This is a guest post by Professor Joshua Kastenberg of the University of New Mexico, about an amicus brief he filed, along with Professors Maryam Ahranjani, John Kang, and Cliff Villa, Professor Emerita, and NM State Senator Antoinette Sedillo-Lopez, in the New Mexico Supreme Court. Their amicus brief is here.
New Mexico has a Democratic legislature and governor, and its primary is not until early June. However, it is increasingly difficult to plan for the primary (or any election). The old state constitution requires, apparently, the legislature to physically meet in an emergency session. But the same constitution is silent on the Supreme Court.
The named party in the case is trying to go to a mail-in primary, on a court order, based on an equity argument. While that argument is innovative, equity hasn’t really worked well in a century and I am not sure if it could be applied here. So, state senator Antoinette Sedillo-Lopez asked us to write an amicus on other grounds. We selected a state constitutional grounds only, based on judicial power. Under the state constitution, there is a duty to preserve the government and well as the rights of the people, and we argue that judicial power can, in the rarest and most unique circumstances, enable to court to do what the legislature cannot.
The situation, in this regard, is unlike Wisconsin in which the legislature appears happy to disenfranchise voters, particularly in Milwaukee through purges of the voting rolls and having to make the remaining eligible voters undergo the ghoulish choice of vote (and perhaps die), or stay at home. We are trying to maximize the ability of New Mexico’s eligible voters to actually vote. New Mexico has a closed primary as well, and in this regard, fears of cross-over votes can be minimized by personal attestations of party affiliation.
I do not have the Republican Party’s brief in opposition – because they are filing today
At any rate, the New Mexico Supreme Court will decide the issue in the near future, and hopefully on state constitutional grounds.