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Copyright © 2018 Albuquerque Journal
SANTA FE – The New Mexico Supreme Court on Wednesday blocked Secretary of State Maggie Toulouse Oliver from bringing back straight-party voting for the November general election, ruling that the secretary of state does not have the authority to unilaterally make the policy change.
The unanimous decision, which was handed down after more than an hour of deliberations, makes it clear that only the Legislature can restore straight-party voting, which allows voters to vote for a major party’s entire slate of candidates by filling in an oval at the top of the ballot.
“This power is theirs alone, and the Legislature has indicated its intent to thoroughly regulate how ballots appear,” Chief Justice Judith Nakamura said while handing down the decision.
Toulouse Oliver, a Democrat who is running for re-election this year to serve a full four-year term as secretary of state, had made no secret of her support for straight-party voting and announced late last month – just over two months before Election Day – that she was bringing it back for the Nov. 6 election.
She argued that the option provides more options to voters and makes it easier for them to cast ballots. She also claimed state law gave her the authority to make the change.
But her decision prompted howls of protest from critics who said it was driven by partisan motives in a state in which registered Democrats far outnumber Republicans, a charge that Toulouse Oliver denied.
She told reporters after the Supreme Court hearing Wednesday that she was disappointed by the decision but glad to have clarity on the issue from the state’s highest court.
“This has never been a partisan decision for me,” Toulouse Oliver said. “It’s always been about ease for the voters.”
The Supreme Court’s decision came after justices heard nearly an hour and a half of oral arguments from attorneys on both sides of the dispute.
Many of the justices’ questions focused on legislative intent and history on the issue, which was complicated by the fact that several bills were proposed since 2001 that would have either endorsed or banned straight-ticket voting and none of them was signed into law.
“This is a tough issue, because it is not clear,” Justice Charles Daniels said at one point during Wednesday’s hearing.
At another point, Nakamura asked a contract attorney with Attorney General Hector Balderas’ office, which was defending Toulouse Oliver, whether the secretary of state could in the future add single ballot ovals for bond questions and judicial retention if her move to bring back straight-ticket voting was allowed to stand.
“We could reduce the ballot to perhaps four questions,” Nakamura said.
Supreme Court Justice Gary Clingman, who was appointed to the state’s highest court by Martinez earlier this year and is running for election in November, recused himself from the case. District Judge Brett Loveless of Albuquerque was tabbed by the Supreme Court to fill in for Clingman on the five-member court.
New Mexico previously used the straight-party voting option since around 1917, according to court testimony, but then-Secretary of State Dianna Duran, a Republican, eliminated it in 2012, saying the state election code did not specifically allow the practice.
Meanwhile, the court challenge seeking to bar Toulouse Oliver from reinstating straight-ticket voting was filed by a unlikely coalition of allies, including the state Republican and Libertarian parties, which both have major-party status for this year’s election cycle.
The other petitioners were Unite New Mexico, a nonprofit formed to help independent candidates; Elect Liberty PAC, an independent expenditure group created to assist former Gov. Gary Johnson’s U.S. Senate campaign; and Heather Nordquist, a Democratic legislative write-in candidate from Santa Fe.
In addition, a group of 19 GOP state lawmakers, two county commissioners, two county clerks and the Republican and Libertarian candidates for secretary of state filed a legal brief of their own opposing the secretary of state’s actions.
Gavin Clarkson, the GOP nominee for secretary of state, heralded the Supreme Court’s decision as a milestone ruling.
“I think it was a total vindication of the rule of law in the state of New Mexico,” Clarkson told reporters. “The secretary of state should not be making law – the Legislature should be making law.”
Other Republicans, including GOP gubernatorial nominee Steve Pearce and outgoing Gov. Susana Martinez, also hailed the ruling on social media.
Nationally, many states have been moving away from straight-ticket voting in recent years. Only nine states currently provide the option to voters, and Texas is scheduled to do away with it in 2020, according to the National Conference of State Legislatures.
The Secretary of State’s Office said it did not have immediate access to historical New Mexico data about voter utilization rates of the straight-party option.
However, the Secretary of State’s Office has pointed out that two Republicans – Duran and outgoing Gov. Susana Martinez – were elected to statewide office in 2010, the last time straight-party voting was on the ballot.
After Wednesday’s ruling was announced, Toulouse Oliver was noncommittal about whether she would push next year at the Roundhouse for a bill authorizing straight-party voting if she’s re-elected. But she said she will advocate for other policy changes, including same-day voter registration and opening primary elections to independent voters.
“I will continue to push for policies that make it easier for voters,” Toulouse Oliver said.