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Lawsuit to challenge state voting rule

SANTA FE – Nearly 241,000 registered voters aren’t casting ballots this primary election season – not because they don’t want to, but because they can’t.

A lawsuit to be filed this week aims to fix that, arguing that the law barring unaffiliated voters from primaries violates the state constitution.

“The basic right to vote, one of the most important rights we have in a democracy, is unconstitutionally denied to a large number of voters in the state,” said J. Edward Hollington, an Albuquerque lawyer who will file the complaint.

Under state law, registered voters not affiliated with major parties cannot vote in primary elections, in which Democrats and Republicans – and any other party qualified as a major party – choose their candidates for the November general election.

That rules out those who “decline to state” a party affiliation – New Mexico’s version of registering as unaffiliated.

According to recent voter registration figures, as of May 15, 240,741 registered voters, or 19 percent of all such voters, were listed as unaffiliated.

That number includes 84,537 in Bernalillo County. That’s where Albuquerque lawyer David Crum went to vote on May 21 and was rejected, triggering the lawsuit in which he’s the plaintiff.

It was no surprise to Crum: Uncomfortable with labels, he has been registered as undeclared since he moved to New Mexico in 1996. He was first turned away at the primary polls a couple of years after that, when he tried to cast a ballot in a judge’s race.

“I just sort of thought, ‘This is really unfair, but there’s nothing I can do about it,’ ” he told the Journal.

Crum said he and Hollington have discussed the issue for a long time and watched as the case law developed in other states.

“We didn’t want to file something frivolous. I think we have a legitimate chance to win this issue,” Crum said.

Crum believes opening primaries to unaffiliated voters would have a moderating effect as candidates shift away from courting the extremes of the two major parties.

The lawsuit – which Hollington said he intends to file on Tuesday, primary election day, for symbolic reasons – says New Mexico’s Constitution guarantees open elections and says no power can interfere with the right to vote. And the constitution also says registered voters have the right to vote “at all elections for public officers,” the lawsuit says.

The cost of primaries is borne by taxpayers, the lawsuit points out. Tuesday’s primary is costing the Secretary of State’s Office nearly $3 million, and there are other, county-level costs, according to Ken Ortiz, chief of staff for Secretary of State Dianna Duran.

The lawsuit asks the state District Court to declare that the constitution requires that unaffiliated voters be allowed to vote in primaries and that unaffiliated voters be able to request whichever major party’s ballot they choose.

It wasn’t immediately clear how such a ruling would affect voters affiliated with minor parties; Hollington said he is looking into that. He also said he hopes the case will be wrapped up in time for the 2016 election.