State Court, Politicians Deny Voters the Open Primaries Reform They Demand

Created: 19 March, 2019
Updated: 14 August, 2022
4 min read

By all accounts New Mexico would seem to be a strong candidate for reform of their primary elections. At least that’s what we thought when we started working with local activists to build support there three years ago.

One of only nine states with completely closed primaries, New Mexico has seen rapid growth in the number of registered independent voters. In 2000, 15% of voters were not registered with either major party. Today, that number is 25% or approximately 300,000 people.

In a small population state like New Mexico, with notoriously weak ethics laws and a long history of corruption among high-ranking officials, the disenfranchisement of that many voters has created a strong demand for reform from every corner of the state. 82% of New Mexicans -- Republicans, Democrats and independent -- support a move to open primaries.

New Mexico does not allow voter initiated statutory changes, so change must come from the courts or the legislature. Local legislative efforts to date -- which we supported over several sessions -- gained some traction, but party leadership refused to even send a bill to the floor of either house for consideration.

Which is why the Open Primaries Education Fund developed and filed groundbreaking  litigation challenging the taxpayer-funding of New Mexico’s closed primary elections. We had to find some way to create pressure on an otherwise ossified political process.

Our case was solid. The state constitution has a clear provision, called an anti-donation clause, prohibiting the use of public funds for private activities. It has been used to successfully challenge past attempts by the state to use public funds for activities that did not benefit the public.

Other states had made use of similar clauses to strike down the expenditure of government money to benefit private entities. The state auditor and a former attorney general had issued memos raising questions about the public funding of “private” primary elections. And the Republican and Democrat Parties had done us the favor of arguing for years in case after case that they are private institutions.

We were even fortunate enough to be able to hire the former state attorney general, Paul Bardacke, to lead a litigation team that also included national election law expert Harry Kresky. Moreover, the defendant in our case would be Secretary of State Maggie Toulouse Oliver- who had just declared open primaries to be at the top of her “reform agenda.”

We filed by a writ of mandamus which, if granted, would allow the state Supreme Court to bypass the lower courts on issues of extreme timeliness and importance and hear the case directly. Despite her often stated position, the secretary of state strongly opposed our application, claiming that we were trying to eliminate party-run primaries altogether, when the simple resolution of our claim -- as we pointed out -- was to allow every registered voter to participate in the same way dozens of states already do.

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Our expectation was that either the state Supreme Court would grant our motion and we would proceed to argue before them or they would deny it and allow us to proceed to the District Court as a matter of course. What they did was far more destructive.

At a time when two of the five justices had been elected but not yet sworn in (New Mexico justices are appointed by the governor and subsequently elected in partisan elections), a three judge “majority” court issued a one line ruling denying the petition without an explanation, intentionally leaving ambiguity as to whether they were ruling on our actual arguments (the merits of the case) or just our procedural motion.

Case law in such instances clearly supports our ability to refile the case in the lower court. But we quickly came to find out that “the fix was in.”

Newspapers got wind of the ruling and declared that we had “lost.” Members of the NM legal establishment warned us that if we refiled the state Supreme Court might issue a ruling “clarifying” their position as actually being on the merits -- an almost unheard of ex post facto action. They further cautioned that the court was making it clear in any case that they weren’t interested in hearing arguments on this issue.

The New Mexico State Legislature just ended their session without giving serious attention to open primaries legislation once again. They don’t meet for another two years.

They did manage to cynically debate a bill that would give political parties the right to decide whether or not to voluntarily allow independents to vote in their primary.-- a legal right they have already had since a 1986 US Supreme Court decision. Secretary of State Maggie Toulouse Oliver is still eating up the airwaves with her “support” for open primaries.

And we are still exploring the best path forward. Even with overwhelming public support, the road toward meaningful change in many parts of America today is laden with political pitfalls. Yet the people of New Mexico haven’t given up. They’re continuing to register independent in large numbers and demanding the right to vote. And until that day comes, we’ll be standing shoulder to shoulder with them.

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Photo Credit: Lutsina Tatiana / shutterstock.com

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