MAJORITY RULES EXCEPT IN NEW MEXICO: CONSTITUTIONAL AND POLICY CONCERNS RAISED BY NEW MEXICO’S SUPERMAJORITY REQUIREMENT FOR JUDICIAL RETENTION

∗ Sarah Elizabeth SaucedoTP PT

INTRODUCTION ...... 174 I. BRIEF HISTORY AND SURVEY OF JUDICIAL SELECTION IN THE UNITED STATES...... 176 II. JUDICIAL SELECTION REFORM IN NEW MEXICO ...... 179 III. THE NEW MEXICO SUPERMAJORITY REQUIREMENT MAY VIOLATE EQUAL PROTECTION...... 186 A. Prelude to Gordon v. Lance: State Election Systems Should Give Equal Weight to Each Vote Cast B. Gordon v. Lance: Supermajority Rules for Referenda Do Not Violate Equal Protection ...... 191 C. Lefkovits v. State Board of Elections: Gordon in the Context of Judicial Retention...... 199 D. New Mexico Retention Elections Are “Elections of Public Officers” and Not “Referenda” ...... 204 E. Additional Equal Protection Concerns...... 206 IV. THE NEW MEXICO SUPERMAJORITY REQUIREMENT RAISES IMPORTANT POLICY AND POPULAR SOVEREIGNTY ISSUES ...... 213 V. THE NEW MEXICO SUPERMAJORITY REQUIREMENT COMPOUNDS THE PROBLEMS MERIT SELECTION WAS DESIGNED TO ADDRESS ...... 215 A. Retention Margin Impacts Retention Rate...... 216 B. Voter Apathy, Abstention, and Confusion Are Especially Problematic in Judicial Retention Elections ...... 217 C. Judicial Ethics and Campaign Rules Put Judges at a Disadvantage, Particularly in Retention Elections ...... 218 D. Judicial Elections Are Becoming Increasingly Expensive...... 221 E. Retention Elections Are Becoming More Partisan, Especially as Special Interest Groups Enter the Fray ...... 223

∗ TP PT J.D. Candidate, Boston University, 2006. The author would like to thank Justice Patricio M. Serna, New Mexico Supreme Court; Justice Petra Jimenez Maes, New Mexico Supreme Court; former Justice Joseph Baca, New Mexico Supreme Court; former Chief Judge W. John Brennan, Second Judicial District of New Mexico; former Judge Rebecca Sitterly, Second Judicial District of New Mexico; Raymond Sanchez, former Speaker, New Mexico House of Representatives. The author would also like to thank her father, Manuel D.V. Saucedo, former Chief Judge, Sixth Judicial District of New Mexico, who challenged the constitutionality of the New Mexico supermajority requirement. 173

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CONCLUSION...... 225

INTRODUCTION Lawyers, judges, and legal scholars have long debated the ideal method for selecting judges.1 While the federal judiciary is an entirely appointive body, states employ a variety of judicial selection systems, including appointment, election, merit selection, or a hybrid of the three.2 The New Mexico legal community has actively engaged in this debate since shortly after New Mexico became a state in 1912, and, in the past two decades, New Mexico’s judicial selection system has undergone fundamental reforms.3 This Note contends that New Mexico’s supermajority requirement for the retention of state judges raises important federal constitutional questions, including a possible violation of Equal Protection under the Fourteenth Amendment. This Note does not purport nor strive to resolve the question of which judicial selection system is best. Rather, this Note addresses the New Mexico judicial selection system’s potential constitutional infirmities and the array of important policy questions the system raises. These questions are particularly topical, as elections and election rights occupy the forefront of national political consciousness.4 In addition, the legitimacy of supermajority requirements recently entered the public spotlight during debate surrounding the U.S. Senate’s use of the filibuster5 to prevent the

1 See Shirley S. Abrahamson, The Ballot and the Bench, in 76 N.Y.U. L. REV. 973, 973 (2001) (stating that the “fascinating, difficult, and very personal subject” of judicial selection is “now in its fourth century of debate in this country”). 2 See generally American Judicature Society, Judicial Selection in the States, http://www.ajs.org/js/ (last visited Jan. 23, 2006) (compiling comprehensive information on judicial selection processes in each of the fifty states and the District of Columbia, including methods of selecting, retaining, and removing judges; successful and failed reform efforts; the roles of parties, interest groups, and professional organizations in selecting judges; and the diversity of the bench). 3 See infra Part II. 4 Only a few years ago, the United States grappled with the realization that its President was elected by less than a majority of voters and only after protracted legal proceedings. Lingering questions about electoral legitimacy remained even through the 2004 Presidential election. While this Note does not address the issue of President George W. Bush’s 2000 electoral victory nor the merits of the Electoral College, it suggests that questions about electoral legitimacy, in general, and the legitimacy of New Mexico’s now decade-old judicial selection system, in particular, remain ripe. 5 The U.S. Senate’s unlimited debate rule allows for so-called filibusters, which function to delay or block legislative action. A three-fifths supermajority, or sixty Senators, are needed to end a filibuster or invoke cloture, in Senate parlance. See United States Senate, Filibuster and Cloture, http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm (last visited Jan 23, 2006).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 175 approval of federal judicial and other nominees.6 The broad message of this Note is that the constitutionality and legitimacy of supermajority requirements must be determined on a case-by-case basis, analyzing the particular requirement’s historical, political, and legal underpinnings. First, this Note details the historical context of the New Mexico judicial selection system. Part I provides a brief history and survey of judicial selection in the United States. Part II details the history of judicial reform in New Mexico from a purely partisan judicial selection system to the current hybrid merit selection system. These sections draw heavily on recent interviews with the architects of the current system, as well as current and former New Mexico Supreme Court justices and a former Speaker of the New Mexico House of Representatives, which provide important insights for analyzing the system. Against this backdrop, Part III examines relevant Equal Protection principles and arguments. Part III begins with an introduction of the potential Equal Protection problems with the New Mexico supermajority requirement, and examines the principle of one-person, one-vote. Part III then analyzes the seminal case on supermajority rules, Gordon v. Lance, in which the United States Supreme Court found that a West Virginia supermajority requirement for the approval of certain referenda did not violate Equal Protection,7 along with Lefkovits v. State Board of Elections, a federal case applying Gordon to the Illinois supermajority requirement for judicial retention elections, also finding no Equal Protection violation.8 Further, this Part examines important differences between the New Mexico and Illinois supermajority requirements

6 Opponents of the filibuster rule argue that it essentially requires that every legislative act and nominee garner a three-fifths supermajority vote. Debate over the use and constitutionality of the filibuster has been ongoing for years. See Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 446, 449 (2004) (addressing “the basic arguments for and against the constitutionality of the filibuster” and concluding that “the filibuster is best understood as a classic example of a nonreviewable, legislative constitutional judgment”). But see Benjamin Lieber & Patrick Brown, Note, On Supermajorities and the Constitution, 83 GEO. L.J. 2347, 2348 (1995) (“[T]he Filibuster Rule raises many of the same concerns as other [legislative] supermajority voting requirements. Like those rules, it is an unsound legislative policy and rests on shaky constitutional grounds.”). Recently, Republicans have threatened to invoke the “nuclear option” and use Senate procedural rules to prevent filibusters for judicial nominees, thereby eliminating the need for the supermajority cloture vote. Peter Baker & Charles Babington, Are a Nominee’s Views Fair Game?; As High Court Battle Nears, Parties Parse the Senate Filibuster, WASH. POST, July 6, 2005, at A1. However, in May 2005, a bipartisan group of Senators reached agreement to avoid a showdown over President George W. Bush’s judicial nominees. Id. Under the agreement, Democrats vowed not to use the filibuster to block certain Court of Appeals nominees, and Republicans, in exchange, promised to oppose the “nuclear option,” if it ever came up for a vote. Id. 7 403 U.S. 1 (1971). 8 400 F. Supp. 1005, 1015 (N.D. Ill. 1975).

176 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 and judicial selection systems, and explains why, even in light of Gordon and Lefkovits, the New Mexico supermajority requirement may violate Equal Protection. Finally, Parts IV and V raise a variety of important policy and popular sovereignty issues that the New Mexico supermajority requirement implicates, regardless of its constitutionality. The Note concludes with a discussion of the ongoing debate in New Mexico over the judicial selection system and the funding of judicial campaigns, which demonstrates that, although the system is more than a decade old, questions about its legitimacy remain ripe for debate.

I. BRIEF HISTORY AND SURVEY OF JUDICIAL SELECTION IN THE UNITED STATES9 Creating an independent and politically-insulated federal judiciary was a primary concern of the Founding Fathers,10 so they designed an entirely appointive system.11 Proponents of appointment contend that it creates a more independent judiciary and allows for a more informed determination of the qualities necessary to be a competent judge, a determination that the electorate is not sufficiently informed to make.12 States employ a variety of appointment methods; however, the two most common are gubernatorial and legislative appointment.13

9 See generally Kelley Armitage, Denial Ain’t Just a River in Egypt: A Thorough Review of Judicial Elections, Merit Selection and the Role of State Judges in Society, 29 CAP. U. L. REV. 625 (2001) (providing a history of judicial selection in England and the United States as well as theories of the role of judges in society); Kyle D. Cheek & Anthony Champagne, Partisan Judicial Elections: Lessons from a Bellwether State, 39 WILLAMETTE L. REV. 1357 (2003) (providing a historical overview of judicial selection); Daniel R. Deja, How Judges Are Selected: A Survey of the Judicial Selection Process in the United States, 75 MICH. B. J. 904 (1996) (examining four primary methods for judicial selection, consisting of gubernatorial appointment, gubernatorial appointment with retention election, partisan election, and nonpartisan election); Judith L. Maute, Selecting Justice in State Courts: The Ballot Box or the Backroom?, 41 S. TEX. L. REV. 1197 (2000) (surveying current judicial selection formats). 10 See THE FEDERALIST NO. 78, at 438-40 (Alexander Hamilton) (Isaac Kramnick ed., 1987) (discussing the need for an independent judiciary in order to uphold the Constitution and the rights of the people). 11 U.S. CONST. art. II, § 2 (declaring that “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States”); id. at art. III (describing the structure and functions of the judicial system); see also Sandra Schultz Newman & Daniel Mark Isaacs, Historical Overview of the Judicial Selection Process in the United States: Is the Electoral System in Pennsylvania Unjustified?, 49 VILL. L. REV. 1, 6 (2004) (stating that “[t]he Drafters of the United States Constitution did not . . . embrace the idea of an elected judiciary because of the concern that it would undermine judicial independence”). 12 See Newman & Isaacs, supra note 11, at 9-10. 13 See id. at 10-11 (commenting, however, that these appointment methods can still be

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While it is the oldest form of judicial selection, appointment is no longer the prevailing method.14 The majority of states employ some form of election to select their judges, ranging from purely partisan election to nonpartisan election in which only the candidates’ names appear on the ballot.15 Proponents of election are generally more concerned with judicial accountability than judicial independence and thus believe the people should directly select their judges.16 A third option, merit selection, which the American Bar Association endorsed in 1937 as the preferred form of judicial selection,17 combines elements of both traditional appointment and election methods.18 Merit selection is also commonly referred to as “the Missouri Plan” after the first state to introduce such a system in 1940.19 The classic form of merit selection entails “a nonpartisan commission composed of lawyers and non-lawyers who actively identify, recruit, and screen candidates for judicial vacancies.”20 The commission presents the list of candidates to the governor, who then makes an appointment.21 The appointed judge is then subject to periodic retention elections in which the electorate is asked to vote “yes” or “no” as to whether the judge should be retained in office.22 In all but two of the states that employ some form of merit selection followed by retention elections, judges are required to garner only a bare majority of the vote (i.e., more than 50%) to highly politically motivated and not necessarily conducive to an independent judiciary). 14 See id. at 9. California, Maine, New Jersey, and New Hampshire initially select judges through gubernatorial appointment without a nominating commission procedure; Virginia and South Carolina initially select judges through legislative appointment without a nominating commission procedure. See American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts, “Summary of Initial Selection Methods,” http://www.ajs.org/js/SummaryInitialSelection.pdf (last visited Jan. 23, 2006). 15 See Newman & Isaacs, supra note 11, at 13-14. Alabama, Illinois, Louisiana, Michigan, Ohio, Pennsylvania, Texas, and West Virginia initially select judges through partisan election. See Appellate and General Jurisdiction Courts: Summary of Initial Selection Methods, supra note 14. Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Carolina, Oregon, Washington, and Wisconsin initially select judges through nonpartisan election. See id. 16 See Newman & Isaacs, supra note 11, at 13-14. 17 See American Bar Association, Standards on State Judicial Selection, Report of the ABA Standing Committee on Judicial Independence, Commission on State Judicial Selection Standards, July 2000, at 32, available at http://www.abanet.org/judind/downloads/reformat.pdf (last visited Feb. 14, 2006). 18 See generally Jona Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, 49 U. MIAMI L. REV. 1 (1994) (providing a thorough analysis of the theory and history of merit selection). 19 See Newman & Isaacs, supra note 11, at 13-14; Peter D. Webster, Selection and Retention of Judges: Is There One “Best” Method?, 23 FLA. ST. U. L. REV. 1, 30 (1995). 20 Newman & Isaacs, supra note 11, at 11 (explaining the mechanics of merit selection). 21 See id. 22 See id.

178 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 remain in office.23 New Mexico and Illinois, however, require supermajorities of 57% and 60%, respectively.24 Merit selection assumes long tenures because judges are chosen initially based on professional merit; therefore, a merit selection system envisions “very few removals by the electorate, and only in egregious cases.”25 Proponents of merit selection contend that it effectively solves the common problems in judicial selection of voter ignorance and apathy, increases the pool of qualified candidates, and insulates the judiciary from the partisan political process.26 Opponents, however, argue that judges chosen by merit selection are neither representative of the people nor accountable to the people and that the process merely shifts the politics to the commission and appointment procedures.27 In

23 Robert C. Luskin et al., How Minority Judges Fare in Retention Elections, 77 JUDICATURE 316, 318 (1994) (stating that, at the time of publication, “[i]n every state but Illinois, a bare majority suffice[d]” in judicial retention elections). This article was written before New Mexico adopted its supermajority requirement in 1994. See infra notes 60-70 and accompanying text. Alaska, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Maryland, Massachusetts, Nebraska, New Hampshire, New Mexico, Rhode Island, Utah, Vermont, and Wyoming employ merit selection through nominating commissions to initially select judges. See Appellate and General Jurisdiction Courts: Summary of Initial Selection Methods, supra note 14. Arizona, Florida, Indiana, Kansas, Missouri, New York, Oklahoma, South Dakota, and Tennessee combine merit selection and other methods to initially select judges. See id. 24 N.M. CONST. art. VI, § 33A (1994); ILL. CONST., art. 6, § 12(d). See also infra notes 178-181 and accompanying text (detailing the Illinois judicial selection system). 25 Susan B. Carbon, Judicial Retention Elections: Are They Serving Their Intended Purpose?, 64 JUDICATURE 210, 213 (1980) (explaining that “lengthy tenure for judges, and public accountability” are the two main goals that proponents of retention elections hope to achieve). Since New Mexico adopted merit selection, only two judges have not been retained in office. Leo M. Romero, Judicial Selection in New Mexico: A Hybrid of Commission Nomination and Partisan Election, 30 N.M. L. REV. 177, 208 (2000) (summarizing the results of a study examining the effects of the new judicial selection system in New Mexico). Both judges were on the bench before New Mexico adopted merit selection, and both lost their retention elections when the retention margin was increased to 57%. Id. However, both judges garnered more than 50% of the vote. See infra notes 87, 277. 26 See Newman & Isaacs, supra note 11, at 11-12; Luskin et al., supra note 23, at 317 (describing theories and procedures of merit selection and stating that “[t]he aim of merit selection, in addition to making for more competent judges, is to insulate them from political pressures”); see also Traciel V. Reid, The Politicization of Retention Elections: Lessons from the Defeat of Justices Lanphier and White, 83 JUDICATURE 68, 68 (1999) (stating that “[j]udicial retention elections are intended to preserve the court’s role as an impartial and detached resolver of disputes by ensuring that judges can retain their seats without engaging in the fund raising, politicking, and electioneering that characterize political elections and the political process”). 27 Newman and Isaacs, supra note 11, at 12 (summarizing arguments put forth by opponents of merit selection).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 179 recent years, retention elections have become, in the oft-quoted words of one commentator, “noisier, nastier, and costlier.”28

II. JUDICIAL SELECTION REFORM IN NEW MEXICO For most of New Mexico’s history, the state constitution required partisan election of the entire judiciary with the governor filling judicial vacancies by appointment.29 Although reform through constitutional amendment was unsuccessful until 1988, as early as 1951 Governor Ed Mechem voluntarily moved toward merit selection by instituting a judicial nominating system to recommend candidates for appointment.30 All subsequent New Mexico governors used some form of “voluntary merit selection” to fill judicial vacancies; thus Mechem’s system became an entrenched tradition.31 Reform efforts finally succeeded in 1988, at which point New Mexico was one of a small minority of states still maintaining an all-partisan election system.32 During the 1988 legislative session, two Bernalillo county33 district court judges, W. John Brennan and Rebecca Sitterly, spearheaded a reform effort, drafting a constitutional amendment proposal, which they submitted to the New Mexico legislature. 34 After studying the federal appointive system

28 Richard Woodbury, Is Texas Justice For Sale?: The State’s Top Judge Resigns to Fight for Reform, TIME, Jan. 11, 1988, at 74 (quoting Roy Schotland, Georgetown Law Professor and “an authority on campaign spending,” criticizing the politics of judicial elections). 29 Romero, supra note 25, at 177, 180-81 (describing the historical process of judicial selection in New Mexico). New Mexico became a state in 1912. New Mexico State Government, Fast Facts About NM, http://www.state.nm.us/category/aboutnm/fastfacts.html (last visited Jan. 23, 2006). 30 See Glenn R. Winters, The New Mexico Judicial Selection Campaign – a Case History, 35 JUDICATURE 166, 167, 169 (1952) (providing the definitive discussion of New Mexico’s early judicial selection reform efforts and describing Governor Mechem’s support for judicial selection reform); see also Romero, supra note 25, at 181 (discussing Governor Mechem’s initiative in organizing a judicial nominating commission); Kenneth W. Miller & Gilbert K. St. Clair, State Judicial Selection: The New Mexico Plan 5 (Mar. 1992) (unpublished paper, on file with author). 31 See Romero, supra note 25, at 181-82. 32 See Eric D. Dixon, A Short History of Judicial Reform in New Mexico, 73 JUDICATURE 48, 48 (1989) (describing failed attempts at reform throughout New Mexico’s history, as well as the partisan election system New Mexico had in place until reform eventually succeeded). 33 Bernalillo is New Mexico’s most populous county; Albuquerque, the state’s largest city, is the county seat. About Bernalillo County, New Mexico, http://www.bernco.gov/live/info.asp?content_item_id=3298 (last visited Jan. 30, 2006). 34 Telephone Interview with W. John Brennan, former Chief District Judge, Second Judicial District of New Mexico (Jan. 26, 2005) (explaining Brennan’s desire to work with a legislator who would sponsor a bill that would initiate reform in the judicial selection process); Telephone Interview with Rebecca Sitterly, former District Judge, Second Judicial

180 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 and various state judicial selection systems, as well as reviewing judicial selection in other countries, Brennan, Sitterly, and several other district court judges determined that the New Mexico system was in need of reform away from partisan politics.35 Thus, they designed a merit system based on the Missouri Plan.36 The group had three primary concerns that guided their design of a merit- based system for New Mexico.37 First, they worried that requiring judges to stand for partisan election interfered with the judge’s role as impartial decision maker tasked with upholding the federal and state constitutions.38 Second, they were concerned about the ethical issues implicated by the fact that judges had to raise and spend large sums on their campaigns in order to compete, since the bulk of that money came from attorneys appearing regularly before the courts.39 Finally, there was a perceived lack of voter recognition, particularly in Bernalillo County, New Mexico’s largest county.40 The original reform proposal was carefully engineered to create what the group hoped would be a nonpartisan, purely merit-based system consisting of:

District of New Mexico (Jan. 11, 2005) (discussing Sitterly’s desire for reform and her efforts to work with other judges to obtain legislative reform). Due to the paucity of published accounts of the legislative history, this Note relies in large part on interviews the Author conducted with various key former and current members of the New Mexico judiciary and legislature. There is a particular dearth of information with respect to the adoption of the supermajority requirement. This Note strives to fill that vacuum. 35 Telephone Interview with W. John Brennan, supra note 34 (discussing the other systems, nationally and internationally, that Brennan and the other judges examined, as well as their reasons for concluding that merit selection was the most desirable). 36 Telephone Interview with W. John Brennan, supra note 34; see also supra text accompanying notes 17-19 (discussing the history of merit selection, as well as arguments for and against this method of judicial selection). 37 Telephone Interview with W. John Brennan, supra note 34. 38 Id. (discussing Brennan’s concerns that partisan judicial selection hinders the functioning of an impartial judiciary); Telephone Interview with Rebecca Sitterly, supra note 34 (discussing Sitterly’s concerns about a system that requires judges to have a political constituency). 39 The New Mexico campaign finance system is designed such that judges must form an election committee so that they do not know who the money comes from, but both Brennan and Sitterly noted that judges are well aware of who donates to them, thus raising potential ethical issues and possibilities for impropriety, e.g., contributors may expect judges to support their position in court. Telephone Interview with W. John Brennan, supra note 34; Telephone Interview with Rebecca Sitterly, supra note 34; see also David B. Rottman & Roy A. Schotland, What Makes Judicial Elections Unique?, 34 LOY. L.A. L. REV. 1369, 1372 (2001) (stating that “[m]any judicial campaigns are primarily funded by lawyers’ contributions”). 40 Telephone Interview with W. John Brennan, supra note 34. Indeed, voter recognition, that is, the ability of voters to distinguish between candidates, is one of the main problems cited in judicial campaigns. See Marie Hojnacki & Lawrence Baum, Choosing Judicial Candidates: How Voters Explain Their Decisions, 75 JUDICATURE 300, 300 (1992).

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(i) bipartisan nominating commissions41 chaired by the Dean of the University of New Mexico Law School;42 (ii) gubernatorial appointment; and (iii) nonpartisan retention elections requiring a simple majority to prevail.43 However, some legislators were concerned about the proposed system’s removal of public participation from the judicial selection process.44 Therefore, the legislature amended the plan to require that all judges and justices, following appointment, be subject to an initial partisan election before they would be eligible for nonpartisan retention election.45 Brennan was concerned that the partisan election requirement would undermine the nonpartisan system the group had carefully designed, but he accepted the compromise as necessary to garner the legislature’s support.46 Moreover, Brennan was hopeful that the concerns about fundraising, campaigning, and voter recognition would be taken care of by the provision for subsequent nonpartisan retention elections.47 In the end, the legislature approved and sent to the voters the bill that would become Amendment Six to

41 Although Democrats outnumbered Republicans in New Mexico two-to-one at the time, the group designed a system in which the nominating commissions would be balanced equally between the parties, giving Republicans more representation than was reflected in voter registration – in the hopes of providing for a politically-neutral system. Telephone Interview with Rebecca Sitterly, supra note 34. 42 The group decided on the University of New Mexico (UNM) Law School Dean because he or she, in theory, would be politically neutral. Telephone Interview with Rebecca Sitterly, supra note 34. However, Joseph Baca, former Justice of the New Mexico Supreme Court, thinks it is an “absolutely foolish” idea to give the Dean a constitutional duty to chair the commissions because, for example, the current Dean of UNM is from Michigan and is not intimately familiar with the New Mexico legal system and community. Telephone Interview with Joseph Baca, former Justice, New Mexico Supreme Court (Jan. 21, 2005). In the prototypical Missouri Plan system, the chief justice of the state supreme court would chair the nominating commissions. Id. However, Baca did note that most of the Deans have been “hands-off” in terms of the politics of the commission, and this is precisely what the drafters had in mind. Id. 43 Telephone Interview with W. John Brennan, supra note 34 (outlining the basic parameters of the proposed judicial selection reform). 44 See Telephone Interview with Rebecca Sitterly, supra note 34 (discussing concerns about obtaining sufficient support in the legislature without at least one partisan election to allow for some measure of public participation). 45 Id. (explaining that the judges decided to adopt an initial partisan election as part of their proposal in order to satisfy populist concerns regarding public participation); Telephone Interview with W. John Brennan, supra note 34. 46 Brennan explained that many legislators opposed merit selection because it would reduce their political power with respect to judicial appointments. See Telephone Interview with W. John Brennan, supra note 34; see also Miller & St. Clair, supra note 30, at 4 ( “The requirement of a partisan election is certainly subversive of the intention to de-politicize the judicial selection process.”). 47 Telephone Interview with W. John Brennan, supra note 34.

182 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 the New Mexico Constitution.48 In the months leading up to the 1988 general election, interested parties engaged in a vigorous debate over Amendment Six.49 The proponents’ overarching message was that removing partisan politics from judicial selection would result in a higher quality judiciary.50 In particular, they emphasized that the proposed system would reward competence, instead of political and campaign skills, and would eliminate the negative effects on the judiciary that result from political campaigning and fundraising demands.51 Meanwhile, opponents of Amendment Six52 vehemently argued that the plan was elitist and condescending to voters because lawyers would dominate the judicial nominating committees, which would imply that “nominating committees know [what is] best” for the general electorate.53 Opponents of the

48 The New Mexico Senate approved the amendment on February 2, 1988, and the New Mexico House approved it on February 10, 1988. Dixon, supra note 32, at 48 (summarizing the history of Amendment Six). 49 Dixon, supra note 32, at 49 (chronicling the debate surrounding Amendment Six). 50 See id. (discussing the argument put forth by the group People for Judicial Reform that Amendment Six would result in a more competent judiciary). Proponents included Common Cause, the League of Women Voters, and groups called “New Mexicans for the Improvement of the Judicial System” and “Court Update.” See id.; see also Romero, supra note 25, at 182-83 (citing a 1999 telephone interview with Judge Brennan, then Chief Judge of the Second Judicial District of New Mexico). In addition, the state’s most prominent and influential newspapers, the Albuquerque Journal and the Santa Fe New Mexican, also endorsed the Amendment. See Editorial, Journal Endorsements, ALBUQUERQUE J., Nov. 6, 1988, at B2 (urging voters to vote “Yes on Amendment Six, proposing a modified merit selection process for judges”); Opinion, Amendments: Some Tough Choices, NEW MEXICAN, Nov. 5, 1998, at A12 (stating “[t]his amendment. . .would take the ‘politics’ out of becoming a judge. Judges should judge impartially; they should not have to take part in fund raising, hand shaking and the other diversions of political campaigns”). 51 In a public debate, Judge Brennan characterized partisan election as “enslav[ing]” judges to politics. Dixon, supra note 32, at 49 (quoting Judge Brennan in a debate with then New Mexico Supreme Court Justice Dan Sosa, Jr., a vocal critic of the proposal, at the UNM Law School). Although judges would still be required to run in an initial partisan election, proponents emphasized that thereafter judges would no longer be “forced to go to attorneys who appear before them with an open hand for campaign funds.” Id. Proponents also argued that the proposal would improve accountability, as the retention system always allows voters the opportunity to reject judges, while judges running unopposed on a partisan ballot “get[] a free ride and the voters are not heard.” Id. Ultimately, proponents argued, the proposal would produce a more qualified judiciary than the existing system and one that would be much less beholden to politics and campaigning. Id. 52 See id. (observing that a majority of the justices on the New Mexico Supreme Court opposed Amendment Six). 53 See id. The judicial nominating commissions are comprised of four lay persons and twelve judges and attorneys. See infra notes 76-79 and accompanying text (discussing composition and function of nominating commissions). Opponents of Amendment Six included a judicial reform organization known as “HALT.” Id. HALT, founded in 1978, is

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 183 reform also argued that both the nominating commissions and the retention elections took away power directly from the people.54 Moreover, they contended that retention elections would grant judges de facto life tenure, as judges are rarely defeated in such elections.55 Furthermore, rather than taking politics out of the system, the proposal would merely shift political wrangling along with judicial selection to the nominating commissions.56 Finally, opponents noted that no empirical evidence suggested that an appointment- retention system would do anything to improve the quality of the judiciary.57 After much public debate, voters eventually approved Amendment Six on November 8, 1988,58 and the new system entered into force on January 1, 1989.59 In 1994, New Mexico changed its judicial selection system again. A group of attorneys, including prominent members of the criminal defense bar, found their political power diminished under the new merit system because campaign fundraising was not as crucial as it had been under the partisan election system.60 These attorneys, opposed to the new merit system, mobilized in an attempt to increase the margin necessary for judicial retention from a simple

“the nation’s largest and oldest legal reform organization” and is “[d]edicated to the principle that all Americans should be able to handle their legal affairs simply, affordably, and equitably.” About HALT, http://www.halt.org/about_halt/ (last visited Feb. 2, 2006). “HALT’s Reform Projects challenge the legal establishment to improve [public] access and reduce costs” in the state and federal civil justice systems. Id. 54 See Dixon, supra note 32, at 49 (stating the arguments put forth by opponents that the proposed system would take power away from the people, with no guarantee of a real increase in the quality of the judiciary). 55 Id.; see also Miller & St. Clair, supra note 30, at 2 (stating that prior to 1988, few judges were defeated because “usually the incumbents were unopposed in either primary or general elections”); supra note 25 and accompanying text (conceding that long tenure is admittedly one of the goals of the merit system, as it assumes a more qualified judiciary is selected by this process than by partisan election, and noting that the vast majority of judges in New Mexico have been retained since the merit system was adopted). 56 See Dixon, supra note 32, at 49 (relating the argument put forth by opponents that “requiring nominating committees to be balanced between Democrats and Republicans did not take politics out of the judicial selection, but took selection out of the public forum and put it in control of a committee”). 57 Dixon, supra note 32, at 49. 58 See id. at 49 n.36 (referencing the Office of the Secretary of State, Canvass of Returns of the General Election held on November 8, 1988, of Constitutional Amendment No. 6 (Dec. 4, 1988)). 59 Romero, supra note 25, at 182. 60 See Telephone Interview with W. John Brennan, supra note 34 (suggesting that lawyers who supported the supermajority requirement thought it would “return some power” to them by requiring judges to fundraise); Telephone Interview with Joseph Baca, supra note 42 (stating that some members of the criminal defense bar supported the supermajority requirement because they hoped to regain the “leverage” that they had lost when the partisan election system was abolished).

184 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 majority to 65%.61 Judges, including Brennan, who had been the primary architect of the merit system, fervently opposed increasing the margin to such a high threshold, fearing it would require judges to wage intense campaigns in order to garner sufficient votes.62 Judge Brennan was able to broker a compromise that decreased the supermajority margin to 57%, which the legislature ultimately approved to submit to the voters as Amendment Ten.63 Varying accounts exist as to the precise rationale for the 57% figure, but nothing suggests that it was based on any principle of political science or constitutional jurisprudence.64 Then Speaker of the New Mexico House of Representatives Raymond Sanchez has stated that the figure was the “arbitrary” result of legislative politics in which legislators, lobbyists, and other stakeholders “split it down the middle” between the original 50% and the proposed 65%.65 Sanchez does not think the supermajority requirement undermined the merit selection system but simply “added another dimension.”66 On the other hand, Judge Brennan has called the supermajority requirement a “terrible idea” that “completely undermined the merit system we fought for and violated the principle of majority rule.”67 Some New Mexico judges considered challenging Amendment Ten as an unconstitutional violation of Equal Protection, but none were willing to campaign openly against it.68 Unlike the fierce and organized campaign which

61 Telephone Interview with W. John Brennan, supra note 34. 62 See id. (deploring the 65% requirement as “impossibly high”); Telephone Interview with Joseph Baca, supra note 42 (discussing judges’ concern that the supermajority requirement “would be prohibitive”). 63 Telephone Interview with W. John Brennan, supra note 34 (acknowledging that, although he disliked the 57% requirement, he saw it as “the lesser of two evils” and was therefore willing to “strike a compromise”). 64 One observer attributes the 57% figure to the fact that 57% of registered voters in New Mexico were Democrats at the time. Telephone Interview with W. John Brennan, supra note 34 (recalling that then House Speaker Raymond Sanchez settled on the 57% figure after determining that Democratic registration in New Mexico was 57% at the time). Another observer suspects that 57% was chosen because a “very unpopular judge” had received 55% of the vote in his last retention election. Telephone Interview with Joseph Baca, supra note 42; see also supra text accompanying notes 23-24 (pointing out that New Mexico is the only state to adopt a 57% requirement for judicial retention). 65 Telephone Interview with Raymond Sanchez, former Speaker of the New Mexico House of Representatives (May 10, 2005). Sanchez disapproved of a supermajority requirement but ultimately supported it because he “saw it was going to happen” and figured it would be problematic if judges could not garner “a little more than fifty percent” in their retention elections. Id. 66 Id. 67 Telephone Interview with W. John Brennan, supra note 34. 68 Telephone Interview with Joseph Baca, supra note 42 (lamenting that, although judges thought about challenging Amendment Ten, “nobody was willing to get out on the front on that”).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 185 accompanied the passage of Amendment Six, neither advertising nor public debate took place with respect to Amendment Ten, despite the fundamental change it would effect.69 At the 1994 general election, voters quietly approved Amendment Ten to the New Mexico Constitution, thereby increasing the vote percentage required for retention from a simple majority to 57%.70 This Note argues that the supermajority requirement has served to undermine the nonpartisan, merit-based system that Amendment Six created.71 Amendments Six and Ten created a hybrid merit selection-partisan election plan unlike any other system in the country.72 This selection system broadly applies to the selection of all New Mexico Supreme Court justices and New Mexico Court of Appeals judges,73 as well as all district74 and metropolitan court judges.75 The new system created fifteen judicial nominating commissions, one for the appellate courts,76 one for each of the thirteen judicial districts,77 and one for the metropolitan court.78 The two largest political parties in the state must be equally represented on each commission.79 When a judicial vacancy occurs, the relevant commission has thirty days to solicit, accept, and evaluate applications for the judicial position and submit to the Governor a list of

69 Id. (regretting the lack of “concerted effort” or “advertising” in opposition to Amendment Ten). 70 See N.M. CONST. art. VI, § 33 (declaring that “[r]etention of the judicial office shall require at least fifty-seven percent of the vote cast on the question of retention or rejection”); see also Romero, supra note 25, at 208. 71 See infra Part V. 72 See Romero, supra note 25, at 184 (stating that the New Mexico system “differs substantially from the nomination-appointment-retention plans in other states and also from the Model Judicial Selection Provisions developed by the American Judicature Society”); supra text accompanying notes 23-24 (pointing out that New Mexico is the only state to adopt a 57% requirement for judicial retention). 73 See N.M. CONST. art. VI, § 35. 74 See id. § 36. 75 See id. § 37. State magistrate, municipal, and probate judges continue to be selected under a purely partisan election system. See Miller & St. Clair, supra note 30, at 2. 76 N.M. CONST. art. VI, § 35 (detailing the membership and function of the “appellate judges nominating commission”). 77 Id. § 36 (detailing the membership and function of the “district court judges nominating committee” for each judicial district). 78 Id. § 37 (detailing the membership and function of the “metropolitan court judges nominating committee”). 79 Id. § 35. In order to achieve this balance, the Bar president and the judges on the commission can make a minimum number of additional appointments. These additional appointments must be lawyers and must “be appointed such that the diverse interests of the state bar are represented.” Id. The Dean of the UNM Law School serves as the “final arbiter” of whether such “diverse interests” are indeed represented. Id.

186 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 qualified candidates.80 The Governor must then make an appointment within thirty days of receiving the final list.81 The judicial appointee serves until the next general election, at which time he or she must prevail in a partisan election in order to continue in office.82 The winning candidate takes office and serves out the remainder of the original term.83 At the end of the term, the incumbent judge, having previously won a partisan election, is subject to a nonpartisan retention election requiring a 57% affirmative vote to be retained.84 If more than 43% of the electorate votes to reject the incumbent judge, he or she must vacate office on January 1, following the general election.85 The Governor must then fill the vacancy pursuant to the procedures described above.

III. THE NEW MEXICO SUPERMAJORITY REQUIREMENT MAY VIOLATE EQUAL PROTECTION New Mexico’s unique 57% requirement presents an important federal constitutional question. This Note contends that the supermajority requirement may violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, in particular the principle of one-person, one- vote.86 To be clear, the supermajority requirement does not give certain

80 Id. The Governor can make one request for additional names immediately following receipt of the commission’s original list. Id. 81 Id. If the Governor fails to make an appointment within the prescribed time period, the Chief Justice of the Supreme Court fills the vacancy from the commission’s final list of candidates. Id. 82 See id. (declaring that “[a]ny person appointed shall serve until the next general election,” and “[t]hat person’s successor shall be chosen at such election”). In the initial partisan election, the judicial appointee need only garner a simple majority of the vote to prevail; thus, the supermajority requirement only applies to the nonpartisan retention election. See N.M. CONST. art. VI, § 33A. Furthermore, judges on the bench as of January 1, 1989, were deemed to have fulfilled the partisan election requirement and were thus immediately eligible for nonpartisan retention. See id. §33E. 83 Id. § 35 (“Any person appointed shall serve until the next general election. That person’s successor shall be chosen at such election and shall hold the office until the expiration of the original term.”). 84 Id. § 33 (declaring that once a justice or judge has been elected in a partisan election, “each such justice or judge shall be subject to retention or rejection on a nonpartisan ballot,” and that retention requires “at least fifty-seven percent of the vote cast”). 85 Id. § 34 (stating that a justice or judge’s office “becomes vacant on January 1 immediately following the general election at which the justice or judge is rejected by more than forty-three percent of those voting on the question of his retention or rejection”). 86 But cf. Neals-Erik William Delker, The House Three-Fifths Tax Rule: Majority Rule, the Framers’ Intent, and the Judiciary’s Role, 100 DICK. L. REV. 341, 355 (1996). Delker surmises, in a discussion of the constitutionality of a U.S. House of Representatives legislative supermajority rule, that the Supreme Court, on many occasions, has recognized that the structure of state

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 187 persons more than a single vote. However, New Mexico’s supermajority requirement is constitutionally suspect because, by requiring judges to garner more than a majority of votes to be retained, the system grants more weight to the votes of certain people vis-à-vis others. In January 1997, two New Mexico district court judges who lost their 1996 retention elections,87 along with individuals who voted to retain them, challenged the constitutionality of the 57% requirement embodied in Amendment Ten.88 They argued that the supermajority requirement violated the Equal Protection Clause of the U.S. Constitution, particularly the principle of one-person, one-vote, by diluting the votes of those who favored retention of incumbent judges.89 The New Mexico Supreme Court granted certiorari and, after oral arguments, deliberated for forty minutes before ruling from the bench to dismiss the writ of mandamus.90 By dismissing the writ without opinion, the New Mexico Supreme Court neither addressed nor resolved the constitutional issues presented. Accordingly, the constitutionality of New

governments does not have to mirror that of the federal government. In fact, the Court has held that states are not required to incorporate integral structural features of the federal Constitution like the doctrine of separation of powers. No apparent reason exists for states to be bound by majority rule even if the U.S. Constitution requires Congress to abide by majority rule in all situations except as otherwise provided. Id. (citations omitted). 87 More than 50%, but less than 57%, of the voters in each judge’s district voted to retain the judge. Petition at 3, New Mexico ex rel. Salinas v. State Canvassing Bd., No. 24033 (N.M. Dec. 16, 1996) (hereinafter Ex rel. Salinas Petition) (asserting that “[p]etitioner Saucedo received 8,246 favorable votes and 8,096 votes opposed in the 1996 General Election, which is 50.46% favorable votes; and Petitioner Grisham received 10,045 favorable votes and 8,154 votes opposed in the 1996 General Election or 55.2% favorable votes”). 88 See id. (arguing that Amendment Ten “is in violation of the Constitution of the United States”). The Petitioners also challenged the constitutionality of the actual adoption of Amendment Ten under the New Mexico Constitution. See id. at 5. In addition, they contended that the supermajority requirement violated their freedom of association under the First Amendment to the U.S. Constitution. Reply Brief for the Petitioners at 30, New Mexico ex rel. Salinas v. State Canvassing Bd., No. 24,033, (N.M. Jan. 14, 1997) (hereinafter Ex rel. Salinas Petitioners’ Reply). This Note does not address these issues. 89 See Ex rel. Salinas Petition, supra note 87, at 4 (contending that Amendment Ten “violate[s] the one person, one vote principal established under the United States Constitution”); see also Gray v. Sanders, 372 U.S. 368, 380-81 (1963): The only weighting of votes sanctioned by the Constitution concerns matters of representation such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President. . . . The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote. 90 Denial of Petition for Writ of Mandamus, New Mexico ex rel. Salinas v. State Canvassing Bd., No. 24,033 (N.M. dismissed, Jan. 15, 1997); see Fritz Thompson, Judge One of 2 Ousted by Voters, ALBUQUERQUE J., Mar. 2, 1997, at A7.

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Mexico’s 57% supermajority requirement remains unexamined. A court looking at the constitutionality of New Mexico’s supermajority requirement would likely begin its analysis with the United States Supreme Court’s decision in Gordon v. Lance.91 In Gordon, the Court found no Equal Protection violation in a West Virginia requirement that no bonded indebtedness be incurred, nor tax rates increased, without the approval of 60% of voters.92 While some might argue that the Gordon Court definitively decided that supermajority requirements are constitutionally sound, the following discussion demonstrates that New Mexico’s supermajority requirement is distinguishable from the provision at issue in Gordon, and, accordingly, that Gordon should not control.93 Moreover, the reasoning the Court applied in Gordon is problematic in light of the Court’s existing Equal Protection jurisprudence.94

A. Prelude to Gordon v. Lance: State Election Systems Should Give Equal Weight to Each Vote Cast The Supreme Court has broadly defined three ways in which state electoral laws violate the Equal Protection Clause of the Fourteenth Amendment.95 First, in a line of cases referred to as the one-person, one-vote decisions, the Court has struck down electoral laws that, based on geographic factors, districting, or apportionment, have led to the weighting or dilution of the votes of some people vis-à-vis others.96 Second, the Court has struck down electoral

91 403 U.S. 1 (1971). 92 Id. at 8 (“That West Virginia has adopted a rule . . . by which the strong consensus of three-fifths is required before indebtedness is authorized, does not violate the Equal Protection Clause.”). 93 See infra notes 165-166 and accompanying text (explaining that the holding in Gordon “does not apply to the election of public officers”); Part III.D (contending that New Mexico retention elections are “elections of public officers” and not “referenda”). 94 See Brett W. King, Deconstructing Gordon and Contingent Legislative Authority: The Constitutionality of Supermajority Rules, 6 U. CHI. L. SCH. ROUNDTABLE 133, 141 (1999) (contending that “the Court’s reasoning in [Gordon] is so devoid of any principled legal theory relevant to a constitutional analysis of supermajority rulemaking that it has little to offer in the debate over the appropriate interrelationship between majority rule and supermajority requirements”). 95 See id. at 146 (distinguishing between three categories of cases in which the Court has held that state electoral laws violated Equal Protection: “vote denial cases, vote dilution cases, and ‘procedural process equal protection’ cases”). 96 Id. at 146-47. King states that [One] line of cases addresses the fairness of the election process itself, such as the apportionment of districts, the composition of state legislatures and the establishment of at-large representation. These cases are seen as safeguarding the fundamental right of voters, once qualified, to enjoy a process that is fair and does not debase the votes actually cast by weighting or diluting the votes of some citizens as compared to others; these are the ‘one-person, one vote’ cases. Id.; see also e.g., Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397 U.S. 50, 57 (1970)

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 189 laws that deny access to the ballot based on some extraneous condition or characteristic.97 Third, the Court struck down electoral laws that impose special burdens on a distinct class, such as “those who would benefit from laws barring racial, religious, or ancestral discrimination.”98 Each line of cases relies on a distinct analytical framework. In the years preceding Gordon, the Supreme Court decided a number of reapportionment cases in which it expounded on the need for each person’s vote to be counted equally in order to protect the constitutional principle of one-person, one-vote.99 In the seminal case of Reynolds v. Sims, the Court ruled that Alabama’s proposed apportionment plan for state legislative seats violated Equal Protection, because it would result in vote dilution.100 In powerful dicta, the Court noted that the Equal Protection Clause clearly would prohibit “a law that would expressly give certain citizens a half-vote and others a full vote” because “[t]he constitutionally guaranteed right to vote and the

(holding that the apportionment system used in Missouri’s junior college trustee elections violated the one-person, one-vote principle because it “result[ed] in a systematic discrimination against voters in the more populous school districts”); Reynolds v. Sims, 377 U.S. 533, 568 (1964) (holding that the apportionment system used in Alabama’s legislative elections violated the one-person, one-vote principle because some citizens’ votes were “diluted when compared with votes of citizens living in other parts of the State”); Gray v. Sanders, 372 U.S. 368, 379 (1963) (holding that the county-unit system used in Georgia’s Democratic senatorial primary elections violated the one-person, one-vote principle because it “weight[ed] the rural vote more heavily than the urban vote”). 97 See, e.g., Cipriano v. City of Houma, 395 U.S. 701, 702 (1969) (striking down a law limiting the right to vote in a revenue bond referendum to “property taxpayers”); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 622 (1969) (holding that states cannot deny access to the ballot based on tax status); Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966) (holding that states cannot deny access to the ballot based on wealth); Carrington v. Rash, 380 U.S. 89, 96 (1965) (holding that states cannot deny access to the ballot based on military status); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that states cannot deny access to the ballot based on race). 98 See, e.g., Hunter v. Erickson, 393 U.S. 385, 391 (1969) (striking down an amendment to Akron’s city charter that made it more difficult to pass open housing ordinances than other city ordinances). 99 See King, supra note 94, at 141-43 (citing Avery v. Midland County, 390 U.S. 474 (1968), Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713 (1964), Reynolds, 377 U.S. 533, Gray, 372 U.S. 368, and Baker v. Carr, 369 U.S. 186 (1962), as examples of Court opinions “thick with rhetoric about the need for each person’s vote to be ‘equally counted’”). 100 Reynolds, 377 U.S. at 568. The court reasoned that an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. Since, under neither the existing apportionment provisions nor either of the proposed plans was either of the houses of the Alabama Legislature apportioned on a population basis, the District Court correctly held that all three of these schemes were constitutionally invalid. Id.

190 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 right to have one’s vote counted clearly imply the policy that state elections systems, no matter what their form, should be designed to give approximately equal weight to each vote cast.”101 The Reynolds Court also noted that, because the Constitution mandates “equality among citizens in the exercise of their political rights,”102 the principle that “one group can be granted greater voting strength than another is hostile to our standards for popular representative government.”103 Moreover, the Reynolds Court emphasized that the right to vote “includes the right to have the vote counted at full value without dilution or discount,” and “[t]hat federally protected right suffers substantial dilution . . . [where a] favored group has full voting strength . . . [and t]he groups not in favor have their votes discounted.”104 “Supermajority voting rules are a form of weighted voting.”105 In a referendum, a supermajority requirement gives affirmative votes proportionally less weight than negative votes. Similarly, in an election, a supermajority requirement accords less weight to votes cast in support of a candidate vis-à-vis votes opposing that candidate.106 Therefore, groups concerned about various state supermajority provisions read “the Court’s growing body of anti-dilutional voting rhetoric . . . with peaked [sic] interest.”107 Prior to Gordon, the United States District Court for the District of

101 Id. at 563 n.40 (quoting Colegrove v. Green, 328 U.S. 549, 569-70 (1946) (Black, J., dissenting)). 102 Id. at 564 n.41 (quoting MacDougall v. Green, 335 U.S. 281, 290 (1948) (Douglas, J., dissenting)). 103 Id. 104 Id. at 555 n.29 (quoting South v. Peters, 339 U.S. 276, 279 (1950) (Douglas, J., dissenting)) (emphasis added). The Reynolds Court further explained that [t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Id. at 555. 105 King, supra note 94, at 143. 106 Id. at 150 n.98 (stressing that “[i]t is clear that supermajority rules are a form of vote dilution”); Thurston v. Greco, 474 P.2d 881, 888 (Wash. 1970) (Rosellini, J., dissenting) (criticizing the majority opinion’s conclusion that a supermajority requirement “does not directly or indirectly result in the debasement or the dilution of the vote,” and arguing that this conclusion “distorts reality, defies all logic and rewrites the law of mathematics”); Altadena Library Dist. v. Bloodgood, 237 Cal. Rptr. 649, 653 (Ct. App. 1987) (pointing out that, under the supermajority requirement at issue in Gordon v. Lance, “if the voter cast a ballot for a tax increase as to a certain proposition his vote would be diluted by the supermajority requirement,” and “if he voted against a tax increase . . . his voting power would be enhanced”). 107 King, supra note 94, at 143.

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Minnesota, and the highest courts of California and West Virginia each ruled that supermajority voting rules were unconstitutional in light of the Supreme Court’s expanding Equal Protection jurisprudence.108 However, the United States District Court for the Western District of Missouri and several state high courts rejected similar arguments.109 The constitutionality of supermajority rules was, therefore, ripe for Supreme Court review.110

B. Gordon v. Lance: Supermajority Rules for Referenda Do Not Violate Equal Protection Against this legal landscape, the Supreme Court took up the case of Gordon v. Lance.111 In Gordon, the Court addressed whether a West Virginia supermajority requirement that 60% of voters approve bonded indebtedness and tax increases violated Equal Protection.112 The West Virginia Constitution and certain statutes provided that political subdivisions could not incur bonded indebtedness or raise taxes without the approval of 60% of the electorate in a referendum election.113 In a 1968 election, the Board of Education of Roane County submitted to voters a proposal for the issuance of general obligation bonds to construct new school buildings and to improve existing infrastructure, as well as a proposal to levy additional taxes to support current expenditures and capital improvements.114 Although votes of 51.55% and 51.51%, respectively, were cast in favor of the proposals, the Board of Education declared the proposals defeated because each proposal had failed to obtain the requisite 60% affirmative vote.115 After failing to persuade the Board of Education to authorize the funding anyway, the supporters sought declaratory judgment that the 60% supermajority requirements were unconstitutional violations of Equal Protection under the Fourteenth Amendment.116 A West Virginia trial court dismissed the complaint; on appeal, the West Virginia Supreme Court of Appeals reversed, holding that the 60% requirements indeed violated Equal

108 Id. at 143 (citing Rimarcik v. Johansen, 310 F. Supp. 61 (D. Minn. 1970); Westbrook v. Mihaly, 471 P.2d 487 (Cal. 1970); and Lance v. Bd. of Educ., 170 S.E.2d 783 (W. Va. 1969). 109 King, supra note 94, at 143-44 (citing Brenner v. Sch. Dist., 315 F. Supp. 627 (W.D. Mo. 1970); Bogert v. Kinzer, 465 P.2d 639 (Idaho 1970); Adams v. Fort Madison Cmty. Sch. Dist., 182 N.W.2d 132 (Iowa 1970); Tiews v. Timberlane Reg’l Sch. Dist., 273 A.2d 680 (N.H. 1971); Thurston v. Greco, 474 P.2d 881 (Wash. 1970)). 110 King, supra note 94, at 144. 111 403 U.S. 1 (1971). 112 Id. at 2-3. 113 Id. at 2. 114 Id. at 3. 115 Id. 116 Id.

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Protection.117 The Supreme Court subsequently granted certiorari and reversed, finding no constitutional violations.118 The Gordon Court offered four primary reasons for holding that the West Virginia supermajority voting provisions did not violate the Constitution: (i) the requirements did not discriminate against any “independently identifiable group”; (ii) the requirements were applied in a neutral fashion; (iii) the requirements were analogous to supermajority requirements in the U.S. Constitution; and (iv) many other states require supermajorities to increase taxes and bonded indebtedness.119 One commentator, however, posits that Gordon v. Lance is “one of the most poorly reasoned High Court opinions in the post-New Deal era” and that “the case is wholly inapposite to any principled theory that attempts to synthesize supermajority requirements with the text and history of the Constitution.”120 Nevertheless, it is important to analyze the Gordon Court’s reasoning in order to determine how a future court might rule, not only on the New Mexico supermajority requirement, but also on supermajority requirements in other contexts.121 Therefore, this Note discusses each of the four bases of the Gordon decision in turn. First, the Court found that the West Virginia supermajority requirement did not violate Equal Protection because it did not discriminate against any “independently identifiable group.”122 The Court could “discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing;” therefore, “no sector of the population may be said to be ‘fenced out’ from the franchise because of the way they will vote.”123 The Gordon Court’s “independently identifiable group” rationale is

117 Lance v. Bd. of Educ., 170 S.E. 2d 783 (1969). 118 Gordon, 403 U.S. at 3. 119 Id. at 5-6; see also King, supra note 94, at 145. 120 King, supra note 94, at 145; see also John Cornyn, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27 HARV. J.L. & PUB. POL’Y 181, n. 49 (2003) (quoting King, supra note 94, for the proposition that “the Supreme Court’s decision in Gordon v. Lance has little to offer efforts at constructing a theory of supermajoritarianism”); Jerry W. Calvert, The Popular Referendum Device and Equality of Voting Rights – How Minority Suspension of the Laws Subverts “One Person-One Vote” in the States, 6 CORNELL J.L. & PUB. POL’Y 383, 404 (1997) (discussing “the troubling case of Gordon v. Lance” in which “the U.S. Supreme Court appeared to depart from the principle of ‘one person, one-vote’”). See also generally Brett W. King, Wild Political Dreaming: Historical Context, Popular Sovereignty, and Supermajority Rules, 2 U. Pa. J. Const. L. 609, 610-611 (2000) (“Unfortunately, to date no such theory [of supermajoritarianism] has become generally accepted by American political and legal scholars, leaving a theoretical vacuum at the heart of our received version of democratic liberalism.”). 121 See King, supra note 94, at 145 (declaring that although flawed, the reasoning employed by the Gordon Court is important to consider when evaluating the constitutionality of supermajority provisions). 122 Gordon, 403 U.S. at 5. 123 Id. (quoting Carrington v. Rash, 380 U.S. 89, 94 (1965)); see also King, supra note

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 193 inconsistent and unclear when examined against the reasoning applied in previous Equal Protection cases,124 in part because the opinion never stated whether the Court viewed it as a vote dilution (i.e., one-person, one-vote) case or a political process case.125 The distinction is crucial because it determines both the appropriate analysis and standard of review; without it the “independently identifiable group” rationale provides little guidance for future cases.126 If Gordon is properly viewed as a vote dilution case, the supermajority requirement would be analyzed in light of the Court’s reapportionment cases.127 Analysis under this approach would emphasize “the Court’s constitutionally mandated principle of ‘one-person, one-vote’ and its rhetoric surrounding its declarations of a constitutionally protected right to have each vote that is cast be ‘equally counted’ and ‘equally effective.’”128 In contrast, if viewed as a political process case, a court would focus its analysis on whether the government has singled out an identifiable group for unfair or discriminatory treatment, and if so, whether any government interest justifies the additional burdens.129 Because the Gordon Court did not distinguish between the two types of cases, the Gordon decision offers little guidance.130 At the very least, the Gordon Court did seem to say that as a necessary prerequisite in any Equal Protection case, a court would need to determine the presence of an “identifiable class” alleging discrimination.131 If, as the Gordon Court implied, the group of affirmative voters is not an “independently identifiable group,” no cause of action would exist under Equal

94, at 151 (observing that “the concept of ‘fencing out’ only arises in vote denial cases,” of which there was no allegation in this case, and “thus the entire concept of ‘fencing out’ is inapposite to the discussion”). 124 See supra notes 95-98 and accompanying text (outlining the three strands of Equal Protection cases – vote denial, vote dilution, and political process); see also supra note 123 (commenting that the “fencing out” concept has historically only applied to vote denial cases). 125 See King, supra note 94, at 146-54 (stating that it is clear that Gordon is not a vote denial case, but that the Court is unclear as to whether Gordon should properly be considered a vote dilution or a political process Equal Protection case). 126 See id. at 148 (intimating that each theory has its own set of assumptions and expected results, depending on the characterization of the case). 127 Id. at 147 (remarking that “as a vote dilution case, supermajority voting rules would be seen as a method of diluting votes . . . and, as such, the propriety of such action would need to be analyzed in light of the reapportionment cases”). 128 Id. at 147. 129 Id. 130 See supra notes 123-126 and accompanying text. 131 King, supra note 94, at 148 (concluding that the initial inquiry in any Equal Protection case then becomes, “[W]hat class of citizens is asserting an equal protection claim?”).

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Protection doctrine.132 Given the Court’s lack of clarity regarding whether Gordon was a vote dilution or political process case, it is not surprising that the Court failed to find an “independently identifiable class.”133 Viewed as a vote dilution case, such a class would likely be defined with respect to how citizens cast their votes (i.e., in favor or against).134 Viewed as a political process case, in which the court focuses on the class affected by the supermajority rule, the class in Gordon is easy to identify (i.e., the group of individuals who would benefit from the educational expenditures which the proposed bonds and taxes would fund).135 Nevertheless, the Gordon Court chose not to consider such voters an identifiable class; and, as a result, the Court never discussed the appropriate standard of review in cases where a class could be identified.136 Therefore, a future court would have to determine what standard of review to apply. If the supermajority requirement infringes the right to vote, the court would apply strict scrutiny because the right to vote is considered a fundamental right under Equal Protection jurisprudence.137 However, if courts were to classify the supermajority requirement as a procedural rule, then the government would need only supply a rational basis for its enactment in order to surpass any Equal Protection hurdles.138

132 King, supra note 94, at 149 (stating “if such a group of affirmative voters cannot be considered an identifiable class of individuals, the case would be inactionable on equal protection grounds”); see Gordon v. Lance, 403 U.S. 1, 5 (1971) (quoting Carrington v. Rash, 380 U.S. 89, 94 (1965)). 133 See King, supra note 94, at 151. 134 Id. at 152 (commenting that “attempting to find ‘independently identifiable’ groups in supermajority dilution cases is inherently problematic . . . because the class can only be defined by how citizens cast their votes”). 135 Id. at 153. King argues that [i]f in Hunter [v. Erickson, 393 U.S. 385 (1969)] the class singled out was ‘those who would benefit from laws barring racial, religious, or ancestral discriminations’ then in Gordon the class should be equally easy to identify . . . . It would seem, a priori, objectively easier to identify those individuals in Roane County who would benefit from increased spending on educational infrastructure and additional school programs (that is, students enrolled in Roane County schools) than it would be to identify those citizens of Akron who might derive future benefit from its fair housing ordinance. If there is an independently identifiable class in Hunter, then there certainly is one in Gordon. (citation omitted). 136 Id. at 154 (stating that “the Court’s analysis was aborted at an early stage without a discussion of the appropriate level of scrutiny to be used had a class been found”). 137 Id. at 148 (citing Burson v. Freeman, 504 U.S. 191, 213-14 (1992) (Kennedy, J. concurring); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370-71 (1886)). 138 King, supra note 94, at 148 (affirming the importance of supermajority requirement classifications by observing the difference between scrutiny for fundamental rights and “mere procedural rules”).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 195

Second, the Gordon Court reasoned that the West Virginia supermajority requirements did not violate Equal Protection because they “single[d] out no ‘discrete or insular minority’ for special treatment.”139 Instead, the Court found that the 60% requirement applied equally to all bond issues.140 The Court’s “discrete or insular minority” reference appears to be an inappropriate and misguided invocation of the Carolene Products141 footnote four analysis. If the Court is serious about the Carolene Products analysis, the logical inference of its ruling in Gordon would be that a supermajority requirement that applies only to a certain type of bond (as opposed to all bonds like in Gordon) would single out a “discrete or insular minority,” i.e., the bonds to which the supermajority requirement did not apply.142 Although this makes logical sense, a constitutional scholar would surely dispute this application of Carolene Products footnote four, which was intended to suggest a more exacting standard of review for racial and ethnic minorities because of their immutable characteristics.143 The West Virginia Supreme Court of Appeals relied heavily on the Supreme Court’s reasoning in Gray v. Sanders144 and Cipriano v. City of Houma145 in holding that the 60% requirement violated Equal Protection.146 However, the Gordon Court distinguished Gray and Cipriano because in those cases the constitutional defect lay in the “denial or dilution of voting power [based on] group characteristics – geographic location and property ownership[, respectively,] – that bore no valid relation to the interest of those groups in the subject matter of the election.”147 However, the distinction does not withstand careful scrutiny because “even a supermajority requirement for all bonds is not ‘neutral’ but inherently disfavors groups that support increased government

139 See Gordon v. Lance, 403 U.S. 1, 5 (1971); see generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 669 (2d ed. 2002) (explaining that the Court indicated in U.S. v. Carolene Products, 304 U.S. 144, 153 n.4, from which the “discrete and insular minorities” concept is derived, that heightened scrutiny would be justified for “government actions discriminating against racial and national origin minorities . . . because of the relative political powerlessness of these groups”). 140 Gordon, 403 U.S. at 5. 141 304 U.S. at 153 n.4 (stating that government discrimination against “discrete and insular minorities” requires “more searching judicial inquiry”). 142 See Gordon, 403 U.S. at 5 (defining bond issues as the basis for potential discrimination). 143 See CHEMERINSKY, supra note 139, at 669. 144 372 U.S. 368 (1963) (holding that discarding superfluous votes in a “county-unit system” once a candidate achieved enough votes to win a “unit” constituted geographical discrimination and was, therefore, unconstitutional under the Equal Protection Clause). 145 395 U.S. 701 (1969) (reasserting that an individual may not be denied a vote because of an extraneous condition such as race). 146 See Gordon, 403 U.S. at 4 (stating that “the West Virginia court’s reliance on the Gray and Cipriano cases was misplaced”). 147 Id.

196 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 spending and higher levels of government services (and taxes) while preferencing groups who seek lower levels of government services and expenditures.”148 Third, the Gordon Court compared the West Virginia supermajority requirement to provisions in the U.S. Constitution that require a supermajority, e.g., impeachment and treaty ratification, as another rationale for finding the West Virginia requirement constitutional.149 However, this analogy is inapposite because federal supermajority provisions that deal with the fundamental structure of government “are not necessarily the same – in design or effect” as state supermajority requirements that dilute voting rights.150 Furthermore, one commentator has argued that the analogy the Court draws “would seem to strain the definition of an ‘analogy’” and that the Court employs the federal analogy “opportunistically” in this case because it seems just as “inapposite and irrelevant” as in the reapportionment cases where the Court “reject[ed] it out-of-hand.”151 Fourth and finally, the Gordon Court pointed out that many states, in addition to West Virginia, require supermajorities to increase bonded indebtedness and to levy new taxes.152 The Court reasoned that “in voting to issue bonds voters are committing, in part, the credit of infants and of generations yet unborn, and some restriction on such commitment is not an unreasonable demand.”153 In other words, the supermajority requirements seek to limit the ability of one generation to burden the next by making it more difficult to undertake certain types of governmental actions. Regardless of the wisdom behind these supermajority requirements, the Court made clear that “the balancing of interests is . . . for the State to resolve.”154 One problem with the intergenerational justification is that it appears inconsistent with the facts in Gordon and thus contributes little to a coherent theory of supermajority rule.155 This is exemplified by the fact that the Gordon Court upheld the supermajority requirement with respect to both tax increases and bond proposals.156 The tax increase at issue would have been effective for only five years, and consequently would not have indefinitely burdened future

148 King, supra note 94, at 156. 149 Gordon, 403 U.S. at 6. 150 King, supra note 94, at 158-162. 151 Id. 152 Gordon, 403 U.S. at 6 (citing, inter alia, IND. CONST., art. 10, § 5; OHIO CONST., art. 8, § 3; TEX. CONST., art. 3, § 49; WIS. CONST., art. 8, § 4). 153 Id. 154 Id. at 7. 155 See King, supra note 94, at 163 (positing that the intergenerational justification seems to have “no real effect on the use of supermajority rules by the states or any bearing on the legal appropriateness of constitutional departures from majority rule”). 156 403 U.S. at 5; see also King, supra note 94, at 162-63 (pointing out that the Court upheld the supermajority requirement despite the length of the tax commitment).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 197 generations.157 Moreover, the supermajority requirement applied to all types of bonds, including short-term bonds, not just long- and medium-term bonds.158 If the Court had upheld only long-term tax increases and bonds, the relevance of the intergenerational justification would be easier to identify. However, by upholding a supermajority requirement broadly applied to all types of bonds, regardless of their term, the intergenerational justification seems inapposite to the Court’s determination. Therefore, one commentator has opined that states need not justify the use of supermajority rules with the intergenerational argument.159 Beyond these four rationales for upholding the West Virginia supermajority requirement, the Court refused to recognize any constitutional principle of strict majoritarianism. Although the Court conceded that West Virginia had “made it more difficult for some kinds of governmental actions to be taken,” the Court found that “nothing in the language of the Constitution, our history, or our cases . . . requires that a majority always prevail on every issue.”160 To illustrate this point, the Court cited Fortson v. Morris where it found no constitutional violation when a state legislature selected a governor because no candidate received a majority of the popular vote.161 However, it seems that the Gordon Court misconstrued the import of Fortson.162 Although Fortson may be read superficially to reject the principle of majoritarian rule with respect to the election of a public official, a closer reading of the case makes

157 Gordon, 403 U.S. at 5; see also King, supra note 94, at 162. 158 King, supra note 94, at 162 (“[W]hile such a justification would be acceptable for long term bonds and might be acceptable for medium term bonds, under West Virginia’s law all bonds were subject to the three-fifths supermajority requirement.”). The Gordon Court’s neutral application rationale seems to directly contradict the intergenerational justification. In the former context, the Court used application of the supermajority requirement to all bond issues to prove its consistency with the Equal Protection Clause, while in the latter context it is precisely this neutral application that shows that the intergenerational justification is of no consequence to the requirement’s consistency with the Court’s Equal Protection jurisprudence. See supra notes 139-140 and accompanying text. 159 King, supra note 94, at 162-63: Since the Court did not overrule the five year tax provision, clearly the intergenerational argument is not necessary for supermajority rules to be utilized by a state. . . . [M] any states approve the issuance of long term bonds by majority vote, [so] a supermajority vote is also not necessary when intergenerational concerns are undeniably present. 160 Gordon, 403 U.S. at 5-6. 161 Id. at 6 (citing Fortson v. Morris, 385 U.S. 231 (1966)). 162 See Delker, supra note 86, at 355-356 (contending that the Gordon Court’s “bald assertion” that the Constitution does not require majority rule “is not supported by any analysis of the structure of the U.S. Constitution or the history of its ratification,” and “[m]oreover, dicta in other cases supports a conclusion different from that reached in Gordon”); cf. Ex rel. Salinas Petitioners’ Reply, supra note 88, at 13 (discussing the Lefkovits court’s similarly misplaced reliance on Fortson).

198 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 clear that the Fortson Court did not believe it was dealing with the majoritarian principle. On the contrary, Justice Black reasoned that “the general election is over and that a new, and different, alternative procedure is now about to be used” and that “this election is to be scrubbed and ignored, and Georgia’s Constitution merely provided for the selection of a Governor by the legislature.”163 Therefore, a proper reading of Fortson by no means reveals an anti-majoritarian rule; instead it “merely sanctions a state’s ability to select public officials by appointment rather than by popular election.”164 Ultimately, the Gordon Court held that “so long as such [supermajority] provisions do not discriminate against or authorize discrimination against any identifiable class, they do not violate the Equal Protection Clause.”165 In a footnote, however, the Supreme Court cabined its holding by explicitly stating that Gordon does not apply to the election of public officers, announcing “we [do not] decide whether a State may, consistently with the Constitution, require extraordinary majorities for the election of public officers.”166 To date, the Supreme Court has not ruled on this question. One commentator contends that the Court’s footnote was “wholly unnecessary” because “the use of supermajority voting rules in the election of public officials is almost unknown in the American political system and would be a readily distinguishable case without the need for a qualifying footnote.”167 This Note seeks to answer the question the Gordon Court left open: whether a supermajority requirement is constitutional with respect to the election of

163 Cf. Ex rel. Salinas Petitioners’ Reply, supra note 88, at 13 (quoting Fortson, 385 U.S. at 243, in its discussion of the Lefkovits court’s similarly misplaced reliance on Fortson). 164 Cf. id. at 13-14 (citations omitted): [R]ather than carving out an exception to the majoritarian rule, the court actually takes the case out of that context altogether. . . . The opinion merely sanctions a state’s ability to select public officials by appointment rather than by popular election. It is only when the public participates in the selection of a public official that the one- person, one-vote rule applies. But see Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 244- 245 (1997): [T]he Supreme Court has expressly rejected the argument that the Constitution requires simple majority rule and has allowed legislatures to deviate from such rule. Gordon v. Lance states this point clearly. . . . The point is not that majoritarianism is an unimportant value in the American system of government; obviously it is of enormous significance. Rather, the point is that majoritariansm is not a universal principle of American government such that all deviations from it are unconstitutional. 165 Gordon, 403 U.S. at 7. 166 Id. at 8 n.6 (emphasis added) (limiting case holding to the facts at hand and not expressing an opinion about provisions requiring unanimity, conferring a veto power on a small group, or applying to the election of public officers). 167 King, supra note 94, at 170 (citing Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1015 (N.D. Ill. 1975), discussed infra Part III.C, in which the court found that the Illinois judicial retention system, which requires a supermajority vote, was actually a referendum and thus not subject to footnote six in Gordon).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 199 public officers – in particular, state judges in New Mexico.

C. Lefkovits v. State Board of Elections: Gordon in the Context of Judicial Retention In the 1975 case of Lefkovits v. State Board of Elections, the United States District Court for the Northern District of Illinois held that Illinois’s 60% supermajority requirement for judicial retention does not violate Equal Protection.168 The Lefkovits decision, however, avoided the ultimate question presented by this Note: whether supermajority requirements for the election of public officials violate Equal Protection. Instead, it classified the Illinois retention election as a referendum, as opposed to an election of a public official.169 The United States Supreme Court later affirmed the case without opinion.170 Neither Gordon nor Lefkovits should constitute direct authority or even persuasive precedent for a constitutional challenge to the New Mexico supermajority requirement. With particular respect to Lefkovits, it must be noted that a summary affirmance by the Supreme Court does not confer the same precedential authority as a decision rendered after plenary consideration and, likewise, does not present the same justification for declining to reconsider a prior decision as does a full opinion the Court renders after oral argument.171 Indeed, a summary affirmance extends only to the “‘precise issues presented and necessarily decided by those actions.’”172 Because a summary affirmance serves only as an affirmance of the judgment below, “the rationale of affirmance may not be gleaned solely from the opinion below.”173 Therefore, neither the Lefkovits judgment nor reasoning forecloses a decision on the constitutionality of the New Mexico supermajority requirement. Like the Gordon Court, the Lefkovits court seemed to employ a mish-mash of Equal Protection doctrine without ever enunciating the precise analysis or

168 400 F. Supp. at 1016 (announcing that “[s]ince the 60% requirement does not discriminate against or authorize discrimination against any identifiable class there is no violation of the equal protection clause”). 169 Id. at 1015 (stating that the court would leave open “the question of whether a judge or any public official can be required to be elected by more than majority vote”); see also infra Part III.D. 170 Lefkovits v. State Bd. of Elections, 424 U.S. 901 (1976). 171 See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500 (1981) (explaining that “summary actions do not have the same authority in this Court as do decisions rendered after plenary consideration”); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 180-181 (1979) (proclaiming that “summary affirmances have considerably less precedential value than an opinion on the merits”). 172 Ill. State Bd. of Elections, 440 U.S. at 182 (quoting Mandel v. Bradley, 432 U.S. 173, 176 (1977)). 173 Mandel, 432 U.S. at 176.

200 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 standard of review it was applying.174 Nevertheless, because the New Mexico supermajority requirement bears certain similarities to the Illinois requirement, Gordon and Lefkovits constitute “a logical starting point” for analysis of the New Mexico supermajority requirement.175 However, the New Mexico supermajority requirement and the judicial selection system of which it is a part are distinguishable in several fundamental ways from the Illinois system. Indeed, as the preceding and following discussion make clear, the reasoning in both Gordon and Lefkovits is problematic and should not serve as persuasive – much less binding – precedent for a court considering the constitutionality of the New Mexico supermajority requirement.176 In Lefkovits, Cook County Circuit Court Judge David Lefkovits garnered 59.8% affirmative vote in his retention election, and thus failed to receive the 60% affirmative vote required for judicial retention under Illinois law.177 All Illinois judges are initially selected in partisan elections requiring a plurality of the vote to prevail.178 At the expiration of his or her term, a judge may either seek nonpartisan retention or run for reelection in a partisan election.179 If a judge chooses to seek nonpartisan retention, he or she must garner a 60% affirmative vote to be retained.180 If a judge chooses instead to run for reelection in a partisan election, he or she is required to garner only a plurality of the vote.181 Lefkovits182 sought declaratory and injunctive relief to establish that the supermajority requirement for judicial retention violated both the Illinois and U.S. Constitutions.183 Lefkovits184 alleged three denials of

174 This is not surprising considering that the Lefkovits court almost directly applied the framework of the Gordon opinion to the Illinois facts. 175 See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1009 (N.D. Ill. 1975) (stating that the case “presents a federal question . . . upon which there is no direct authority. Fortunately, however, the Supreme Court has considered an extraordinary majority requirement in another context and that decision is a logical starting point of analysis”). 176 See King, supra note 94, at 172 (contending that “Gordon contributes little to a larger understanding of how majority rule, supermajority requirements and the Constitution should interact in a modern democratic state”). 177 Lefkovits, 400 F. Supp. at 1006. 178 Id. at 1007-08; see ILL. CONST. art. 6, § 12. 179 Lefkovits, 400 F. Supp. at 1007-08; see also ILL. CONST. art. 6, § 12. 180 Lefkovits, 400 F. Supp. at 1007-08; see also ILL. CONST. art. 6, § 12. 181 Lefkovits, 400 F. Supp. at 1008; see also ILL. CONST. art. 6, § 12. 182 John T. Meagher, a qualified elector in Cook County who cast his ballot in favor of Judge Lefkovits’s retention, filed the action along with Judge Lefkovits, who later dropped out of the challenge. Lefkovits, 400 F. Supp. at 1006. 183 Id. 184 While the action was pending, Judge Lefkovits dropped out of the suit and voluntarily relinquished his judgeship. In the meantime, the Illinois State Bar Association, the Chicago Council of Lawyers, and the Chicago Bar Association moved to intervene as defendants. The defendants moved to dismiss on the ground that Meagher lacked standing to bring the challenge and that the issue was moot since Lefkovits had retired, but the U.S. District Court

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 201 constitutional rights. In addition to asserting violations of the Illinois state equal protection clause185 and the Federal Constitution’s Guaranty Clause,186 Lefkovits also argued that the Illinois supermajority requirement violated the Equal Protection Clause of the Fourteenth Amendment.187 The District Court observed that there was “no direct authority” but found Gordon v. Lance to be “a logical starting point of analysis.”188 Despite the Gordon Court’s disclaimer that it expressed no opinion on the constitutionality of supermajority requirements for the election of public officials,189 the Lefkovits court found Gordon to be “persuasive on the question subjudice[,] for the Illinois retention system is in essence a referendum on whether a particular judge shall be retained in office.”190 The Lefkovits court’s assertion, with minimal discussion, that the Illinois supermajority requirement was a referendum and not an election allowed the court to avoid the difficult and more fundamental question of whether electoral supermajority rules for the election of public officials violate Equal Protection.191 found a “live case or controversy that Meagher ha[d] standing to pursue.” Id. at 1006-09. 185 Lefkovits contended that the supermajority requirement, contained in the Illinois Constitution, violated the equal protection clause of the same constitution. The Court, however, found no violation because “ipso facto the provision is constitutional . . . notwithstanding the existence of a general state constitutional provision that could be read to prohibit the same procedure if enacted as a statute.” Id. at 1009. 186 Lefkovits asserted that the Illinois supermajority requirement violated the Guaranty Clause of the United States Constitution, which states that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” U.S. CONST. art. IV, § 4. The court found this argument foreclosed by the Supreme Court’s decision in Luther v. Borden, 48 U.S. 1 (1849), which held that such claims are nonjusticiable and thus not cognizable by the federal courts. Lefkovits, 400 F. Supp. at 1009; cf. King, supra note 94, at 171 (pointing out that it is unclear from Gordon how and why supermajority requirements violate the Guaranty Clause or other provisions in the Constitution (e.g., the Due Process Clause), because the Gordon Court broadened its holding to include all provisions of the Constitution without discussion, explanation, or legal reasoning as to these other constitutional provisions). 187 Lefkovits, 400 F. Supp. at 1009. 188 Id. 189 See Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971). 190 Lefkovits, 400 F. Supp. at 1011 (emphasis added). 191 See id. at 1014-15: Because of the Supreme Court’s disclaimer that Gordon did not decide whether states could require extraordinary majorities in the election of public officials, an examination of the Illinois retention provision has been undertaken. We conclude that the provision in essence calls for a referendum, not an election, on the proposition of whether a particular judge shall be retained in office. See also Ex Rel. Salinas Petitioners’ Reply, supra note 88, at 17 (contending that “[s]imply by (incorrectly) labeling the election a referendum, the court attempts to avoid the fact that a court has never, before (nor since) Lefkovits, held that a state may require an extraordinary majority in the election of a public official”).

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The Supreme Court, however, has clearly distinguished elections of public officials from referenda. First, the Court applies different standards of Equal Protection to referenda and elections of public officials based on the inherently different processes they entail and policies they reflect. In Town of Lockport v. Citizens for Community Action, the Court explained that when voters are electing their legislative representatives, “all citizens have an equal interest in representative democracy, and . . . the concept of equal protection therefore requires that their votes be given equal weight.”192 The Court went on to note that the one-person, one-vote mandate applies to elections of representatives at both the local and state level.193 In contrast, the Court has eased the Equal Protection standards applied to referenda by distinguishing referenda in two important ways.194 The primary reason is that in a referendum “the expression of voter will is direct, and there is no need to assure that the voters’ views will be adequately represented through their representatives in the legislature.”195 In addition, referenda and elections of representatives implicate different policies, that is, “instead of sending legislators off to the state capitol to vote on a multitude of issues, the referendum puts one discrete issue to the voters.”196 Based on these distinctions, the Lockport Court announced that states need not apply the one-person, one-vote principle in such a rigid fashion to referenda.197 The second important distinction the Court has recognized is that judges, like legislators and other public officials, are “representatives” under the Voting Rights Act.198 The Court has held that when voters participate in the selection of public officials, the one-person, one-vote mandate, as well as the full panoply of Equal Protection rights, apply without regard to the nature of

192 430 U.S. 259, 265-66 (1977) (citing Lucas v. Colo. Gen. Assembly, 377 U.S. 713 (1964); Fortson v. Dorsey, 379 U.S. 433 (1965); Burns v. Richardson, 384 U.S. 73 (1966); Swann v. Adams, 385 U.S. 440 (1967); Kilgarlin v. Hill, 386 U.S. 120 (1967); and Whitcomb v. Chavis, 403 U.S. 124 (1971)). 193 Lockport, 430 U.S. at 265 n.11 (citing Avery v. Midland County, 390 U.S. 474 (1968) and Hadley v. Junior Coll. Dist., 397 U.S. 50 (1970)). 194 See Lockport, 430 U.S. at 266 (describing the Court’s differing treatment of referenda and elections of public officials in Equal Protection analysis). 195 Id. 196 Id. 197 See id. (commenting that “[t]he equal protection principles applicable in gauging the fairness of an election involving the choice of legislative representatives are of limited relevance . . . in analyzing the propriety of recognizing distinctive voter interests in a ‘single-shot’ referendum”). 198 See Chisom v. Roemer, 501 U.S. 380, 399-401 (1991) (explaining that Congress must have intended elected judges to be included in the term “representatives” because the term “describes the winners of representative, popular elections” and not simply legislators). The Court did not hold that referenda are not subject to the Voting Rights Act. Id. Rather, the important point is that the Court views the election of judges as equivalent to the election of other public officials, to which the Equal Protection Clause fully applies.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 203 the office.199 The Lefkovits court’s determination that judicial retention elections constituted referenda seems to strain the definition of referenda, thereby blurring any meaningful distinction between the two. Given the Supreme Court’s decision in Lockport to apply one-person, one-vote Equal Protection principles to the election of state representatives,200 it is unclear whether other courts would agree with the Lefkovits reasoning that judicial elections are referenda and whether courts would apply that rationale to the New Mexico judicial selection system. The decision whether to retain a judge requires voters to make a decision analogous to the decision involved in selecting a legislator because, “[l]ike a legislator, ‘a judge both makes and implements governmental policy.’”201 In a retention election, as in a contested judicial election or an election of a legislator, the voters decide whether the incumbent judge will or will not continue to make policy decisions that will affect their lives for another term. . . . [and] the voters cannot know the content of the numerous decisions the judge will make, or what direct policy decisions . . . will be made.”202 Voters make fundamentally different decisions in this type of election, as opposed to a referendum in which they vote on issues such as “whether their taxes should fund a particular bond obligation.”203 In sum, a judicial retention election implicates much more than the type of “single-shot” issue decided in a referendum.204 The Lefkovits court hid behind semantics to avoid the real constitutional question. Rather than confront the issue, the Lefkovits court, much like the

199 See Hadley v. Junior Coll. Dist., 397 U.S. 50, 54-55 (1970): When a court is asked to decide whether a State is required by the Constitution to give each qualified voter the same power in an election open to all, there is no discernible, valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election. If one person’s vote is given less weight through unequal apportionment, his right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator. While there are differences in the powers of different officials, the crucial consideration is the right of each qualified voter to participate on an equal footing in the election process. It should be remembered that in cases like this one we are asked by voters to insure that they are given equal treatment, and from their perspective the harm from unequal treatment is the same in any election, regardless of the officials selected. 200 See Lockport, 430 U.S. at 265-66. 201 Ex rel. Salinas Petitioners’ Reply, supra note 88, at 18 (quoting Kurowski v. Krajewski, 848 F.2d 767 (7th Cir. 1988)). 202 Id. 203 Id. at 18-19. 204 Id. at 19; see also supra note 197 (observing similar language in the Supreme Court’s Lockport decision).

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Supreme Court in Gordon, simply decided it was “not going there.”205

D. New Mexico Retention Elections Are “Elections of Public Officers” and Not “Referenda” It is clear from the legislative history of the New Mexico judicial selection system and the constitutional text that the supermajority requirement is “for the election of public officers”206 and not “in essence a referendum on whether a particular judge shall be retained in office.”207 Although the architects of the New Mexico merit selection system envisioned a system devoid of partisan political wrangling, they nevertheless created a system that included a series of partisan and retention elections.208 Even if the Illinois system is correctly characterized as a referendum, the New Mexico judicial selection system, including its supermajority retention requirement, is distinguishable in several fundamental ways.209 The New Mexico supermajority requirement is contained in a section of the state Constitution entitled “Judicial elections,” which refers to both “partisan election” and subsequent “nonpartisan retention election.”210 In this way, the New Mexico Constitution expressly classifies both partisan and retention elections as elections and not as referenda.211 The electoral ballot itself provides further proof that retention elections are in fact elections by labeling the section “Election of Nonpartisan Judges.”212 Indeed, the New Mexico Constitution further distinguishes referenda by requiring only a simple majority vote with respect to most referenda, as opposed to the supermajority

205 See King, supra note 94, at 165 (postulating that the Gordon Court, “without explicitly overruling any Supreme Court precedent . . . seemed to look toward the supermajority part of the thicket and simply conclude, ‘we don’t want to go there’”). 206 See Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971) (declining to express a binding opinion as to supermajority requirements for the election of public officers). 207 See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1011 (N.D. Ill. 1975) (holding that Illinois judicial retention elections function as referenda). 208 See supra Part II (detailing the New Mexico judicial election system and its framers’ goals). 209 See Ex rel. Salinas Petitioners’ Reply, supra note 88, at 19: The Lefkovits court came to the wrong conclusion in labeling a judicial retention election as a referendum, unless the nature of referendum in Illinois varies greatly from the nature of referendum in New Mexico, where “. . . people have a much narrower right of referendum than is allowed in any other state in which the right is reserved.” Lefkovits simply is inapplicable. (citation omitted). 210 N.M. CONST. art. VI, § 33 (emphasis added). 211 Moreover, the New Mexico Constitution makes no reference to retention elections as “referenda” either explicitly or implicitly. 212 See, e.g., Official General Election Ballot, Hidalgo County, New Mexico (Nov. 2, 2004) (emphasis added).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 205 required in judicial retention elections.213 Moreover, referenda and judicial elections are distinguishable in that campaigns regarding the former, in contrast to the latter, are not subject to the same ethical rules.214 The Illinois Constitution, on the other hand, sets forth its judicial selection procedures in a section entitled “Election and Retention.”215 By doing so, the text and structure of the Illinois Constitution draw a distinction between partisan elections and nonpartisan retention, making it apparent that the drafters did not consider such events equivalent. Additionally, unlike Illinois, the New Mexico judicial selection system does not grant New Mexico judges a choice between running in a partisan election or seeking nonpartisan retention.216 More generally, elections involving public officials are inherently different from referenda in both process and purpose.217 Therefore, a court considering the New Mexico supermajority requirement should recognize the distinction and find the supermajority requirement to be an “extraordinary majorit[y] for the election of public officers”218 and, because it is distinct from the Illinois requirement, not controlled by the reasoning and holding in Gordon

213 See infra notes 258-261 and accompanying text (describing the types of referenda for which the New Mexico Constitution requires only majority approval). 214 See infra Part V.C (detailing the relevant ethical rules applicable to judicial campaigns). 215 ILL. CONST. art. 6, § 12 (emphasis added). 216 See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1007-08 (N.D. Ill. 1975). In Illinois, an incumbent judge may choose to seek to retain his or her office through a nonpartisan retention election. The Illinois constitution states in pertinent part: Not less than six months before the general election preceding the expiration of his term of office, a Supreme, Appellate or Circuit Judge who has been elected to that office may file in the office of the Secretary of State a declaration of candidacy to succeed himself. . . . The names of Judges seeking retention shall be submitted to the electors, separately and without party designation, on the sole question whether each Judge shall be retained in office for another term. . . . The affirmative vote of three- fifths of the electors voting on the question shall elect the Judge to the office for a term commencing on the first Monday in December following his election. ILL. CONST. art. 6, § 12(d). Alternatively, an incumbent judge may choose to seek reelection by partisan election. The pertinent section states: Supreme, Appellate and Circuit Judges shall be nominated at primary elections or by petition. Judges shall be elected at general or judicial elections. . . . A person eligible for the office of Judge may cause his name to appear on the ballot as a candidate for Judge at the primary and at the general or judicial elections by submitting petitions. Id. § 12(a). In New Mexico, on the other hand, incumbent judges can only retain their office through nonpartisan retention elections. N.M. CONST. art. VI, § 33A states that each incumbent judge, after winning an initial partisan election, “shall be subject to retention or rejection on a nonpartisan ballot.” (emphasis added). 217 See supra notes 192-204 and accompanying text. 218 See Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971) (limiting the court’s holding by refusing to extend the decision to extraordinary majorities for the election of public officers).

206 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 or Lefkovits.219

E. Additional Equal Protection Concerns Regardless of the distinction between elections and referenda, New Mexico’s supermajority requirement is distinguishable from that considered by the Lefkovits court. As such, application of the rationales relied on by the Gordon Court to uphold the West Virginia supermajority requirement would still not justify upholding the New Mexico supermajority requirement. Guided – or perhaps misguided – by Gordon, the Lefkovits court was equally vague with respect to the type of analysis and standard of review that applied to the Illinois supermajority requirement. The Lefkovits court first determined that there was no denial of the franchise to any particular group, in spite of the fact that no one alleged vote denial.220 In other parts of the opinion, the court seemed to settle on the one-person, one-vote analysis.221 For example, the court found that “when a judge is to be elected or retained, regardless of the scheme of apportionment, the equal protection clause requires that every qualified elector be given an equal opportunity to vote and have his vote counted. This is the essence of the one-person-one-vote principle.”222 However, the court then misconstrued and diminished the weight and principles of the Supreme Court’s one-person, one-vote cases by finding that these cases only applied to geographic discrimination, that is, weighting or diluting a citizen’s vote based on where he or she lived.223 The court stated that the “Illinois judicial retention process does not suffer from this infirmity”

219 Cf. Christopher J. Soller, “Newtonian Government:” Is the Contract with America Unconstitutional?, 33 DUQ. L. REV. 959, 979 (1995) (finding Gordon not “dispositive of the constitutionality of a House Rule requiring a supermajority to pass simple legislation” because Gordon’s footnote six “exemplifies that in Gordon, the Court was focusing specifically on whether a supermajority requirement in a referendum election was constitutional”) (emphasis added). 220 Lefkovits, 400 F. Supp. at 1011-12 (stating that “[t]he Illinois constitutional provision does not arbitrarily deny the franchise to any particular group” and that “[a]ll otherwise qualified voters are entitled to vote on the question of whether a judge should be retained”). 221 See id. at 1012-13 (explaining that “[t]o decide that the Illinois judicial retention article must be compatible with the one-person-one-vote requirement only begins the inquiry” because “[t]he next step is to determine the scope of the principle and its applicability to the particular facts at hand”). 222 Id. at 1012. 223 See id. at 1013 (relying on cases where sparsely populated rural districts were given equal voting and legislative power as more populous urban districts). As a threshold principle, the one-person, one-vote cases also made clear that each citizen’s vote must be weighted equally. See King, supra note 94, at 165 (arguing that “[t]he Court’s opinion in Gordon is all but inexplicable when viewed in the context of stare decisis and general tenets of judicial interpretation” because “[i]t simply does not seem possible to identify any principled, coherent theory that would reconcile the Court’s decision in Gordon with its prior rhetoric and actions in the area of equal protection”); see also supra Part III.A.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 207 because “[e]ach voter is entitled to cast one vote and that vote is counted at the same value as any other voter’s” without any “geographic discounting.”224 The court also rejected the plaintiff’s argument that “his vote does not have the same marginal impact on the outcome of the election as a voter of a different persuasion,” calling this “merely an assertion that the majority will must prevail in a judicial retention election.”225 The court never cited, discussed, or applied the long line of reapportionment cases thick with language on the importance of majoritarianism and giving equal weight to every vote.226 The court instead dismissed the cases as “some language in the reapportionment cases to the contrary” and found no principle of majoritarianism in the Supreme Court’s jurisprudence.227 The Lefkovits court based its conclusion that the Constitution does not require majoritarianism on the same faulty reasoning as the Gordon Court – the misinterpretation of Fortson v. Morris.228 Without further explanation, the Lefkovits court summarily found that “[t]he preceding discussion necessitates the conclusion that a denial of majoritarianism does not deny political equality to those who favor the retention of judges.”229 The court stated that “the plaintiff must go further and show that the retention provision is designed to dilute the voting or representational strength of a particular identifiable political element.”230 Even applying Gordon as Lefkovits did, a court considering the New Mexico supermajority requirement could find a violation of Equal Protection. The New Mexico supermajority requirement is properly construed as an electoral rule because it affects the weighting of votes and thus impairs the franchise.231 A supermajority rule in the context of a referendum, as in Gordon, indeed results in the underweighting of votes, but “does not dilute anyone’s right to vote – every citizen has the same opportunity to influence the outcome as any other. It simply makes it more difficult for the more burdensome position to

224 Lefkovits, 400 F. Supp. at 1013. 225 Id. at 1013-14. 226 See generally id.; see also supra Part III.A (explaining reapportionment cases decided prior to Gordon, in which the Supreme Court found violations of the Equal Protection Clause). 227 Lefkovits, 400 F. Supp. at 1014. 228 See id. (citing Fortson v. Morris, 385 U.S. 231 (1966), which found no constitutional violation when, pursuant to the Georgia Constitution, the Georgia state legislature selected a Governor because no candidate received a majority of the popular vote); see also supra notes 160-164 and accompanying text (explaining the misinterpretation of Fortson that led the Supreme Court to conclude that the Constitution does not require majoritarianism). 229 Lefkovits, 400 F. Supp. at 1014. 230 Id. 231 Petitioners in the New Mexico challenge contended that “[a] change in the weight given to a person’s vote, even if that change is constitutional, affects that person’s vote. A 57% vote requirement weighs the votes in judicial retention elections differently and thereby affects the elective franchise.” Ex rel. Salinas Petitioners’ Reply, supra note 88, at 7.

208 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 win at the polls.”232 Thus in the referendum context, a supermajority requirement discriminates between action and non-action, but, not between classes of voters.233 New Mexico’s supermajority requirement, by contrast, operates in the context of an election of public officials and impairs the right to vote by impermissibly underweighting the votes in favor of retention vis-à-vis rejection of an incumbent judge.234 Equal Protection prevents states from making it more difficult for one candidate to be victorious by making votes in his or her favor of unequal value.235 Because New Mexico’s supermajority requirement affects the fundamental right to vote in this way, the court should apply strict scrutiny pursuant to one-person, one-vote analysis236 in considering the constitutionality of the provision. Under this standard, in order to uphold the New Mexico supermajority requirement, a court would have to identify a compelling government interest

232 Recent Case, Lance v. Board of Educ., 170 S.E.2d 783 (W. Va. 1969), cert. granted sub nom. Gordon v. Lance, 90 S. Ct. 1264 (1970), 83 HARV. L. REV. 1911, 1918 (1970). 233 Id. at 1917. 234 See id. at 1916-17. This anonymous case brief states that [i]n a candidate election, state action making more difficult the victory of one of the two candidates may well impair the right to vote. So long as the elected government official is viewed as standing in for a group of citizens, equal protection requires that each elected official stand in for an equal number of people and that he be the choice of more of his constituents than any other candidate. Any other result implies either that one candidate is legally preferable to another or that some people are entitled to more representation than are others. Neither of these implications is consonant with equal protection. In the context of a candidate election, all choices are of equal value – all legally qualified candidates are, by definition, equal in the eyes of the law. Hence a state may not weight votes according to the candidate for whom they are cast, even if the candidate whose votes will be more heavily weighted is not predetermined. Id. (emphasis added). While retention election and partisan election between two candidates are by no means identical, this Note contends that they are fundamentally analogous and that retention elections should be accorded similar Equal Protection treatment as regular partisan elections, and thus distinguished from referenda. 235 Id. 236 See King, supra note 94, at 148 (“[I]f supermajority voting rules are seen to infringe upon the right to vote, the appropriate level of review would be strict scrutiny in that the right to vote has previously been classified as a ‘fundamental right.’”). But cf. Recent Case, supra note 232. The case brief advocates a less stringent review in the context of supermajority requirements for referenda: Unless the courts are willing to impose an absolute standard of majoritariansm and thus force the states to ignore real differences between the burdens imposed by different proposals, they should refrain from an active review of extraordinary majority requirements. Active review would place the courts in the position of deciding in each case whether the position discriminated against did in fact entail greater burdens than the favored position, and whether the required majority was drawn with sufficient precision to achieve the consensus necessary to undertake action involving that degree of added burden. In making such judgments the courts would have no guide but their own political instinct. Id.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 209 to justify the departure from Equal Protection. The New Mexico retention system was implemented with the dual purposes of assuring a politically independent yet accountable judiciary.237 The Lefkovits court found justification for the Illinois supermajority requirement in the notion that a simple majority requirement would render “almost impossible” the removal of judges “who had lost public confidence.”238 Such reasoning fails to amount to even a rational government interest, let alone a compelling interest, because the notion that “a judge who has received a majority vote . . . can be said to have lost the confidence of the voters is beyond rational explanation.”239 Indeed, the policy considerations discussed in Part V demonstrate that the supermajority requirement actually undermines the assurance of an independent yet accountable judiciary by placing even more pressure on judges to campaign, while simultaneously constraining their ability to do so in an ethical yet effective manner.240 In light of such considerations, the supermajority requirement cannot be justified as a narrowly tailored measure even rationally related to serving a compelling state interest.241 A close examination of the legislative intent and history behind the supermajority requirement discloses even more problems. First, the supermajority requirement was an ad hoc change to a carefully drafted, publicly-debated judicial selection reform.242 The legislative history also indicates that dislike for certain judges and desire to find a way to control judges in the absence of partisan elections played at least some role in the New Mexico legislature’s eventual passage of the requirement.243 In response to a

237 See supra notes 41-47 and accompanying text. 238 Lefkovits, 400 F. Supp. at 1015. 239 Ex rel. Salinas Petitioners’ Reply, supra note 88, at 20; see also supra note 25 and accompanying text (explaining that the merit selection system is designed to avoid removals except in egregious cases). 240 See infra Part V. 241 But cf. Fisk & Chemerinksy, supra note 164, at 245 (contending that the supermajority rule required to overcome a Senate filibuster is unconstitutional only if it “offends some other constitutional principle besides majoritariansm,” but that “no other viable constitutional arguments seem to exist” because “[f]ilibusters. . . cannot be attacked on the ground they are arbitrary and unreasonable, rendering them unconstitutional. Reasonable people can differ as to whether it is desirable to have a strong presumption in favor of allowing debate to continue”). 242 Telephone Interview with W. John Brennan, supra note 34; see also supra notes 61- 70 and accompanying text. 243 Telephone Interview with W. John Brennan, supra note 34 (explaining that an ad hoc group of attorneys proposed a supermajority of 65% in order to preserve active campaigning under the merit system and to decrease judicial support for the merit system); Telephone Interview with Joseph Baca, supra note 42 (explaining how the resulting 57% number was a compromise between a lawyer’s initial proposal of 75% and legislative and judicial concerns that the proposed percentage was too high); see also supra note 64 and accompanying text.

210 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 constitutional challenge, the state would be hard-pressed to justify these motivations as compelling.244 As in Gordon, the Lefkovits court found no “identifiable class of voters” against whom the Illinois supermajority requirement discriminated,245 probably because much like the Gordon Court, the Lefkovits court did not properly distinguish the doctrine.246 One-person, one-vote cases are concerned with dilution and improper weighting of votes, while political process cases focus on the effects of a voting requirement on an identifiable group.247 Following Gordon almost without discussion, the Lefkovits court refused to identify a class of voters against whom the Illinois supermajority requirement discriminated.248 Although the focus on an “independently identifiable group” is wholly misplaced in a one-person, one-vote case, two classes are readily identifiable with respect to the New Mexico supermajority requirement: judges seeking retention and voters who believe they would benefit from, inter alia, the stability of an incumbent judge’s retention.249 From there, the Lefkovits court simply concluded that Gordon was “persuasive authority in support of the validity of the Illinois judicial retention system” and, because the supermajority requirement actually constituted a referendum, “an extraordinary majority requirement is constitutionally

244 The state might argue that the supermajority requirement replaced a layer of accountability that removing contested, partisan elections took away. In light of the history and intent detailed in this Note, such an argument should not withstand scrutiny. See U.S. v. Virginia, 518 U.S. 515, 532 (1996) (holding that the state’s justification for a discriminatory classification “must be genuine, not hypothesized or invented post hoc in response to litigation”). 245 Gordon v. Lance, 403 U.S. 1, 5 (1971); accord Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1015-16 (N.D. Ill. 1975). 246 As discussed previously, “the failure of the [c]ourt to find an ‘independently identifiable class’ . . . seems in large part the result of its abject confusion over vote dilution and political process equal protection analysis.” King, supra note 94, at 151 (criticizing the Gordon Court’s failure to distinguish between dilution and political process cases). 247 See supra notes 128-129 and accompanying text. 248 See Lefkovits, 400 F. Supp. at 1011-12 (determining that “if the section does not authorize discrimination against an identifiable class there can be no violation of the equal protection clause”). 249 See King, supra note 94, at 153 (arguing that, in a political process equal protection case, the focus “should be on the class of individuals affected by the supermajority rule, not on those casting ballots”); see also supra note 135 and accompanying text. Calvert would find a third “independently identifiable group,” the majority “yes” voters. See Calvert, supra note 120, at 404. Calvert asserted that “in Gordon, the Court erred. There is an identifiable class of citizens that is disadvantaged. The majority of voters who voted ‘yes’ had been disenfranchised because their votes were given less weight than those who had voted ‘no.’” Id. He added that the Court, in recognition that perhaps it “had gone out on a limb in relation to the one person-one vote principle,” may have cabined its holding by adding footnote six, which stated that it was inapplicable to the election of public officials. Id.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 211 permissible so long as it does not discriminate against an identifiable class of voters.”250 The Lefkovits court observed that, like the Gordon Court, it had not passed on the question of supermajority requirements for the election of public officials.251 Although the Lefkovits court never reached the question, a court examining the New Mexico supermajority requirement would not be able to find justification for it under Gordon’s neutral application rationale.252 Rather, New Mexico “singles out [a] ‘discrete or insular minority’ for special treatment”253 in two ways – by applying the supermajority requirement only to judges and not to other elected officials, and by applying it only to incumbent judges running in retention elections and not to judges running in partisan elections. Therefore, the New Mexico supermajority requirement is not applied in a neutral fashion. The federal analogy, discussed previously, is inapposite because there is little, if any, similarity between the supermajority provisions in the federal Constitution, which help form the fundamental federal structure, and a supermajority requirement for the election of certain state judges.254 Therefore, the court should give little, if any, weight to Gordon’s federal analogy reasoning in determining the constitutionality of the New Mexico supermajority requirement. The intergenerational rationale255 also fails to provide justification for the New Mexico supermajority requirement, which applies to judges being retained for terms ranging from four to eight years.256 Such periods of time can hardly be considered to affect intergenerational concerns, especially because a judge’s mandate is to interpret and apply the law, not to make policy.257

250 Lefkovits, 400 F. Supp. at 1014-15. 251 Id. at 1015. 252 See Gordon v. Lance, 403 U.S. 1, 5; see also supra notes 139-148 and accompanying text. 253 See Gordon, 403 U.S. at 5. The term “discrete and insular minority” is used here as the Gordon Court used it and not in the normal Carolene Products footnote four sense. See supra note 139 and accompanying text. 254 See supra notes 149-151 and accompanying text (deconstructing the analogy between the West Virginia supermajority requirements and the supermajority requirements in the federal Constitution). 255 See supra notes 152-159 and accompanying text. 256 New Mexico Supreme Court justices and court of appeals judges serve eight-year terms; district court judges serve six-year terms; and metropolitan court judges serve four- year terms. N.M. CONST. art. VI, § 33(B)-(D). 257 While some observers argue that judges in merit selection systems essentially serve life tenures, incumbency plays an equally strong role in other elections for public office. See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1015 (N.D. Ill. 1975) (explaining that a majority of Illinois delegates believed that a requirement of anything less than 60% “would make it almost impossible to remove judges”). Furthermore, because the New

212 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173

Unlike in many states, the New Mexico Constitution does not, in general, require supermajorities for most legislative action. While many states require supermajorities for certain types of legislative referenda, including the incurrence of debt, the New Mexico Constitution requires only a simple majority vote.258 Even with respect to amending its constitution, New Mexico generally requires only a simple majority vote for ratification.259 Furthermore, one of the two types of constitutional amendments for which the New Mexico Constitution requires a supermajority is any amendment that restricts voting rights.260 Such amendments require approval by 75% of both houses of the New Mexico legislature, as well as 75% of the electorate.261 It would be difficult for a court to justify the New Mexico judicial retention supermajority based on this ‘do-it-too’ rationale because New Mexico only rarely requires legislative supermajorities, and when it does, these supermajorities are intended to protect voting rights, the very rights abrogated here. The Gordon Court refused to acknowledge a constitutional principle of majoritarianism based on the Court’s reasoning in Fortson v. Morris.262 Perhaps most distressing, the Gordon Court dismissed the long line of one- person, one-vote cases that stand precisely for the principle of majoritarianism.263 Popular sovereignty, realized through the fundamental principle of majority rule, is one of the United States’ basic democratic

Mexico judicial selection system requires a supermajority for retention and because, as discussed infra in Part V.E even nonpartisan retention elections are becoming more difficult political affairs, concerns about life tenure should not be dispositive of the resolution of this question. Moreover, the Gordon Court’s confused reasoning discounts the importance and applicability of this factor. See supra notes 152-159 and accompanying text. 258 N.M. CONST. art. IX, § 10 (stating that county indebtedness “shall be incurred only after the proposition to create such debt has been submitted to the registered voters of the county and approved by a majority of those voting thereon”); id. § 12 (stating that local government indebtedness shall be incurred only based on “a majority of those voting on the question”); see also id. art. IV, § 1 (requiring a “majority of the legal votes . . . and not less than forty per centum of the total number of legal votes cast” to repeal laws enacted by the legislature). 259 Id. art. XIX, § 1 (stating that “[a]n amendment that is ratified by a majority of the electorate voting on the amendment shall become part of this constitution”). 260 Id. No amendment shall restrict the rights created by Sections One and Three of Article VII hereof, on elective franchise . . . unless it be proposed by vote of three-fourths of the members elected to each house and be ratified by a vote of the people of this state in an election at which at least three-fourths of the electors voting on the amendment vote in favor of that amendment. 261 Id. 262 Gordon v. Lance, 403 U.S. 1, 6 (1971) (citing Fortson v. Morris, 385 U.S. 231 (1966); see also supra notes 160-164 and accompanying text (asserting that the Gordon Court misconstrued the import of Fortson). 263 See supra Part III.A.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 213 values.264 The Gordon opinion is therefore “surprising given the Court’s self- appointed task as keeper of the majoritarian process flame.”265 Justice Harlan, concurring in Whitcomb, also questioned how the Court could reconcile its decision in Gordon with the Court’s past precedent of majoritarianism, stating that the Court would have reached a different result “[i]f this philosophy of majoritarianism had been given its head . . . for it is the very nature of the principle that it regards majority rule as an imperative of social organization, not subject to compromise in furtherance of merely political ends.”266 Harlan cautioned the Court that “[i]f majoritarianism is to be rejected as a rule of decision, as the Court implicitly rejects it [in Gordon] today, then an alternative principle must be supplied if this earlier line of cases . . . is still to be regarded as good law.”267 In considering the New Mexico supermajority requirement, a court should find that the requirement cannot be justified under any of the rationales set forth in Gordon, and, moreover, that it violates the principle of majoritarianism on which the Supreme Court has expounded in the long line of one-person, one-vote cases.268 A court considering the New Mexico supermajority requirement should be careful not to misapply Gordon and the one-person, one-vote principle or avoid the issue in the way that the Lefkovits court did with respect to the Illinois supermajority requirement.269 Accordingly, applying heightened scrutiny and the proper analysis, a court could find that the New Mexico supermajority requirement violates Equal Protection under the Fourteenth Amendment based on the abridgement of the voting rights of the class identified above.

IV. THE NEW MEXICO SUPERMAJORITY REQUIREMENT RAISES IMPORTANT POLICY AND POPULAR SOVEREIGNTY ISSUES The New Mexico supermajority requirement also raises important policy and popular sovereignty issues that the courts, legislature, and people of New Mexico should carefully consider.270 As previously noted, the legislative

264 See King, supra note 94, at 133. 265 Id. at 171-72 (recognizing that the Supreme Court, in prior cases, “would closely and thoroughly examine any rules that mandate departures from majoritarianism” but that it failed to do so in Gordon). 266 Whitcomb v. Chavis, 403 U.S. 124, 167 (1971) (Harlan, J., concurring) (referring to Gordon, which was decided the same day as Whitcomb). 267 Id. 268 See supra note 96 and accompanying text. 269 It is not surprising that the Lefkovits court got it wrong given the confusion generated by Gordon. See King, supra note 94: The Court’s justification for its holding in Gordon and the discussions of its reasoning in light of past voting rights and equal protection cases is so addled that lower courts often cite Gordon’s reasoning without a clear understanding of its shortcomings, which often leads to confusion over the application of its rationale to cases at bar. 270 The Author does not dispute the fact that states have broad power to determine how

214 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 history of the New Mexico supermajority requirement demonstrates the arbitrariness of the 57% figure.271 Thus, the question arises whether a 65% requirement – or even a 75%, 80%, or 90% requirement – would be permissible. Although the Gordon Court stated in a footnote that its holding “intimate[d] no view on the constitutionality of a provision requiring unanimity or giving a veto power to a very small group,”272 it is difficult to discern any constitutional principle that would distinguish between a 57% and a 99% rule.273 Even if there is no constitutional principle of majoritarianism, as the Gordon Court suggests, this arbitrariness certainly raises questions about the legitimacy of such a requirement. And if the Constitution puts up no barrier against supermajority requirements for judicial elections, why not also require legislators and the

their officials are elected. See e.g., Sugarman v. McDougall, 413 U.S. 634, 647 (1973) (stating that “‘[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen’” including “persons holding state elective and important nonelective executive, legislative, and judicial positions” (quoting Boyd v. Thayer, 143 U.S. 135, 161 (1892))); see also supra note 86. 271 See supra notes 64-65 and accompanying text. 272 Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971). 273 See Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 503 (1994) (stating that “[o]nce majority rule is abandoned, there is no logical stopping point between, say, a 50% plus two rule, and a 99.9% rule). King contends that [t]he [Gordon] footnote’s first sentence on small group vetoes is understandable but problematic. It is conceivable, given the Court’s ruling in Gordon, that a state might adopt a provision that required, say, 90 percent of all voters to approve a certain type of referendum, thus giving a practical veto over certain policy decisions to a mere 10 percent of voters. While such a provision may seem unwise or patently unfair in light of democratic norms, it is difficult to see how it is constitutionally distinguishable from the situation in Gordon. The Court is intimating that it might be able to find somewhere in the Constitution the notion that, for example, an 89.9 percent supermajority voting rule is permissible, while a 90 percent supermajority rule would be unconstitutional. Even in the grayest penumbras and deepest emanations of equal protection theory such a line could never be viewed as anything but the arbitrary adoption of a naked preference wrapped in the garb of legal rulemaking. King, supra note 94, at 169; see also King, supra note 120: The failure of American political and legal theorists to craft . . . a theory [of supermajoritariansm] is due in part to its perceived consequences. Any theory that might justify the use of a three-fifths (60%) or two-thirds (66.6%) decision rule should be equally effective at justifying a nine-tenths (90%) decision rule, or even the rule of a single person (99.9999%). Once simple majority rule is departed from, there is no logical stopping point between a fifty-one percent rule and autocracy, and so political and legal theorists – staring at a slippery slope of supermajoritarian theory that would seem necessarily to imply a justification for dictatorship – back away from the precipice and instead choose either to reframe the question or deny the existence of a wholly principled solution. (citations omitted).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 215 governor to garner a supermajority?274 These officials certainly affect policy to the same extent, if not more than, judges. As New Mexico elections include both legislative and judicial contests on the same ballot, it seems problematic to apply different voting margins to each, especially with no such indication on the ballot.275 Moreover, it must be disorienting for the voter, assuming the voter is aware of the different rules, to realize that he or she must think differently about his or her vote for judges as opposed to legislators because each vote signifies a different effect on the outcome of the election.276

V. THE NEW MEXICO SUPERMAJORITY REQUIREMENT COMPOUNDS THE PROBLEMS MERIT SELECTION WAS DESIGNED TO ADDRESS Setting aside the theoretical problems, the supermajority requirement clashes directly with the original intent behind New Mexico’s shift to a merit selection system. The architects of Amendment Six, seeking a stable judiciary, designed a nonpartisan, majoritarian system intended to insulate the judiciary from partisan politics to the greatest degree possible without completely removing citizen participation.277 Although the architects were willing to

274 Moreover, the fact that legislators are determining the margin by which judges should be retained in office clearly implicates fundamental separation of powers concerns; however, a complete separation of powers analysis is beyond the scope of this Note. 275 Moreover, when Amendment Ten was on the ballot, no concerted public outreach campaign explained the significant change this Amendment would effect. See supra notes 69-70 and accompanying text. The lack of public debate on Amendment Ten stands in stark contrast to the debate and public outreach campaigns with respect to Amendment Six. See supra notes 49-50 and accompanying text. 276 That different significance is potentially much more than seven percentage points (i.e., the amount greater than a majority that judges in retention elections must garner) since other officials need only win a plurality of the vote (i.e., one vote more than the other candidate, and not necessarily a majority, or one single vote in the case of uncontested races). See also infra notes 286-288 and accompanying text (referring to the voter apathy, abstention, and confusion often associated with judicial retention elections). 277 See Larry Calloway, Op-Ed., Judicial Re-tension, ALBUQUERQUE J., Jan. 21, 1997, at 1: The special commissions that nominate district judge candidates for consideration by the governor have a ticklish problem to solve this week in Alamogordo and Deming. In both judicial seats the applicants for appointment include people who are qualified, have experience on the bench and recently won the support of a majority of the voters in their districts. Problem: the candidates . . . lost their seats because in the November election they fell just short of the 57 percent majority required for judicial retention by a new constitutional amendment...... The best guess is both will be nominated, among others. Then it becomes the governor’s problem. If he follows the “will of the majority” in each district, he’ll have to reappoint them. (emphasis added).

216 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 compromise by including one partisan election at the beginning of a judge’s term, they were certain that their goals of nonpartisanship and reducing the need for campaigning and fundraising would be achieved at the retention election stage.278 Amending the system nearly a decade later to require a 57% retention margin clearly undermines the merit selection system because, as the following discussion illuminates, even retention elections that require only a simple majority vote are becoming “noisier, nastier, and costlier.”279 The presence of a supermajority requirement only compounds the problem and may have destabilizing effects on the judiciary.

A. Retention Margin Impacts Retention Rate The vast majority of judges are retained.280 However, the retention threshold can have an impact on the rate of retention. A 1994 study examining 2,641 judicial retention elections in the United States between 1980 and 1990 found that voters rejected only thirty-four judges, or about 1%.281 However, of those thirty-four judges not retained, eighteen of them (more than 50%) were from Illinois, where retention requires a 60% supermajority vote.282 While the study was concluded in 1994, the year New Mexico increased its margin to 57%, it is possible that New Mexico’s supermajority rate could have a similar effect on retention rates. Additionally, a 1999 study of the period between the 1960s and 1998 revealed that only fifty-two of 4,588 judges were not retained.283 Strikingly, while Illinois retention elections composed only about one-third of the survey, more than half of the defeated judges were from Illinois.284 The study also found that of the twenty-eight defeated Illinois judges, only one failed to

278 See supra notes 46-47 and accompanying text. 279 See Woodbury, supra note 28, at 74 (quoting Georgetown Law Professor Ray Schotland for the contention that merit selection has not depoliticized the judicial selection and retention process). Although Brennan thinks that the system has accomplished many of the goals he and his colleagues set out to achieve, the benefits do not outweigh the problems that the supermajority requirement has created. Brennan believes the supermajority requirement is too high and that it should be changed back to a simple majority. Telephone Interview with W. John Brennan, supra note 34; see also supra note 67 and accompanying text. 280 Larry Aspin, Trends in Judicial Retention Elections, 83 JUDICATURE 79, 79 (1999); see also supra note 25 and accompanying text. 281 Luskin, supra note 23, at 319 (covering all retention elections in that time period except those in Alaska between 1980 and 1984, Kansas between 1982 and 1990, and Utah in 1988). 282 Id. at 320. 283 Aspin, supra note 280, at 79 (covering all retention elections in Alaska, Arizona, Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, and Wyoming between 1964 and 1998). 284 Although Illinois retention elections composed only 32.7% of the survey, 53.8% of defeated judges were from Illinois. See id.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 217 garner a majority of the vote.285 In other words, had the requirement been a simple majority of the vote, twenty-seven of the twenty-eight judges would have been retained. The study was concluded only four years after New Mexico instituted its supermajority requirement and does not mention New Mexico’s experience. However, as with the previous study, it seems possible (if not likely) that New Mexico’s supermajority requirement could have a similar impact to that in Illinois. The people of New Mexico should carefully assess New Mexico’s supermajority requirement in light of these studies to determine whether such an effect is in the best interests of a system intended to provide for long tenures, stability, and insulation from politics.

B. Voter Apathy, Abstention, and Confusion Are Especially Problematic in Judicial Retention Elections Judicial retention elections, even more so than partisan judicial elections, suffer from a significant level of voter apathy, abstention, and confusion. Empirical studies suggest that the more voters know about the candidates, the more likely they are to vote.286 This is bad news for judicial elections, which are characterized by “the dearth of meaningful information typically provided to voters.”287 This information access problem only increases in judicial retention elections because voters are unable to rely on the ballot itself to provide any information beyond name and incumbency.288 Due to the information access problems, abstention in judicial retention elections is strikingly high.289 Approximately one-third of voters who vote in other races on the ballot abstain from voting in retention elections.290 As one commentator explains, “[r]etention elections, devoid of partisan cues, force most voters to make a decision on which they have no basis for judgment. Small wonder, then, that most abstain, and most of the rest vote blind.”291 New Mexico should examine the issue of voter confusion and, at the least, mount a public information campaign to educate voters with respect to how

285 Id. 286 See Hojnacki & Baum, supra note 40, at 301 (analyzing how differences in information provided to voters affect voter behavior). 287 See id. 288 See id. at 300-01 (stating that “judicial voters rely heavily on name recognition and information provided by the ballot itself”). 289 See Luskin, supra note 23, at 318 (observing that low turnout is “rooted in public ignorance and apathy”). 290 B. Michael Dann & Randall M. Hansen, Judicial Retention Elections, 34 LOY. L.A. L. REV. 1429, 1431 (2001) (reporting on a study of retention elections in Alaska, Arizona, Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, and Wyoming during the period 1964-1994, which indicated that “rolloff rates do not correlate with the rate of affirmative votes”) (citing Larry Aspin et al., Thirty Years of Judicial Retention Elections: An Update, 37 SOC. SCI. J. 1, 12 (2000)). 291 Luskin, supra note 23, at 319.

218 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 retention elections function and what it means to vote “yes” as opposed to “no.” Although the vast majority of judges are retained in office and with wide margins,292 a recent study indicates that total affirmative vote percentages declined in the period from 1964 to 1994.293 This trend could signal “a greater vulnerability to defeat than previously known in judicial retention elections.”294 Because long tenure and stability are two of the purposes of merit selection, the people of New Mexico should take note of this trend in thoughtfully reassessing the supermajority requirement and the undermining effect it may have on merit selection in the state.

C. Judicial Ethics and Campaign Rules Put Judges at a Disadvantage, Particularly in Retention Elections The supermajority requirement also raises the electoral hurdles that judges already face, including ethical and legal constraints on campaign speech, campaigning in general, and fundraising.295 Simply stated, it is “easy . . . to target judges for removal,” but “difficult . . . for targeted judges to defend themselves.”296 In New Mexico, judges must declare their intention to seek retention.297 In addition, they are constrained from actively raising money and campaigning unless they are opposed.298 However, such campaign disclosure requirements

292 Aspin, supra note 280, at 79 (finding that all of the states’ mean affirmative votes within the scope of the study were “well above the thresholds required for retention. Thus, the vast majority of judges have been retained; only occasionally have voters removed them from the bench”); see also supra note 25 and accompanying text. 293 Aspin, supra note 290, at 3. 294 Dann & Hansen, supra note 290, at 1430. 295 Supreme Court Justice Anthony Kennedy has stated that the campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly-burly, rough-and-tumble. This is a difficult world for a jurist, a scholarly, detached neutral person to operate within. So, the whole problem of judicial campaigns is . . . difficult for us to confront. Now, when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we’re concerned that there will be either the perception or the reality that judicial independence is undermined. See Justice For Sale, Frontline,http://www.pbs.org/wgbh/pages/frontline/shows/justice/etc/justicest.html (last visited Nov. 27, 2005). 296 Reid, supra note 26, at 75 (positing that the electoral advantages that state election laws provide opposition groups may actually encourage special interest groups and other political actors “to mount ouster campaigns”). 297 N.M. CONST. art. VI, § 34 (requiring judges to file “a declaration of candidacy for retention of office” on the same day “as that for filing a declaration of candidacy in a primary election”). 298 New Mexico’s Code of Judicial Conduct prohibits judges from responding unless they have been ‘attacked.’ See N.M. SUP. CT. R. ANN. 21-700-B (1995).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 219 and filing deadlines are difficult to interpret and apply especially in the context of retention elections in which judges technically run unopposed.299 Moreover, these rules do not apply to opposition groups (from “Citizens Against Judge X” to the U.S. Chamber of Commerce).300 In this way, state laws, by failing to require any filings by opposition groups that intend to unseat an incumbent judge, “provide an incentive for ‘surprise attacks.’”301 Thus, it is often too late before judges realize that they have some opposition, albeit faceless and under no obligation to file or disclose, against whom they must fight to set the record straight and retain their office.302 Incumbent judges running in contested elections do not face these same problems because their opponents are also subject to the Code of Judicial Conduct. Sitting judges also face the problem of having to defend against attacks on specific decisions they have made on the bench.303 It is easy for an opposition group to distort a judicial decision and make it into a campaign issue in an

Candidates for election to judicial office in partisan, nonpartisan and retention elections, including judges, lawyers and non-lawyers, are permitted to participate in the electoral process, subject to the requirements that all candidates: . . . . (7) may respond to personal attacks or attacks on the candidate’s record as long as the response does not violate Paragraph B(4) of this rule[, which prohibits judicial candidates from making promises about cases coming before the court as well as from making material misrepresentations of the candidate or opponent]. (emphasis added)). 299 See Reid, supra note 26, at 76 (contending that “special interest groups may be encouraged to politicize retention elections because they can challenge incumbents at any point in the electoral process” and that “[t]he absence of any state requirement that these groups notify election boards of their intent to challenge sitting judges provides interest groups with an incentive to target judges as well as an electoral advantage that they will be able to unseat incumbents”). 300 See Scott D. Wiener, Note, Popular Justice: State Judicial Elections and Procedural Due Process, 31 HARV. C.R.-C.L. L. REV. 187, 197 (1996) (arguing that “non-judges running for judgeships and groups campaigning against incumbents in a retention election are often not bound by rules of judicial ethics[ and] . . . can therefore make any issue into a campaign issue”). 301 See Reid, supra note 26, at 76 (commenting on how the absence of a requirement for special interest groups to notify election boards of their intent to challenge incumbent judges “albeit unintentionally, make[s] it difficult for targeted judges to successfully defend themselves”). 302 Justices Serna and Baca and Judge Brennan discussed this problem in light of the ethical constraints on judges’ ability to campaign. Telephone Interview with Patricio M. Serna, Justice, New Mexico Supreme Court (Jan. 6, 2005); Telephone Interview with Joseph Baca, supra note 42; Telephone Interview with W. John Brennan, supra note 34. 303 See Wiener, supra note 300, at 197-200 (contending that “sitting judges . . . understand that each decision that they make on the bench is potential fodder for an opponent or special interest group during the next election” and that, for example, “even a single decision to overturn a death sentence could jeopardize their prospects for reelection”).

220 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 effort to target and remove an incumbent judge.304 Judges’ campaign speech, on the other hand, is ethically and legally constrained. As judges can only refer to their entire record rather than to specific decisions, their opponents have the advantage.305 Although some argue that judges in retention elections have the advantage because they do not face another candidate, many judges would much rather directly face a candidate who is constrained by the same rules.306

304 See, e.g., Reid, supra note 26, at 70 (describing how the Tennessee Supreme Court’s 1996 decision in a death penalty case caused several special interest groups to oppose the retention of Justice Penny White). Justice Serna and Judge Sitterly also discussed this issue and explained that judges face difficult decisions because their duty is to uphold the Constitution which may or may not be politically expedient or popular. Telephone Interview with Patricio M. Serna, supra note 302; Telephone Interview with Rebecca Sitterly, supra note 34; see also supra note 38 and accompanying text. 305 One observer contends that “. . .money [can] hardly compensate for the electoral disadvantages [judges] ha[ve] to overcome.” Reid, supra note 26, at 72. They cannot respond directly to their critics’ contentions . . . because incumbent judges are ethically barred from defending their previous decisions. They [can] only refer to their entire judicial record rather than explain their opinions in specific cases. Consequently, their opponents [have] the advantage: it is easier to appeal to popular frustration and emotion by citing one or two sensational rulings than it is to galvanize public opinion around statistical charts that demonstrate an overall pattern of judicial decision making. Id. 306 Justice Serna explained that sometimes facing an opponent may be more desirable than running in a retention election due to the issues explained here. Telephone Interview with Patricio M. Serna, supra note 302. One observer has analogized judges running in elections with the plight of the prisoners in Plato’s Allegory of the Cave. He explains that judicial elections are unique in terms of the restrictions placed on candidates’ speech. In the election systems, the voters resemble the prisoners in Plato’s Allegory of the Cave. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave’s walls. Eventually, a prisoner frees himself from his restraints and sees the figures themselves. He, however, fails to recognize the three-dimensional bodies he now sees directly; instead, the prisoner finds the figures less real than the two-dimensional images he saw on the wall. Correspondingly, voters, imprisoned by overly expansive interpretations of the canons of judicial conduct, see only figures that dance and parade in front of them, not three-dimensional candidates interacting with the electorate by answering questions regarding their personal and judicial philosophies. Armitage, supra note 9, at 652-53 (citations omitted) (quoting Jay S. Bybee, The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave, 23 HARV. J.L. & PUB. POL’Y 551, 551-52 (2000)).

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 221

D. Judicial Elections Are Becoming Increasingly Expensive Retention elections have become extremely expensive in recent years.307 Numerous reports indicate that the once sedate world of judicial campaigning has degenerated into “expensive mud-wrestling contests.”308 Studies indicate that campaign finance is not merely an issue in large states or in courts of last resort.309 It follows that if judges must garner a higher vote percentage, the need to raise money to campaign will also be proportionally greater. Campaign finance was one of the main concerns of the architects of the New Mexico system, so these reports are especially problematic.310 In fact, supreme court justices from fifteen states recently held a “summit” on campaign finance to express their concerns about “‘the million-dollar war chests, attack advertising and even outright distortion of an opponent’s record that seem to have become more widespread in judicial races . . . and threaten public confidence in the courts.’”311 In New Mexico as well, judges are spending more on retention elections.312

307 See id. at 652 (stating that nonpartisan elections are no less expensive than partisan elections); see also William Glaberson, Fierce Campaigns Signal a New Era for State Courts, N.Y. TIMES, June 5, 2000, at A1 (reporting on the politicization and expense of judicial campaigns in states where judges are elected). But see Cheek & Champagne, supra note 9, at 1361 (stating that “although it is still rare, retention elections can be very expensive, highly partisan political battles”). 308 Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY. L.A. L. REV. 1391, 1396 (2001) (quoting Stephen J. Ware, Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama, 15 J.L. & POL. 645, 659 (1999)) (commenting that between 1986 and 1996, the cost of Alabama Supreme Court races increased by 776%); see also Armitage, supra note 9, at 644 (stating that judicial elections were once “low-key affairs, conducted with civility and dignity” and were thus “relatively inexpensive,” but that lately, “judicial elections have taken on all the trappings of partisan politics, significantly increasing the resulting cost”). 309 See e.g., Armitage, supra note 9, at 647 (observing that an Arkansas supreme court campaign cost more than $500,000, while a Florida circuit court campaign cost $600,000). 310 Brennan was especially concerned with judges having to solicit funds from lawyers who appear before them in court. Telephone Interview with W. John Brennan, supra note 34. See also David Barnhizer, “On the Make”: Campaign Funding and the Corrupting of the American Judiciary, 50 CATH. U. L. REV. 361, 369 (2001) (positing that “[t]he system of campaign contributions has legalized a corrupt process in which lawyers do make payments to judges before whom they practice and the payments are legitimated by labeling them as campaign contributions”); Wiener, supra note 300, at 196 (commenting that “the increasingly expensive nature of elections generally” requires judges to “seek substantial campaign contributions, often from litigants and lawyers with business before the judge at issue”); supra note 39 and accompanying text. 311 Barnhizer, supra note 310, at 363 (quoting William Glaberson, State Chief Justices to Meet on Abuses in Judicial Races, N.Y. TIMES, Sept. 8, 2000, at A14). Justice Serna mentioned these same concerns. Telephone Interview with Patricio M. Serna, supra note 302. 312 Fred Harris, Editorial, End Big Money’s Grip on Top State Judgeships,

222 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173

During the latest legislative session, the New Mexico legislature considered the relationship between campaign finance and judicial independence in a proposed bill called the Judicial Campaign Funding Act.313 The legislation would have addressed the rising costs of campaigning for the New Mexico Supreme Court and Court of Appeals by creating a voluntary public financing system for New Mexico Supreme Court and Appeals Court candidates and by placing a cap on the amount of money candidates could spend on judicial elections.314 Judges running in retention campaigns, however, would not be eligible for such funds.315 The Albuquerque Journal, the state’s largest newspaper, endorsed the measure, stating that “[j]udicial decisions are supposed to be on the basis of the law – not politics, not connections,” so for judges “[t]o have their campaign coffers filled with contributions from people, companies or organizations that have or may have interests before the judges doesn’t do much to bolster public confidence.”316 In addition, many of the groups that supported merit selection, including Common Cause-New Mexico and the League of Women Voters, also supported the Judicial Campaign Funding Act.317 Although the legislature ultimately failed to act on the legislation before the end of the session, it is clear that New Mexico legislators are fully cognizant of the serious issues facing judicial selection in the state. Legislators and citizens alike should consider whether the supermajority requirement is compounding or at least contributing to the impending crisis of “big-money” in New Mexico

ALBUQUERQUE J., Mar. 3, 2005, http://www.abqjournal.com/opinion/guest_columns/313652opinion03-03-05.htm (commenting that “[n]owadays, political campaigns cost great and ever increasing sums of money – and that includes New Mexico judicial races, as well” and that “New Mexico appellate judicial races have lately become the target for big, out-of-state, ax-to-grind, special interest money[] [a]nd that’s alarming”). 313 SB 642, 47th Leg., 1st Sess. (N.M. 2005); HB 990, 47th Leg., 1st Sess. (N.M. 2005). 314 Id.; see also Editorial, Judicial Campaign Reform Deserves a Try, ALBUQUERQUE J., Mar. 19, 2005, at A10 (explaining that “[c]andidates who choose to participate would be required to collect $5 contributions from 500 registered voters as a broad-based measure of support,” and then, “primary candidates would be eligible for up to $25,000, general election candidates up to $100,000”). 315 S.B. 642, 47th Leg., 1st Sess., § 12E (N.M. 2005) (stating that “[f]or retention elections and all other uncontested races, no money shall be distributed to the candidates”); H.B. 990, 47th Leg., 1st Sess., § 12E (N.M. 2005) (stating that “[f]or retention elections and all other uncontested races, no money shall be distributed to the candidates”). 316 Editorial, supra note 314 (opining that the New Mexico legislature should approve legislation “to get top judicial candidates out of the business of raising campaign funds”). Former U.S. Senator Fred Harris of Oklahoma, now a professor at UNM, contends that the cost of public financing for judicial elections is “a small amount to pay to ensure that these courts remain truly independent and, importantly, that they appear to the public to be so.” Harris, supra note 312. 317 See Harris, supra note 312; see also supra note 50.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 223 judicial elections.318 Indeed, they might consider the possibility of public funding for retention elections.

E. Retention Elections Are Becoming More Partisan,319 Especially as Special Interest Groups Enter the Fray Recent studies indicate that retention elections are becoming more and more partisan.320 Removing partisan politics from judicial selection was one of the primary purposes of the New Mexico system.321 New Mexico’s supermajority threshold for retention means that judges must campaign harder to retain their office.322 Therefore, the architects and the people of New Mexico should be concerned about the increasing politicization of judicial elections, both partisan and retention.323 The intervention of interest groups and their big money has increased the politicization of judicial elections and has become an object of real concern in recent years.324 One study indicates that interest groups’ campaign

318 See Harris, supra note 312. 319 This Note does not address the notion that merit selection simply shifts the politics to the nominating commission. The architects apparently determined commission nomination to be an integral part of merit selection. This Note leaves the issue of commission politics, which the New Mexico system’s bipartisan set-up by no means lacks, for another day. 320 See Malia Reddick, Merit Selection: A Review of the Social Scientific Literature, 106 DICK. L. REV. 729, 735 (2002) (observing that a recent study of voter behavior finds that “retention elections are not immune from partisan politics and other contextual forces”); see also Anthony Champagne, Political Parties and Judicial Elections, 34 LOY. L.A. L. REV. 1411, 1421 (2001) (stating that “[t]here is a viciousness, a stridency to many modern day judicial elections that goes beyond routine maneuvering by the parties for greater representation on the bench” and that “[j]udicial candidates are faced with hard-hitting, bitter attacks being waged by partisans using the mass media”); Glaberson, supra note 307, at A1. 321 See supra note 38 and accompanying text. 322 In 1997, the New Mexico Senate approved a bill to return judicial selection to partisan elections because Senators found that partisanship had actually increased with merit selection, especially after imposition of the supermajority requirement. See John Robertson, Judge Selection Amendment to Wait, ALBUQUERQUE J., Mar. 11, 1997, at A5 (stating that “[t]he [merit selection] system was intended to limit the intrusion of partisan politics into judicial selection, but senators said the politics have increased, especially with a requirement that judges must win 57 percent of the vote to be retained”); see also infra note 334 and accompanying text (detailing proposed amendments to the New Mexico Constitution that would change the judicial selection process). 323 See Armitage, supra note 9, at 655 (stating that merit selection “has yet to prove that it eliminates politics from the selection process”); Cheek & Champagne, supra note 9, at 1361-62 (arguing that “[m]erit selection promises more than it delivers in removing partisanship from the judicial selection process and in improving the quality of judges” and that “[s]ome nonpartisan elections have actually proven to be partisan”). 324 See Deborah Goldberg et al., The New Politics of Judicial Elections: How 2000 Was a Watershed Year for Big Money, Special Interest Pressure, and TV Advertising in State

224 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 advertisements are “often more hard-hitting and less focused on a candidate’s background and qualifications than traditional campaign ads,” and they are, therefore, “coarsening the tone of judicial campaigns.”325 Interest groups, in particular the U.S. Chamber of Commerce, have come to realize that state judges, particularly those on the highest courts, have important impacts on social, political, business, and environmental policy.326 Therefore, state supreme court elections, in particular, have become “hotly contested battles, almost indistinguishable from the rest of the American partisan political process.”327 Studies indicate that many retention elections “now involve the same level of campaign expense as do actual contests in order to rebut special- interest groups’ misleading and outcome-determinative criticism.”328 Although the New Mexico system provides for one partisan election before the nonpartisan retention format takes effect, the architects of the system made clear that they intended the retention elections to correct that slight, but politically necessary, defect in the otherwise nonpartisan system they designed.329 The increasing politicization of judicial elections and the involvement of various special interest groups “threatens the systemic benefits

Supreme Court Campaigns 4 (Brennan Ctr. for Justice & The Nat’l Institute on Money in State Politics, 2003), available at http://www.justiceatstake.org/files/JASMoneyReport.pdf (explaining “how the year 2000 signaled a dangerous turning point for America’s courts, documenting the growing, systemic, and unprecedented infusion of big money and special interest pressure into the election of Supreme Court justices across the country”). 325 Id. at 5. 326 Paul J. De Muniz, Politicizing State Judicial Elections: A Threat to Judicial Independence, 38 WILLAMETTE L. REV. 367, 367, 385-86 (2002). The New Mexico judiciary has not been immune from attack by such groups. A legal reform interest group called the New Mexico Alliance for Legal Reform has become active in New Mexico judicial campaigns. Telephone Interview with Patricio M. Serna, supra note 302. The New Mexico Alliance for Legal Reform bills itself as “a non-profit grassroots public interest organization dedicated to promoting integrity and fairness in the New Mexico legal system.” New Mexico Alliance for Legal Reform, http://www.nmlegalreform.org/default.asp (last visited Feb. 2, 2006); see also Champagne, supra note 308, at 1397 (stating that “[b]y the early 1990s, a look at judicial politics in the states shows that interest groups were taking a more active role in judicial elections in numerous states” and that “[r]egion of the country made no difference, population of the states made no difference, and it even made no difference if the judges were elected in partisan or nonpartisan elections”). 327 De Muniz, supra note 326, at 367; see also Barnhizer, supra note 310, at 377 (quoting a Pennsylvania lobbyist, whose interest group became involved in judicial races because “[t]he business community woke up in the late 1980s and realized that there are three legs to the government stool . . . [and that they] were playing quite well for over a decade in two of those three and decided that the judicial branch are the abitrators [sic] of the final interpretation of all rules and regulations that are passed by the legislature”); Champagne, supra note 308, at 1393 (stating that “[i]nterest groups today often draw no distinction between achieving their goals through the courts or through the political process”). 328 De Muniz, supra note 326, at 392. 329 See supra notes 46-47 and accompanying text.

2006] MAJORITY RULES EXCEPT IN NEW MEXICO 225 accrued from judicial retention elections.”330 The New Mexico supermajority requirement only compounds that problem by making retention elections even less like the apolitical contests the drafters had in mind and by forcing judges to campaign actively in an attempt to garner a supermajority of the vote.331

CONCLUSION This Note argues that New Mexico’s supermajority requirement for judicial retention may violate the Equal Protection Clause of the U.S. Constitution. As the foregoing analysis elucidates, the constitutionality of the New Mexico supermajority requirement is ripe for review as neither Gordon, the seminal Supreme Court case regarding supermajority requirements, nor Lefkovits, which deals with supermajority requirements in the context of judicial retention, should be persuasive, much less controlling. Moreover, the New Mexico Supreme Court has yet to decide the issue. Because the legitimacy of supermajority rules is implicated in a variety of important contexts, the broad message of this Note is that the U.S. Supreme Court would do well to review and synthesize its Equal Protection jurisprudence regarding the constitutionality of supermajority rules for the election of public officials332 and, more generally, the principle of one-person, one-vote. As a policy matter, this Note contends that supermajority requirements for the election or retention of public officials undermine both the accountability and independence views of judicial selection and impact fundamental notions of democratic rule and popular sovereignty. One possible lesson to be gleaned from New Mexico’s experience with judicial selection reform is that supermajority requirements, if ever appropriate, seem most appropriate as a safeguard against ad hoc, shortsighted ‘reforms’ to state constitutions.333 This Note demonstrates that Amendment Ten enshrined just that type of change in the New Mexico Constitution, thus perpetuating systemic problems that thoughtful legislation like Amendment Six was designed to address. In the context of constitutional amendment procedures, supermajority requirements would serve (to some extent) the purpose of making it more difficult to effect fundamental structural changes without careful analysis, public debate, and strong consensus. Indeed, judicial selection remains an active topic of debate in New Mexico,

330 Reid, supra note 26, at 68 (describing the purpose of judicial retention elections as “preserv[ing] the court’s role as an impartial and detached resolver of disputes by ensuring that judges can retain their seats without engaging in the . . . electioneering that characterizes political elections and the political process”). 331 See Robertson, supra note 322. 332 It is not surprising that the Court has dealt little with this issue as the Illinois and New Mexico supermajority requirements for judicial retention seem to be unique among rules for the election of public officials. 333 The New Mexico Constitution requires only a bare majority for most amendments. See supra notes 258-259 and accompanying text.

226 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:173 just as the legitimacy of the supermajority requirement to overcome filibusters is the center of U.S. Senate debate over approval of judicial and other nominees. During almost every recent legislative session, the New Mexico legislature has considered amendments to the New Mexico Constitution that would change the judicial selection process in some fundamental way, including returning judicial selection to a wholly partisan election scheme.334 During the latest legislative session, the New Mexico legislature considered the relationship between judicial independence and campaign finance.335 These recent legislative efforts make clear that the question remains open whether the current judicial selection system, including the supermajority requirement, is the best method for New Mexico to select its judiciary. Does the supermajority requirement undermine the careful reform that took nearly fifty years to adopt and implement? Have retention elections become as ugly and expensive as partisan elections both nationally and in New Mexico? Ultimately, the people of New Mexico must decide whether the current system appropriately serves their conceptions of popular sovereignty. Guidance from the U.S. Supreme Court on the constitutionality of supermajority requirements would greatly facilitate this debate.

334 S.J. Res. 4, 46th Leg., 2nd Sess. (N.M. 2004) (proposing amendments to Article 6 of the New Mexico Constitution to provide for partisan election of state district and metropolitan court judges); S.J. Res. 16, 46th Leg., 1st Sess. (N.M. 2003) (proposing amendments to Article 6 of the New Mexico Constitution to provide for the partisan election from districts of New Mexico Supreme Court Justices); S.J. Res. 6, 45th Leg., 1st Sess. (N.M. 2001) (proposing amendments to Articles 6 and 20 of the New Mexico Constitution to provide for partisan election of state judges and justices and to abolish the Appellate Judges Nominating Commission); S.J. Res. 6, 44th Leg., 2nd Sess. (N.M. 2000) (proposing amendments to Articles 6 and 20 of the New Mexico Constitution to provide for partisan election of state judges and justices and to abolish the Appellate Judges Nominating Commission); S.J. Res. 7, 44th Leg., 1st Sess. (N.M. 1999) (proposing amendments to Article 6 of the New Mexico Constitution to create districts for New Mexico Supreme Court justices and Appeals Court judges and to abolish the Appellate Judges Nominating Commission); S.J. Res. 9, 43rd Leg., 2nd Sess. (N.M. 1998) (proposing amendments to Article 6 of the New Mexico Constitution to create districts for New Mexico Supreme Court justices and Appeals Court judges and to abolish the Appellate Judges Nominating Commission); S.J. Res. 14, 43rd Leg., 1st Sess. (N.M. 1997) (proposing amendments to Article 6 of the New Mexico Constitution to provide for partisan election of state judges and justices and to repeal Sections 33 and 34 of Article 6 regarding nonpartisan retention of judges and justices); see also, e.g., S.J. Res. 8, 42nd Leg., 2nd Sess. (N.M. 1996) (proposing amendments to Articles 6 and 20 of the New Mexico Constitution to provide for partisan election of state judges and justices). 335 See S.B. 642, 47th Leg., 1st Sess. (N.M. 2005); H.B. 990, 47th Leg., 1st Sess. (N.M. 2005); see also supra Part V.D (discussing the enormous costs of running for judicial office).