Morper v. Toulouse Oliver

Office of the Director New Mexico
07:52:22 2020.09.08 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-012

Filing Date: July 14, 2020

No. S-1-SC-38173

ANASTACIA GOLDEN MORPER,
CHUCK HASFORD, PAM HASFORD,
LLOYD PETERSON, and DIANE PETERSON,

Petitioners-Appellants,

v.

MAGGIE TOULOUSE OLIVER,
in her capacity as the Secretary of State,

Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Bryan Biedscheid, District Judge

Released for Publication September 8, 2020.

SaucedoChavez, P.C.
Christopher T. Saucedo
Albuquerque, NM

for Petitioners

New Mexico Office of the Secretary of State
Tonya Noonan Herring
Santa Fe, NM

for Respondent

OPINION

THOMSON, Justice.

{1} Anastacia Golden Morper sought preprimary designation as a candidate for the
office of United States Representative from New Mexico’s Third Congressional District
at the 2020 Republican Party Pre-Primary Convention. Under the New Mexico Election
Code, NMSA 1978, §§ 1-1-1 to 1-26-6 (1969, amended through 2019), a candidate
seeking “preprimary convention designation shall file nominating petitions at the time of
filing declarations of candidacy” with the Secretary of State (Secretary). NMSA 1978, §
1-8-33(B) (2008). For congressional candidates, those nominating petitions must
contain a minimum number of signatures “equal to at least two percent of the total vote
of the candidate’s party in the . . . congressional district” or “seventy-seven voters,”
whichever is greater. Id. Morper filed forty-nine nominating petitions, along with her
declaration of candidacy. To be certified as a candidate, Morper was required to obtain
at least 463 valid signatures. The Secretary is obligated to “certify . . . candidates for
office of United States representative . . . who have filed their declarations of candidacy
by convention designation and have otherwise complied with the requirements of the
Primary Elections Law.” NMSA 1978, § 1-8-39.1(A) (1993). In this case, the Secretary
invalidated forty-four of Morper’s nominating petitions because those petitions omitted
the heading “2020 PRIMARY NOMINATING PETITION,” which the Secretary deemed
to be critical information required by law. By extension, the Secretary invalidated the
signatures on those forty-four nominating petitions. In doing so, the Secretary
invalidated over seven hundred signatures, leaving only forty-three signatures on the
five nominating petitions the Secretary did not invalidate. The Secretary informed
Morper that she had not received the “minimum number of signatures required” to be
“qualified as a candidate” for the preprimary convention. Morper appealed the
Secretary’s decision to the district court. The district court upheld the Secretary’s
decision concluding that “the Secretary of State has the right to reject . . . nominating
petitions that were not on the form prescribed by law.” Morper appealed to this Court
consistent with NMSA 1978, Section 1-8-26(E) (2019).

{2} This case requires us to construe the sections of the Election Code that govern
the form of nominating petitions. In addition, we must construe the limits on the
Secretary’s discretion to invalidate nomination petitions that are not in the exact form
published by her office. See NMSA 1978, § 1-1-7.2 (2019) (“Petitions; nominations;
signatures to be counted”); NMSA 1978, § 1-1-26 (2019) (“Petitions; nominations;
requirements before signed by voters; invalidated petitions”); NMSA 1978, § 1-8-30
(2011) (“Primary Election Law; declaration of candidacy; nominating petition; filing and
form”); NMSA 1978, § 1-2-1(C) (2017) (“Secretary of state; chief election officer; rules”).

{3} After reviewing the pleadings, we issued an order reversing the judgment of the
district court and ordering the district court to vacate its order and direct the Secretary to
certify Morper’s candidacy. We issue this written opinion to provide guidance on the
Secretary’s authority to prescribe and require a particular form to be used for
nominating petitions.

I. BACKGROUND

{4} As required by law, in October 2019, the Secretary posted a sample nominating
petition form (Secretary’s Form) on the Secretary’s website and published the
Secretary’s Form in the 2020 Primary Election Candidate Guide (Election Guide). See §
1-8-30(D) (“In October of odd-numbered years, the secretary of state shall post on the
secretary of state’s web site and shall furnish to each county clerk a sample of a
nominating petition form, a copy of which shall be made available by the county clerk
upon request of any candidate.”).

{5} The Legislature has provided the statutory nominating petition form (Legislature’s
Form). Section 1-8-30(C). The Secretary’s Form differs from the Legislature’s Form in
that it adds “2020 PRIMARY” to the heading “NOMINATING PETITION,” adds the
version number “Rev. 2019 NMSA 1978, § 1-8-30” at the bottom of the page, and
provides the date of “June 2, 2020,” in the otherwise-blank, underlined space intended
for the date of the primary election to which the petitions apply.

{6} Only five of the forty-nine nominating petitions Morper filed with her declaration of
candidacy included the heading from the Secretary’s Form. Morper does not dispute
that forty-four nominating petitions omitted the heading “2020 PRIMARY NOMINATING
PETITION.” Those forty-four nominating petitions did not appear to deviate from the
Secretary’s Form in any other respect.

{7} The Secretary determined that those forty-four petitions were invalid because
they lacked the proper heading, and therefore the Secretary did not count any of the
signatures on those petitions. The Secretary informed Morper that she “did not qualify
as a candidate” because Morper failed to submit “the minimum number of signatures
required.”

{8} Morper challenged the Secretary’s decision by filing a petition in district court.
See § 1-8-26(E) (“If a person is notified . . . that the person is not qualified to be a
candidate, the person may challenge that decision by filing a petition with the district
court.”) Four individuals who signed a nominating petition for Morper joined as
petitioners in her challenge in the district court and argued that the Secretary’s
determination denied them the right to exercise their “First Amendment petition rights.”

{9} Petitioners argued that the Secretary was not authorized to invalidate Morper’s
nominating petitions and by extension the signatures thereon simply because the
petition did not include the heading “2020 PRIMARY NOMINATING PETITION.”
Petitioners asserted that Section 1-8-30 prescribes the form of the nominating petition,
which does not contain the heading on the Secretary’s Form. Petitioners maintained
that Morper’s nominating petitions conformed to Section 1-8-30(C) and therefore that
the signatures on the forty-four invalidated petitions should have been counted. The
validity of the signatures was not contested in the district court, and therefore we
presume the signatures on the forty-four petitions at issue were valid. See § 1-1-7.2 (C),
(D) (“A signature shall be counted on a nominating petition unless there is evidence
presented” that invalidates the signature).

{10} The Secretary responded by asserting that she is “bound by the Legislature’s
express mandate as to the form of the nominating petition.” The Secretary further
argued that she is granted the authority to prescribe the form of the nominating petition
pursuant to her authority to approve the “forms [and] procedures” to “be used in any
election.” See § 1-2-1(C). At the hearing before the district court, the Secretary’s Bureau
of Elections Director (Elections Director) asserted that the Secretary would not accept
any nominating petition that deviated in any way from the Secretary’s Form because the
Secretary was “charged with prescribing the form.” When questioned about why the
heading “2020 PRIMARY NOMINATING PETITION” was critical, the Elections Director
stated that it was the

only mechanism that we have to ensure that the voters have all of the
information that they need and that they have an awareness of what they
are signing, and it is also the only way that we can ensure that candidates
are not circulating these petitions ahead of the statutory time frame they
are allowed to.

The Elections Director maintained that the heading ensured that candidates did not start
collecting signatures prior to October 1, 2019. This date is critical because it guarantees
that the Election Code is consistently applied and that no candidate had an “unfair
advantage.” The Secretary maintains that the form prescribed by law is the Secretary’s
Form, not the form prescribed by Section 1-8-30(C), and that the Secretary has no
discretion to accept a nominating petition that deviates in any way from the Secretary’s
Form.

{11} The district court determined that the Secretary “has the authority to promulgate
the ‘form prescribed by law’ pursuant to Section 1-2-1(C) which states: ‘No form or
procedures shall be used in any election held pursuant to the Election Code without
prior approval of the secretary of state.’” Subsequently, the district court determined that
the Secretary “has the right to reject and properly rejected the 44 nominating petitions
that were not on the form prescribed by law.” For the reasons that follow, we reverse.

II. ANALYSIS

A. Statutory Construction and the Standard of Review

{12} In reviewing the district court order, we must determine requirements on the form
of nominating petitions under the Election Code and limits on the Secretary’s statutory
authority to approve forms and procedures used in elections⸻both issues of statutory
construction that we review de novo. Marbob Energy Corp. v. N.M. Oil Conservation
Comm’n, 2009-NMSC-013, ¶¶ 5-7, 146 N.M. 24, 206 P.3d 135.

{13} We have long held that, although “[w]e will not construe election laws so liberally
as to allow a candidate to receive a ballot position to which [s]he is not entitled, . . . we
are also committed to examine most carefully[] and rather unsympathetically any
challenge to a voter’s right to participate in an election.” Simmons v. McDaniel, 1984-
NMSC-049, ¶ 15, 101 N.M. 260, 680 P.2d 977(internal quotation marks and citation
omitted). The voter’s right to participate includes the nominating process, and “every
precaution must be taken to protect the right of New Mexico citizens to vote for the
candidate of their choice.” Charley v. Johnson, 2010-NMSC-024, ¶¶ 10-11, 148 N.M.
246, 233 P.3d 775 (per curiam).
{14} The Secretary must ensure that the nominating process takes place in
accordance with the laws enacted by the Legislature. However, the Secretary cannot
impose greater requirements on the process than those imposed by the Legislature.
See, e.g., Unite N.M. v. Oliver, 2019-NMSC-009, ¶¶ 42, 45, 438 P.3d 343 (holding that
the Legislature did not authorize the Secretary to institute a “straight-ticket” option when
it authorized the Secretary to prescribe the “form of the ballot”). We do not suggest that
the Secretary’s goal of consistency and minimizing any unfair advantage is
unreasonable; regardless, we must determine whether the mechanism the Secretary
used in this instance was based on authority granted by the Legislature. 1

B. The Secretary May Not Reject an Otherwise-Valid Nominating Petition
Solely Based on Omission from the Heading of a Term Not Required by
Statute

{15} “The form of the nominating petition is prescribed by [statute].” Charley, 2010-
NMSC-024, ¶ 25. Section 1-8-30(C) provides:

The nominating petition shall be on paper approximately eight and
one-half inches wide and eleven inches long with numbered lines for
signatures spaced approximately three-eighths of an inch apart and shall
be in the following form:

NOMINATING PETITION

I, the undersigned, a registered voter of New Mexico, and a
member of the _________________ party, hereby nominate
________________, who resides at ________________ in the county of
________________, New Mexico, for the party nomination for the office of
____________________, to be voted for at the primary election to be held
on _____________, and I declare that I am a registered voter of the state,
district, county or area to be represented by the office for which the person
being nominated is a candidate. I also declare that I have not signed, and
will not sign, any nominating petition for more persons than the number of
candidates necessary to fill such office at the next ensuing general
election.

1. ___________ ___________ ___________ ___________
(usual (name printed (address as (city or
signature) as registered) registered) zip code)
2. ___________ ___________ ___________ ___________
(usual (name printed (address as (city or
signature) as registered) registered) zip code)

1Because our construction of the Election Code is dispositive, we do not reach the constitutional argument
concerning the First Amendment, which was advanced by four individual nominees. See Allen v. LeMaster, 2012-
NMSC-001, ¶ 28, 267 P.3d 806 (“It is an enduring principle of constitutional jurisprudence that courts will avoid
deciding constitutional questions unless required to do so.” (internal quotation marks and citation omitted)).
(internal quotation marks omitted).

{16} It is crucial to note that the content of the legislative form described above
incorporates all the information about the candidate that the Legislature specifies, “shall
be listed in the appropriate space at the top of a nominating petition before the petition
has been signed by a voter[.]” Section 1-1-26(A). Specifically, Section 1-1-26(A)
requires that a nominating petition list

(1) the candidate’s name as it appears on the candidate’s certificate of
registration;

(2) the address where the candidate resides;

(3) the office sought by the candidate;

(4) if the office sought is a districted office . . . the district . . . of the
office sought; . . . and

(6) if the office sought will be nominated at a political party primary, the
party affiliation of voters permitted to sign the petition.

{17} While Subsection A enumerates the information that is required on the form,
Subsection B advises of the consequences of failing to provide that information:

With or without a showing of fraud or a reasonable opportunity for fraud, a
nominating petition page, including all signatures on the petition page,
shall be invalid if any of the information required by Subsection A of this
section is not listed on the petition before the petition page is signed by a
voter or if any of the required information is subsequently changed in any
way.

Section 1-1-26(B). Significantly, Subsection A does not include a heading or specify the
text “2020 PRIMARY NOMINATING PETITION” among the requirements for the petition
page. Thus, Subsection B does not invalidate a petition that does not contain such
information. Nonetheless, the Secretary determined that she would not accept any
nominating petitions that did not have the heading “2020 PRIMARY NOMINATING
PETITION.” We conclude that this was improper.

{18} We agree with the Secretary’s contention that the Legislature obligated the
Secretary to publish “a sample of a nominating petition form” in “October of odd-
numbered years[.]” Section 1-8-30(D) (emphasis added). And the Legislature granted
the Secretary the authority to approve “forms [and] procedures” for elections. See § 1-2-
1(C) (“No forms or procedures shall be used in any election held pursuant to the
Election Code without prior approval of the secretary of state.”). Publishing an approved
sample nominating petition form makes common sense, provides a measure of
uniformity, and relieves the potential administrative burden of approving disparate,
individual forms created and submitted by multiple potential candidates.

{19} Fulfilling her duty under Section 1-8-30(D) and exercising her authority under
Section 1-2-1(C), the Secretary posted on her website and published in the Election
Guide an approved sample nominating petition form in October 2019. The Secretary’s
Form contains all the required information enumerated in Section 1-1-26(A) and
prescribed by Section 1-8-30(C). Although Section 1-2-1(B)(1) obligates the Secretary
to “obtain and maintain uniformity in the application, operation and interpretation of the
Election Code,” we are concerned that the Secretary’s determination in this case,
although done in pursuit of the laudable goal of uniformity, elevates uniformity over
“protect[ing] the right of New Mexico citizens to vote for the candidate of their choice.”
Charley, 2010-NMSC-024, ¶ 11.

{20} The consideration crucial to determining whether a nominating petition is invalid
under the Election Code is whether a voter was apprised of all the information required
by Section 1-1-26(A) prior to signing the petition. See § 1-1-26(B) (providing that “if any
of the information required by Subsection A of this section is not listed on the petition
before the petition page is signed by a voter or if any of the required information is
subsequently changed in any way[,]” the petition is invalid). The Secretary did not
dispute that every nominating petition that Morper filed contained all of the information
required by Section 1-1-26(A) prior to the time the voters signed the petitions. And
although the Elections Director expressed concern that the voters needed to be
informed and aware of what they were signing, that concern was adequately addressed
because all of Morper’s petitions, including the forty-four invalidated petitions, contained
the introductory paragraph prescribed in Section 1-8-30(C).

{21} The Elections Director asserted that requiring the additional information in the
heading “2020 PRIMARY NOMINATING PETITION” is necessary because “it is . . . the
only way that we can ensure that candidates are not circulating these petitions ahead of
the statutory time frame.” The Secretary argues on appeal that this requirement is
crucial because it guarantees the consistent application of the Election Code and
prevents some candidates from otherwise obtaining an “unfair advantage” by “gathering
petition signatures in advance of the statutory mandated date, which is October 1,
2019.” Assuming that the mandated date is a requirement supported by statute, the
requirement was met in the instance of the Morper petitions. 2

2The Secretary argues that it is statutorily prohibited for a candidate to gather petition signatures prior to October
1 of the year proceeding an election. Our review of the Election Code did not confirm such a mandate. Ostensibly,
the Secretary derived this statutory mandate from combining her authority to approve forms and procedures
under Section 1-2-1(C) and her obligation under Section 1-8-30(D) to publish a sample nominating petition in
October, justifying its creation as a mechanism to ensure “uniformity in the application [and] operation . . . of the
Election Code.” See § 1-2-1(B)(1). Whether there is a statutorily mandated date is not an issue in this case.
Therefore, we do not address it or whether the Legislature has properly delegated authority to the Secretary to
promulgate a regulation concerning a date prior to which nominating petitions may not be circulated. However,
we note that the Legislature, not the Secretary, has “plenary authority over elections.” Unite N.M., 2019-NMSC-
009, ¶ 6.
{22} Again, except for the omission of the heading in some petitions, all of Morper’s
nominating petitions are identical in substance and form to both Section 1-8-30(C) and
the Secretary’s Form. All of Morper’s petitions contain two pieces of information to
assure the filing officer that the form Morper used was the one the Secretary published
in October 2019 and thus that the petitions, including the invalidated petitions, were not
circulated in advance. First, the Secretary’s Form is fillable, meaning that the candidate
must insert the required information into the underlined, blank spaces. Significantly, the
Secretary’s Form inserts the date “June 2, 2020,” as the date of the primary election. In
this way, the Secretary’s Form does not allow a candidate to alter the date of the
applicable primary election, and all of the nominating petitions that Morper filed are
identical to the Secretary’s Form in this respect.

{23} Second, it is also significant that the Secretary’s Form includes the version
number “Rev. 2019 NMSA 1978, § 1-8-30” in the lower left corner under the last
signature line. All of the nominating petitions that Morper filed are identical to the
Secretary’s Form in this respect. This version number indicates that the Secretary’s
Form was revised in 2019 (a year in which there was no general election), immediately
preceding the election at issue, the 2020 election. Thus, even without the heading “2020
PRIMARY NOMINATING PETITION,” the nominating petitions filed by Morper contain
assurances that she did not obtain an unfair advantage by collecting nominating
signatures early.

{24} Although the forty-four invalidated nominating petitions omit the heading, the
substance of the invalidated nominating petitions conforms with the form prescribed by
Section 1-8-30(C) and therefore meets the requirements of the Election Code. See § 1-
1-7.2(C) (“A signature shall be counted on a nominating petition unless there is
evidence presented that the petition does not provide the information required by the
nominating petition for each person signing.”); see also § 1-1-26(A) (“The following
information shall be listed in the appropriate space at the top of a nominating petition
before the petition has been signed by a voter: . . . .”); NMSA 1978, § 1-8-32(B) (1979)
(establishing that it is a misdemeanor to “knowingly circulate, present or offer to present
for the signature of another person a nominating petition that does not clearly show on
the face of the petition” the information required by Section 1-1-26(A)(1)-(3)).
Considering what is at stake, the omission of the heading should not be fatal to the
candidate’s nomination when, as here, the petition has given the voters signing the
petition all the statutorily-required information.

{25} We appreciate that the reviewing official at the Secretary’s office may have been
required to give the nominating petitions that Morper filed more than a cursory glance to
ascertain that the petitions were in the form that Section 1-8-30(C) prescribes,
contained the information that Section 1-1-26(A) requires, and were identical to the
Secretary’s Form except for the omitted heading. However, this additional attention
does not justify the Secretary’s argument that allowing her to invalidate any form that
omitted the heading that she approved—regardless of whether the remainder of the
form is identical to the Secretary’s Form—protects the integrity and fairness of the
elective franchise.
{26} “States certainly have an interest in protecting the integrity, fairness, and
efficiency of their ballots and election processes as means for electing public officials.”
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997). Notwithstanding this
interest, the Secretary’s determination invalidated the nominating petitions in this case
and thereby prevented the counting of ostensibly more than seven hundred signatures
of New Mexico citizens, each signature representing a valid nomination of a candidate
for elective office. We must analyze the Secretary’s action with a skeptical eye in order
“to protect the right of New Mexico citizens to vote for the candidate of their choice.”
Charley, 2010-NMSC-024, ¶ 11. Considering the relevant portions of the Election Code,
we conclude that the Legislature did not delegate the power to invalidate nominating
petitions that conform with Section 1-8-30(C) when it empowered the Secretary to
approve the forms and procedures for elections.

III. CONCLUSION

{27} For the foregoing reasons, we conclude that Morper’s name be included on the
Republican primary ballot for the office of United States Representative from New
Mexico’s Third Congressional District.

{28} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice