Supplemental Brief — Brown v. Apodaca

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In the Supreme Court of the United States _

Ss PAREN TERM, 197........ :

No. A-1096

TERRY BROWN, ARLENE CIRELLI, PATRICK

O’HEARN, and BOB YOUNG.

Petitioners.

vs.

NEW MEXICO ez rel. A. L. HAPPY APODACA, A. L. |

HAPPY APODACA, DAVID L. NORVELL, Attorney Gen- |

eral of the State of New Mexico, and BETTY FIORINA,

Secretary of the State of New Mexico,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW MEXxXIco

SUPPLEMENTAL BRIEF FOR RESPONDENTS

IN OPPOSITION

JAMES R. TOULOUSE

JAMES R. TouLousE & ASSOCIATES, P.A.

Attorneys for Respondents

6001 Marble Avenue, N.E.

Albuquerque. New Mexico 87110

F. L. Menpenwdart, Inc... 996 Cherry street, Kansas Civ. Me 64108, 491-8070

oo Re TT SE SS Pe ear ee

Opinion Below .......................

CG ia a ce or,

Questions Presented ..........

Statutory Provisions Involved ...................

we wen bo &

Statement of the Case -..0000..

Argument—

I. Has the Repeal of Section 3-8-26, N.M.S.A. 1953,

and the Subsequent Enactment of a New Section

3-8-26, N.M.S.A. 1953, by the New Mexico Legis-

lature Rendéred This Case Moot -20000000.. 2... 3

Rea ee 10

Appendix—Statutes Involved ..... ; Al

Table of Authorities

CASES

Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7

i bh. ERR Ree eee |

Brockington v. Rhodes, 396 U.S. 45 (1969) 00.2020... 8

Brown v. New Mexico ex rel. Apodaca, No. A-1096 ... 5

Bullock v. Carter, 40 U.S.L.W. 4211 (U.S. Sup. Ct.

February 24, 1972) .................... 5, 6

Carpenter v. Wabash R. Co., 309 U.S. 23, 26-27, 60 S.Ct.

416, 417-418, 84 L.Ed. 558 7

Fidelity & Deposit Company of Maryland v. Tafoya,

270 U.S. 426 (1926) . 9

Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960,

ee re acorn vee pcicpeciabe dca 7

Hall v. Beals, 396 U.S. 45 (1969) un... eeeeceeeeeeceeeee 7,9

Pee an mal

¢ ORR TS itp ete

Beever —

Pe

II

Hines v. Davidowitz, 312 U.S. 52, 60, 61 S.Ct. 399, 400,

85 L.Ed. 581 : 7

Local No. 8-6 Oil, Chemical & Atomic Workers Inter-

national Union, AFL-CIO, et al. v. Missour?, 361 U.S.

363, 80 S.Ct. 391, 4 L.Ed.2d 3738 ........-.--------seescsseceseseeeeetees 3-4

Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40

L.Ed. 293 .. 3,7

Moore v. Ogilive, 394 U.S. 814 (1969) ~ |

Norvell v. New Mexico ex rel. Apodaca, No. A-1097 ........ 5

Thorpe v. Housing Authority, 393 U.S. 268, 281-282, 89

S.Ct. 518, 526, 21 L.Ed.2d 474 7

United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924,

926, 4 L.Ed.2d 982 ... 7

United States v. Schooner Peggy, 1 Cranch. 103, 110,

eo "BRS aeeemeennonn dere

Watts v. Seward School Board, 381 U.S. 41 (1965) ........ 8

STATE STATUTES

New Mexico Statutes Annotated—

Section 3-8-26 (Repealed by Laws 1973, Chapter

NF aariicsicescicsncrecmnccnssicivereteniensinicestinns 2,3, 4,5

New Mexico Statutes Annotated—

Section 3-8-26 (Laws 1973, Chapter 228, Section

BU ssc pisadaacteeastpmaeasnbvaiatereeaaiiasmansinhalcacipsannitiih 2,4

New Mexico Statutes Annotated—

Section 3-8-26.1 (Laws 1973, Chapter 228, Section

| ESI ANE eae Bev OA

OTHER AUTHORITIES

Article IV, Section 33 of New Mexico Constitution ........ 9

Note, Mootness on Appeal in the Supreme Court, 83

Harv. L. Rev. 1672 (1970) .......... . 4,9

In the Supreme Court of the United States

No. A-1096

TERRY BROWN, ARLENE CIRELLI, PATRICK

O’HEARN, and BOB YOUNG,

Petitioners,

vs.

NEW MEXICO ez rel. A. L. HAPPY APODACA, A. L.

HAPPY APODACA, DAVID L. NORVELL, Attorney Gen-

eral of the State of New Mexico, and BETTY FIORINA,

Secretary of the State of New Mexico,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW MEXICco

SUPPLEMENTAL BRIEF FOR RESPONDENTS

IN OPPOSITION

OPINION BELOW

The opinion below is adequately discussed in Respond-

ent’s Brief in Opposition.

to

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

QUESTIONS PRESENTED

(1) Has the repeal of Sect. 3-8-26, N.M.S.A. 1953,

and the subsequent enactment of a new Sect. 3-8-26,

N.M.S.A. 1953, by the New Mexico Legislature rendered

this case moot.

STATUTORY PROVISIONS INVOLVED

(1) Sect. 3-8-26, N.M.S.A. 1953 (Repealed by Laws

1973, Chapter 228, Section 11), Primary Election Law—

Filing Fees.

(2) Sect, 3-8-26, N.M.S.A. 1953 (Laws 1973, Chap-

ter 228, Section 11), Primary Election Law—Filing Fees.

(3) Sect. 3-8-26.1, N.M.S.A. 1953 (Laws 1973, Chap-

ter 228, Section 12), Primary Election Law—Pauper’s

Statement in Lieu of Filing Fee.

A copy of each is set out in full in Appendix A.

STATEMENT OF THE CASE

The statement of the case is adequately discussed

in the Petition and in the Brief for Respondents in oppo-

sition.

Se PR RR ee OE

ARGUMENT

I

Has the Repeal of Section 3-8-26, N.M.S.A. 1953, and

the Subsequent Enactment of a New Section 3-8-26,

N.M.S.A. 1953, by the New Mexico Legislature Ren-

dered This Case Moot.

Petitioners herein sought to intervene in an original

mandamus proceeding brought in the New Mexico Supreme

Court to compel the Secretary of State of New Mexico to

certify only the names of persons who paid the filing fees

prescribed by Sect. 3-8-26(A), N.M.S.A. 1953 (Repl. Vol. 1,

1970) as candidates in the primary election scheduled to

be heid June 6, 1972, or alternatively, to certify only those

who would tender such fees within such time and under

such conditions as the New Mexico Supreme Court should

prescribe (Brief for Resp. in Opp. App. B). Petitioner’s

motion for intervention was denied and they sought their

relief in this Court. Since tue filing of their Petition for

Writ of Certiorari the New Mexico Legislature has repealed

the statutes in question and enacted new statutes in their

place. It is respondent's position that this subsequent ac-

tion by the New Mexico Legislature has rendered moot

petitioner’s claims.

It has been said that the duties of this Court:

* * * is to decide actual controversies by a judgment

which can be carried into effect, and not to give opin-

ions upon moot questions or abstract propositions, or

to declare principles or rules of law which cannot af-

fect the matter in issue in the case before it. Mills v.

Green, 159 U.S. 651, 653, 40 L.Ed. 293, 294, 16 S.Ct.

132. See also Local No. 8-6 Oil, Chemical & Atomic

OIE IAPR PFN

sevacsoes

EERE PITT ELIT MEIN TT

4

Workers International Union. AFL-CIO, et al. v. Mis-

sourt, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373.

Just when review by this Court is appropriate and

when it is inappropriate is not particularly clear and has

been the subject of continual litigation. Such litigation

has raised many questions and, on occasion, criticisms,

Note, Mootness on Appeal in the Supreme Court, 83 Harv.

L. Rev. 1672 (1970), however, it is suggested that if peti-

tioner’s original contentions are considered in connection

with the recent change of Sect. 3-8-26, supra, it is obvious

that the case is moot by any standard.

A cause of action can be rendered moot in any one

of several different ways. In the instant case we are

faced with a subsequent change of law which, it is con-

tended, negates further prosecution of the matter in this

Court.

When the intervening and possibly mooting event is

a change of law subsequent to the filing of the case, but

prior to determination, it is necessary that the Court under-

take an inquiry to ascertain the consequences of such

change of law. Such inquiry must entail an examination

of the points of contention and the newly enacted law to

determine whether the issues presented by the original

litigation are still present. In other words, is the prin-

ciple contended by the challenging party satisfied by the

new law?

Speaking somewhat in generalities it can be said that

petitioners were seeking a forum in which to challenge

New Mexico's filing fee requirement. Under this statute,

before a person’s name could be placed on the primary

election ballot it was necessary that certain filing fees be

paid to the Secretary of State.

5

Both petitioners herein and appellant Norvell in the

companion case to this, Norvell v. New Mexico ex rel.

Apodaca, No. A-1097, argue that the previous system set

forth in Sect. 3-8-26, N.M.S.A. 1953 (Repealed by Laws

1973, Chapter 228, Section 11), was in contravention of

the equal protection doctrines governing filing fees as

announced in Bullock v. Carter, 40 U.S.L.W. 4211 (US. Sup.

Ct. February 24, 1972).

In the argument challenging the constitutionality of

the New Mexico filing fee statute, an argument utilized in

both Brown v. New Mezico ex rel. Apodaca, No. A-1096 and

Norvell v. New Mexico ex rel. Apodaca, No. A-1097, it is

first argued that the standard applied by the New Mexico

Supreme Court, that of “the legislative duty to protect the

purity of elections and guard against abuses of the elective

franchise” was improper. In support of such contenticn

the following was quoted from Bullock v. Carter, supra:

because the Texas filing fee scheme has a real and

appreciable impact on the exercise of the franchise. and

because this impact is related to the resources of the

voters supporting a particular candidate, we conclude

. . . that the laws must be “closely scrutinized” and

found reasonably necessary to the accomplishment of

legitimate state objectives in order to pass constitu-

tional muster. 40 U.S.L.W. at 4214.

Secondly, it was argued that the reason given by the New

Mexico Supreme Court as justification for such filing fee,

that of keeping non-serious candidates off the ballot. was

insufficient. In support of this contention Bullock vy.

Carter, supra, was again relied upon. Both appellant and

petitioner, in their respective briefs, admitted that this

Court in Bullock condoned such as legitimate concern and

perhaps a legislative duty, but they tempered such conces-

sion by the following language from that case:

a)

to say that the filing fee requirement tends to limit

the ballot to the more serious candidates is not enough.

There may well be some rational relationship between

a candidate’s willingness to pay a filing fee and the

seriousness with which he takes his candidacy, but the

candidates in this case affirmatively alleged that they

were unable not simply unwilling. to pay the assessed

fees and there was no contrary evidence... And even

assuming that every person paying the large fees re-

quired by Texas takes his own candidacy seriously,

that does not make him a “serious candidate” in the

popular sense. If the Texas fee rquirement is intended

to regulate the ballot by weeding out spurious candi-

dates, it is extraordinarily ill-fitted to that goal; other

means to protect those valid interests are available.

40 U.S.L.W. at 4215 (footnotes omitted).

Considering such arguments in light of the newly en-

acted legislation replacing the repealed filing fee require-

ment, it can be only concluded that any such claims or

contentions have been alleviated. Under the new law

which requires only the filing of fifty dollars ($50.00) in

declaring candidacy of any office, and further provides for

a pauper’s statement in lieu of the fifty dollar éijng fee,

it can no longer be argued that filing fees restrict the exer-

cise of the franchise through a classification based upon

wealth. Even this Court recognized in Bullock v. Carter,

supra. that a “reasonable” candidate fee is acceptable and

it certainly can be argued that the sum now prescribed by

statute is reasonable. Further, it can be argued that this

fiftv dollars ($50.00) constitutes a source of funds to cover

the cost of filing and is, therefore, “reasonably necessary

to the accomplishment of legitimate state objectives .. .”

40 U.S.L.W. at 4214.

Respondent’s request is not without precedent. This

Court on many occasions has rendered moot pending mat-

7

ters where there was an intervening change of law. In

Hall v. Beals, 396 U.S. 45 (1969), appellants, who had

moved to Colorado from California, sought to vote in the

1968 Presidential Elections but were denied such privilege

based on the Colorado residency requirement of six (6)

months. Appellants instituted a class action to enjoin en-

forcement and operations of the Colorado statute, but that

action was dismissed by the Three-judge District Court.

Direct appeal to this Court was taken. In a per curiam

opinion this Court observed:

The 1963 election is history, and it is now impos-

sible to grant the appellants the relief they sought in

the District Court. Further, the appellants have now

satisfied the six-month residency requirement of which

they complained. But apart from these considerations,

the recent amendatory action of the Colorado Legis-

lature has surely operated to render this case moot.

We review the judgment below in light of the Colo-

rado statute as it now stands, not as it once did. T horpe

v. Housing Authority, 393 U.S. 268, 281-282, 89 S.Ct.

518, 526, 21 L.Ed.2d 474; United States v. Alabama,

362 U.S. 602, 604, 80 S.Ct. 924, 926, 4 L.Ed.2d 982; Hines

v. Davidowitz, 312 U.S. 52, 60, 61 S.Ct. 399, 400, 85

L.Ed. 581; Carpenter v. Wabash R. Co., 309 U.S. 23,

26-27, 60 S.Ct. 416, 417-418, 84 L.Ed. 558; United States

v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49. And

under the statute as currently written, the appellants

could have voted in the 1968 presidential election.

The case has therefore lost its character as a present,

live controversy of the kind that must exist if we are

to avoid advisory opinions on abstract propositions of

law. Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct.

956, 960, 22 L.Ed.2d 113; Baker v. Carr, 369 U.S. 186, 204,

82 S.Ct. 691, 703, 7 L.Ed.2d 663; Mills v. Green, 159 U.S.

651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293.

8

The Court emphasized that:

So far as they are concerned nothing in the Colorado

legislative scheme as (thus) written adversely (af-

fected) either their present interests, or their interests

at the time this litigation was commenced.

In rendering this decision this Court recognized that ap-

pellants therein could have foreseeably taken up resi-

dence in some other state and face disqualification under

that state's law, or, for that matter, that they could return

and re-establish their residence in Colorado within the

two month requirement. Nonetheless, the majority re-

fused to yield to “such speculative contingencies”.

In Watts v. Seward School Board, 381 U.S. 41 (1965),

two teachers who were dismissed on grounds of “im-

morality”, as defined by state statute, petitioned for writ

of certiorari to this Court. Subsequent to the filing of the

case the Alaska legislature amended its statutes in this

area. In light of this intervening action this Court dis-

missed the Alaska Supreme Court decision affirming the

dismissal of the teachers and remanded it for considera-

tions under the amended statutes. The Court observed:

This Court has held that supervening changes in

state law that may be relevant to the disposition of a

case may require that the cause be remanded for ap-

propriate action by state court.

There have, of course, been cases where such super-

vening events have been held not to render moot a case

pending in this Court. For instance, in Brockington v.

Rhodes, 396 U.S. 45 (1969), in which Ohio’s election re-

quirement of a petition signed by 7° of the qualified

voters of district was challenged, this Court refused to dis-

miss the cause based on mootness in spite of the interven-

ing action by that state’s legislature changing the petition

9

requirement from 7% to 4%. The Court held that the

legislative enactment did not render the case moot since

petitioners had consistently argued that the requirement

in excess of 1‘¢ was unconstitutional. However, the Court

did hold the matter was moot since the congressional elec-

tion was over and since “appellant did not allege that he

intended to run for office in any future elections.” Fur-

ther, the action was not a class action giving rise to pos-

sibility of other future candidates.

A similar result evolved from Moore vy. Ogilive, 394

U.S. 814 (1969), also involving signature requirement on

petitions. In that case the Court reasoned that the burden

remained for future elections and was therefore not moot.

As has already been discussed, the New Mexico filing

fee requirement “as currently written” no longer “ad-

versely affects either their present interests, or their in-

terests at the time this litigation was commenced.” Nor

is this case susceptible to the same criticism the Hall v.

Beals decision has been subjected to, 83 Harv. L. Rev.

1672, that of being “capable of repetition, yet evading re-

view.” Further, in the case at bar none of the parties

have any filing fees which are being held pending the out-

come of this matter.

Before concluding, mention must be made of a pro-

vision in the New Mexico Constitution. Article IV, Sect.

33 of the New Mexico Constitution provides that, “No act

of the legislature shall affect the right or remedy of either

party, or change the rules of evidence or procedure, in any

pending case.” In Fidelity & Deposit Company of Mary-

land v. Tafoya, 270 U.S. 426 (1926), a case involving the

license of a foreign corporation to do business in New

Mexico, this Court declined to dismiss the matter in spite

of the intervening repeal of the statute in question. The

Court observed that because of the above quoted pro-

Beverrvre weer ie

10

vision in the New Mexico Constitution it was “at least

possible that the state courts might hold that the plain-

tiff was still liable to lose its license ...”. In the case at

bar no such problem exists. The election is over, the par-

ties have no monies being held by the state, and their only

purpose was to attack the filing fee requirement. As a

consequence, they have no interests which can be jeopard-

ized by the operation of this provision.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this cause be dismissed.

JAMES R. Toulouse & AssociaTEs, P.A.

Attorneys for Respondents

6001 Marble Avenue, N.E.

Albuquerque, New Mexico 87110

By JAMES R. TOULOUSE

Al

3-8-26. Primary Election Law—Filing fees—The

filing fee for each of the following offices is:

A. All officers receiving salary

sscusiesehumssenpennenaneianioss 6“< of the first year’s salary

Lieutenant gOVermOr .............:..:-csscceceeeeeeeeeeees $400.00

Member of the legislature ......................-.-- 50.00

Member of the state board of education .... 50.00

CR I sicciccccccesccenicascsmeniorintrennrien 20.00

Ao aw

A2

STATE OF NEW MEXICO

office of

THE SECRETARY OF STATE

Certificate

I, Betty Fiorina, Secretary of State of the State of

New Mexico, do hereby certify that the attached is a true

and correct copy of the Enrolled and Engrossed HOUSE

FLOOR SUBSTITUTE FOR HOUSE PRIVILEGES AND

ELECTIONS COMMITTEE SUBSTITUTE FOR HOUSE

BILL NUMBER 338, AS AMENDED and signed by the

Honorable Bruce King, Governor on March 29, 1973 now

being Laws 1973, Chapter 228.

Given under my hand and the Great Seal of the State

of New Mexico, in the City of Santa Fe, the Capital on this

2nd day of April, A.D. 1973.

/s/ Betty Fiorina

Secretary of State

(Great Seal of the

State of New Mexico 1912)

A3

The Legislature

of the

STATE OF NEW MEXICO

31st Legislature, lst Session

LAWS 1973

CHAPTER 228

HOUSE FLOOR SUBSTITUTE FOR HOUSE PRIVI-

LEGES AND ELECTIONS COMMITTEE SUBSTITUTE

FOR HOUSE BILL No. 383, AS AMENDED, EMER-

GENCY CLAUSE

Introduced by

(Great Seal of the

State of New Mexico 1912)

CHAPTER 228

AN ACT

RELATING TO THE ELECTION CODE; PROVIDING

FOR CANDIDACY IN PRIMARY ELECTIONS; DECLAR-

ING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE

STATE OF NEW MEXICO:

Section 1. Section 3-8-17 NMSA 1953 (being Laws

1969, Chapter 240, Section 167) is amended to read:

“3-8-17. PRIMARY ELECTION LAW—WHO MAY

BECOME A CANDIDATE.—

A. No person who has changed his party affiliation

subsequent to the governor’s proclamation for the pri-

HFS/HPECS/HB 383

Approved March 29, 1973

A4

mary election shall become a candidate for nomination for

any office at such primary election.

B. No person shall become a candidate for nomination

by a political party unless his record of registration shows

his affiliation with that political party on the date which

he files his declaration of candidacy for the primary elec-

tion.”

Section 2. Section 3-8-19 NMSA 1953 (being Laws

1969, Chapter 240, Section 169) is repealed and a new Sec-

tion 3-8-19 NMSA 1953 is enacted to read:

*3-8-19. PRIMARY ELECTION LAW—METHOD OF

PLACING NAMES ON PRIMARY BALLOT.—

A. All candidates for nominations to be made at any

primary election for the office of United States representa-

tive, for any office voted upon by all the voters of the

state, for a member of the legislature, district judge, dis-

trict attorney, state board of education or magistrate shall

have their names placed on the primary election ballot by

filing a declaration of candidacy and a nominating peti-

tion as prescribed by the Primary Election Law.

B. All other candidates for nominations to be made

at any primary election shall have their names placed

on the primary election ballot by filing a declaration of

candidacy and paying the filing fee prescribed by law

or by filing a declaration of candidacy and filing a pauper’s

statement of inability to pay the prescribed filing fee.”

Section 3. Section 3-8-24 NMSA 1953 (being Laws

1969, Chapter 240, Section 174) is repealed and a new

Section 3-8-24 NMSA 1953 is enacted to read:

“3-8-24. PRIMARY ELECTION LAW—DECLARA-

TION OF CANDIDACY—SWORN STATEMENT OF IN-

TENT—FORM.—In making a declaration of candidacy the

A5

candidate shall submit a sworn statement of intent in sub-

stantially the following form:

“DECLARATION OF CANDIDACY—STATEMENT

OF INTENT

ORR = i ONE aN , (candidate’s name on affidavit

of registration) being first duly sworn, say that I am

a qualified elector of precinct No. ........ of the county

OE cceiicotiedbatentes , State of New Mexico;

I am a member of the ..................... party as shown

by my affidavit of registration and I have not changed

such party affiliation subsequent to the Governor’s

proclamation calling the primary in which I seek to

be a candidate;

I desire to become a candidate for the office of

Seik Ceeaeieta de at the primary election to be held on

the date set by law for this year, and if the office be

that of a member of the legislature, that I actually

reside within the legislative district for which I de-

clare my candidacy;

I will be eligible and legally qualified to hold

this office at the beginning of its term;

If a candidate for any office for which a nominat-

ing petition is required, I am submitting with this

statement a nominating petition in the form and man-

ner as prescribed by the Primary Election Law; and

I make the foregoing affidavit under oath, know-

ing that any false statement herein constitutes a

felony punishable under the criminal laws of New

Mexico.

(Declarant)

(Mailing Address)

Pe ee Pech al folie

Boirrecpees

A6

(Notary Public)

My commission expires:

9 99

.

Section 4. A new Section 3-8-24.1 NMSA 1953 is en-

acted to read:

“3-8-24.1. PRIMARY ELECTION LAW—DECLARA-

TION OF CANDIDACY--NOMINATING PETITION—

FILING AND FORM.—

A. As used in the Primary Election Law, “nominat-

ting petition” means the form or forms used for obtaining

the required number of signatures of registered voters

which is signed on behalf of the person wishing to become

a candidate for a political office in the primary election

requiring a nominating petition.

B. In making a declaration of candidacy, the candi-

date at the same time shall file a nominating petition which

shall be on forms prescribed by law.

C. The nominating petition shall be on paper eight

and one-half inches wide and fourteen inches long with

twenty-five lines spaced three-eighth of an inch apart and

numbered from one to twenty-five and in the following

form:

“NOMINATING PETITION

I, the undersigned, a registered voter of the county

of , New Mexico, and a member of the

ER SR EP, party, hereby nominate — 2.002.

who resides at in the county of

A7

saucbaninctabeametcahice New Mexico, for the party nomination

for the office of 0.00000... , to be voted for at the

primary election to be held on the first Tuesday of

June this year, and I declare that I have not signed,

and will not sign, any nominating petition for more

persons than the number of candidates necessary to

fill such office at the next ensuing general election.

tele sldaa lead eenitaa aenteactiiesmncnseecoionin-oneks Nesadsisisnn

(signature) (name printed) (Pct. No.)

(address, city)

Nae SRNR ERASER REL ee Oe ee ee

(signature ) (name printed) (Pct. No.)

(address, city)

a re?

D. When more than one sheet is required for a pe-

tition, each of the sheets shall be in the form prescribed by

this section and all sheets shall be firmly secured in the

upper left-hand corner by a staple or other suitable fasten-

ing.”

Section 5. A new Section 3-8-24.2 NMSA 1953 is en-

acted to read:

“3-8-24.2, PRIMARY ELECTION LAW—DECLARA-

TION OF CANDIDACY—NOMINATING PETITION—

SIGNING AND CERTIFICATION.—

A. Each signer of a nominating petition shall sign

but one petition for the same office unless more than one

candidate is to be elected to such office, and in that case

not more than the number of nominating petitions equal to

the number of candidates to be elected to the office shall

be signed.

B. A signature shall be counted on a nominating

petition unless:

Beenie .

A8&

(1) the signature is not upon the form prescribed by

the Primary Election Law;

(2) there is evidence presented that the person sign-

ing is not a registered voter of the state, district, county

or area to be represented by the office for which the per-

son being nominated is a candidate;

(3) there is evidence presented that the person sign-

ing has signed more than one petition for the same office

or has signed one petition more than once except as pro-

vided in Subsection A of this section;

(4) there is evidence presented that the person sign-

ing is not of the same political party as the candidate named

in the nominating petition as shown by the signer’s affi-

davit of registration; or

(5) there is evidence presented that the person sign-

ing is not the person whose name appears on the nominating

petition.”

Section 6. A new Section 3-8-24.3 NMSA 1953 is en-

acted to read:

*3-8-24.3. PRIMARY ELECTION LAW—NOM-

INATING PETITION—FALSIFYING.—Any person who

knowingly falsifies any information on a nominating pe-

tition is guilty of falsifying an election document.”

Section 7. A new Section 3-8-24.4 NMSA 1953 is en-

acted to read:

**3-8-24.4. PRIMARY ELECTION LAW—NOM-

INATING PETITION—NUMBER OF SIGNATURES RE-

QUIRED.—

A. The basis of percentage for the votes of the party

in each instance referred to in this section shall be the

total vote for the party’s candidates for governor at the

A9

last preceding primary election at which the party’s candi-

date for governor was nominated.

B. Nominating petitions for a candidate for United

States senator or any state-wide elective office shall be

signed by a number of voters equal to at least one percent

of the votes of the party of the candidate in each of at

least ten counties in the state and not less than three per-

cent of the total vote of his party in the state.

C. Nominating petitions for a candidate for United

States representative shall be signed by a number of voters

equal to at least one percent of the votes of the party of

the candidate in each of at least five counties of the con-

gressional district, and not less than three percent of the

total vote of his party in the congressional district.

D. Nominating petitions for a candidate for member

of the legislature, district judge, district attorney, state

board of education or magistrate shall be signed by a

number of voters equal to at least three percent of the

total vote of his party in the district or division as the

case may be.”

Section 8. A new Section 3-8-24.5 NMSA 1953 is en-

acted to read:

“3-8-24.5. PRIMARY ELECTION LAW—NOM-

INATING PETITION—WITHDRAWALS AND ADDI-

TIONS.—A nominating petition when filed shall not be

withdrawn nor added to, nor shall any person be per-

mitted to revoke his signature thereon.”

Section 9. A new Section 3-8-24.6 NMSA 1953 is en-

acted to read:

“3-8-24.6. PRIMARY ELECTION LAW—NOMINAT-

ING PETITION—LIMITATION ON APPEALS OF VA-

LIDITY OF NOMINATING PETITIONS.—

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A. Any voter filing any court action challenging .

nominating petition provided for in the Primary Election

Law shall do so within ten days after the last day for

filing declaration of candidacy. Within ten days after the

filing of the action, the district court shall hear and render

a decision on the matter. Such decision shall be appeal-

able 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 nom-

inating 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. Im-

mediately upon receipt of process served upon the proper

filing officer, such officer shall, by certified mail, return

receipt requested, mail the process to the person.”

Section 10. A new Section 3-8-24.7 NMSA 1953 is

enacted to read:

“3-8-24.7. PRIMARY ELECTION LAW—WRITE-IN

CANDIDATES.—

A. A write-in vote in the primary election for the

office of United States representative in congress, an office

voted upon by all the voters of the state, for a member of

the legislature, district judge, district attorney, state board

of education or magistrate shall be counted and canvassed

as if the name written in was printed on the ballot, pro-

vided:

(1) the person whose name has been written in has

filed a declaration of intent to be a write-in candidate pur-

suant to this section;

All

(2) the person is qualified to be a candidate in the

primary election for the political party for which he is a

write-in candidate; and

(3) the name of the write-in candidate is written in

the slot provided on the voting machine or on the blank

line provided on the paper ballot for the designated office.

B. A person desiring to be a write-in candidate on

the primary election ballot of the political party of his

registration shall file with the proper filing officer a

declaration of intent to be a write-in candidate. Such

declaration of intent shall be filed before 5:00 p.m. on the

twenty-second day preceding the primary election at which

such candidacy is to be considered.

C. The secretary of state shall prescribe the form of

the declaration of intent to be a write-in candidate.

D. As used in this section, “write-in” does not in-

clude the imprinting of any name by rubber stamp or

similar device, or the use of preprinted stickers or labels.”

Section 11. Section 3-8-26 NMSA 1953 (being Laws

1969, Chapter 240, Section 176) is repealed and a new

Section 3-8-26 NMSA 1953 is enacted to read:

“3-8-26. PRIMARY ELECTION LAW—FILING FEE.

—The filing fee for any office for which a filing fee is

required to be paid at the time of filing a declaration of

candidacy shall be fifty dollars ($50.00).”

Section 12. A new Section 3-8-26.1 NMSA i953 is en-

acted to read:

“3-8-26.1. PRIMARY ELECTION LAW—PAUPER’S

STATEMENT IN LIEU OF FILING FEE.—In the event

any candidate is unable to pay the filing fee prescribed by

the Primary Election Law he may file a statement with

the proper filing officer at the time he files his declaration

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of candidacy to the effect that he is without financial

means to pay such filing fee. The statement shall be

sworn and subscribed to on the form prescribed by the

secretary of state and furnished to each county clerk and

shall be attached by the proper filing officer to the decla-

ration of candidacy.”

Section 13. EMERGENCY.—It is necessary for the

public peace, health and safety that this act take effect

immediately.

/s/ Walter K. Martinez, Speaker

House of Representatives

/s/ Albert Romero, Chief Clerk

House of Representatives

/s/ Robert A. Mondragon, President

Senate

/s/ Juanita Pino, Chief Clerk

Senate

Approved by me this 29th day of March, 1973.

/s/ Bruce King, Governor

State of New Mexico