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Failed amendments actually passed, group claims

SANTA FE – Proposed changes to the state Constitution expanding when school elections can be held and modernizing language about who can vote failed to get the required 75 percent of the vote statewide, so they weren’t adopted.

Or were they?

In an unusual court challenge, the League of Women Voters is asking the state Supreme Court to rule that amendments that won majority approval in 2008, 2010 and 2014 – but failed to hit the 75 percent mark – are actually in effect.

Changing most sections of the state Constitution requires the approval of only a simple majority of voters. But four sections, dealing with elections and with the educational rights of Spanish-speaking children, require a 75 percent approval.

The league’s argument: The 75 percent requirement was put into the elections sections of the Constitution to protect voting rights. But the recent amendments don’t restrict voting rights, and because a majority of voters approved them, they are the law, the league contends.

The identical 2008 and 2014 amendments would have allowed school elections to be held in conjunction with other nonpartisan elections. Currently, they can’t be held with any other elections.

“This isn’t a voting issue. There are no rights implicated here. It’s a scheduling matter,” said state Sen. Daniel Ivey-Soto, D-Albuquerque, a lawyer and elections expert representing the league in the case.

The 2010 amendment would have updated the Constitution by getting rid of residency and age requirements for voting that already had been wiped out by other law, and by removing the prohibition against “idiots” and “insane persons” voting.

That would have been replaced by a reference to “mental incapacity,” defined as being simultaneously unable to mark a ballot and communicate a voting preference.

Those changes not only protect voter rights but actually expand on them, the league contends.

It’s not clear whether the Supreme Court will agree to consider the request – filed Sept. 24 – although it has set a deadline of next Monday for a response from the Advisory Committee to the New Mexico Compilation Commission. The commission is in charge of compiling the state’s laws.

Committee Chairwoman Paula Tackett said Monday that the panel will meet this week with the Office of the Attorney General to work on a response and that it would be premature to comment on the league’s position.

Meredith Machen, president of the League of Women Voters of New Mexico, said the organization has long supported combining school elections with other nonpartisan elections, such as municipal elections, in an effort to boost voter participation and save money by sharing costs.

“Voter turnout is horrific,” she said, citing the low turnout in school elections as well as last week’s 8 percent turnout of registered voters in Albuquerque’s city election, the worst in four decades.

“Our democracy depends on lots of people having their voices be heard,” Machen said.

Ivey-Soto, a former state elections director, said there are increasing numbers of people “who are just starting to vote no on things,” and that’s part of the reason it’s been tough to get 75 percent approval for the proposed changes.

“People are increasingly cynical, and they’re wondering what the real agenda is behind it, and I get that,” Ivey-Soto said. But, he added, “There is no hidden agenda here.”

Keeping school elections separate from other elections in the 1910 Constitution has its roots in discrimination: The right to vote was reserved for men – although not Native American men – and suffrage for women was limited to school matters.

The 2008 constitutional amendment for school elections got 74.48 percent of the vote, just shy of three-fourths. Most recently, in 2014, the same proposal got only 58 percent of the vote. The 2010 amendment got 57 percent of the vote.