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Political parties and county election boards are lining up – and heading to court – against a proposal by New Mexico’s Secretary of State to restore straight-ticket voting for the 2018 general election. Governing Magazine has more:
There’s at least one thing Republicans, Libertarians, independents and even some Democrats seem to agree on.
They do not want voters to cast straight-party ballots in the November election.
And they are asking the state Supreme Court to stop Secretary of State Maggie Toulouse Oliver from putting an option for straight-party voting back on the ballot after a Republican predecessor scrapped it about six years ago.
In an emergency petition filed late Thursday, an unlikely assortment of political leaders and advocates argued straight-party voting is no longer allowed under New Mexico law. Moreover, they contend it violates the idea of equal protection under the Constitution for some political parties and independent candidates. [Several county commissions have made moves to oppose the plan as well.]
At the very least, they contend, Toulouse Oliver, a Democrat, should have held hearings and collected public input before announcing Wednesday — 69 days before the election — that she would put a straight-party option back on the ballot.
Toulouse Oliver’s office called the lawsuit “unfounded” and cited a state law that says ballots shall “be in the form prescribed by the secretary of state,” contending that leaves it to her to decide whether voters should have a straight-ticket option.
At issue is a 2001 law that changed state law on straight-ticket voting without clarifying whether it was still allowable:
But the petition revives an argument around legislation from 2001 that changed state election laws to allow electronic balloting while also repealing a section that provided for straight-party voting.
Lawmakers did not ban straight-party voting outright. In fact, straight-party voting continued until Republican Secretary of State Dianna Duran scrapped it ahead of the 2012 election. But the petition contends the 2001 law was meant to end the practice altogether and removes any legal basis for straight-party voting in New Mexico. And, the petition notes, three separate bills to reinstate straight-party voting have failed in the Legislature in recent years.
“The Secretary of State is mistaken that she possesses the authority to place something on the ballot that the Legislature has not only not authorized, but has explicitly repealed,” the petition said.
The petition asked the state’s highest court to declare that the secretary of state’s decision to put straight-party voting back on the ballot for the 2018 election is inconsistent with that 2001 law. In turn, the petition asks the court to keep a straight-party option off the ballot.
Though Republicans had lambasted the move as an underhanded, last-minute bit of political maneuvering, Toulouse Oliver never made a secret of her support for a straight-party voting option. While campaigning in 2016, Toulouse Oliver, who is up for re-election this year, said she would bring it back. And her office had floated the idea throughout this year.
The Secretary of State argues that straight-ticket voting will result in more votes in lesser-known “down-ballot” contests – though opponents claim it confers a partisan advantage and shuts out smaller parties:
Under straight-party voting, voters could still fill out their ballots completely or select a party and then select candidates from other parties in particular races. A voter could choose to vote a straight Democratic ticket but still vote for a Republican for sheriff, for example.
And it proved popular in the past. The Santa Fe Reporter reported that 41 percent of New Mexico voters chose a straight-party option in 2010, with 23 percent of voters picking the Democratic Party and 18 percent selecting the Republican Party.
The straight-party option might make a difference in some less prominent down-ballot races that voters are more likely to skip.
“The straight-party voting option isn’t a partisan issue, it’s an access issue,” Toulouse Oliver said in a statement Friday.
Many states have moved away from straight-party voting, however. New Mexico would be among about 10 states to use it this year.
And Republicans in particular have bristled at the practice, along with independents and minor parties, which argue straight-party voting favors Democrats. More voters in New Mexico are registered as Democrats than with any other party.
The petition contends a straight-party option violates the idea of equal protection under law. Independent and minor-party candidates already face unique hurdles to even get on the ballot, the petition states.
“Her action cannot be allowed to stand and cripple — without legal authorization or even publicly tested justification — the electoral odds of an entire class of candidates,” the petition says.
The case could turn on the decision not to hold hearings or seek formal comment:
At the very least, Toulouse Oliver should have gathered public comment before reinstating the option, the petition argues. The petition notes that a spokesman for Toulouse Oliver told the Albuquerque Journal that she would hold hearings and gather public comment before making the change.
Toulouse Oliver never held any such hearings. And the petition contends that violates state rule-making laws that govern many other aspects of putting together a ballot. Her office said it ultimately decided a formal rule-making process was not necessary under state law.
The legal challenge includes some parties and candidates who may be at the biggest disadvantage under straight-party voting. The state Libertarian Party and Elect Liberty PAC, a group backing former Gov. Gary Johnson’s run for U.S. Senate on the Libertarian ticket, signed on to the petition. Petitioners also include Unite New Mexico, a group backing independent candidates, and Heather Nordquist, a Democrat running as a write-in candidate for state House District 46 in Santa Fe County. But it isn’t all low-key groups. The Republican Party of New Mexico signed on as well.
Like many other election-related cases, this one is on a fast track given fast-approaching ballot deadlines:
The court directed the secretary of state to respond by 5 p.m., Sept. 7. In an order issued Friday afternoon, the court said it would schedule oral arguments at a later date.
Justice Gary Clingman, a Republican who is on the ballot this year, recused himself from the case.
A legal challenge may have to move quickly, though.
The Secretary of State’s Office is expected to finalize the ballot next week and begin sending mail-in ballots to overseas voters 45 days before Election Day.
This story is fascinating on many levels – an opportunity to explore the theory behind straight-ticket voting, a test of the SoS’ rule-making power, a cautionary tale about lack of clarity in legislation – but however it plays out it will likely do so quickly as Election Day approaches. Stay tuned …