Former AG asks New Mexico Supreme Court to nix closed primaries

November 14, 2018

Make no mistake: Paul Bardacke is a Democrat. He was the state attorney general in the 1980s. And he chaired Bill Richardson’s campaign for governor in 2002.

But these days, he is worried about a growing section of the electorate that is not in his party’s column and may never be.


Twenty-two percent of registered voters in New Mexico are not affiliated with any political party. That is up from 11 percent a decade ago.

Under New Mexico’s closed system, only voters affiliated with a party can cast a ballot in that party’s primary election. So, independents cannot vote in Democratic or Republican primaries.

Bardacke argues this setup is bad for New Mexico. And he says it is unconstitutional.

Representing four voters from around the state, Bardacke asked the state Supreme Court on Tuesday to strike down New Mexico’s closed primary election system, contending it violates a provision of the state Constitution prohibiting the government from using public funds to benefit private organizations. He argues the public should not have to foot the bill for primary elections if the only people allowed to participate are voters affiliated with private associations.

“They can’t expect the taxpayers to pay for their private primaries,” Bardacke said.

If successful, the case could upend New Mexico politics and ensure an election process that Bardacke and other backers argue would be more inclusive.

But defenders of New Mexico’s open primary system argue it is only fair. If a voter is not a member of a party, they have no right to pick that party’s candidates, the thinking goes. Forcing a party to accept the ballots of people who are not affiliated with that party would violate the right to freedom of association, proponents have argued.

And New Mexico’s closed primary system — one of nine in the country — has gone in front of the state Supreme Court in the past.

Last year, the court rejected the arguments of one voter who maintained that having to register with a party violated the clause of the New Mexico Constitution establishing free and open elections. The closed primary system did not violate that provision, the court decided.

But the court did not rule out the possibility that the Legislature could set up an open primary system.

And it did not address the crux of this latest case: the state constitution’s anti-donation clause, which says the state cannot spend public funds for the exclusive benefit of a private association, in this case the major parties.

Four voters filed the case: Courtney Chavez and Richard Edwards, both of whom live in Bernalillo County and have declined to select a party on their voter registration; Patrick Lopez, a Republican from Santa Fe; and Gordon Hill, a Democrat from Doña Ana County.

The case names New Mexico’s top election administrator, Secretary of State Maggie Toulouse Oliver, as the respondent.

Without commenting directly on the newly filed case, she reiterated her support for allowing independents to vote in primary elections.

“My office is in the process of reviewing the recently filed lawsuit regarding open primaries in New Mexico but I do support open primaries as they guarantee that every eligible voter has the same opportunity to make his or her voice heard,” Toulouse Oliver said in a statement.

Meanwhile, there is debate over open primaries within the state’s Republican Party, a segment of which has been vehemently opposed to open primaries though the idea appeals to others in the GOP.

It is up to the state’s five-member high court to decide whether to hear the case at all.

The petition does not ask the state Supreme Court to decide what sort of system should replace New Mexico’s closed primary system, instead arguing that decision is up to the Legislature.

Lawmakers have proposed various types of open primaries in recent years, often modeled on other states.

In 2017, state Reps. Stephanie Garcia Richard, D-Los Alamos, and Jim Dines, R-Albuquerque, sponsored a bill that would allow independents and minor-party voters to participate in any of the major-party primary elections.

That same year, Rep. Antonio Maestas, D-Albuquerque, sponsored a bill that would have created a “top-two” primary system in which all voters would select from the same list of candidates. The two candidates with the most votes would advance to the general election.

Neither bill made it out of the committee process to a vote of the full House.

Bardacke said a decision by the state Supreme Court might force the Legislature’s hand.

The timing of the case, Bardacke said, is meant to avoid any confusion about the election that just ended last week while also providing a window of time for the court or legislators to deal with the issue before the next primary election in 2020.

State Sen. Daniel Ivey-Soto, a Democrat from Albuquerque, said he believes the current system is unconstitutional. But part of the problem, he argued, is that the state requires major political parties to use the primary process. Ivey-Soto argued parties should have a choice of holding open or closed primary elections.

On the one hand, Ivey-Soto said, a party’s nominee should be chosen by voters affiliated with that party. But he also acknowledged closed primaries funded by the public may erode the public’s faith in how candidates are selected.

Still, Ivey-Soto noted a primary election is just one of four different routes for a candidate to get on the general election ballot. The real question, he said, is what would replace the entire system for candidates seeking a spot on the ballot.

“I don’t want to depart from the current unconstitutional system for another unconstitutional system,” he said.

Proponents of open primaries have made various arguments about how the process might affect New Mexico’s politics. Some contend, for example, that it could prod candidates to appeal more to moderate voters instead of the bases of their political parties.

The research is not so clear that is the case. A 2013 study published in the American Journal of Political Science found the openness of a primary election has little, if any, effect on the extremism of the politicians it produces.

In any event, Bardacke said that is not the main reason to open up New Mexico’s primary elections. Perhaps it won’t moderate the political discourse, he said, but “it will make the political discourse more robust.”

“These are voters who care enough to register to vote and care enough about their beliefs and ideologies not to blindly associate with one of the major parties,” said Justin Miller, a lawyer working on the case with Bardacke.

The latest midterm election just drew unusually large numbers of New Mexicans to the polls, with around 55 percent of registered voters casting ballots.

But it should not take emergencies and political crises to encourage voters to head to the polls, Miller said.

For Bardacke, opening up primary elections is a matter of getting more voters involved in the process.

“The system,” Bardacke said, “isn’t working.”

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