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An ex-felon who’s running for a state House seat in Albuquerque’s South Valley will remain on the general election ballot – at least for now – after a judge ruled Wednesday that a New Mexico law barring felons from holding office unless they are pardoned is unconstitutional.
The ruling by District Judge Joshua Allison could set a precedent for future cases, though the attorney who filed the case seeking to have Solomon Pena removed from the Nov. 8 ballot said he plans to appeal it by as soon as next week.
“We’re not disappointed,” said Jacob Candelaria, an Albuquerque state senator who is representing longtime state Rep. Miguel P. Garcia, D-Albuquerque, in the case. Garcia is Pena’s opponent in the House race. “This is all part of the process,” Candelaria said.
The case hinges on whether Pena, a Republican, is eligible to hold elected office since he did not receive a pardon from the governor – nor apply for one – after completing his sentence and five-year probation period last year.
Pena served nearly seven years in prison after being convicted in 2008 of stealing large amounts of goods from several big box retail stores in a reported “smash and grab” scheme.
He was reportedly part of a burglary crew that used stolen vehicles to smash into stores and take high-end electronics.
Pena did not appear in person for Wednesday’s hearing at the 2nd Judicial District Court in downtown Albuquerque, and the attorney representing him, Carter Harrison, did not dispute Pena’s past criminal record.
But Harrison, who is also the attorney for the state Republican Party, cited a U.S. District Court ruling in January that found the state’s current prohibition on convicted felons holding office once they’ve completed the terms of their sentence – unless they get a pardon from the governor – would likely be rejected by the state Supreme Court.
“This statute’s constitutionality is in grave doubt, at the very least,” Harrison said.
After deliberating for more than 30 minutes, the judge ultimately agreed with that argument.
Specifically, Allison said he believes the state Constitution allows legislators to enact laws on felons’ voting rights and their ability to run for elected office, but not to distinguish between the two by imposing additional requirements.
“Our state Constitution provides that if a person is qualified to vote, he’s qualified to be on the ballot,” Allison said while announcing his ruling.
While Pena has declined to answer Journal questions about the issue, a House GOP spokesman said in July that Pena turned his life around after his arrest. He also criticized Candelaria for trying to keep Pena off the ballot.
Meanwhile, the arguments in the case come as New Mexico elections officials are preparing to send out ballots to overseas voters and military members stationed abroad.
An attorney for Secretary of State Maggie Toulouse Oliver’s office said the court case should have been filed sooner, saying Aug. 30 was the deadline for judicial rulings removing candidates from the ballot.
But Candelaria said he filed the petition before that date, while also adding that Pena’s criminal record was kept secret until it was uncovered in July.
“The Republican Party knew the risks when it nominated the person it nominated,” he said.
All 70 state House seats are up for election this year. Democrats currently hold a 44-25 advantage over Republicans in the chamber, which also has one independent member – Rep. Phelps Anderson of Roswell – who is not seeking reelection.
However, Republicans have recruited candidates to run in 50 districts around the state in hopes of flipping Democratic-held seats.
Garcia, who has served in the Legislature since 1997, is currently the House’s second-longest serving member, behind only Rep. Gail Chasey, an Albuquerque Democrat.
He has not had a general election opponent since 2014, though he did survive a primary election challenge in 2020.