State ex rel. Witt v. State Canvassing Bd.

• Citation: 1968 NMSC 17,437 P.2d 143,78 N.M. 682
• Decision Date: 05 February 1968
• Docket Number: No. 8554,8554
• Parties: STATE of New Mexico ex rel. Boston E. WITT, Attorney General, Petitioner, v. The STATE CANVASSING BOARD, Hon. David F. Cargo, Hon. David Chavez, Jr., and Hon. Ernestine Evans, Constituting the members of the Board, Respondents.
• Court: Supreme Court of New Mexico

Page 143

437 P.2d 143

78 N.M. 682

STATE of New Mexico ex rel. Boston E. WITT, Attorney General, Petitioner, v. The STATE CANVASSING BOARD, Hon. David F. Cargo, Hon. David Chavez, Jr., and Hon. Ernestine Evans Constituting the members of the Board Respondents.

No. 8554.

Supreme Court of New Mexico.

Feb. 5, 1968.

Boston E. Witt, Atty. Gen., David Sierra, Asst. Atty. Gen., John D. Donnell, James E. Thomson, Special Asst. Attys. Gen., for petitioner

Allen C. Dewey, Jr., William A. Sloan, Albuquerque, for respondents.

OPINION

MOISE, Justice.

Pursuant to authority of an Enabling Act of Congress, ¹ during fifty days in the year 1910 commencing on October 3rd, one hundred duly elected delegates to a constitutional convention composed and adopted a draft constitution for submission to the qualified voters of New Mexico.

As adopted by the convention the following provisions pertinent to this litigation were contained therein:

'ARTICLE VII

'Section 1. Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons, persons convicted of a felonious or infamous crime unless restored to political rights, and Indians not taxed, shall be qualified to vote at all elections for public officers. All school elections shall be held at different times from other elections. Women possessing the qualifications prescribed in this section for male electors shall be qualified electors at all such school elections; provided, that if a majority of the qualified voters of any school district shall, not less than thirty days before any school election, present a petition to the board of county commissioners against women suffrage in such district, the provisions of this section relating to woman suffrage shall be suspended therein, and such provisions shall become again operative only upon the filing with said board of a petition signed by a majority of the qualified voters favoring the restoration thereof. The board of county commissioners shall certify the suspension or restoration of such suffrage to the proper school district.

'The legislature shall have the power to require the registration of the qualified electors as a requisite for voting, and shall regulate the manner, time and places of voting. The legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections and guard against the abuse of elective franchise. Not more than two members of the board of registration and not more than two judges of election shall belong to the same political party at the time of their appointment.

'Sec. 3. The right of any citizen of the state to vote, hold office, or sit upon juries, shall never be restricted, abridged or impaired on account of religion, race, language or color, or inability to speak, read or write the English or Spanish languages except as may be otherwise provided in this Constitution; and the provisions of this section and of section one of this article shall never be amended except upon a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state, and at least two-thirds of those voting in each county of the state, shall vote for such amendment.'

Article XIX, Section 1, of the constitution, as proposed by the convention, read.

'Any amendment or amendments to this Constitution, may be proposed in either house of the legislature at any regular session thereof, and if two-thirds of all members elected to each of the two houses voting separately, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays thereon; or any amendment or amendments to this Constitution may be proposed at the first regular session of the legislature held after the expiration of two years from the time this Constitution goes into effect, or at the regular session of the legislature convening each eighth year thereafter, and if a majority of all the members elected to each of the two houses voting separately at said sessions shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays thereon. The secretary of state shall cause any such amendment or amendments to be published in at least one newspaper in every county of the state where a newspaper is published, once each week, for four consecutive weeks, the last publication to be not less than two weeks prior to the next general election, at which time the said amendment or amendments shall be submitted to the electros of the state for their approval or rejection. If the same be ratified by a majority of the electors voting thereon and by an affirmative vote equal to at least forty per cent of all the votes cast at said election in the state and in at least one-half of the counties thereof, then, and not otherwise, such amendment or amendments shall become part of this Constitution. Not more than three amendments shall be submitted at one election, and if two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately; provided, that no amendment shall apply to or affect the provisions of sections one and three of article seven hereof on Elective Franchise, and sections eights and ten of article twelve hereof on Education unless it be proposed by a vote of three-fourths of the members elected to each house.'

After a heated campaign, during which one of the most severe criticisms of the proposed constitution was that it was too difficult to amend ², a sizeable majority voted in favor of its adoption at an election held January 12, 1911.

Upon presentation of the constitution as adopted to the Congress, the provisions of Art. XIX, Sec. 1, were looked upon with disfavor and accordingly, by resolution ³, the Congress directed that before the President of the United States should announce the results of the election therein provided for, an amended Article XIX should be submitted and voted upon. The method for conducting the election on the amendment was set forth in detail, including a provision that the ballot be printed 'on paper of a blue tint' to distinguish it from the white ballots provided for voting on candidates for office. The amendment, as submitted, read as follows:

'Any amendment or amendments to this Constitution may be proposed in either house of the legislature at any regular session thereof; and if a majority of all members elected to each of the two houses voting separately shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the years and nays thereon.

'The secretary of state shall cause any such amendment or amendments to be published in at least one newspaper in every county of the state, where a newspaper is published once each week, for four consecutive weeks, in English and Spanish when newspapers in both of said languages are published in such counties, the last publication to be not more than two weeks prior to the election at which time said amendment or amendments shall be submitted to the electors of the state for their approval or rejection; and the said amendment or amendments shall be voted upon at the next regular election held in said state after the adjournment of said legislature, at such time as said legislature may be law provide. If the same be ratified by a majority of the electors voting thereon such amendment or amendments shall become part of this Constitution. If two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately: Provided, that no amendment shall apply to or affect the provisions of sections one and three of article VII hereof, on elective franchise, and sections eight and ten of article XII hereof, on education, unless it be proposed by vote of three-fourths of the members elected to each house and be ratified by a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state and at least two-thirds of those voting in each county in the state shall vote for such amendment.'

At the regular election wherein officers were elected, held November 7, 1911, the 'blue ballot' amendment, as it came to be known, was adopted.

A comparison of the original Art. XIX, Section 1, with the 'Blue ballot' amendment discloses a number of differences, to-wit: (1) whereas, except as to Sections 1 and 3 of Art. VII and Section 10 of Art. XII where three-fourths vote was required, the original provision required that a favorable vote of two-thirds of all members of each house of the legislature was needed to propose an amendment at all times other than at the first regular session of the legislature held after two years from the date the constitution became effective, and at the session held each eight years thereafter when only a majority vote was required, the 'blue ballot' amendment reduced the number to a simple majority as to all provisions except Sections 1 and 3 of Art. VII and Section 8 (which was added) and Section 10 of Art. XII, where three-fourths was still required; (2) the 'blue ballot' amendment removed the requirement that ratification be by a vote equal to forty percent of all votes cast at the election and in at least one-half of the counties, and substituted a simple majority vote, except as to the same two sections in each of two articles; (3) the limitation of not more than three amendments to be submitted at any one election was eliminated; (4) whereas, the original provision had no limitation on the vote required to ratify, the 'blue ballot' amendment included the limitation already provided in Art. VII Sections 1 and 3, applicable to...