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SANTA FE – The state Supreme Court is taking another look at whether constitutional changes that got the OK from a majority of voters in previous years – but failed to reach the required 75 percent threshold – may actually be in effect.
The League of Women Voters first raised the question a year ago, but the court rejected its lawsuit.
Now the justices have decided to rehear the League’s challenge, which this time around has the backing of counties, disability rights advocates, Common Cause New Mexico and drug reform activists.
Arguments are scheduled before the court on Wednesday.
At issue are identical constitutional amendments from 2008 and 2014 that allowed school elections to be held in conjunction with other nonpartisan elections, and a 2010 amendment that removed the language prohibiting “idiots” and “insane persons” from voting.
The changes affect sections of the state Constitution that deal with voting and education and that require the approval of not just a majority, but three-fourths of those voting, to alter them.
The League argues that a separate provision of the Constitution makes it clear that the 75 percent rule was intended to protect rights. Because the constitutional changes not only protect rights, but enlarge them, only a majority vote is needed to change them, the League says.
“If we’re not restricting people’s voting rights, it seems to me a majority of the people ought to be able to expand the rights and modernize the language,” said state Sen. Daniel Ivey-Soto, D-Albuquerque, a lawyer and former state elections director who is representing the League.
The restriction in the 1910 Constitution that keeps school elections separate from other elections is rooted in the fact that, at the time, women were not allowed to vote except in school elections.
Meredith Machen, president of the League of Women Voters of New Mexico, says allowing school elections at the same time as other nonpartisan elections would save money and bolster turnout.
“Right now, the turnout for school board elections is a tiny percentage of the electorate,” she said.
The New Mexico Association of Counties said in a brief filed with the court that the current setup – a hodgepodge of local nonpartisan elections that are run or supported by county clerks – is chaotic and costly.
“Because consolidating nonpartisan elections as allowed by the amendment will improve efficiency and voter participation, it is strongly supported by the clerks,” the association said in its filing.
The 2010 amendment would have gotten rid of residency and age requirements for voting that have already been wiped out by other laws. And it would have removed the prohibition on voting by “idiots” and “insane persons.”
“The terms ‘idiots’ and ‘insane persons’ are offensive, stigmatizing and archaic,” the organization Disability Rights New Mexico argues in its brief. Removing that language from the Constitution “would be a significant step for New Mexico toward protecting individuals with mental disabilities from societal discrimination,” the organization said.
Under the 2010 amendment, the original language would have been replaced by a reference to “mental incapacity,” defined as being concurrently unable to mark a ballot and communicate a voting preference.
The same amendment also has the support of the Drug Policy Alliance, because it updates the language related to felons and voting, acknowledging that the Legislature – not just the governor – has the discretion to re-enfranchise those convicted of felonies.
The Legislature passed laws in 2001 and 2007 authorizing the restoration of voting rights to felons under certain conditions.
The lawsuit was filed against the Advisory Committee to the New Mexico Compilation Commission. The commission is in charge of compiling the state’s laws, and the League contends the advisory committee acts as its gatekeeper in that process.
But the Advisory Committee told the court that while the League’s lawsuit raises “important issues” for the court’s consideration, the League should instead have sued the State Canvassing Board – the governor, the Supreme Court chief justice and the secretary of state – because its job is to declare the results of state elections.