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Case Before the United States District Court --New Mexico
Hearing on Motions 03/20/2009 Vermijo Courtroom, USDC, Albuquerque
Statement following hearing:
Fri, 20 Mar
> 2009 21:03:12 -0600
> Subject: United States District Court of New Mexico
08 CV 505 " Gould, et al v. Richardson , Et al
Eliot Gould and the Citizens Committee for Eliot Gould, First Judicial
Attorney announces that they anticipate a "most favorable" Federal
Court decision. Ou effort to "right the wrong" was fruitful.
In April 2008 Gould's name was removed from the ballots of the
Democratic primary for the First Judicial Attorney upon an order of the
state district Court that required he be licensed as an attorney to be
a candidate for the District attorney. Gould and the Citizens Committee
filed for a mandamus of the State Supreme, and after that effort was
moot upon the printing of the ballots, took an action in the Federal District
court for a declaratory judgement and for a special election for the
office of District Attorney.
After a tedious and expensive litigation process, in which clearly
the State of New Mexico was defending "residual segration practices"
and "lack of safeguards from abuse" and counter the principles of
"one person -one vote", we have come to a decisive point. The State
may not continue its "deny and delay " practices than rely upon a
"condition of mootness" which is the result of their denial and
delay. The state must adhere to the Constitution of the United
states, and its amendment with precision in detail.
What was witnessesd in the Gould excise from the ballots is "the
handiwork of Jim Crow". The rule providing doesn't contemplate fraud
or illegal activity, but focuses upon conditions which by design are to the
exclusion of potential candidates for public office. The Voter Rights
Act requires the states to have processes which provide equal measure to
the means of nominationor general election. New Mexico's challenge
process, which was present when the law of the land was "separate but
equal", is one example of the Jim Crow handwork.
Jim Crow was no one individual; but rather a diverse set of
practices and statutes which provided barriers to voting and
representation. "Our inclusion of President Johnson's landmark
speech before the Special Session of the Congress and the Courts
in 1965 provided the very fouindation of the Citizen's Committee's
case. All citizens shall enjoy the right to vote equally, and
include that representation not be denied under an artifice of law.
That is what was repeated in the pre Voting rights period of
America. But subsequent to that speech, and under Federal law, they
are prohibited practices. In President Johnson's words:" It is the command of the Constititution . It is our most solemn obligation.
That the Citizen's Committee had to go to the Federal District Court
for relief is a showing of the shameful state of the state Courts.
This case should have been decided at the state level...but there stood no
state official or judge upholding the most solemn duty in obligation to the
Constitution.
We anticipate a "special election" for the office of District attorney, as by constitution, there is a vacancy of election when the prior circumstances stand in litigation. As the state officials could not certify the results ( though they did)
we have asked the Court to directly find upon its jurisdiction, that the actions upon teh candidacy be declaraed specious and prohibited, that a decertification be with a proclamation pursuant to the election code for a special election, and that the other "issues" as presented in the memorandum be returned to the State Supreme Court.
And thus the Constitution shall be served.
**********************************************
The Court incorporated the Amended Memorandum in the Record
Memorandum in Support of Request for Hearing:
Poll taxes ( for both federal and state elections) were officially
declared unconstitutional because they violated the Equal Protection
clause of the Fourteenth Amendment.
“To introduce wealth or payment of a fee as a measure of a voter's
qualifications is to introduce a capricious or irrelevant factor. The
degree of the discrimination is irrelevant. In this context - that is, as
a condition of obtaining a ballot - the requirement of fee paying causes
an "invidious" discrimination (Skinner v. Oklahoma, 316 U.S. 535, 541 )
that runs afoul of the Equal Protection Clause. Levy "by the poll," as
stated in [383 U.S. 663, 669] Breedlove v. Suttles, supra, at 281, is an
old familiar form of taxation; and we say nothing to impair its validity
so long as it is not made a condition to the
exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a
prerequisite of voting." Id., at 283.
Harper v. Virginia
Board of Elections
(1966)
While a license for which a fee is paid is necessary in the absence
of
a right, the absence of a license as a rationale for the removal of a
right is a undue and burdensome. While appearing “neutral”, it is
decidedly discriminatory as the results is “it dilutes the voting
strength of the minority group“ (East Jefferson Coalition for
Leadership and Development v. Jefferson Parrish-. 691 F.Supp 991)
It is well established that the Fourteenth amendment protects the
citizens and a truism that the ‘reserved rights” are also limited by the
Twenty-fourth Amendment.
It may be a license requirement, a filing fee, or special assessment,
but it still impairs the exercise to vote in the same manner and
processes which were found before.
BACKGROUND
Atmosphere, History and Prologue
New Mexico has a culture of corruption. At the core of it lies an
election code and its prescribed procedures which acts as a key of
legitimacy to its perpetuation of imbalanced applications contrary to
the very principles of “one man, one vote”. They often rely upon
obsolete, antiquated out dated methods which are politically motivated.
Historically, the outcome of elections is foregone conclusions,
often the result of uncontested elections, weighted primaries and
insiders’ selection. The process of ballot access, whether Federal or
State, is wrought with exclusionary devices, special interest and party
influences. New Mexico’s election code promotes the legitimacy in part
through classification of candidates and parties.
Additional Qualification of the United States
Senate
For example, the United States Constitution provides:
The Senate of the United States shall be composed of two Senators
from
each State, elected by the people thereof, for six years; and each Senator
shall have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous branch of the
State legislatures. US Constitution, Amendment XVII
About a hundred years ago, there was a widespread belief throughout
America that at the state level there was manipulation in the process of
the method of electing Senators to the United States Senate in the
proceedings of the various State legislatures. Evidence arose that the
result of the Legislative selections were often influenced by corrupt
political organizations and special interest groups through the purchase
of legislative seats. Often when these organizations and groups did could
not get their candidate selected there was a deadlock in the Legislatures
with the result that US Senate seats were unfilled and vacant.
Throughout the United States there was an increasing popular
dissatisfaction. The belief became widespread that Senators ought to be
popularly elected, in the manner which members of the US House were
elected. By 1912, as the proposed Amendment was being circulated through
States and as New Mexico was being proclaimed the 47th State of the Union,
29 States amended their state laws making it necessary to
nominate Senators on a more popular basis. Many States afforded the voters
more effective control through a primary election to designate their
preference for one of several party candidates. The results were
“unofficially” transmitted to the Legislatures where legislators elected
the winning candidates of the majority.
Until the ratification, which came in May 1913, the foundation of
the
nomination process was a “common understanding” that popular
representation should eliminate corrupt practices and no more. The
Amendment used the same language as found in Article I of the
Constitution with respect to the election of House members of
Congress.
It was not long after its ratification of Amendment XVII that the
Supreme Court determined that if a person possessed the qualifications
requisite for voting for a Senator, the right to vote for the office was
not derived from State constitutions and statutes, but the Constitution
itself. States were given the discretion to set reasonable methods to
establish voting qualifications. The method selected needed to act
“neutrally” amongst the candidates and without an abridgment or
discrimination. The full meaning of “the right to vote” includes a right
to seek public office without onerous qualifications. Most states
adopted nominating processes which included a primary election for the
nomination of party candidates.
However, several states enacted “onerous requirements,” such as a
poll
tax, literacy requirements, and or residual residency requirements . Some
requirements included “personal vouchers ”--or having the voter applicant
appear at limited hours of the week. Often the appearance would have to be
repeated as the clerks or sheriffs were busy on other official business.
Some provisions implicitly promised Court examination in the
consideration of the registration to vote, often with criminal charges.
Several states, like a South Carolina required as a prerequisite to voting
that the voter “take an oath that he understands and believes in and will
support social, religious, and educational
separation”--although in 1948, the US Supreme Court struck down that
requirement as invalid and a disregard of the right of the American
citizen to exercise his own views and opinions (see Brown v Baskin).
Several states placed “party rights statutes” so that candidates were
required to take an oath to “support separation of the races.” ( That the
‘party” enforce its rules of course discharged the “State” from a legal
fact contrary to Amendment XV) is prohibited.
Amendment XV provides:
Section 1. The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on account of
race, color, or previous condition of servitude. Section 2. The Congress
shall have power to enforce this article by appropriate legislation
Amendment XV,
United States
Constitution
Thus , the amendment prohibits each government in the United States from
“officially” to preventing a citizen from voting . This amendment
provided the basis for numerous civil rights cases.
Until the 1960’s Warren Court, such election controversies were few
before the Supreme Court-- averaging about 10 per year. During the years
of the Warren Court, the number rose to about 60 per year as the
“principle of one man, one vote” was taking hold. Amendment XXIV
prohibited the States from requiring property ownership or “Poll tax” type
qualifications to vote in any primary or other election for
“President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, [the right to
vote] shall not be denied or abridged by the United States or any State by
reason of failure to pay any poll tax or other tax.”
In 1966, the Court struck down a Virginia statute which eliminated
the
poll tax as an absolute qualification for voting in federal elections and
gave federal voters the choice either of paying the tax or of filing a
certificate of residence six months before the election.
Viewing the latter requirement as imposing upon voters in federal
elections an onerous procedural requirement which was not imposed on those
who continued to pay the tax, the Court unanimously held the law to be in
conflict with the new Amendment by penalizing those who chose to exercise
a right guaranteed (Forsennius v. Harmon). (Part of the reason for the
ratification of Amendment XXIV was lack of constitutional challenges to
onerous provisions, such as the poll tax.)
As a result of the repeated decisions and the adoption of the Voter
Rights Act of 1966 (VRA) providing for “one man, one vote,” and “free and
proper in every phase of the ballot process,” the several states revised
their respective state election codes. The revision, either by new state
constitutional process or legislative statutes was often not as altruistic
and principled as the clarity of the VRA and other Court decisions.
Freezing the Qualifications
The “reform” measures were often enacted with new, subtler and
unchallenged obstacles. In New Mexico, where Constitutional challenges
were few, the election code provides for a proclamation of the Governor
the last Monday in January:
1-8-12. Primary Election Law; proclamation.
The governor shall issue a public proclamation calling a primary
election to be held in each county and precinct of the state on the date
prescribed by the Primary Election Law [1-8-10 NMSA 1978].
The proclamation shall be filed with the secretary of state on the
last Monday in January of each even-numbered year.
The contents of the proclamation are:
A. the names of the major political parties participating in the
primary
election;
B. the offices for which each political party shall nominate
candidates;
provided that if any law is enacted by the legislature in the year in
which the primary election is held and the law does not take effect until
after the date of the proclamation but prior to the date of the primary
election, the proclamation shall conform to the intent of the law with
respect to the offices for which each political party shall nominate
candidates;
C. the date on which declarations of candidacy and nominating
petitions
for United States representative, any office voted upon by all the voters
of the state, a legislative office, the office of district judge, district
attorney, state board of education, public regulation
commission or magistrate shall be filed and the places where they shall be
filed in order to have the candidates’ names printed on the official
ballot of their party at the primary election;
D. the date on and place at which declarations of candidacy shall be
filed for any other office and filing fees paid or, in lieu thereof, a
pauper’s statement of inability to pay;
E. the final date on and place at which candidates for the office of
United States representative and for any statewide office seeking
preprimary convention designation by the major parties shall file
petitions and declarations of candidacy;
F. the final date on which the major political parties shall hold
state
pre-primary conventions for the designation of candidates; and
G. the final date on and place at which certificates of designation of
primary election candidates shall be filed by political parties with the
secretary of state.
As used in the Primary Election Law [1-8-10 NMSA 1978], "statewide
office" means any office voted on by all the voters of the state.
In 2008, the effect froze the registrations for eligibility to gain
public office to the place and residences and party affiliation to
potential candidates based on the date January 28. 2008.
1-8-18 who may become a candidate. A. No person shall become a
candidate for nomination by a political party or have his name printed on
the primary election ballot unless his record of voter registration shows:
(1) his affiliation with that political party on the date of the
governor’s proclamation for the primary election; and
(2) his residence in the district of the office for which he is a
candidate on the date of the governor’s proclamation for the primary
election or in the case of a person seeking the office of United States
senator or United States representative, his residence within New Mexico
on the date of the governor’s proclamation for the primary election.
B. Any voter may challenge the candidacy of any person seeking
nomination by a political party for the reason that he does not meet the
requirements of Subsection A of this section by filing a petition in the
district court within ten days after the last day for filing a
declaration of candidacy or a statement of candidacy for convention
designation. The district court shall hear and render a decision on the
matter within ten days after the filing of the petition. The decision of
the district court may be appealed to the Supreme Court within five days
after the decision is rendered. The Supreme Court shall hear and render a
decision on the appeal forthwith.
Thus, if a candidate were to seek a party nomination or an
independent
nomination for the Senate, he would have to be registered as a member of
that party or as an independent member on the date of the proclamation.
The candidate would also be required to reside in that residence through
that election year. He would also have to comply with other requirements
of statutes.
Under New Mexico’s election scheme, “Political Parties” are
classified
as “major’ and “minor.” The means of the nomination process of “major and
minor parties “ is as follows:
1-8-1.Nominating procedures; major political parties; minor political
parties.
A. Any major political party in New Mexico, as defined in Section
1-1-9
NMSA 1978, shall nominate its candidates, other than its presidential
candidates, by secret ballot at the next succeeding primary election as
prescribed in the Primary Election Law [1-8-10 NMSA 1978].
B. Any minor political party in New Mexico, as defined in Section
1-1-9
NMSA 1978, shall nominate candidates for public office in the manner
prescribed in its party rules and regulations and according to the
provisions of the Election Code [1-1-1 NMSA 1978].
PrePrimary Convention for Major Parties
The statutes further provide for the candidates for statewide
offices
receive a designation of candidates by convention.
1-8-21.1. Designation of candidates by convention.
A. State conventions of major political parties may designate
candidates for nomination to statewide office or the office of United
States representative.
B. No state convention for designating candidates shall be held
later
than the third Sunday in March preceding the primary election, and
delegates to the convention shall be elected according to state party
rules filed in the office of the secretary of state.
C. The state convention shall take only one ballot upon candidates
for
each office to be filled. Every candidate receiving twenty percent or more
of the votes of the duly elected delegates to the convention for the
office to be voted upon at the ensuing primary election shall be certified
to the secretary of state as a convention-designated nominee for that
office by the political party. Certification shall take place no later
than 5:00 p.m. on the first Tuesday succeeding the state
convention.
D. The certificate of designation submitted to the secretary of
state
shall state the name of the office for which each person is a
candidate, his name and address and the name of the political party that
the candidate represents, and shall certify that the candidate has been a
member of that political party for the period of time required by the
Election Code [1-1-1 NMSA 1978].
Additional Qualification for Other Federal Offices
While this certification process of the political parties seems to
directly contravene Article I, which provides: The House of
Representatives shall be composed of Members chosen every second Year by
the People of the several States, and the Electors in each State shall
have the Qualifications requisite for Electors of the most numerous Branch
of the State Legislature, it has been met with a complacency if not
advocacy over the years.
Amendment XVII which provides similar access for Senate candidates:
“The
electors in each State shall have the qualifications requisite for
electors of the most numerous branch of the State legislatures” has also
been accepted as the traditional practice without a direct
challenge that it “adds additional qualification to the office.” It should
also be noted that in 2008, the Legislature reduced the
preprimary requirement to a “more obtainable” 15% as six candidates filed
in the Third Congressional District. Four did not achieve that requirement
and filed additional signatures. The preconvention result ended one Second
congressional candidacy as he did not file the
additional signatures.
And a Variable Signature System
For nomination to the United States Senate by a “major” party, a
declaration of candidacy, along with “proof of registration,” ethics
compliance and a threshold of signatures of voters are required. The
required number is derived from the vote in a previous election. A
Republican candidate is required to provide 3% of the vote in the last
preceding Republican primary, while a Democrat is required 3% of the
preceding Democratic primary vote. The number of signature requirements
under this system is a changing number; hence it is called “the variable
Signature System”
1-8-33. Primary election law; nominating petition; number of
signatures
required.
A. As used in this section, "total vote" means the sum of all votes
cast
for all of the party’s candidates for governor at the last preceding
primary election at which the party’s candidate for governor was
nominated.
B. Candidates who seek preprimary convention designation shall file
nominating petitions at the time of filing declarations of candidacy.
Nominating petitions for those candidates shall be signed by a number of
voters equal to at least two percent of the total vote of the
candidate’s party in the state or congressional district, or the
following number of voters, whichever is greater: for statewide offices,
two hundred thirty voters; and for congressional candidates,
seventy-seven voters.
C. Nominating petitions for candidates for any other office to be
voted
on at the primary election for which nominating petitions are required
shall be signed by a number of voters equal to at least three percent of
the total vote of the candidate’s party in the district or division, or
the following number of voters, whichever is greater: for metropolitan
court and magistrate courts, ten voters; for the public regulation
commission, fifty voters; for the public education commission,
twenty-five voters; for state representative, ten voters; for state
senator, seventeen voters; and for district attorney and district judge,
fifteen voters.
One Thousand equals Two thousand equals Seventeen Thousand
Translated into numbers, in 2008, the Democratic candidates for the
United States Senate were required to obtain and file 2,162 party
member's signatures, while the Republican Party members for the Senate
needed 1,062 party members.
Candidates for New Mexico’s First Congressional District were required
to file 607 party member' signatures for the Democrats and 329 for the
Republicans. In the Second Congressional District, the requirements were
592 party Democrats and 402 Republican Party members, respectively. The
Third Congressional District requirements included 959 Democratic
signatures and 328 Republican signatures.
Congressional Districts are Equal in Population
Congressional district are equalized at 646,952. A statistical
discrepancy betweene 959 and 329 as a percentage of 646,952 may not be a
discrepancy of great magnitude. Nor might a difference between 1062 and
2162, as they each fulfill a recognizable minority group of voters of the
State, but just as certain is that the requirements are not of equal
measure.
The variable system may produce results that appear insignificant.
But
measured then
upon the requirements that are the alternatives to the major parties, the
result of the variable system is clearly a dilution of the
opportunity to represent .
Minor party candidates for statewide office required 5,592 voter
signatures, plus they had to meet the requirements of the election
administration in order to qualify for ballot access. Independent
candidates for the Senate needed 16,775 voter signatures. Independent
candidates for Congress (which are typically localized issues
candidacies) were required to file with the First Congressional
District, 6,320 signatures, the Second Congressional District, 4,676 and
the Third Congressional District, 5,779 signatures.
Clearly, the access which results from the variable system is of a
different magnitude. It weighs more heavy because it measures the scale
rather than a quantified body of voters.
Case Law of New Mexico
New Mexico is in accord with much of the continuance of the
procedures
found in the New Mexico State Supreme Court decision of 1944, Roberts v.
Cleveland. The statute defended the principle that a “political party
shall have the right to select its own candidate and that such right was
protected by the Legislature”. Apparently then a party switch for a
congressional office created a legal controversy in
addition to a political challenge. The Congressional offices were
elected every two years and until 1943, the delegation was one
Congressman. (The elections of the second Congressional district were also
held state wide until a later Court ruling required district wide, rather
than state wide elections.)
The understanding at the time was that the Party would apportion
the
state and federal candidates. This would mean that statutes providing that
no person shall become a candidate for nomination for any office prior to
the issuance of the Governor’s proclamation would not be
unconstitutional as a result of denying a candidate who was covered by
upholding the restrictions of equal protection.
Thus, New Mexico case law reflects opinions that veils a
segregation
or “Jim Crow” statute with the argument that the state is only
avoiding as a laundry list [of candidates] which “tend to confuse and
frustrate those who participate .
“ The laundry list , as it has been aptly characterized by our Chief
Justice , is a real and present danger in our history. Our electoral
history vividly demonstrates that unrestricted primaries….foster a rank
and verdant growth of candidates. … For example, in the 1972 primary race
for the Senate nomination in the Democratic party ( in which under federal
decree) no filing fee could be charged, twenty-eight candidates completed
the course. The polls ranged from candidate 45, 648 for the successful
candidate, Mr. Jack Daniels, to the least successful, Mr. Thomas S. “El
Diferente” Macaione. By way of comparison, in the
parallel race for the nomination of the Democratic party for the House of
representatives, in which a filing fee was still required by our decision
in State ex.rel. Apodaca v. Fiorina, there were only five candidates and
the vote ranged from 27, 109 from the winner, Mr. Ernie Gallegos, to a
respectable 3570 for Ms. Sparkle Plenty, who brought up the rear. Dillon
v. King, 87 NM 79, 529 P. 2nd. 745
. …The payment of a filing fee as a prerequisite for having a
candidate’s name served legitimate objectives of avoiding overcrowded
ballots, in protecting the integrity of the state’s political processes,
and did not violate the equal protection clause of the Fourteenth
Amendment. State ex. rel Apodaca v Fiorina, 83 NM 663, 495 P.2nd 1379
(1972)
A filing fee of 6% of the first years salary of office is
reasonable and provides no
element of arbitrary or capricious discrimination against or among the
candidates. …The state in discharging the obligations to secure the
secrecy of the ballot, the purity of elections and guarding against the
abuse of the election franchise…is a legitimate interest and did not
violate the equal protection clause State ex. rel Apodaca (1972)
Three Phases of Selection Process
Historically New Mexico has gone through three phases of selection
process: The convention method which balanced the interests of the State
through party appointment and representative process. In the 1960’s, there
developed the “wide open primary system“. This had been favored by the
Democratic Party forces of Senator Anderson, while those general
supporters of Senator Chavez favored continuing the
system of party selection. During this phase, a diverse number of
persons posted the required bond amounts and declarations of
candidacy. About a decade later, there was a general consensus for a
modified selection process insofar as the wide open primaries system
tended to encourage some party switching between the major parties. It
also tended to create an array of names of persons without a modicum of
reasoned success in election, but who were simply competing for ballot
placement. Thus, a modified system of selection was adopted.
The candidates of major Parties “would be serious candidates” who
had not only survived the process of legal challenge which comes
subsequent to filing of a declaration of candidacy, but they would have
accomplished a showing of 20% of that party’s pre-primary convention vote
to obtain ballot positioning in that party’s
primary. If the 20% pre-primary convention is not obtained, the
candidate’s name will not appear on the ballots in the June primary,
unless he or she makes a successful initiative for additional signature
requirements. Essentially this procedure provides for a
renewed declaration and the resubmission of signatures, or another
additional qualification.
In 2008, there were three candidates of the major parties for the
Senate. Each was an incumbent Congressman. Each received their
“pre-primary convention designation” and was certified for ballot
placement. Congressional candidates seeking to fill their vacating seats
did not fare so easily through the election administration. Two
candidates received legal challenges which the state district
courts did not uphold, while several others did not meet the
requirements of 20%(15%) for the pre-primary convention. Some not
receiving the 20% (15%) pre-primary designation reaffirmed their
candidacy by submitting additional signatures. Some candidates were not
certified for ballot access.
The disparity is heightened by the provision in the Election code
that bars a candidate, who was unsuccessful in the pre-primary
convention, from “bolting” and seeking a general election
designation from a different party or a designation as unaffiliated.
A similar ban is placed upon candidates who successfully appear on
the ballot, but who have not won that party's nomination.
Primary Candidacy Bars Another for General Elections
1-8-19. Candidacy in primary of one party bars general election
ballot designation of different party or as an unaffiliated
candidate.
If a person has been a candidate for the nomination of a major political
party in the primary election, he shall not have his name printed on the
ballot at the next succeeding general election except under the party name
of the party designated on his declaration of candidacy filed for such
primary election.
While the modified system tends to provide for “party unity” at the
general election, it limits or otherwise dilutes the practical
influences of divergent groups in the general election. Some of the
divergent groups may be small in number; they can also be very
recognizable. And in several recent elections, the absence of these
divergent groups has significantly affected the outcome of statewide
elections.
A Bolt of Green
The recent history of the Green Party of New Mexico displays the
disqualification of a minor party under color of statutes. The Green Party
was founded in 1994. The candidate for Governor, Roberto
Mondragon, left the Democrats after losing the primary to Governor Bruce
King. As a result of the outcome of the general election, the Green Party
had become the first 3rd ‘major party” .
As defined under the Election code: 1-7-2 Qualification; Removal;
requalification .
A. To qualify as a political party in New Mexico, each political
party
through its governing body shall adopt rules and regulations providing for
the organization and government of that party and shall file the rules and
regulations with the secretary of state. Uniform rules and regulations
shall be adopted throughout the state by the county
organizations of that party, where a county organization exists, and shall
be filed with the county clerks. At the same time the rules and
regulations are filed with the secretary of state, the governing body of
the political party shall also file with the secretary of state a
petition containing the hand-printed names, signatures, addresses of
residence and counties of residence of at least one-half of one percent of
the total votes cast for the office of governor or president at the
preceding general election who declare by their signatures on such
petition that they are voters of New Mexico and that they desire the party
to be a qualified political party in New Mexico.
B. Each county political party organization may adopt such
supplementary rules and regulations insofar as they do not conflict with
the uniform state rules and regulations or do not abridge the lawful
political rights of any person. Such supplementary rules shall be filed
with the county clerk and the secretary of state in the same manner as
other rules are filed.
C. All political parties that appeared on the 1988 New Mexico general
election ballot shall continue to be qualified political parties unless
disqualified in accordance with this subsection. Beginning with the
general election in 1990, a qualified political party shall cease to be
qualified for the purposes of the Election Code [1-1-1 NMSA 1978] if two
successive general elections are held without at least one of the
party’s candidates on the ballot or if the total votes cast for the
party’s candidates for governor or president of the United States,
provided that the party has a candidate seeking election to either of
these offices, in a general election do not equal at least one-half of one
percent of the total votes cast for the office of governor or
president of the United States, as applicable. After giving notice by
registered mail to the state chairman of the party at his last known
address, the secretary of state shall remove all material dealing with the
political party from his file of parties qualified in New Mexico.
D. The secretary of state shall then notify all county clerks of the
removal and no qualification of the political party. The county clerk is
then authorized to remove such rules and regulations from the county
files. The county clerk shall immediately notify by mail all voters
registered as members of such party of the removal and nonqualification of
the party.
E. To requalify, the party must again comply with the provisions of
the
Election Code dealing with filing requirements for political parties.
In 1996, the status obtained by the Green Party of New Mexico
continued as a “major party." The National presidential candidacy of Ralph
Nader polled over the disqualifying threshold of one half of one percent
of the total votes cast. An Attorney General opinion provided that “ a
major party is a qualified political party “ if any of whose candidates
received the minimum votes” .(NMAG opinion 96-01)
In 1998, the Green Party of New Mexico did not field a candidate for
governor, but it did have a slate of candidates which polled enough to
retain “major party status”.
In 2000 The Green party of New Mexico fielded Presidential
candidate
and a slate of other candidate.
The results of the 2000 Presidential voting in New Mexico was:
PRESIDENT OF THE UNITED STATES
RALPH NADER / WINONA LA DUKE GREEN 21,251 4%
AL GORE / JOE LIEBERMAN DEMOCRAT 286,783 48%
GEORGE W. BUSH / DICK CHENEY REPUBLICAN 286,417 48%
HARRY BROWNE / ART OLIVIER LIBERTARIAN 2,058 0%
HOWARD PHILLIPS/ J. CURTIS FRAZIER CONSTITUTION 343 0%
JOHN HAGELIN/ NAT GOLDHABER NATURAL LAW 361 0%
PAT BUCHANAN / EZOLA FOSTER REFORM 1,392 0%
Through November, 2000, the Green Party of New Mexico was treated as a
major party and again featured a national candidate Ralph Nader. The
percentage garnered did not meet statutory threshold requirements for
votes of the total determined to be required to remain “a major party ”.
In March of 2001, the Secretary of State notified that the Green
Party
of New Mexico that they “were a minor political party,” despite one of
the 2000 Court judge polling 9% and its Public regulation candidate
garnering 6%.
In 2002, The Green party of New Mexico again featured a candidate
for Governor who did not garner 5% . Subsequently the Green party has not
fielded a candidate for Governor, but occasionally fielded some candidate
in unsuccessful general elections.
But to gain ballot access they needed to fulfill
“requalification”under the statutes .In light that at all times the number
of persons who had maintained their registration as Green Party voters
exceeded three times the number of persons to
“requalify” (2750), and that the treatment for the candidates
included additional procedures not required of major party and their
candidate.
March 2001 also saw the Secretary of State issuing instructions to
the County clerks to remove the Libertarian and Reform parties as
they had been disqualified from “minor party” listing. The letter
provided: “as required by law, you must remove the party rules and
regulations from your files and notify all voters registered as members of
that party of the disqualification.
By axiom, the demotion and disqualification of the parties
removed
reduce or diluted the ability to field candidates and to present
its platform . Implicitly, the removal letters promised litigation which
has since been brought before several courts and extended over the years .
Thus ‘major party status and true ballot access ‘ was reserved on the
basis and subject to numerous litigations. (Similar State authored
proceedings were initiated upon other minor political parties.)
Demotion Contrary to the Fundamental fact of a
Recognizable
Minority
On the date of the proclamation of the Governor in 2008, despite its
obscure status, the number of registered voters affiliated as “Green”
exceeds 8300 persons, or three times the number for a party to
“re-qualify” as a major party.
Such classification as separate facilitation of candidates, with party
requirements in addition to individual nomination requirements, dilutes
the voice of those who freely have chosen ‘the green alternatives and
platform ” Moreover, as the litigation has been preserved at State expense
and with the directed purpose of disestablishing the parties, it is a
denial of consequence.
Extended into the State and district offices, such as the
Judiciary
and Legislature, the
working order of the election administration effectively removed the
apparatus of alternative access to the public ballots. With the
additional requirements of requalification of parties, candidates
desiring access under the “Natural Law”, “Libertarian”, “Green” and
“reform” would be required to wait through the next election cycle under
the New Mexico scheme that also “freezes“ party affiliations.
The results of the last three election cycles demonstrate the
consequential effect of removing parties from access on to the
ballots . The state legislative branch is composed of two houses: Senate
and House. The senators are elected every four years. House members are
elected every two years. The senate is composed of 42
members; the house has 70 members.
No Opposition in the Statehouse
In 2004, 60 % of the House district races, Democrats and
Republicans
had no opposition-- either in a primary or general campaign. In
2002, 54% had no opposition candidate-- none in party primaries nor from
any general election opponent (green party, libertarian or independent.)
In 2006, our last election cycle, 55.7% were without opposition.
The overwhelming result is that its branch is composed in a manner of
an aristocracy of the Roman republic rather citizen body of democracy and
a great american experiment..
One of the onerous statutes which prevent opposition from arising
after
the date of the Governor’s proclamation in January is a bar to “party
switching”. A dissatisfied constituent group cannot recompose itself after
the January date for the general election in November.
Effectively, a person must be registered with that party in January of the
current year—or, in the case of an independent campaign arising after the
“governor’s proclamation,” be a registered independent prior to its
signing, to be eligible. The sheer number of “uncontested“ races is the
consequence.
Another consideration is that from there are numerous challenges to
the
nomination petitions to other party candidates .These are stricken in a
process which provides challenges nominations for “failures, such as
signature requirements or objections which… underscored that the
signatures did not fulfill [a] threshold number” or for failure on several
other grounds.
A signature shall be counted if: (NMSA 1-8-31) A person who signs a
nominating petition shall sign only one petition for the same office
unless more than one candidate is to be elected to that office, and in
that case a person may sign not more than the number of nominating
petitions equal to the number of candidates to be elected to the office.
B. A person who signs a nominating petition shall indicate his
residence
as his address. If the person does not have a residential address, he may
provide his mailing address. C. A signature shall be counted on a
nominating petition unless there is evidence presented that the person
signing:
(1) was not a registered member of the candidate’s political party
ten
days prior to the filing of the nominating petition;
(2) failed to provide information required by the nominating
petition
sufficient to determine that the person is a qualified voter of the state,
district, county or area to be represented by the office for which the
person seeking the nomination is a candidate;
(3) has signed more than one petition for the same office, except as
provided in Subsection A of this section, or has signed one petition more
than once;
(4) is not of the same political party as the candidate named in the
nominating petition as shown by the signer’s certificate of
registration; or
(5) is not the person whose name appears on the nominating petition.
In practice, objections of nominations are often practiced by
professional firms representing an objector.
Provision of the election code reads: 1-8-35. Primary Election Law;
nominating petition; limitation on appeals of validity of nominating
petitions.
A. Any voter filing any court action challenging a nominating petition
provided for in the Primary Election Law [1-8-10 NMSA 1978] shall do so
within ten days after the last day for filing the declaration of
candidacy with which the nominating petition was filed. Within ten days
after the filing of the action, the district court shall hear and render a
decision on the matter. The decision shall be appealable only to the
Supreme Court and notice of appeal shall be filed within five days after
the decision of the district court. The Supreme Court shall hear and
render a decision on the appeal forthwith.
B. For the purposes of an action challenging a nominating petition,
each
person filing a nominating petition under the Primary Election Law
appoints the proper filing officer as his agent to receive service of
process. Immediately upon receipt of process served upon the proper filing
officer, the officer shall, by certified mail, return receipt requested,
mail the process to the person. New Mexico’s Court rules provide a limited
Rule which governs one a challenge of a nomination petition is complained.
Neither 1-8-35 nor Rule 1-096 (which provides for court proceedings
of the objection) upon “fraud” or a “legitimate State interest.” The
acceptable purpose for the statutes of the Election code is to assure the
integrity of Election process-- not to provide a device for
exclusion by political attack under the guise of Law.
The difference between the “politically motivated objection” and
the
“authority to regulate or otherwise supervise elections” can be
distinguished by character of the complaint.
Is the complaint about “voter fraud”?
Is the complaint about are signatures invalid?
Does the complaint include or involve a scheme to deprive a
verifiable minority, or candidacy, of its equal protection to the
assured ballot rights?
Was the complaint by a citizen in his own name, a“political
action
committee” or an agency of government?
“to the extent that they [campaign finance laws] prohibit a
corporation from making expenditures expressly advocating the
election, or defeat, of a candidate, except through political
committee, such laws are unconstitutional as applied.” Beaumont v. FEC,
395 Federal Supplement 2nd1001 ( Dist Ct of Colo, 2005)
Governments must play an active role in structuring elections as
a
practical matter, because it is unavoidable that there must be
substantial regulation of elections if they are to be fair and
honest. Election laws should protect everyone if the democratic
process is going to be successful. The right to vote is the right
to participate. Burdick v. Takushi, 504 US 428, 112 S.Ct. 2059 “A
state has legitimate interests in preventing corruption.” Nixon v. Shrink
Mo Gov't PAC, 528 US 377, 120 S Ct 897
The legitimate interests of the State includes to prevent abuse.
The
compelling interests are effected in a vigilance rather silent sit of
neutrality. The purpose includes provide safeguards upon a process which
by definition excises candidates for the public offices.
The practice of private practice firms for preparing and executing a
complaint , including at times , by a power pf attorney may well require
address under campaign finance reform.
The state has the power under the United States Constitution (Art 1
SS
4 cl 1) to regulate the time, place and manner of holding elections. That
power is matched by state control over the election process for state
offices. “Without additional protections for candidates in parties other
than the Democrats and the Republicans, there is no
justice in the current laws regarding the fundamental right to vote.”
Tashjian v Republican Party of Connecticut (479 US 208, 107 S.Ct. 544)
Eliminations by Public Challenges
An example originates in a complementary and second complaint: The
petition of Joseph D R Sena complaining and challenging the Gould
candidacy for the nomination of the First Judicial District attorney in
the First Judicial District (NM 1-1-2008 CV 0845).While it may appear on
the face to comport with a statutory voter’s right to challenge an
improper petition, the Sena complaint provided several “irregularities”
and no “the compelling state interests”.
It was not the complaint of a government agency, but one founded
upon
a “political interest”. As not the complaint of the government
administering the elections, and one conducted under the hand of a private
citizen, it traditionally evaded the Constitutional bars upon the States.
Challenges are civil action between citizens. The nature is upon statutory
compliances, and for which no correction or changes can be made..
Upon the filing under this statute which provides for a “complaint by
any citizen” , the State, by and through the Secretary of State provide
is required to immediately forward a certified service to Respondent
candidate” and “is made a party of service in the Court.”
Customarily, the Responding state office provides a strict appearance
only, a statement of no preference in the dispute, and that the office
shall comply with any Court order.
Typically, these citizen complaints offer a statutory recitation
and
complaint which concludes that the signatures do not meet the
statutory requirement and the Responding candidate should be
“removed“. These complaints, in accordance to the Rules of the
District Courts, are often entered by attorneys for the objector.
They are prosecuted by a reduction of the number of signatures as
valid until a threshold number is reached.
In proceedings, the counsel for the objector generally provides an
opening statement as to “why” the statutorily the complaint was
made. Respondents generally appear pro se and give a response “that they
went out to all their friends, and in different neighborhoods and
gathered signatures and filed the papers to run. They didn’t know their
friends were not registered’. ( see Proceedings of
Montoya Nomination, First Judicial District, 2008)
The proceedings then hear evidences, first being that the
witness/objector with a showing that “ he is a voter in the
district and otherwise qualified to object.”
His counsel then calls upon an “expert witness”. An examination of
certified copies of registrations is compared upon the lists of
signatures showing “the person signing was not provide a registered voter
of the party, or a registered voter at that address,” or that the person
was not “ a registered voter 10 days prior to the submission of the
nominations“ or that the “registered voter was not a registered voter of
that district.”
The number of signatures is thus reduced from , say, 230 to 170
when
the required statutory formula for that district is 185. There is
typically no ‘evidence” of fraud ( like the person signing the died six
months ago) but evidences of irregularities and compliance requirements. .
The disqualification of the candidate (unless reversed immediately) is
final for that election cycle in light of the Governor’s proclamation. As
appeals and restoring ballot placement are few, if any, the
consequence is generally that a (incumbent) candidate enjoys a “free ride”
without any opposition.
Upsidedown are the Purposes of Preventing
Fraud
New Mexico’s process turns upsidedown the purposes of
preventing
fraud and abuse. The State, by and through its Attorney General,
acts remedially upon that which is explicitly statutory notices (
1-8-35) and implicitly with its “neutrality” between the
private parties..
The practice of professional prosecution in these challenge cases
introduces that which is the costs of private firms carrying forward a
complaint in the district court, included with filing and service fees,
amounts which are neither registered nor reported. The process
effectively grants “Paid agents intimidating others or discouraging
selected precincts so to influence a final outcome or course of an
election violates, by conspiracy , the election franchisee” contrary the
“purity of election law and its guard against abuse.”
Relative to campaign finance statutes, these matters may well run
afoul the Campaign Finance statutes. Article 1-19-16 provides:
A. It is unlawful for any person, organization or political campaign
advertising or
Communication which does not specify the name of the sponsor or the name
of the Responsible officer who authorized the printing or
publication of such material , in any election, special election, school
district election or an election authorizing a bond hearing. This
prohibition extends only to handbills, petitions, circulars or similar
written material.
C. Any person, organization, or political committee violating the
provisions of Sub-section A or B of Section1- 19-16 NMSA 1978 is guilty
of a fourth degree felony and shall be punished as provided by the
Criminal Code [30-1-1 NMSA 1978]
Article 19.26.1 reads:
A. It is unlawful for any political committee that receives,
contributes
or expends in excess of five hundred dollars ($500) in any calendar year
to continue to receive or make any contribution unless that political
committee appoints and maintains a treasurer of a campaign committee and
registers with the Secretary of State. B. A political committee shall
register with the secretary of state within 10 days of receiving,
contributing or expending in excess of five hundred dollars ( $500) by
paying a filing fee of fifty ($50.00) and filing a statement of
organization under oath on the prescribed form showing:
(1) The full name of the political committee, which shall fairly and
accurately reflect the identity of the committee, including any
sponsoring organization, and its address;
(2) a statement of the purpose for which the political organization
was
organized;
(3) the name address and relationship of any connected or associated
organization;
(4) the names and addresses of the officers of the committee
(5) the identification of the bank used by the committee for all
expenditures made or received.
1-19-26 provides (F) “contribution’ means a gift, subscription, loan ,
advance, deposit of money or other thing of value, including the
estimated value of an in-kind, that is made or received for a political
purpose, including the payment of debt incurred in an election campaign,
but does not include the value of services without compensation or
reimbursed travel or other personal expenses of individuals who
volunteer a portion or all of their time on behalf of a candidate or
political committee, nor does it include the administrative or
solicitation expenses of a political committee that are paid by an
organization that sponsors the committee.
Related to this Section of the Disclosures , there was an absolute and
determinable cost to the filing of the complaint of Sena. It is within the
record itself. The cost for filing the complaint “Complaint
Challenging Candidacy for District Attorney for the First Judicial
District” required a filing fee of $122. Service by the Sheriff’s
Department adds $25. Hiring an attorney is be a thing of debt. Assuming a
reputable firm‘s charges (as it clearly it names itself in a
representative capacity) with a four hour minimum, the expenses are bound
to exceed the $500 limitation. To date, there has been no filing as “a
political action committee” nor made an accounting of costs with Election
authorities.
The outcome of the elections, both Federal and State is affected, and
often with the reduced choice of one candidate.
END
BACKGOUND
PART II
The background and references in Part I of this memorandum attempts to
present to the Court that there is winnowing process in the candidate
selection founded in New Mexico election scheme. The process include :
A. Additional Qualification for ballot access to Federal
Offices
B. Statutory Barriers upon small parties and unaffiliated
independents,
including State supported litigations
C. Challenge Nomination proceeding for Compliances and
Political purposes
rather than Fraud or any State interest
D. Complacent and Negligent Oversight by Election
Officials E. Statutory Restrictions on Change of Parties
for
candidacies
The result in the election races is more often than not ‘uncontested
race’ or “predictable” two person races throughout the State and Federal
election since the 2000 election.
Further presented is that the Election code of New Mexico requires
reform and necessitates of revision.. There is a pattern of outdated,
antiquated processes and practices counter purity in the elections.
There are statutes which clearly convene the explicit language in the
United States Constitution.
The background and references in Part I were presented to display a
backdrop for the instant case, Gould v. Campbell. While Courts may not
generally be disposed to musings or a prologue that are not direct upon
the circumstances, issues of the particular
constitutional question that is presented there is significance to the
backdrop that legal foundation brings. The case brings its own
particulars. It should be decided as in all matters, on a case by case
basis. The backdrop is purposed toward providing a totality : an
atmosphere of several of the restriction of the election code of New
Mexico that counter the principle brought forth in Harper . (383 U.S. 663
)
In the recent decision, Crawford v. Marion County Board of Elections
(
related to the voter identification .Justice Stevens, joined by The Chief
Justice and Justice Kennedy, concluded that ….(a) Under Harper, even
rational restrictions on the right to vote are invidious if they are
unrelated to voter qualifications. However, "even handed
restrictions" protecting the "integrity and reliability of the
electoral process itself" satisfy Harper's standard. Anderson v.
Celebrezze, 460 U. S. 780, 788, n. 9. A state law's burden on a
political party, an individual voter, or a discrete class of voters must
be justified by relevant and legitimate state interests "sufficiently
weighty to justify the limitation." Norman v. Reed, 502 U. S. 279,
288-289. Pp. 5-7.
Perimeters of Review
The instant case, Gould v. Campbell, necessitates required review.
While the primary of June 2008 has passed, the issue is not moot. It is
capable of repetition and yet evading review. Moore v. Oglevie, 394 US
814, 816 (1969)
The right of a citizen to seek public office regardless of a
candidate’s
race is a protected liberty under the first and Fourteenth Amendments
amendment. The identification of the liberty interests that are
protected by the Due process clause is a question of Federal
constitutional law. Harper v. Young, 10th Circuit( 1995)
Anderson v. Celebrezze 460 US 780 (1983) provided: “ In
resolving constitutional challenges to a State's election laws, a
court must first consider the character and magnitude of the
asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate. It
must then identify and evaluate the interests asserted by the
State to justify the burden imposed by its rule. In passing
judgment, the Court must not only determine the legitimacy and
strength of each of these interests, it must also consider the
extent to which those interests make it necessary to burden the
plaintiff's rights.”
The Fourteenth Amendment of the United States provides that no
state
’ shall deprive any person of life, liberty, or property, without
due process of law.” (USCA XIV)“ A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word
“liberty” or it may arise from an expectation or interest
created by state laws or policies.” Wilkinson v. Austin, 545 US 209, 221
(2005)
The instant case, Gould v Campbell, particularly provides that a
declaration for candidacy was filed with the Secretary of State, along
with over 950 signatures and proper ethics compliance by Eliot P. Gould
for the office of First Judicial Attorney on March 18, 2008, the date for
the submission of “nomination papers“.
On that same date, Joseph E. Campbell also filed declaration with
675
signatures for the same office. Joseph Campbell serves as an Asst.
District Attorney in the first Judicial District.
The First Judicial District Attorney’s Office is located in Santa Fe,
New Mexico.
However, the judicial district encompasses three counties: Santa Fe, Los
Alamos, and Rio Arriba. These counties cover a large area (7,876 sq.
miles) and have a very diverse population.
Santa Fe County is 1,909 square miles and has a population of
about
120,000. The only urban area in the county is the city of Santa Fe, which
serves as a haven for tourists year round. The county is primarily
Hispanic with a small Anglo population. The city of Santa Fe has a
significant population of gay, lesbian, bi-sexual, and transgender
individuals.
Los Alamos is a very small in land size, 109 square miles, but
has a population of 18,200. Government scientists live and work
in Los Alamos. Nuclear weapons are created and tested there. The
community is very “closed” and employees have high-level security
clearances. The population is largely Asian and Anglo, although
there are a few Hispanics.
Rio Arriba is the largest of the three counties, 5,858 square
miles,
and extends north to the Colorado border. This county has nine
Indian reservations, one Apache and eight northern pueblos. Each
reservation has its own government and court system. Tribes enjoy a
tax-free income from casinos that on their reservations. There is also a
large Hispanic population, and there has recently been an
influx of Mexican nationals to this area. Rio Arriba County is often in
the top ten counties in the nation when it comes to illegal drug use.
Heroin is the primary drug of choice.
The cities of Santa Fe, Los Alamos, and Espanola have municipal
courts, which enforce city ordinances. The ordinances cover most of the
misdemeanor crimes. Municipal courts have jurisdiction for crimes that
carry penalties of 90 days or less. Police officers prosecute cases in
municipal court and there are no victim advocates assigned to the court.
Magistrate Courts are administered by the State and have
jurisdiction in a specific county for misdemeanor cases. Judges in this
court are required to have a high school diploma and are elected
officials. This court hears cases for crimes that carry a
punishment up to 364 days. Preliminary hearings for felonies also take
place there.
District Court hears felony cases that carry a punishment of
more
than one year. A fourth degree felony is punishable for 18 months
or more, third degree for 3 years, second degree for 9 years, and
first degree for 18 years.
Native American reservations in the area each have their own
court
system. Tribal organizations handle their own misdemeanor domestic
violence cases. Felony domestic violence cases are sent to the U.S.
Attorney’s Office and the Bureau of Indian Affairs
investigates these cases. If a crime is committed on a reservation by a
non-tribal member, the local law enforcement agency is called and the
District Attorney handles the case.
Issued a Certificate as Qualified
Candidate
On March 25, 2008, Secretary of State Mary Herrera issued a
certificate find the candidate Eliot P. Gould ‘qualified’ to be on the
ballots of the Democratic Party primary of June 4, 2008 for the First
Judicial District. The Secretary of State also issued a certificate of
qualification to Joseph E. Campbell.
On March 28, 2008, Mr. Campbell filed a petition before the First
Judicial District Court challenging the qualifications of Mr.
Gould. Citing Chavez v. Evans ( Supreme Court of New Mexico No.
8746 79 N.M. 578, 446 P. 2nd 445 , 1968) with an excerpt of that
case , “ learned in the law ” and being a “licensed attorney” as
synonymous and with a claim that as “unlicensed”, there must be a
disqualification of the candidacy of Eliot P. Gould as First Judicial
District Attorney the Campbell petition prayed. (0-01-CV
2008-0845, First Judicial District Court of New Mexico)
Also on March 28, 2008, Eliot P. Gould and the Citizens Committee
for
Eliot P. Gould filed a petition challenging the candidacy of Joseph E.
Campbell in the District Court . (0-01-CV 2008-0845, First Judicial
District Court of New Mexico) The allegations were that Mr. Campbell’s
signatures were insufficient in number to qualify for
ballot placement and included fraudulent signatures and other
irregularities. The complaint itemized by line and page each
complained signature, including that “pages 21 and 19 “ were written by
the same hand and not of the registered Voters.
A Request for a Jury Demand was Filed promoting that the District
court impanel a jury to examine and otherwise count the signatures for
validity. A request for a “handwriting expert’ of the State was
requested to examine and for testimony.
On April 10, 2008 the District Court heard both cases
independently.
District Court Case against Gould’s
Candidacy
In the state matter “Campbell v. Gould”, Mr. Campbell
presented
opening remarks in essence complained that “on March 18, 2008
Respondent Gould filed all necessary documentation for
certification as a candidate for the office of First Judicial
District Attorney.” Mr. Campbell complained that on March 25,
2008, Respondent Mary Herrera caused her office “to officially
certify Eliot Gould” as a candidate to the office of First
Judicial District Attorney. Mr. Campbell stated that the
requirements for District attorney must be 18 years of age, a
resident of New Mexico, must be learned in the law, and must be
a resident in the district.
Mr. Campbell then brought forth “State ex rel. Chavez v. Evans”, a
state Supreme Court case (1968) which equated that “learned in the law”
was the same as “licensed attorney.” “Respondent Eliot Gould is not a
“licensed attorney and therefore is not qualified candidate for the office
of First Judicial District Attorney.” Mr. Campbell closed his remarks with
the request that the Court find that “Eliot Gould is not a qualified
candidate” and to “order Respondent Mary Herrera to remove his name from
the official ballot.”
In response, Mr. Gould , who had filed a written answer to
Campbell’s petition, remarked that he agreed with the listed
qualifications which Mr. Campbell had presented, but provided that the
qualifications of “holding public office is an election franchise. The
qualifications for District attorney requires
fulfilling the state‘s constitutional provisions “ It requires
fulfilling the election statutes in conformity with the statutes
with the constitution.” Mr. Gould furthered that “it has been long
established that the right to vote includes the rights to seek public
office and in equal manner in each phase of the ballot
process.”
Gould again reaffirmed the oath (holding up his right hand)
and
stating:
The Declaration of Candidacy submitted on March 18, 2008
included:
“ I, Eliot P. Gould, first being duly sworn say that I reside at 354 ½
Calle Loma Norte, Santa Fe, as a voter of Precinct No__28_ of the county
of Santa Fe, State of New Mexico;
That I am a member of the Democratic Party as shown on my certificate
of registration and that I have not changed such party affiliation
subsequent to the governor’s proclamation calling the primary for which I
seek to be a candidate;
I desire to be a candidate for the office of the First Judicial
District Attorney on the date set by law this year, and if the office be
that of a member of the Legislature or that of the State Board of
Education, that I actually reside at the address designated on the
Certificate of voter registration.
I will be eligible and legally qualified to hold this office at the
beginning of the term.
If a candidate for any office for which a nominating petition is
required, I am submitting with this statement a nominating petition in the
form and manner as prescribed by the primary election Law; and I make the
foregoing affidavit under oath, knowing that any false
statement herein constitutes a felony under the criminal laws of New Mexico.
And that the same was duly subscribed and sworn.
The duties and office of the District attorney are derived from the
state constitution.
The pertinent articles in creating the office is found at Article VI Sec.
24 of the state constitution: [ District attorneys] There shall be a
district attorney for each judicial district, who shall be learned in the
law, and who shall be a resident of New Mexico for three years next prior
to his election, shall be the law officer of the state and of the counties
within his district, shall be elected for a term of four years, and shall
perform such duties and receive such salary as
prescribed by law. (NMSC Art VI Sec 24)
A second Article of the state constitution relating to the elective
franchise including:
Article VII: [Qualifications for holding office.] A. Every
citizen of the United States who is a legal resident of the state
and is a qualified elector therein, shall be qualified to hold any
elective public office except as otherwise provided in this
constitution.
The language and specific term “learned in the law” has not been
changed or amended to any other qualification relative to the
District office qualification. Interpreting away from the straight
forward and honest reading of the constitution and its flexibility in
remaining unchanged and constant proposes not order but confusion.
Thereafter, the District Court rendered the opinion and decision upon
the challenge. It found candidate “learned in the law” and “unqualified as
a candidate as not a licensed attorney. ” “The Secretary of State shall
remove his name from the ballots of the June primary. ” Thus, Gould’s name
would not appear on the ballots of the June 4, 2008
primary.
Next, Gould’s Challenge as Fraud
The matter, Gould and Citizens Committee v Campbell was heard
immediately thereafter in separate Court by a different District
Court Judge. Parties were introduced. The representatives of the
Citizens Committee were barred from the Plaintiffs Table. Opening
statements made. The Court ruled upon “pending motions”; that it had
jurisdiction as an election matter; that the motion for Expert
handwriting Analysis of the State Police be denied, and that the
request for Jury Empanelment , as they had been paid for ,to examine the
Signatures was denied.
Mr. Gould brought forward that the voters on the lists could be
verified by an internet site “voter View” through the Secretary of State’s
office. The Representative from the secretary of State’s office then
testified that the “voter View” might not be as accurate as the main
Internal records. Testimony elicited that a CD Rom of the Voters of the
District Might hold some inaccuracies between the time of transfer.
The District therefore denied the use of the internet access to the
voter records and the use a permanently printed CD-Rom of voters by
Secretary of State’s office. It further denied the introduction of expert
testimony showing that “pages 21 and 19 were written by the same hand.”
Mr. Gould then requested a continuance with a “short date of Monday
or Tuesday. The request was denied.
Thus , the District Court dismissed the cause with a final order.
Joseph Campbell’s name would appear on the ballots of the June 4,
2008 primary.
In accordance to the Statute 1-8-35, a petition for mandamus was
filed in the New Mexico State Supreme Court by Mr. Gould on April 10,
2008 . ( No 8/ 31060 ) The petition provided that the district Court’s
determination “added additional qualification” to the sole source of the
office, the State Constitution and otherwise abridged the candidacy and
from participation in the election franchise. The writ was denied.
Mr. Gould then filed “a reconsideration “ as the “printing of the
ballots was imminent” and insisting that he was due a reasoned
opinion that he was not qualified in accordance to the explicit
requirements of the State constitution . That reconsideration was denied
without more.
The result was that Mr. Gould’s name was removed from the ballots of
the primary of the state of New Mexico on June 4, 2008. Additionally, as
a registered Democrat on the date of the Governor‘s proclamation, he was
barred by statutes to fulfill a candidacy as ‘unaffiliated“ or “minor
party“--not only for the office of the District attorney, also for the
federal and state offices to be held on the general election of November
4, 2008.
FOR REVIEW
Thus while this controversy involves election to state office, and
the
state apparatus of election, presents an issue of Federal concern.
Federal Courts have broad powers to remedy violations of the Voters Rights
Act. Dillard v. City of Foley, 926 F Supp 1233 The Court is not being
asked to interpret state laws but to measure the weight of those laws and
practices applied by the State of New Mexico upon the scale of its powers
and limitations. The Court is being asked to address that fundamental
right of liberty to seek public office is entitled to each of its citizens
and that in the Gould candidacy, it was taken in a manner contrary and
arbitrary.
While the Tenth Amendment of the Constitution preserves the
rights
of the individual states to control the election of presidential
electors, and grants the States powers for public safety and
regulation, the States are required to ensure that the
enfranchisement are true and proper in each phase of the ballot
process, to be absent discriminatory practices or effect the
dilution of a politically cohesive minority.
The Voter rights Act provides as much. In 1965 the Voter Rights Act
of 1965 was enacted to provide a comprehensive and direct solution to
protecting the rights guaranteed by the Fifteenth Amendment. With the
support of President Lyndon B. Johnson, the Voting Rights Act of 1965 was
specifically designed to combat racial discrimination in voting.
The Voting Rights Act was used to register millions of Americans
who
had never been allowed to vote. Unfortunately, once the registration of
new voters increased, many schemes were developed in an attempt to cancel
out the effect of the new voters. Attempts such as changing elected
positions to appointed positions, gerrymandering
election boundaries, and changing single-member districts to
at-large elections became commonplace.
The Voting Rights Act was crafted with two main areas of coverage.
The first area governed special remedies for specific areas of the country
where statistics showed large differences between the number of eligible
voters and the number of persons actually registered to vote. These
special provisions authorized the United States Attorney General to
provide for examiners and observers to register voters and monitor
elections, banned the use of tests, and also required these certain areas
to submit any changes in their voting laws to the federal
government for approval . The second aspect of the Act
generally prohibited discriminatory voting practices throughout the entire
nation.
The Voting Rights Act has been extended three times since 1965 --
in
1970, in 1975, and in 1982. While provisional section related to
‘pre-clearance provisions’ expired in 2007, the Voting Rights Act
provision against discriminatory practices is permanent.
In Harper v. Virginia Board of Elections (383 U.S. 663 1966), the
U.S. Supreme Court held 6-3 that state poll taxes (for both federal and
state elections) were officially declared because they violated the Equal
Protection Clause of the Fourteenth Amendment.
Harper followed a series of voting rights cases over states
statutory techniques that had been used to disenfranchise along
racial lines.
These techniques included direct disenfranchisement and indirect
disenfranchisement. "Direct" disenfranchisement refers to actions that
explicitly prevent people from voting or having their votes counted, as
opposed to "indirect" techniques, which attempt to prevent people's votes
from having an impact on political outcomes (e.g., gerrymandering, ballot
box stuffing, stripping elected officials of their powers).
The 1982 amendment to the Voter Rights Amendment provided:
Section 1973aa provides: Application of prohibition to other
States;
"test or device" defined
(a) No citizen shall be denied, because of his failure to comply
with any test or device, the right to vote in any Federal, State, or local
election conducted in any State or political subdivision of a State.
(b) As used in this section, the term "test or device" means any
requirement that a person as a prerequisite for voting or
registration for voting (1) demonstrate the ability to read, write,
understand, or interpret any matter, (2) demonstrate any educational
achievement or his knowledge of any particular subject, (3) possess good
moral character, or (4) prove his qualifications by the voucher of
registered voters or members of any other class.
In this amendment, the Congress made clear that while the
numerous
cases that had minorities were not strict upon race or color, but
purposed “to the political processes leading to nomination or election . .
. are not equally open to participation by members of a [protected class]
. . . in that its members have less opportunity than other
members of the electorate to participate in the political process and to
elect representatives of their choice," Thornburg v. Gingles, 478 U.S. 30
(1986).
The amendment provided “that to make clear that a violation of
§
2 could be proved by showing discriminatory effect alone, rather
than having to show a discriminatory purpose, and to establish
as the relevant legal standard the "results test." Section 2(a),
as amended, prohibits a State or political subdivision from
imposing any voting qualifications or prerequisites to voting,
or any standards, practices, or procedures that result in the
denial or abridgment of the right of any citizen to vote on
account of race or color. Section 2(b), as amended, provides
that § 2(a) is violated where the "totality of circumstances"
reveals that "the political processes leading to nomination or
election . . . are not equally open to participation by members
of a [protected class] . . . in that its members have less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their
choice."
“Once the franchise is granted to the electorate, lines may not be
drawn which are inconsistent with the equal Protection Clause of the
Fourteenth Amendment. Thus, state measures which have the effect of
denying or diluting a citizen’s vote must be justified with a compelling
state interest.( Harper at 670, 86 Supreme Court 1079)
(striking down the State Poll tax ); Reynolds v. Sims, 377 US 533.
Title 42, Section 1973 (h) provides: Congressional finding
and
declaration of policy against enforced payment of poll taxes
as a device to impair voting rights.
The Congress finds that the requirement of the payment of a poll
tax
as a precondition to voting (i) precludes persons of limited means from
voting or imposes unreasonable financial hardship upon such persons as a
precondition to their exercise of the franchise,
(ii) does not bear a reasonable relationship to any legitimate State
interest in the conduct of elections, and (iii) in some areas has the
purpose or effect of denying persons the right to vote because of race or
color. Upon the basis of these findings, Congress declares that the
constitutional right of citizens to vote is
denied or abridged in some areas by the requirement of the payment of a
poll tax as a precondition to voting.
The right of a citizen to seek public office is a free
exercise derived from the First Amendment. Additionally, the
Fourteenth Amendment provides that no state shall “deprive any
person of life liberty, or property, without due process of
law.” Under that light and the scope the Voter Rights Acts and
Amendments , a review of the events will bear the following
facts:
1. Gould’s name did not appear on the ballots of the June 4,
2008 primary
2. Gould’s name was removed through the application of a
“test
or device”
as the state district Court required an“ additional
non-constitutional
qualification though the candidacy satisfied the
Statutory requirements and
constitutional requirements of New Mexico for the
office
of District
Attorney
3. No reasonable address nor meaningful hearing was
conducted
in the
process of removing the candidate’s name from the
ballots-- though an
appeal of the district Court’s order was filed before
the State Supreme court
under the specific statutes governing.
Invidious Discrimination
Invidious discrimination applies a differentiation scale
to people who belong or appear to belong group or another
group. The group being discriminated against is generally
seen as being lower, lacking or deficient in some way.
(This type of discrimination is an unfair and often
illegal practice that can go on daily in many different
forms.)
In the context of the instant matter, there was no overt or
subtle
racial appeal or issue. However, the Nomination Signatures
constitute, by axiom, a “minority group that is politically
cohesive”. There were over 950 raw signatures, of which over the
statutory requirement of 545 for the First Judicial District. The
“minority” is a mixture of persons who had personal contact with
the candidate. Most received literature of platforms and positions of the
candidate . Their individual signatures were provided by their own hands,
freely absent any coercions or
misrepresentations, and recorded the names ( as registered to
vote), signatures, places which the person resided and city of
residences. The signature process was carried out regularly in
public places, private lands and included persons from each of the three
counties that compose the First Judicial District.
The petitions clearly stated the candidate’s name, address,
county
of registration, and the pertinent information regarding the time, place
and conduct of the election. And the validity of the petitions were not
challenged, except upon ‘additional
qualification” that a license was necessary.
As the record reads, that issue was addressed before the state
district court .
“ New Mexico’s constitution provides: [District attorneys] There shall
be a district attorney for each judicial district, who shall be learned in
the law, and who shall be a resident of New Mexico for three years next
prior to his election, shall be the law officer of the state and of the
counties within his district, shall be elected for a term of four years,
and shall perform such duties and receive such salary as
prescribed by law. (NMSC Art VI Sec 24)
The direct language of the State constitution upon the qualifications for
the district attorney is the sole source of the qualifications. New
Mexico’s constitution also provides: “Every citizen of the United
States who is a legal resident of the state and is a qualified elector
therein, shall be qualified to hold any elective public office except as
otherwise provided in this constitution. (Article VII, New Mexico State
constitution)
When the District Court’s promoted its finding that the candidate
was “learned in the law” but to be removed from the ballot as he
was not a licensed attorney , in one swipe of his hand , the state
district Court judge toppled the state’s constitutional structure. “Every
citizen of the United States who is a legal resident of the state and is
a qualified elector therein, shall be qualified to hold any elective
public office except as otherwise provided in
this constitution.” is rendered meaningless. So was another
imperative of the state’s constitution. Purity in elections be
maintained is promoted in Article II of the New Mexico constitution :
Sec 8. [Freedom of Elections]
All elections shall be free and open, and no power, civil or
military
shall at any time prevent the free exercise of the right of suffrage.
Direct Appeal Taken
An appeal of the Gould’s removal by the state District was taken as
provided under the Election code: once the decision of the state
district court is rendered, “The decision shall be appealable only to the
supreme court and notice of appeal shall be filed within five days after
the decision of the district court. The supreme court shall hear and
render a decision on the appeal forthwith. 1-8-35 NMSA
On April 14, 2008, Mr. Gould and a representative of the Citizen’s
Committee for Eliot Gould District Attorney appeared at the Clerk’s
office of the state supreme Court with a petition for mandamus to restore
the ballot position.
The state supreme court heads the Judicial Branch of State
government.
It is the state’s appellate court of last review and has supervisory
control over all lesser courts. The state supreme court has original
jurisdiction. The court also is empowered to issue necessary and proper
writs and to provide for the transfer of any action or decision
enumerated in the statutes.
The Appeal contained the necessary elements a reviewing Court to
issue a mandamus and the compelling feature that ‘time was of the
essence” as the ballots were scheduled for printing. The general fee was
tendered to the Clerk of the Court by certified check. The Respondent of
the District Court, Mr. Campbell and the Attorney General for the
Respondent Secretary of State were served with notice of the action and
copies of the complaint.
That court returned an order, “whereas, this matter came on
for consideration by the Court upon motion for reconsideration
and request for hearing, and the Court having considered said
motion, and being sufficiently advised, Justice Patricio M.
Serna, Justice Petra Jimenez Maes and Justice Charles W.
Daniels concurring;
Now therefore, it is ordered that the motion for reconsideration be
DENIED…
IT IS SO ORDERED.
Witness, The Hon. Edward L. Chavez,
Chief Justice
That order gave form but not substance. It abdicated the
Courts “ reserved’ powers. Whether by design or
negligence, it failed to properly address the necessary
reinterpretation of Chavez nor address other substantive
predicates of election law.
That order certainly left hollow any reason for the removal of the name
from the ballots.
About Chavez v.
Evans
Chavez v. Evans,[79 N.M. 587, 446 P.2nd 445 ] the state Supreme
court
case introduced and underlying the objections to the candidacy did not
simply equate “licensed and learned” as interchangeable ( as is commonly
understood). It did not attempt to raise itself to substantially amend the
express state constitution. It presented the state’s compelling rationale
as to why certain candidates were withheld from the ballots in 1968. It
also offered that certain other candidates would be returned to the
ballots as their removals were based upon additional qualifications of the
state’s constitution or of the Federal government.
Chavez was written in the era of Harper and voting rights expanse.
It established a review of the threshold qualifications of the slate of
“People Constitutional Party”. “Petitioners, eight in number, seek
mandamus to require to certify their names… for the offices to which they
were nominated….The remaining candidates of that party have already been
certified.
Chavez articulated the questions involving each of the Peoples
Constitutional party candidates separately. The Court noted that
the “constitution must be read as a whole’ and that two sections
must be read together. In ordering the mandamus to for the
candidates for President, Vice –president, (a state board of
education member) and (at that time) the two Congressional District
candidates, Chavez provided that the refusal to certify those candidates
was erroneous. “The constitutional qualifications for
membership in the lower house of Congress exclude all other
qualifications, and state law can neither add nor subtract from
them”. “The state may provide such qualifications and restrictions as it
may deem proper for offices created by the state; but for offices
created by the United States Constitution, we must look to the creating
authority for all qualifications and restrictions.” Thus it followed that
the ‘statute unconstitutionally adds
additional qualifications.
With respect to the candidates of the Peoples Constitutional state
offices of Governor, Lt Governor and District attorney, Chavez provided
that those candidates did not meet the qualifications as provided for
office. Gubernatorial candidate Tijerina was denied certification
because ‘a conviction of a felony within the constitutional
prohibition. As Tijerina was disqualified , so to was the candidate for
Lt. Governor ‘as those offices are elected jointly”.
Finally, Chavez dealt with the question of Preston Monongye, the
candidate for District Attorney of the Peoples Constitutional Party. It
pointed out that Montagye was denied certification ‘for the announced
reason that he is not learned in the law as required by the New Mexico
Constitution for one to hold that office.” ‘While providing “to our minds
to hold that “learned in the law” and being a licensed attorney are
synonymous as indicated”, it more importantly showed that the denied
certification of Monongye was because of an absence of any showing of
“learned in the law” as constitutionally required. “By affidavit the
petitioner sets forth his qualifications which do not include the
completion of a law course or graduation from an approved law school.
Neither does he claim that he has been admitted or is qualified to be
admitted to practice law in this or any other state. Under these
circumstances, can he be learned in the law”?
We would answer unhesitantly in the negative were it not for the
different qualifications contained in our constitution, as noted
above, for the holding of the offices of district attorney, attorney
general and justice of the Supreme Court.
It follows that in light of the statute and the surrounding
circumstances present when our constitution was adopted, an
interpretation such as argued for by petitioner Monongye is
unreasonable and incongruous and will not be adopted by us.
Chavez per se is not the fault. In no manner did it attempt to
provide an undeclared amendment to the state constitution. Rather
categorically, Chavez provided a straight-forward and direct
interpretation. It dealt with circumstances which were specific to that
time and those events, stated the questions and provided a rationale
direct upon those questions.
Chavez per se is not at fault. It is the practices such as
introducing excerpts and concluding that the excerpt gives the full meaning.
Election controversies are inherently constitutional. The
elimination
with a broad swath of one or several candidates requires a
substantive and rational basis for which the state law is interpreted and
a declaration that the removal is not offensive to the equal
protection that must be afforded
Much different is the set of circumstances than were present in 1968.
Mr. Gould had never been engaged in any insurrection against the United
States,nor participated in a rebellion or other crime. Unlike Monogye, Mr.
Gould presented evidences that he was “learned in the law”, having
attended law school in Chicago and the passed the bar in Illinois. The
state District court provided no rationale nor any compelling state
reason of the State in its decision . Nor did it provide any rationale for
removing his name for the ballot other than finding Mr. Gould was not a
licensed attorney.
The District Court did not, for example, find Mr. Gould had not filed
the necessary papers. Or that he had filed them in the wrong office . Or
that he had filed them on the wrong date.
The Court did not include any finding related to collected fees or
donations upon any promise or performance. Nor did it provide that there
was coercive factors in their collection.
Failure to Address is No Option
The failure of the state Supreme Court to address the issue with
reason and substance
compounded the circumstances. The failure to properly review constitutes
its own form of a denial of consequence. No State shall make or enforce
any law which shall abridge the privileges or immunities of the
citizens of the United States; nor shall any State deprive any person of
life, liberty or property, without due process of law. Amendment XIV.
Fundamental to due process is the process include a meaningful hearing of
judicial review. Due process is violated if a practice or rule
''offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.'' Snyder v.
Massachusetts, 291 US 97,105 (1934).
That the “court was sufficiently advised in the premises was not
enough.” The reviewing court must include substantive predicates and
employ explicitly mandatory language specifying how the outcome is
reached.
Part III
In Part I there was presented an ‘atmosphere and background’ supportive
that the election code and practices of administration of elections which
provide undue restrictions upon candidates , with processes
unchallenged, and thus maintained.
In Part II, there is a specific set circumstances leading to “removal from
the Primary ballots” of one candidacy by means and methods that not only
removes the candidate’s name from the ballot but prohibits him from
registering, under separate party or unaffiliated, and further
participation in the General election to be held on November 7, 2008.
In Part III, the Petitioners are not asking the Court to “interpret
state
law” but to apply the same measure of facts that created controversy that
resulted in the removal of the “name from ballots” as not compatible
and
acceptable under the Equal protection clause, prohibited by the
limitations of the reserved rights upon the States, and contrary to the
fundamental due process right of judicial review..
In the United States there exist concurrent powers. These are powers
held by both the states and the federal government. These powers also have
limitations and restrictions under the Constitution .The powers may be
exercised simultaneously within the same territory and in relation to the
same body of citizens. This is contrasted with delegated and
reserve powers. Some of the concurrent powers enjoyed by both the
federal and state governments are: the power to tax, make roads, protect
the environment, create lower courts and borrow money.
The foundation of the states’ concurrent powers is a trusim: the Tenth
Amendment to the United States:
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Amendment
X,
United
States
Constitution
The rights granted to the States are no more than a showing of a
relationship between
a national government in a declaratory manner allaying fears against a
centralized tyranny. By inclusion in the Constitution, it offered no more
nor any less than the states exercise those powers fully, but not in any
prohibition.
“ The States' core police powers have always included authority to
define
criminal law and to protect the health, safety, and welfare of their
citizens." Raich v. Gonzales, Opinion of Justice OConnor in dissent,
joined by Chief Justice Rehnquist and Justice Thomas.
This delicate relationship between the federal and state
governments,
and the judicial branches thereof, is basic to our system of
Federalism. There is strong interest to ensure that the rights of the
States, as individual states with the traditional autonomy to administer
elections for the Federal and state offices free are to interpret state
laws governing elections, and maintaining the core functions for the
general welfare and peace without interference by the federal courts.
Justice O’Connor in New York v. United States modeled a classic
structure: States are not mere political subdivisions of the United
States. State governments are neither regional offices nor
administrative agencies of the Federal Government. The positions
occupied by state officials appear nowhere on the Federal Government's
most detailed organizational chart. The Constitution instead "leaves to
the several States a residuary and inviolable sovereignty," The
Federalist No. 39, reserved explicitly to the States by the Tenth
Amendment.
The holding in New York, that Congress may not ``commandeer''
state
regulatory processes by ordering states to enact or administer a
federal regulatory program, applied a limitation on congressional
power previously recognized.
This perspective of Federalism retains characteristics also known as
trias politica. The model was first developed in ancient Greece and came
into widespread use by the Roman republic. In this model of government,
the state is divided into branches or estates. Each
estate has separate and independent powers and areas of
responsibility. The normal division of estates is into an executive,
legislative and judiciary.Proponents of separation of powers believe that
it protects liberty and democracy and avoids tyranny. Critics of
separation of powers question whether it indeed does protect liberty, and
historically point out that model of government that it may slows down the
process.
The founding fathers of the United States, in order to quell concerns
about a centralized federal government imposing tyranny, incorporated the
characteristics of trias politicia with the States and Commonwealths with
a dual set of constitutional officers. The
expressed and enumerated rights of the Federal government , and each of
its branches, their authority and limitations were present in the
Constitution recently ratified by the States. The Federal government
would remain as it was composed and without amendment but for the “ The
Bill of Rights as “ rights of the people” and thereafter, “the remainder
the rights the States”.
So upon the States came “reserved rights”. These have generally
been
in public safety, health and welfare of people, and other sovereign
rights. However, the rights of the States are limited by the Tenth
Amendment itself.: “nor prohibited by it to the States, are reserved to
the States respectively, or to the people.
One prohibition exists in the 1982 amendment to the Voter Rights
amendment provided:
Section 1973aa provides: Application of prohibition to other
States;
"test or device" defined
(a) No citizen shall be denied, because of his failure to comply
with any test or device, the right to vote in any Federal, State, or local
election conducted in any State or political subdivision of a State.
(b) As used in this section, the term "test or device" means any
requirement that a person as a prerequisite for voting or
registration for voting (1) demonstrate the ability to read, write,
understand, or interpret any matter, (2) demonstrate any educational
achievement or his knowledge of any particular subject, (3) possess good
moral character, or (4) prove his qualifications by the voucher of
registered voters or members of any other class.
Title 42, Section 1973 (h) provides: Congressional finding and
declaration of policy against enforced payment of poll taxes as a device
to impair voting rights.
The Congre |
