The New Mexico Supreme Court heard opening statements Monday in a case that could transform the state’s closed party primary system, peppering attorneys with questions about individual voting rights and who deserves a say in the major-party nomination process.
Currently, only Republicans and Democrats can vote in their primary elections in New Mexico. Critics of the system say it effectively disenfranchises independent and small party voters and leads to low turnout, while supporters say it ensures distinct ideological choices in general elections and helps voters make informed choices.
Albuquerque attorney and unaffiliated voter David Crum sued the state and local election officials in 2014 to gain access to primary balloting, arguing that the Legislature overstepped its authority by restricting primary voting to people who declare their party affiliation 28 days before an election. The Supreme Court took no action Monday on the appeal and could take months to issue a decision.
Edward Hollington, an attorney for Crum, told four attending Supreme Court justices Monday that New Mexico’s Constitution has especially strong provisions protecting the right to vote that conflict with the closed primary system. He observed that primary elections in New Mexico more often than not decide the general election winner because so many nominees run unopposed, effectively disenfranchising independent voters who number roughly 240,000 statewide.
“If a citizen meets those basic requirements to qualify to vote, they should be allowed to vote in all elections and the Legislature cannot interfere in that right to vote,” said Hollington, touching off a series of questions from the justices.
Chief Justice Charles Daniels and Justice Barbara Vigil both asked whether doing away with party-affiliation requirements for primary voting would lead to sabotage or manipulation.
“You’re saying that someone who is not a member should be able to come in and influence who that party picks,” Daniels said.
Vigil wondered whether there would be any incentive to join a political party, if independents can pick and choose primary races.
“Why would anyone want to register with a party?” she asked.
New Mexico is one of nine states with closed primaries, according to the National Conference of State Legislatures. John Anderson, an attorney for the New Mexico Republican Party, spoke in defense of statutes outlining state’s closed primary system, saying any political party has right to have “its standard bearer chose by its members.”
“What you have here (in the lawsuit) is someone who says, ‘I do not want to become a member of that party, but I want to help elect that party’s standard bearer,” he said.
A state district court sided with the GOP and dismissed the lawsuit last year, finding the Legislature acted within its authority and that restrictions on primary voting were reasonable given that political parties have First Amendment rights to association.
An appeals court sent the case to the Supreme Court, citing significant constitutional issues. The Republican Party and state Attorney General Hector Balderas have highlighted concerns that a move away from closed primaries would erode the reliability of the Democratic and Republican party labels in elections. The labels may not be decisive in presidential elections, Anderson said, but are relied upon in down-ballot partisan elections.
Assistant Attorney General Nicholas Sydow warned that the current primary system protects against tactical voting, in which outsiders would overwhelm or sabotage one party’s choice. Hollington said those claims were not backed up in court by any evidence or examples.
The New Mexico Democratic Party has steered wide of the case. Though they were sued, the New Mexico Secretary of State’s Office and the Bernalillo County Clerk’s Office declined to take a position.
Justice Judith Nakamura recused herself from participating in the case to avoid any appearance of impropriety. The state Republican Party is supporting Nakamura’s general election campaign against Democrat Michael Vigil, a judge on the New Mexico Court of Appeals.
