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New Mexico Supreme Court: Primaries will stay closed

February 6, 2019

A legal challenge to New Mexico’s closed primary elections is over.

The New Mexico Supreme Court shot down this week a case brought by voters who argued it is unconstitutional to bar independents from casting ballots in party nominating contests.

With its order this week, the state’s highest court has left it up to legislators to decide how the state’s primary elections should change — if at all — ahead of a campaign season when both the White House and one of New Mexico’s seats in the U.S. Senate will be on the ballot.

Under the state’s current law, a voter must be affiliated with a political party to participate in its primary election.

But the case, brought by former Democratic Attorney General Paul Bardacke, argued taxpayers should not have to cover the costs of primary elections if only voters affiliated with political parties can participate.

Bardacke pointed to a section of New Mexico law that prohibits government from using public money to benefit private organizations. He argued political parties in this instance are effectively private organizations and that closed primaries are unconstitutional.

Secretary of State Maggie Toulouse Oliver, who has supported opening primary elections to independent voters, had raised concerns about the lawsuit, warning that declaring the current process unconstitutional on those grounds could unsettle New Mexico’s entire voting system.

Primary elections are a government function managed by the secretary of state and county clerks, not political parties, attorneys for her office noted.

So, they argued in written responses to the court, the provision of the state constitution prohibiting government support for private organizations does not prohibit primary elections.

If it did, the Secretary of State’s Office warned, New Mexico’s government might not be allowed to pay for primary elections at all — with or without independent voters.

The state Supreme Court did not address those arguments in a short order issued this week, but it denied Bardacke’s request to declare the current system unconstitutional.

Bardacke said Tuesday he was disappointed in the decision, pointing to the growing number of independent voters. According to the Secretary of State’s Office, 22 percent of voters are registered as independents. That is up from 9 percent 20 years ago.

Advocates for opening the primary election process, like Bardacke, argue the state’s current system stifles turnout and leaves many voters without much of a choice when party nominees run unchallenged.

In bringing the lawsuit, open-primary backers hoped to strike down the existing system and force state lawmakers ahead of the 2020 election to craft a new system in which independents could participate.

“We can remain hopeful,” Bardacke said Tuesday. “There’s lots going on at the Legislature.”

Several bills wending through the Legislature would open New Mexico’s primary process.

House Bill 93 would allow independent voters and voters affiliated with minor parties to participate in primary elections. They would simply choose at a polling site which ballot — Republican, Democratic or Libertarian — they prefer.

Senate Bill 418 would give the major parties a choice of either opening elections to independent and minor-party voters or paying for the primaries on their own.

Some of the ideas will have an advocate in Toulouse Oliver, who said she will back legislation to open primaries to independent voters.

“Open primaries guarantee that every eligible voter has the same opportunity to make his or her voice heard and they encourage candidates to listen to a wider variety of perspectives,” she said in a statement. “While I don’t believe this lawsuit was the right approach, I will continue fighting to bring a modified open primary to New Mexico.”

But key legislators remain opposed to the concept altogether.

“If you’re going to have someone carrying the banner of the party, that person ought to be chosen by members of that party,” House Speaker Brian Egolf, D-Santa Fe, told reporters Tuesday.

Still, Egolf said he supports same-day voter registration. And the Democratic National Convention’s own delegate selection rules call for state parties to support letting voters switch their party affiliation on the day of a primary.

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