State ex rel. League v. Herrera

• Decision Date: 09 February 2009
• Docket Number: No. 31,386.,31,386.
• Citation: 2009 NMSC 003,203 P.3d 94
• Parties: STATE of NEW MEXICO ex rel. LEAGUE OF WOMEN VOTERS of New Mexico, Petitioner, v. The Honorable Mary HERRERA, in her official capacity as Secretary of State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

203 P.3d 94

2009 NMSC 003

STATE of NEW MEXICO ex rel. LEAGUE OF WOMEN VOTERS of New Mexico, Petitioner, v. The Honorable Mary HERRERA, in her official capacity as Secretary of State of New Mexico, Respondent.

No. 31,386.

Supreme Court of New Mexico.

February 9, 2009.

Edward Ricco, Esq., Jocelyn Drennan, Esq., Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Petitioner.

Gary K. King, Attorney General, Scott Fuqua, Assistant Attorney General, New Mexico Attorney General's Office, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} In this case, we confront a fundamental question about the basic unit of our representative democracy, the individual vote: What constitutes a valid expression of voter intent? The Legislature has already answered this question, at least in part, by providing that a hand-tallied vote shall be counted if "the presiding judge and election judges for the precinct unanimously agree that the voter's intent is clearly discernable [sic]." NMSA 1978, § 1-9-4.2(B) (2003, as amended through 2007).

{2} We hold that this provision of the Election Code, as supported by certain guidelines and instructions promulgated by the New Mexico Secretary of State ("the Secretary"), is consistent with the U.S. Supreme Court's equal protection analysis in Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam), to the limited extent that that opinion has bearing here, as well as the federal Help America Vote Act ("HAVA") of 2002, 42 U.S.C. §§ 15301-15545 (2005). We therefore have granted the League of Women Voters of New Mexico's ("the League") emergency petition for writ of mandamus, and have ordered the Secretary to carry out the intent of our Legislature by fully conforming to and enforcing Section 1-9-4.2(B). We granted the writ prior to issuing this opinion, which elaborates on that initial order.

BACKGROUND

{3} On October 23, 2008, eleven days before the November 4 general election, the League filed with this Court an emergency petition for writ of mandamus. The petition urged us to issue the writ to Secretary of State Mary Herrera, ordering her to enforce Section 1-9-4.2(B), which defines what types of votes on hand-tallied paper ballots shall be counted. The statute provides that four general categories of marks on a ballot shall be counted as valid votes:

For paper ballots that are hand-tallied, a vote shall be counted if:

(1) the ballot is marked in accordance with the instructions for that ballot type;

(2) the preferred candidates' name or answer to a ballot question is circled;

(3) there is a cross or check within the voting response areas for the preferred candidate or answer to the ballot question; or

(4) the presiding judge and election judges for the precinct unanimously agree that the voter's intent is clearly discernable [sic].

Section 1-9-4.2(B).

{4} At issue in this case is the "voter's intent" language of Subsection (B)(4). The League claims that by ignoring and refusing to enforce Subsection (B)(4), the Secretary threatened widespread disenfranchisement of New Mexico voters. Without Subsection (B)(4), the statute would allow for only three types of voter marks to be counted as a valid vote, aside from marks made in accordance with ballot instructions: a check, a cross or a circle. Subsection (B)(4) appears to be a catch-all provision which allows other types of marks to be counted, so long as the presiding judge and election judges "unanimously agree" that the voter's intent is "clearly discernable [sic]." Section 1-9-4.2(B).

{5} The Secretary appears to have decided not to enforce Subsection (B)(4) because of an advisory letter from the Attorney General, which concluded that Subsection (B)(4) is unconstitutional. That letter issued on May 16, 2008. In a belated response to the letter, the Secretary on September 30, 2008 promulgated an emergency amendment to1.10.12.15(C) NMAC, a rule which provides guidance to absentee precinct boards about how to read ballot markings. The new rule advised that ballots not marked in accordance with instructions would be counted "only if the voter has marked a cross (X) or a check () within the voting response area, circled the name of the candidate or both." 1.10.12.15(C) NMAC (9/30/2008). By excluding any additional consideration of voter intent, this rule effectively eliminated Subsection (B)(4) from Section 1-9-4.2. It also contradicted the Secretary's earlier guidelines, Instruction 2008-10, which provided specific rules as to when votes should be counted.¹

{6} The Attorney General's letter on which the Secretary relied concluded that Subsection (B)(4) is "inconsistent with HAVA and vulnerable to challenge on constitutional equal protection grounds." The letter asserted that the standard established by Subsection (B)(4) for determining voter intent "is virtually indistinguishable" from the Florida standard famously criticized in Bush v. Gore. The Florida Supreme Court had initially ordered the counties undertaking manual vote recounts in the 2000 presidential election to consider the "intent of the voter." Bush v. Gore, 531 U.S. at 102, 121 S.Ct. 525. The U.S. Supreme Court reversed the Florida Supreme Court and rejected the "intent of the voter" standard as arbitrary and violative of equal protection principles. Id. at 103, 121 S.Ct. 525. Accordingly, the Secretary asserted to this Court that she had a constitutional duty not to apply Subsection (B)(4).

{7} On October 28, immediately following expedited oral argument, we issued the writ requested by the League. We ordered the Secretary to comply with Subsection (B)(4). This opinion follows.

DISCUSSION

{8} We begin by reiterating the longstanding and fundamental principle that the right to vote is of paramount importance. See Calkins v. Stearley, 2006-NMCA-153, ¶ 30, 140 N.M. 802, 149 P.3d 118; State ex rel. Read v. Christ, 25 N.M. 175, 199, 179 P. 629, 637 (1919). The courts of New Mexico have long held that in service of this important right, courts should guard against voter disenfranchisement whenever possible and interpret statutes broadly to favor the right to vote. See, e.g., Darr v. Vill. of Tularosa, 1998-NMCA-104, ¶ 18, 125 N.M. 394, 962 P.2d 640; State ex rel. Walker v. Bridges, 27 N.M. 169, 174, 199 P. 370, 372 (1921). New Mexico courts have also held that the right to vote can be subject to reasonable constraints consistent with the statutes governing voting. See Calkins, 2006-NMCA-153, ¶ 30, 140 N.M. 802, 149 P.3d 118. This Court may not interpret statutes unreasonably in order to facilitate voting. Id.

{9} We therefore confront two interests which may at times be opposed to one another. On one hand is the interest in effectuating a voter's intent. This is a very powerful interest indeed, for if a government fails to accurately identify and record a voter's choice, it has failed to carry out the fundamental transaction which sustains our representative democracy. On the other hand is the interest in ensuring that marks on a ballot are interpreted consistently for every voter. This too is a powerful interest. If officials read marks on a ballot one way in one part of the state and another way in another part of the state, the government has treated voters unequally for an arbitrary reason, namely geography. That would be unacceptable under equal protection principles.

{10} Both HAVA and Bush v. Gore aimed to focus more sharply the discretion of election officials in divining voter intent, or at least to standardize the methods by which officials may determine that intent. The question before us is whether Subsection (B)(4), in concert with regulations promulgated by the Secretary, hews to the principles set forth by Bush v. Gore and HAVA. Before addressing that question, we detour briefly to consider the propriety, under New Mexico law, of mandamus in this case.

MANDAMUS

{11} We first consider the League's standing to bring an action in mandamus, and whether mandamus is an appropriate remedy. This Court in its discretion may grant private parties standing to vindicate the public interest in cases presenting "issues of great public importance." State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 363, 524 P.2d 975, 979 (1974). Determining the validity of individual votes is of unquestionable importance. Establishing clear rules, prior to election day, as to how such validity is to be established is of equal, if not greater, importance. Therefore, there can be little doubt that construing the statute governing the counting of hand-tallied ballots qualifies under the "great public importance" standard of the Sego line of cases.

{12} The New Mexico Constitution gives this Court the power to issue writs of mandamus "against all state officers." N.M. Const. art. VI, § 3. Mandamus is appropriate to compel state officers to perform a statutory duty. State ex rel. Clark v. Johnson, 120 N.M. 562, 569, 904 P.2d 11, 18 (1995). Here, the Secretary is clearly a "state officer" within the meaning of the Constitution, and it is clear that the Secretary must follow the Election Code, and does not have the power to change its mandatory provisions. Weldon v. Sanders, 99 N.M. 160, 164-65, 655 P.2d 1004, 1008-09 (1982).

{13} This dispute is before us because the Secretary claims she has a duty not to enforce Subsection (B)(4) because of a perceived conflict with federal law. For reasons that follow, we disagree. We conclude that the Secretary has a clear mandatory duty to enforce Subsection (B)(4) as written and as amplified by the Secretary's own guidelines. Accordingly, mandamus is an appropriate remedy.

SUBSECTION (B)(4)

{14} The Secretary argues that Bush v. Gore "directly addressed" the issue in the present case, and that a "straightforward application" of the language of HAVA "compels the same conclusion as that compelled by Bush—[Subsection (B)(4)] lacks sufficient uniformity to comply with HAVA."

{15} We are not persuaded that ...