 2008, Eliot P. Gould and the Citizens Committee for
Eliot P. Gould filed a petition challenging the candidacy of Joseph E. Campbell in the District Court . (0-01-CV 2008-0845, First Judicial District Court of New Mexico) The allegations were that Mr. Campbell’s signatures were insufficient in number to qualify for ballot placement and included fraudulent signatures and other irregularities. The complaint itemized by line and page each complained signature, including that “pages 21 and 19 “ were by the same hand and not the registered Voters.
A Request for a Jury Demand was Filed promoting that the District Court impanel a jury to examine and otherwise count the signatures for validity. A request for a “handwriting expert’ of the State was requested to examine and for testimony.
On April 10, 2008 the District Court heard both cases independently.
In the state matter “Campbell v. Gould”, Mr. Campbell presented
opening remarks in essence complained that “on March 18, 2008 Respondent Gould filed all necessary documentation for certification as a candidate for the office of First Judicial District Attorney.” Mr. Campabell complained that on March 25, 2008, Respondent Mary Herrera caused her office “to officially certify Eliot Gould” as a candidate to the office of First
Judicial District Attorney. Mr. Campbell stated that the requirements for District attorney must be 18 years of age, a resident of New Mexico, must be learned in the law, and must be a resident in the district.
Mr. Campbell then brought forth “State ex rel. Chavez v. Evans”, a state Supreme Court case (1968) that equated that “learned in the law” was the same as “licensed attorney.” “Respondent Eliot Gould is not a “licensed attorney and therefore is not qualified candidate for the office of First Judicial District Attorney.” Mr. Campbell closed his remarks with the request that the Court find that “Eliot Gould is not a qualified candidate” and to “order Respondent Mary Herrera toremove his name from the official ballot.”
In response, Mr. Gould , who had filed a written answer to
Campbell’s petition, remarked that he agreed with the listed
qualifications which Mr. Campbell had presented, but provided that
the qualifications of “holding public office is an election
franchise. The qualifications for District attorney requires
fulfilling the state‘s constitutional provisions “ It requires
fulfilling the election statutes in conformity with the
statutes.with the constitution.” Mr. Gould furthered that “it has
been long established that the right to vote includes the rights
to seek public office and in equal manner in each phase of the
Gould again reaffirmed the oath (holding up his right hand) and
The Declaration of Candidacy submitted on March 18, 2008
“ I, Eliot P. Gould, first being duly sworn say that I reside at 354 ½
Calle Loma Norte, Santa Fe, as a voter of Precinct No__28_ of the county
of Santa Fe, State of New Mexico;
That I am a member of the Democratic Party as shown on my certificate
of registration and that I have not changed such party affiliation
subsequent to the governor’s proclamation calling the primary for which
I seek to be a candidate;
I desire to be a candidate for the office of the First Judicial
District Attorney on the date set by law this year, and if the office
be that of a member of the Legislature or that of the State Board of
Education, that I actually reside at the address designated on the
Certificate of voter registration.
I will be eligible and legally qualified to hold this office at the
beginning of the term.
If a candidate for any office for which a nominating petition is
required, I am submitting with this statement a nominating petition in
the form and manner as prescribed
by the primary election Law; and I make the foregoing affidavit under
oath, knowing that any false statement herein constitutes a felony under
the criminal laws of New Mexico.
And that the same was duly subscribed and sworn
The duties and office of the District attorney are derived from the
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
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
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 flexibility
in remaining unchanged and constant proposes not order but
Thereafter, the District Court rendered the opinion and decision upon
the challenge. It found candidate “learned in the law” and “unqualified
as a candidate as not a licensed attorney. ” “The Secretary of State
shall remove his name from the ballots of the June primary. ”
The matter, Gould and Citizens Committee v Campbell was heard
immediately thereafter in separate Court by a different District
Court Judge. Parties were introduced. The representative of the
Citizens Committee was barred from the Plaintiffs Table. Opening
statements made. The Court ruled upon “pending motions’; that it had
jurisdiction as an election matter; that the motion for Expert
handwriting Analysis of the State Police be denied, and that the
request for Jury Empanelment , as they had been paid for ,to examine
the Signatures was denied.
Mr. Gould brought forward that the voters on the lists could be
verified by an internet site “voter view” through the Secretary of
State’s office. The Representative from the secretary of State’s
office then testified that the “voter Veiw” might not be as accurate
as the main Internal records. Testimony elicted that a CD rom of the
Voters of the District
Might hold some inaccuracies between the time of transfer.
The District therefore denied the use of the internet access to the
voter records and the use a permanently printed CD rom of voters by
secretary of State’s office. It further denied the introduction of
expert testimony showing that “pages 21 and 19 were written by the same
Thus , the District Court dismissed the cause with a final order.
Joseph Campbell’s name would appear on the ballots of the June 4,
In accordance to the Statute 1-8-35 a petition for mandamus was
filed in the New Mexico State Supreme Court by Mr. Gould on April
10, 2008 . No 8/ 31060 It provided that the district Court’s
determination ‘added additional qualification” to the sole source of
the office, the State Constitution and otherwise abridged the
candidacy and from participation in the election franchise. The writ
Mr. Gould then filed “a reconsideration “ as the “printing of the
ballots was imminent”. and insisting that he was due a reasoned
opinion that he was not qualified in accordance to the explicit
requirements of the State constitution . That reconsideration was
denied without more .
The result was that Mr. Gould’s name was removed from the ballots of
the primary of the state of New Mexico on June 4, 2008.
Additionally, as a registered Democrat on the date of the Governor‘s
proclamation, he was barred by statutes to fulfill a candidacy as
‘unaffiliated“ or “minor party“--not only for the office of the
District attorney, also for the federal and state offices to be held
on the general election of November 4, 2008.
Thus while this controversy involves election to state office, and the
state apparatus of election, it presents an issue of Federal concern.
. While the Tenth amendment of the Constitution preserves the rights of
the individual states to control the election of presidential electors,
and grants then powers for public safety and regulation, the States are
required to ensure that the voter enfranchisement. They are entrusted by
the compact with States and the Congress to be absent discriminatory
practices or effect the dilution of a politically cohesive minority.
The Voter rights Act provides as much. 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
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
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.
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).
The 1982 amendment to the Voter Rights amendment provided:
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
(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.
On this amendment, the Congress made clear that while the numerous
cases that had minorities were not strict upon race or color, but
purposed “to the political processes leading to nomination or
election . . . are not equally open to participation by members of
a [protected class] . . . in that its members have less
opportunity than other members of the electorate to participate in
the political process and to elect representatives of their
choice," Thornburg v. Gingles, 478 U.S. 30 (1986).
The amendment provided “that to make clear that a violation of §
2 could be proved by showing discriminatory effect alone, rather
than having to show a discriminatory purpose, and to establish
as the relevant legal standard the "results test." Section 2(a),
as amended, prohibits a State or political subdivision from
imposing any voting qualifications or prerequisites to voting,
or any standards, practices, or procedures that result in the
denial or abridgment of the right of any citizen to vote on
account of race or color. Section 2(b), as amended, provides
that § 2(a) is violated where the "totality of circumstances"
reveals that "the political processes leading to nomination or
election . . . are not equally open to participation by members
of a [protected class] . . . in that its members have less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their