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SANTA FE – Republican attorney general candidate Jeremy Gay weathered an attempt to knock him off the general election ballot, as a state judge on Friday rejected a court challenge targeting Gay’s eligibility to hold office.
Specifically, the Democratic-backed lawsuit seeking to prevent Gay’s name from appearing on the ballot alleged he doesn’t meet a five-year residency requirement in the state Constitution. It claimed Gay moved to Gallup in 2019 – about a year and a half short of the constitutional requirement.
But 1st Judicial District Court Judge T. Glenn Ellington ruled the lawsuit was filed too late in the process – New Mexico ballots have already been certified for the Nov. 8 election – and said removing Gay from the ballot would disenfranchise GOP voters who supported him in the June primary election.
“It does more than remove Mr. Gay from the ballot … it predetermines the outcome of the election,” said Ellington, who noted Republicans would be unable to pick a replacement for Gay since a statutory deadline to fill ballot vacancies has already passed.
A former judge advocate in the Marine Corps, Gay is competing with Democrat Raúl Torrez, who is currently Bernalillo County district attorney, to serve as the state’s top prosecutor. They are the only two candidates on the ballot for the $95,000-per-year job.
Gay did not appear in person for the Friday court hearing in Santa Fe, but the attorneys representing him said the lawsuit could have been filed earlier.
“There is no reason this is coming so late,” said attorney Carter Harrison IV, who also represents the state Republican Party. “These facts were not a secret.”
An attorney representing Secretary of State Maggie Toulouse Oliver also testified during Friday’s hearing and urged the judge to dismiss the lawsuit.
The deadline to remove candidates from the general election ballot was Aug. 30, said Secretary of State’s Office general counsel Dylan Lange, who added “our election process is in full swing.”
However, attorney Ryan Harrigan, who filed the petition on behalf of James Collie, a former Bernalillo County commissioner, said no state law bars challenges targeting a candidate’s basic eligibility to serve.
After the judge’s ruling was handed down following an hour-long hearing, Harrigan said he was not yet sure whether an appeal might be filed.
“Obviously, we’re disappointed,” he told the Journal. “The question of residency is still looming.”
While Gay’s campaign has criticized the court challenge as an attack on the candidate’s military service, Harrigan said that was not the case.
He said the petition specifically focuses on whether Gay had established New Mexico residency prior to being deployed. Gay was registered to vote in Florida through 2018, the lawsuit contended, and he was stationed in California when he left the Marine Corps in May 2019 and moved to Gallup.
“We are not contesting or contending that a New Mexico resident who goes to serve in the military should not be able to hold office,” Harrigan said.
The state Constitution requires candidates for all statewide offices to have resided in New Mexico for five years prior to election – or since Nov. 8, 2017, in Gay’s case. It also requires attorney general candidates to be licensed lawyers by the New Mexico Supreme Court in good standing.
State GOP chairman Steve Pearce said Friday he was pleased by the judge’s ruling, while also claiming Gay has called New Mexico home since 2014.
“To try to boot someone out of a race for serving his nation is wrong and outrageous,” Pearce said in a statement. “This is a disgraceful way the progressive left is trying to disenfranchise voters.”