Unite New Mex. v. Oliver

• Decision Date: 07 February 2019
• Docket Number: S-1-SC-37227
• Citation: Unite New Mex. v. Oliver, 438 P.3d 343 (N.M. 2019)
• Parties: UNITE NEW MEXICO, Heather Nordquist, Elect Liberty Pac, Libertarian Party of New Mexico, and Republican Party of New Mexico, Petitioners, v. Maggie Toulouse OLIVER, Secretary of State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

438 P.3d 343

UNITE NEW MEXICO, Heather Nordquist, Elect Liberty Pac, Libertarian Party of New Mexico, and Republican Party of New Mexico, Petitioners,

v.Maggie Toulouse OLIVER, Secretary of State of New Mexico, Respondent.

S-1-SC-37227

Supreme Court of New Mexico.

Filing Date: February 7, 2019

NAKAMURA, Chief Justice.

{1} The Secretary of State (Secretary) sought to reinstate straight-ticket voting in the November 2018 general election.A coalition of voters, political parties, and political organizations (Petitioners) filed a petition for writ of mandamus asking this Court to order the Secretary to stop and make no further efforts to reinstate the straight-ticket option on grounds that she does not possess authority to do so.We agree with Petitioners.Whether straight-ticket voting shall once more be a ballot option in general elections in New Mexico is a policy question for our Legislature.The Legislature cannot delegate election policy determinations.The Secretary's efforts to reinstate straight-ticket voting without legislative approval violates separation of powers principles and is unlawful.The petition for writ of mandamus is granted.¹

I.DISCUSSION

{2}"The New Mexico Constitution gives this Court the power to issue writs of mandamus ‘against all state officers.’ "State ex rel. League of Women Voters v. Herrera , 2009-NMSC-003, ¶ 12, 145 N.M. 563, 203 P.3d 94(citingN.M. Const. art. VI, § 3 ).The Secretary is a "state officer."Id.We have exercised our "original jurisdiction in mandamus in instances where a petitioner sought to restrain one branch of government from unduly encroaching or interfering with the authority of another branch in violation of Article III, Section 1 of our state constitution."State ex rel. Sandel v. N.M. Pub. Util. Comm'n , 1999-NMSC-019, ¶ 11, 127 N.M. 272, 980 P.2d 55.This case presents this exact circumstance.Petitioners ask us to restrain the Secretary, an executive branch official, from encroaching upon the authority of the legislative branch to make the election laws.

{3}Petitioners contend that the Secretary cannot reinstate straight-ticket voting in the general election because only the Legislature may decide this question and that the Legislature has already decided that straight-ticket voting shall not be available to voters in the general election.The Secretary responds that "the New Mexico Legislature has never prohibited the inclusion of a straight-party voting option on the ballot," and that the Legislature"left this option, like other options involved in formatting the ballot, to be determined by the [Secretary]."She emphasizes that "the Election Code quite clearly gives the [Secretary] discretion on the formulation of the ballot" and directs us to NMSA 1978, Section 1-10-12(F)(2009) which provides that "[p]aper ballots shall: ... be in the form prescribed by the [Secretary]."

{4} The Secretary's arguments require us to examine (A) whether the Legislature may delegate to the Secretary the authority to decide whether to include the straight-ticket option on ballots in the general election, (B) the rich and complex history of straight-ticket voting in New Mexico, and (C) the text and history of Section 1-10-12(F).²

A.Separation of Powers and Nondelegation

{5} The Secretary's position in this case is not that the Legislature decided that the straight-ticket option should be included on the ballot in the upcoming general election and delegated to her the task of implementing this policy choice.Rather, she contends that the Legislature intended "to allow the [Secretary], in the exercise of her discretion, to decide whether to include a straight-party voting option on the uniform ballot."It is her position that the Legislature delegated to her the threshold determination of whether to embrace straight-ticket voting at all.This claim is highly problematic.

{6} The New Mexico Constitution grants to each of the three branches of state government distinct and exclusive powers.N.M. Const. art. III, § 1.("The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.").The Constitution further provides that "[t]he [L]egislature ... shall regulate the manner, time and places of voting" and "shall enact such laws as will secure the secrecy of the ballot and the purity of elections and guard against the abuse of elective franchise."N.M. Const. art. VII, § 1 (B).This language vests our Legislature with plenary authority over elections, an authority limited only by the Constitution itself.SeeChase v. Lujan , 1944-NMSC-027, ¶ 24, 48 N.M. 261, 149 P.2d 1003("[E]xcept as prohibited, the [L]egislature has plenary power to regulate the manner of voting....");see alsoPeople's Constitutional Party v. Evans , 1971-NMSC-116, ¶ 10, 83 N.M. 303, 491 P.2d 520("Elections of necessity must be organized and controlled to protect the right of suffrage, secrecy of the ballot, and against confusion, deception, dishonesty and other possible abuses of the elective franchise.The Legislature is charged with the duty of enacting laws to accomplish the purity of elections and protect against abuses.");City of Raton v. Sproule , 1967-NMSC-141, ¶ 76, 78 N.M. 138, 429 P.2d 336("We are of the opinion that our constitution expressly contemplates and directs that the legislature shall provide the proper machinery for conducting elections for different purposes....").

{7} It is well understood that straight-ticket voting has meaningful impact on elections.SeeErik J. Engstrom and Jason M. Roberts, The Politics of Ballot Choice , 77 Ohio St.L.J. 839, 839-41, 864-65(2016)(discussing attempts in several states to impose or abolish straight-ticket voting and observing that "ballot laws have become a new weapon in the quest for political power" and that, "in almost all cases, the actors who advocate for changes to the form of the ballot pursue changes that are likely to strengthen their hold on political power").Whether to include the straight-ticket option in elections is a policy decision of some magnitude.

{8}"The nondelegation doctrine limits, but does not completely prevent, the Legislature from vesting a large measure of discretionary authority in administrative officers and bodies."Cobb v. State Canvassing Bd. , 2006-NMSC-034, ¶ 41, 140 N.M. 77, 140 P.3d 498."The Legislature may not vest unbridled or arbitrary authority in an administrative body ... and must provide reasonable standards to guide it."Id.This is because "[l]egislative power cannot be delegated, and the Legislature cannot confer upon any person, officer, or tribunal the right to determine what the law shall be.This is a function which the Legislature alone is authorized under the Constitution to exercise."State v. Spears , 1953-NMSC-033, ¶ 10, 57 N.M. 400, 259 P.2d 356(quotingState v. Briggs , 45 Or. 366, 77 P. 750, 750(1904) ).This is not to say, of course, that the Legislature is precluded from delegating the implementation of a legislatively determined "scheme, policy, or purpose[.]"Cobb , 2006-NMSC-034, ¶ 41, 140 N.M. 77, 140 P.3d 498.This form of delegation is common in our modern, regulatory state.See generally1 Jacob A. Stein, et al., Administrative Law , § 3.03[5], at 128-42(2013).Rather, what the Legislature cannot do is delegate the right to determine, in the first instance and wholesale, what that scheme, policy, or purpose will be.SeeYakus v. United States , 321 U.S. 414, 426, 64 S.Ct. 660, 88 L.Ed. 834(1944)("Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose....").

{9} The Secretary's position in this case is precisely what the nondelegation doctrine forbids—that the Legislature delegated to her the authority to make the binary choice of whether to embrace straight-ticket voting or not.In other words, to decide what the election law shall be.The Legislature cannot delegate this authority, and to conclude otherwise would result in a violation of the separation of powers.Our review of the history of straight-ticket voting in New Mexico assures us that our Legislature has never delegated this authority to the Secretary.

B.History of Straight-Ticket Voting in New Mexico

{10} There are three facets to the history of straight-ticket voting in New Mexico: (1) our Legislature's former authorization of straight-ticket voting in general elections and its practice of carefully articulating how voters may exercise this ballot option, (2) the emergence and repeal of a statute requiring the straight-ticket option be included on emergency paper ballots, and (3) the introduction of voting machines in New Mexico and the passage and subsequent repeal of a statute requiring those machines to have straight-ticket voting capability.We address each of these matters separately.We begin at a period of time before straight-ticket voting appeared in our Election Code.

1.Straight-ticket voting in general elections

{11} In 1852, the Territorial Legislature passed an enactment that authorized the Governor to "prepare proper forms for the uniform and proper conducting of all elections to be conducted and held under the laws of this Territory[.]"1882 General Laws of N.M., § 64(Act of January 9, 1852).The act required the "secretary of the Territory" to "have all such forms ... printed and distributed, as occasion may require."Id.This enactment appears in the 1884 Compiled Laws of New Mexico with minimal...