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High court looks askance at primary vote fix

By Deborah Baker

SANTA FE – A lawsuit aimed at opening up the Democratic and Republican primaries to voters who aren’t affiliated with those parties got a frosty reception Monday from the state Supreme Court.

The court heard arguments in a case brought by lawyer David Crum of Albuquerque, who says the state law prohibiting unaffiliated voters from casting ballots in primaries violates the state Constitution’s mandate that elections be “free and open.”

Crum, who registered as “decline to state” – New Mexico’s version of unaffiliated – sued after he was turned away from voting in the 2014 primary election.

“Nowhere in the Constitution is membership in a political party a requirement for voters in the state of New Mexico,” Crum’s lawyer, J. Edward Hollington, told the court.

The Constitution’s protection of the right to vote doesn’t make a distinction between primary and general elections, he argued, but nearly 240,000 unaffiliated voters were denied that right in the 2014 primary.

According to the lawsuit, nearly 60 percent of legislative, county-level and judicial races were decided in that primary because there were no general election contests for those offices.

Because the parties’ nominees are chosen in publicly financed elections – instead of, for example, party conventions – qualified voters can’t be excluded, Hollington also said.

But the justices appeared skeptical, peppering him with questions about the potential impact of overturning the current law.

“How would that not encourage mischief?” Justice Barbara Vigil asked.

Chief Justice Charles Daniels suggested that a party’s primary results could be skewed by unaffiliated voters “in order to nominate an unelectable candidate.”

“Isn’t that a problem? … Isn’t that a rational possibility?” Daniels said.

John Anderson, a lawyer for the Republican Party of New Mexico, told the court that open primaries could erode the ideological underpinnings of the parties and make party labels less reliable.

“A political party has the right to have its standard-bearer selected by its members. … That is certainly a legitimate legislative objective,” Anderson said.

The Office of the Attorney General agreed with the Republican Party that the Legislature was within its authority to restrict primaries to party members, and that forcing political parties to open primaries would infringe on their associational rights under the First Amendment – an argument the GOP made in state District Court that led the court to dismiss Crum’s lawsuit.

The AG intervened in the case to defend the state law after the Secretary of State’s Office, which was sued, declined to take a position.

The Supreme Court did not make an immediate decision in the case.

Former state Rep. Bob Perls, founder of New Mexico Open Primaries and a supporter of Crum’s lawsuit, said his organization plans to propose at least two versions of open-primary bills during the 2017 legislative session.

One would allow decline-to-state voters to participate in major parties’ primaries, and the other would create a system of nonpartisan registration and voting in which the top two vote-getters would go to the general election.