New Mexico Supreme Court

New Mexico Supreme Court building in Santa Fe.

Women were not allowed to vote in most elections. People with intellectual disabilities were formally known as “idiots.”

Much has changed since New Mexico became a state, but discriminatory language from its old election laws has survived.

On Wednesday, however, the state Supreme Court ruled 5-0 that two constitutional amendments intended to update the state election code will finally take effect, years after they were approved by New Mexico voters. The justices rejected a state agency’s claim that ballot questions from 2010 and 2014 needed 75 percent approval, finding that a simple majority sufficed.

As a result, school districts no longer are prohibited from holding elections at the same time as other nonpartisan elections for offices such as mayor and city councilor. The other amendment, meanwhile, replaces laws banning “idiots” and “insane persons” from voting and ensures convicted felons’ right to vote after they have completed their sentences.

Advocates for voting rights, people with disabilities and criminal justice reformers cheered the decision as potentially boosting election turnout while replacing discriminatory language in outdated laws.

“There should be no remnants of the restrictions and barriers that pervaded the state a century ago,” said Sen. Daniel Ivey-Soto, D-Albuquerque, the lawyer representing the League of Women Voters, which brought the case to the New Mexico Supreme Court.

The 2010 amendment replaces a section of the state constitution concerning the qualifications for voting, which included a ban on “idiots,” “insane persons” and anyone convicted of felonious or “infamous” crimes from casting ballots.

The outdated terms could be construed as stripping voting rights from New Mexicans with intellectual disabilities.

And in an amicus brief filed with the state Supreme Court, Disability Rights New Mexico described the terms as “offensive, stigmatizing and archaic.”

“The antiquated and pejorative language … improperly restricts the voting rights of many New Mexicans and particularly discriminates against individuals with mental illnesses or developmental disabilities,” Tim Gardner and Alice Liu Cook wrote in the brief.

The updated rules instead prohibit only those considered mentally incompetent from voting if they cannot mark their ballot or communicate their choice. The new provision also enshrines in the state constitution the right of felons to register as voters after completing their sentences, which they are allowed to do under state statute.

“Having the right to vote is about rehabilitation,” Emily Kaltenbach, state director for the Drug Policy Alliance, told reporters after Wednesday’s decision. “It’s about reducing recidivism, it’s about making a person whole again, it’s making them part of their community”

The other amendment, approved by voters in 2014, ends a ban on holding school elections at the same time as other nonpartisan elections. The rule dated back to 1910. A constitution adopted that year limited voting to men but allowed women the right to cast ballots in school elections.

Advocates for reforming the law argue it is a holdover from century-old efforts to keep women out of politics. Though the U.S. Constitution was amended to recognize a woman’s right to vote in 1920, the provision on timing of school elections survived.

New Mexico courts determined that provision was not an expressly discriminatory rule and suggested that it might help keep partisan politics out of school governance.

Reformers argue the requirement perpetuated low turnout in school elections.

The nonpartisan organization Common Cause noted in an amicus brief that 15 percent of registered voters in Santa Fe turned out to vote in the 2016 City Council election, but only 5.2 percent participated in a school board election the previous year.

Lawmakers have tried repeatedly in recent years to combine school elections with municipal or other nonpartisan elections, putting a similar amendment before voters in 2008. The measure passed with nearly 75 percent of the vote.

Officials at the time thought the constitution required a supermajority of voters, three-fourths, to change sections concerning elections if the changes would restrict the rights of voters. But the constitution does not specify who is responsible for deciding which changes are restrictive.

The New Mexico Compilation Commission, the government body responsible for publishing the state’s laws, viewed the 2010 and 2014 amendments as requiring a “super majority.”

The League of Women Voters of New Mexico asked a judge order the commission’s advisory board to publish the amendments, arguing the amendments passed with a simple majority because the changes did not restrict the rights of voters.

The advisory board, represented by the New Mexico Attorney General’s Office, argued it is not responsible for interpreting the constitution and declaring which amendments passed.

“The Compilation Commission and the advisory committee are not in a position — and shouldn’t be in a position — to weigh in on candidacies, to weigh in on amendments,” Assistant Attorney General Ari Biernoff told the state Supreme Court during oral arguments in the case Wednesday.

Biernoff suggested the canvassing board — a group tasked by the constitution with certifying election results — is responsible for deciding which amendments require the approval of three-fourths of voters.

The court’s members rejected that argument Wednesday, however, with Justice Edward Chavez suggesting the commission must have reached its own decision if it did not publish the 2010 and 2014 amendments as part of the constitution.

The question of who is responsible for deciding which candidates win or which ballot amendments truly passed did not seem to matter to the court after nearly an hour of deliberations.

The court took on the role itself, ruling the amendments did not require three-fourths approval and became part of the constitution when backed by a simple majority of voters.

“Whether it was ever compiled in the books, each passed,” Chief Justice Charles Daniels said.

The court will direct the Compilation Commission to publish the new amendments and will issue a written decision untangling the section of the state’s election law concerning the “supermajority” requirement.

Legislators must still change state statute to permit scheduling of school elections at the same time as nonpartisan elections for offices such as city councils, community college boards and water districts. The move could reduce the cost of elections while also drawing more voter participation.

Meredith Machen, president of the League of Women Voters of New Mexico, said: “The New Mexico Supreme Court’s decision this morning clarifying conflicting sections of the state’s constitution was a victory for voters.”

Contact Andrew Oxford at 505-986-3093 or aoxford@sfnewmexican.com. Follow him on Twitter @andrewboxford.

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