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Judge upholds New Mexico closed primary system

ALBUQUERQUE, N.M. — A state district judge on Wednesday upheld New Mexico’s closed primary system against a challenge from an independent voter, saying the Legislature had not exceeded its authority when it set up the process.

Under existing law, only registered Republicans may vote in that party’s primary, and the same for Democrats.

Independent voter David Crum, listed on state voter rolls as “declined to state,” challenged the constitutionality of the provision in a lawsuit against the secretary of state and the Bernalillo County clerk.

“The question here is not whether open primaries are preferable to closed primaries, but whether the Legislature exceeded its constitutional authority by enacting a closed primary system,” 2nd Judicial District Judge Denise Barela-Shepherd said in an opinion. She said she was not persuaded by Crum that it had exceeded its authority.

Crum’s attorney Ed Hollington said he will file a notice of appeal shortly.

“This is Round One. We’re confident we have other issues for the appellate courts,” he said.

Crum sued after attempting to vote in the primary and being turned away.

Barela-Shepherd ordered the two major political parties joined as defendants.

The Republican Party asked for the complaint to be dismissed, and her opinion came on that request.

The Democratic Party did not enter an appearance.

Crum said in court filings that in the 2014 primary, 199 public offices were decided – out of 341 statewide – because only one major party had candidates on the ballot. He contends 240,000 declined-to-state voters were “denied the right to vote” in the primaries, including positions for legislators, county commissioners and judges.

GOP attorney John Anderson, arguing for dismissal, said Crum was claiming that he had a right to “participate in the internal process by which a party selects its standard bearer, despite his refusal to take any steps to affiliate with that party. The New Mexico Constitution provides him with no such right.”

Barela-Shepherd said the Legislature acted within its constitutional authority, noting the First Amendment to the U.S. Constitution safeguards citizens’ rights to band together to promote candidates who espouse their political views.

Crum argued that because his claims were made under the state constitution, federal law need not apply, but Barela-Shepherd noted that the Republican Party had “expressly asserted its First Amendment protections.”

She also rejected Crum’s claim that the right to vote in primaries doesn’t intrude on internal party matters because candidates have been selected at nominating conventions.

“The state has a legitimate interest in assuring that voters who wish to vote in a primary election demonstrate at least a modicum of support for the political party and its nominees,” she wrote.

Crum argued that no provision in the New Mexico Constitution “limits the right to vote to only registered Democrats and Republicans,” so the legislative provision for closed primaries in effect took away his right to vote.

But the judge said the challenged sections of the election statute don’t take away that right.

“Rather, they impose a requirement that voters designate a party affiliation as a condition of participating in a primary election. Plaintiff has not identified any burden imposed by this requirement – let alone a severe burden,” she said in the opinion.

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