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F I S C A L I M P A C T R E P O R T

SPONSOR Campos, J

ORIGINAL DATE

LAST UPDATED

1/26/08

HB 203

SHORT TITLE Primary Ballot Access for Certain Candidates

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to SB1

Relates to HB190

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Secretary of State (SOS)

SUMMARY

Synopsis of Bill

House Bill 203 provides for a statutory alternative to placing a candidate’s name on the

primary election ballot if a candidate does not receive the “preprimary convention

designation."

The Attorney General’s Office explains that currently a candidate will appear on the primary

election ballot only if he receives a preprimary convention designation (receives 20% support

of the elected delegates). A candidate who fails to receive the preprimary designation may

collect additional signatures. The additional signatures must be from each county. They

shall total at least 2 percent of the total vote received in the county.

For those candidates, who have districts that contain counties that are partially contained

within the district, the additional signatures for those counties shall total 2 percent of the total

vote received in those precincts within that portion of the county. A candidate has twenty

days to collect these signatures (from the close of the preprimary convention).

House Bill 203 – Page

2

SIGNIFICANT ISSUES

According to the Secretary of State, there is a pending lawsuit Don Wiviott v. State of New

Mexico and Mary Herrera, Secretary of State

, D-0101-CV-2008-00022 (1

st

Judicial District) that

alleges that the Legislature’s 2007 decision to delete Section 1-8-33(D) unconstitutionally

abridges a candidate’s access to a primary election ballot. If the Legislature adopts Senate Bill 1,

then the lawsuit may be moot.

The Federal Court for the District of Connecticut has ruled that a similar statute that required a

candidate to receive a preprimary convention designation (15%) was a “severe burden" on ballot

access and turned away viable candidates. See

Campbell v. Bysiewicz I

, 213 F.Supp.2d 152 (D.

Conn. 2002)/ Campbell v. Bysiewicz II,

242 F. Supp. 2d 164 (D. Conn. 2003). The Court struck

down the law and the Connecticut Legislature amended the law to allow a candidate, who did not

receive the 15% designation, to file petitions signatures (equal to 2 percent of the total state-wide

party registration) to be placed on the ballot. See

C.G.S.A. § 9-400 (amended through 2007). In

contrast, the Massachusetts State Supreme Court upheld a two-part system where a candidate had

to: (a) first obtain a certain number of signatures (from registered voters from any party) and (b)

receive 15% of the state convention delegate vote. See

Langone v. Secretary of the

Commonwealth

, 446 N.E. 2d. 43 (Mass. 1983). The Court found that the law was not a “severe

burden" on ballot access because it allowed a political party to re-gain some control over whom

it was nominating as its candidate (i.e. since any registered voter could sign the petitions—

conceivably Democrats could sign petitions for a candidate who was trying to run as a

Republican). (Note, New Mexico requires a person signing a candidate petition to be of the

same political party as the candidate. See

NMSA 1978, Section 1-8-31).

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Senate Bill 1 will allow a candidate to collect additional signatures to total at least four percent

of the total vote of the candidate’s party in the state or congressional district.

OTHER SUBSTANTIVE ISSUES

The Attorney General’s Office expresses concern that there may be an argument that this

solution constitutes an additional “severe" burden on ballot access. For example, is it realistic to

expect a statewide candidate (i.e. governor or commissioner for public lands) in a state that has

the 5

th

largest land mass in the country to be able to collect signatures from 33 counties each

totaling at least 2 percent of the total vote received in those counties in just twenty days. Is a

Democratic Party candidate going to be able to reach that total in Catron County. Is a

Republican Party candidate going to be able to reach that total in Rio Arriba County. Is it

realistic to expect a congressional candidate to be able to collect signatures from multiple

counties each totaling at least 2 percent of the total vote received in the county, as well as at least

2 percent of the total vote received in areas that are partially contained within the district, in just

twenty days.

The Secretary of State notes that House Bill 203 addresses the concerns raised regarding ballot

access after a pre-primary convention. This bill requires all candidates for statewide and federal

office to participate in the pre-primary convention and only permits circumventing the decision

of the convention when the candidate is able to demonstrate organization and support in each

county to be represented. This bill balances competing state and party interests in ballot access

and in appropriate restrictions in such access.

House Bill 203 – Page

3

POSSIBLE QUESTIONS

Senate Bill 1 provides for 4 percent of the total vote of the candidate’s party in the state or

congressional district. Is this actually a higher or lower total when compared to 2 percent of the

total vote within each county.

EO/bb