NMSC Rejects Secretary of State’s Decision to Put Form over Substance


I’m a little late in blogging about this New Mexico Supreme Court opinion in Morper v. Toulouse Oliver from a few weeks ago but to be honest was not sure I had enough to say about it to warrant a post. Since I’m trying to do all of the opinions, I felt I had to write about it, so I will keep this one brief.

This is an election-related appeal. Under New Mexico law, a candidate seeking preprimary convention designation must submit a certain number of signatures to the secretary of state. Anastacia Morper sought to be a candidate for U.S. Representative for the Third District of New Mexico. submitted petitions to the Secretary with the required number of signatures; however, the Secretary rejected them because, though otherwise correct in every particular, they did not have a title saying “2020 PRIMARY NOMINATING PETITION.” The rejection invalidated the signatures of over 700 New Mexicans.

Ms. Morper appealed to the district court, which affirmed the Secretary’s decision. She then appealed to the Supreme Court. Under state law, this is one of the more obscure areas in which the Court hears appeals directly from the district court. In a short and concise opinion, the Court reversed.

The Legislature, not the Secretary, has “plenary” power over elections in New Mexico. As such, it established what elements are required on a nominating petition and promulgated a nominating petition for candidates to use. The Secretary, who also has the authority to prescribe the forms and procedures used in elections, made minor tweaks to the legislature’s form, including changing the title from “NOMINATING PETITION” to “2020 PRIMARY NOMINATING PETITION.” The Secretary contended that she was required to reject petitions which differed form the form her office had adopted.

The Court began by noting that its own precedent is “unsympathetic” to challenges to a voter’s right to participate in elections, including by signing petitions in the nominating process. The Secretary oversees that process, but cannot impose requirements greater than those decided by the Legislature. The opinion then turned to those requirements.

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

The important part of the Court’s analysis fits in a single heading: “The Secretary May Not Reject an Otherwise-Valid Nominating Petition Solely Based on Omission from the Heading of a Term Not Required by Statute.” Section 1-1-26(A) lists six things that must be in the petition. The heading is not one of them. Paragraph (B) states that a petition will be invalid if any of those six things are missing.

In light of Section 1-1-26, the Court concluded that the Secretary had rejected the petitions for lack of an element that was not required. Since this was contrary to the law, the Court reversed. Although perhaps not necessary, the Court goes on to describe how the justifications given by the Secretary for why the heading was necessary were not relevant on the facts of this case.

From both a policy and a statutory construction perspective, this is unquestionably the right result. The statute allows the Secretary to reject petitions that are missing one of the six required elements; the title is not one of those elements. New Mexicans are entitled to have their signatures counted, and a candidate that obtains the signatures should appear on the ballot. In a year where election integrity is sure to be a hotly contested issue, New Mexico needs to be doing better than this.

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