Upcoming Lawsuit: New Mexico Closed Primaries Violate State Constitution

One group is working hard to bring comprehensive election reform to New Mexico, including open primaries, independent redistricting, and ballot access reform. However, due to the limited paths to success, its only recourse may be through successful lawsuits against the state.

New Mexico Open Primaries was founded by former Democratic state lawmaker Bob Perls. Though open primary reform is a chief initiative of the organization, Perls says his group also wants to see independent redistricting reform to end partisan gerrymandering, and wants to make ballot access easier for independent and minor party candidates.

Who is Bob Perls?

Bob Perls is the founder and president of New Mexico Open Primaries. He is a former member of the New Mexico House of Representatives, where he served two terms in the 90s.

“I represented a swing district. I was one of the few reps in New Mexico to represent a swing district, because New Mexico like most states is highly gerrymandered,” said Perls in an interview for IVN. “I was very used to speaking to Republicans, Democrats, independents, the whole political spectrum.”

Perls explained that he would then go to the state’s capitol in Santa Fe and work with Republican and Democratic leaders who did not have to work across the aisle and only had to appeal to their own base. As a result, Perls said he would often butt heads with his own party’s leadership. He even had to run against the influence and money of the Democratic Party in three primary elections.

Despite these challenges, Perls said he was able to pass landmark pieces of legislation, including the state’s first charter school act, the tobacco control act for minors, and other “good government bills.” In addition to serving in the legislature, he also ran unsuccessfully for Congress in 2000 and the New Mexico Public Regulation Commission in 2004.

“I have 13 years of constant election and campaign experience, both winning and losing elections,” he said.

Along with public service, Perls is an entrepreneur. He founded a medical technology company at the age of 25, and sold it in 2008. He then applied and got into the U.S. Foreign Service, where he represented the U.S. abroad from January 2010 to mid-2015. After 5 years of talking about American democracy, Perls says it occurred to him that “our American democracy really is not working the way it was supposed to.”

Now, Perls is focused on structural political reform in New Mexico, a state that was hit by a double-dip recession and Perls says cannot get anything done because of partisan dysfunction in the legislature.

Enter New Mexico Open Primaries

“Here we are two years later with an extremely diverse, active board of Greens, Libertarians, Republicans, Democrats, independents; board members have come and gone, but the board continues to be strengthened over the last two years.” – Bob Perls, founder and president of New Mexico Open Primaries

Since 2015, the 501(c)(4) organization New Mexico Open Primaries has grown and advocated for structural political and election reform, including open primaries, ballot access, and independent redistricting.

“We introduced a constitutional amendment [in the 2016 short session] that basically stated that the New Mexico Constitution would guarantee that every qualified elector shall be able to vote in every public election,” said Perls. “We got it through one House committee and it was killed in the second House committee.”

According to Perls, because New Mexico Open Primaries was the first organizations to successfully move an open primaries initiative through a legislative committee, it opened the door for the organization to double down on its outreach efforts. Through a combination of meeting with service organizations and hundreds of house parties, the organization grew, raised money, and received increased media exposure.

In the 2017 session, New Mexico Open Primaries pushed the following legislative package with the intent of getting bipartisan support:

  • It got a Republican and a Democrat to sponsor a bill that would allow independent voters (called Decline to State in New Mexico) to participate in partisan primary elections. Perls calls it “a baby step to open primaries.”
  • It introduced legislation that would ease ballot access restrictions for independent and minor party candidates. According to Perls, New Mexico has one of the hardest ballot signature requirements in the country, where “an independent candidate would need 8 to 10 times as many signatures to get on the ballot as a major party candidate.”
  • It got behind a bill that would implement a nonpartisan open primary system similar to Washington state and California. The bill was never able to gain any traction outside its only sponsor, however, and died quickly in its first committee.
  • It supported Common Cause’s independent redistricting commission bill.

Despite a couple of the bills getting some legs, New Mexico Open Primaries hit a similar roadblock in 2017 as it did in 2016; namely, partisan maneuvering that prevented any of the bills from getting past a second committee or a floor vote. Perls said the majority speaker and minority leader even worked to defeat the bill that would open partisan primaries to independent voters on the House side.

The Upcoming Lawsuit

New Mexico doesn’t offer reformers the same opportunities other states have to pass structural political reform; namely, states that have passed open primary reform have a ballot initiative or citizen referendum process. This allows election reform organizations to take their initiatives directly to the people. New Mexico does not have a ballot initiative process of any kind.

This leaves organizations like New Mexico Open Primaries with two options: Pass reform in the legislature or file a lawsuit. Perls says his organization has decided to take a “very aggressive position on lawsuits.”

“We plan to file a lawsuit hopefully by early fall to sue over an anti-donation clause argument to bust open the closed primaries,” he said.

Perls explained that New Mexico has an anti-donations clause in its constitution that says the state cannot use taxpayer money to benefit private organizations. He said his organization has drafted strong briefs he believes make the case that the state’s closed primaries violate this clause.

In short, closed primary elections are paid for and administered by state and local governments in New Mexico. These elections serve the sole purpose of nominating candidates for the Republican and Democratic Parties, which means they directly serve and benefit two private political corporations. Therefore, New Mexico Open Primaries argues that the state’s closed primary elections are unconstitutional.

The group is also rolling out a strategy to challenge the state’s strict ballot access laws as well.

Perls says it is a balancing act for the organization. On the one hand, they have to play the insider role of building relationships and gaining sponsors and supporters for bills in the legislature. On the other hand, lawsuits he says are a relatively easy and inexpensive outsider role to put pressure on legislators and force their hand.

The Solution

For now, Perls says he has drafted language for a House joint memorial asking the legislature to study election reform issues generally. He plans to meet with the handful of sponsors the group already has in the legislature to review the memorial and ask the House leaders to review open primaries, ranked choice voting, ballot access, and more to lay the groundwork for 2018.

Perls is optimistic the memorial will help. He believes that over time his organization could build the momentum and pressure needed to pass at least a basic open primaries bill in the legislature. However, he added that any hopes of structural reform in the short term — i.e. within the next two years — will have to come through successful lawsuits.

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