Following is the amended memorandum in case USDC_NM 08-0505: UNITED STATES DISTRICT COURT for the District of New Mexico Eliot P. Gould, Citizens Committee For Eliot Gould, First Judicial Attorney Petitioners v. CV 08-0505 JB/DJS Joseph E. Campbell, Mary Herrera ( Secretary of State) Respondents ( Amended) First Request for Leave to file Memorandum in Support of Request for Hearing. Pursuant to Rule 16 of the Federal Rules of Civil Procedure ( FRCP 16 ), Petitioner, Eliot P. Gould, requests leave to file “Memorandum in Support of Request for Hearing. A copy accompanies. (41 pages and Appendix) Respectfully submitted, Eliot Paul Gould Esq. Citizens for Eliot Gould District Attorney 354 ½ Calle Loma Norte Santa Fe, NM 87501-1279 Certificate : I certify a True Copy of the request for leave to File Memorandum in Support of Request of Hearing was Noticed to the Parties of record. Memorandum in Support of Request for Hearing: Poll taxes ( for both federal and state elections) were officially declared unconstitutional because they violated the Equal Protection clause of the Fourteenth Amendment. “To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context - that is, as a condition of obtaining a ballot - the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U.S. 535, 541 ) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in [383 U.S. 663, 669] Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." Id., at 283. Harper v. Virginia Board of Elections (1966) While a license for which a fee is paid is necessary in the absence of a right, the absence of a license as a rationale for the removal of a right is a undue and burdensome. While appearing “neutral”, it is decidedly discriminatory as the results is “it dilutes the voting strength of the minority group“ (East Jefferson Coalition for Leadership and Development v. Jefferson Parrish-. 691 F.Supp 991) It is well established that the Fourteenth amendment protects the citizens and a truism that the ‘reserved rights” are also limited by the Twenty-fourth Amendment. It may be a license requirement, a filing fee, or special assessment, but it still impairs the exercise to vote in the same manner and processes which were found before. BACKGROUND Atmosphere, History and Prologue New Mexico has a culture of corruption. At the core of it lies an election code and its prescribed procedures which acts as a key of legitimacy to its perpetuation of imbalanced applications contrary to the very principles of “one man, one vote”. They often rely upon obsolete, antiquated out dated methods which are politically motivated. Historically, the outcome of elections is foregone conclusions, often the result of uncontested elections, weighted primaries and insiders’ selection. The process of ballot access, whether Federal or State, is wrought with exclusionary devices, special interest and party influences. New Mexico’s election code promotes the legitimacy in part through classification of candidates and parties. Additional Qualification of the United States Senate For example, the United States Constitution provides: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. US Constitution, Amendment XVII About a hundred years ago, there was a widespread belief throughout America that at the state level there was manipulation in the process of the method of electing Senators to the United States Senate in the proceedings of the various State legislatures. Evidence arose that the result of the Legislative selections were often influenced by corrupt political organizations and special interest groups through the purchase of legislative seats. Often when these organizations and groups did could not get their candidate selected there was a deadlock in the Legislatures with the result that US Senate seats were unfilled and vacant. Throughout the United States there was an increasing popular dissatisfaction. The belief became widespread that Senators ought to be popularly elected, in the manner which members of the US House were elected. By 1912, as the proposed Amendment was being circulated through States and as New Mexico was being proclaimed the 47th State of the Union, 29 States amended their state laws making it necessary to nominate Senators on a more popular basis. Many States afforded the voters more effective control through a primary election to designate their preference for one of several party candidates. The results were “unofficially” transmitted to the Legislatures where legislators elected the winning candidates of the majority. Until the ratification, which came in May 1913, the foundation of the nomination process was a “common understanding” that popular representation should eliminate corrupt practices and no more. The Amendment used the same language as found in Article I of the Constitution with respect to the election of House members of Congress. It was not long after its ratification of Amendment XVII that the Supreme Court determined that if a person possessed the qualifications requisite for voting for a Senator, the right to vote for the office was not derived from State constitutions and statutes, but the Constitution itself. States were given the discretion to set reasonable methods to establish voting qualifications. The method selected needed to act “neutrally” amongst the candidates and without an abridgment or discrimination. The full meaning of “the right to vote” includes a right to seek public office without onerous qualifications. Most states adopted nominating processes which included a primary election for the nomination of party candidates. However, several states enacted “onerous requirements,” such as a poll tax, literacy requirements, and or residual residency requirements . Some requirements included “personal vouchers ”--or having the voter applicant appear at limited hours of the week. Often the appearance would have to be repeated as the clerks or sheriffs were busy on other official business. Some provisions implicitly promised Court examination in the consideration of the registration to vote, often with criminal charges. Several states, like a South Carolina required as a prerequisite to voting that the voter “take an oath that he understands and believes in and will support social, religious, and educational separation”--although in 1948, the US Supreme Court struck down that requirement as invalid and a disregard of the right of the American citizen to exercise his own views and opinions (see Brown v Baskin). Several states placed “party rights statutes” so that candidates were required to take an oath to “support separation of the races.” ( That the ‘party” enforce its rules of course discharged the “State” from a legal fact contrary to Amendment XV) is prohibited. Amendment XV provides: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation Amendment XV, United States Constitution Thus , the amendment prohibits each government in the United States from “officially” to preventing a citizen from voting . This amendment provided the basis for numerous civil rights cases. Until the 1960’s Warren Court, such election controversies were few before the Supreme Court-- averaging about 10 per year. During the years of the Warren Court, the number rose to about 60 per year as the “principle of one man, one vote” was taking hold. Amendment XXIV prohibited the States from requiring property ownership or “Poll tax” type qualifications to vote in any primary or other election for “President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, [the right to vote] shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” In 1966, the Court struck down a Virginia statute which eliminated the poll tax as an absolute qualification for voting in federal elections and gave federal voters the choice either of paying the tax or of filing a certificate of residence six months before the election. Viewing the latter requirement as imposing upon voters in federal elections an onerous procedural requirement which was not imposed on those who continued to pay the tax, the Court unanimously held the law to be in conflict with the new Amendment by penalizing those who chose to exercise a right guaranteed (Forsennius v. Harmon). (Part of the reason for the ratification of Amendment XXIV was lack of constitutional challenges to onerous provisions, such as the poll tax.) As a result of the repeated decisions and the adoption of the Voter Rights Act of 1966 (VRA) providing for “one man, one vote,” and “free and proper in every phase of the ballot process,” the several states revised their respective state election codes. The revision, either by new state constitutional process or legislative statutes was often not as altruistic and principled as the clarity of the VRA and other Court decisions. Freezing the Qualifications The “reform” measures were often enacted with new, subtler and unchallenged obstacles. In New Mexico, where Constitutional challenges were few, the election code provides for a proclamation of the Governor the last Monday in January: 1-8-12. Primary Election Law; proclamation. The governor shall issue a public proclamation calling a primary election to be held in each county and precinct of the state on the date prescribed by the Primary Election Law [1-8-10 NMSA 1978]. The proclamation shall be filed with the secretary of state on the last Monday in January of each even-numbered year. The contents of the proclamation are: A. the names of the major political parties participating in the primary election; B. the offices for which each political party shall nominate candidates; provided that if any law is enacted by the legislature in the year in which the primary election is held and the law does not take effect until after the date of the proclamation but prior to the date of the primary election, the proclamation shall conform to the intent of the law with respect to the offices for which each political party shall nominate candidates; C. the date on which declarations of candidacy and nominating petitions for United States representative, any office voted upon by all the voters of the state, a legislative office, the office of district judge, district attorney, state board of education, public regulation commission or magistrate shall be filed and the places where they shall be filed in order to have the candidates’ names printed on the official ballot of their party at the primary election; D. the date on and place at which declarations of candidacy shall be filed for any other office and filing fees paid or, in lieu thereof, a pauper’s statement of inability to pay; E. the final date on and place at which candidates for the office of United States representative and for any statewide office seeking preprimary convention designation by the major parties shall file petitions and declarations of candidacy; F. the final date on which the major political parties shall hold state pre-primary conventions for the designation of candidates; and G. the final date on and place at which certificates of designation of primary election candidates shall be filed by political parties with the secretary of state. As used in the Primary Election Law [1-8-10 NMSA 1978], "statewide office" means any office voted on by all the voters of the state. In 2008, the effect froze the registrations for eligibility to gain public office to the place and residences and party affiliation to potential candidates based on the date January 28. 2008. 1-8-18 who may become a candidate. A. No person shall become a candidate for nomination by a political party or have his name printed on the primary election ballot unless his record of voter registration shows: (1) his affiliation with that political party on the date of the governor’s proclamation for the primary election; and (2) his residence in the district of the office for which he is a candidate on the date of the governor’s proclamation for the primary election or in the case of a person seeking the office of United States senator or United States representative, his residence within New Mexico on the date of the governor’s proclamation for the primary election. B. Any voter may challenge the candidacy of any person seeking nomination by a political party for the reason that he does not meet the requirements of Subsection A of this section by filing a petition in the district court within ten days after the last day for filing a declaration of candidacy or a statement of candidacy for convention designation. The district court shall hear and render a decision on the matter within ten days after the filing of the petition. The decision of the district court may be appealed to the Supreme Court within five days after the decision is rendered. The Supreme Court shall hear and render a decision on the appeal forthwith. Thus, if a candidate were to seek a party nomination or an independent nomination for the Senate, he would have to be registered as a member of that party or as an independent member on the date of the proclamation. The candidate would also be required to reside in that residence through that election year. He would also have to comply with other requirements of statutes. Under New Mexico’s election scheme, “Political Parties” are classified as “major’ and “minor.” The means of the nomination process of “major and minor parties “ is as follows: 1-8-1.Nominating procedures; major political parties; minor political parties. A. Any major political party in New Mexico, as defined in Section 1-1-9 NMSA 1978, shall nominate its candidates, other than its presidential candidates, by secret ballot at the next succeeding primary election as prescribed in the Primary Election Law [1-8-10 NMSA 1978]. B. Any minor political party in New Mexico, as defined in Section 1-1-9 NMSA 1978, shall nominate candidates for public office in the manner prescribed in its party rules and regulations and according to the provisions of the Election Code [1-1-1 NMSA 1978]. PrePrimary Convention for Major Parties The statutes further provide for the candidates for statewide offices receive a designation of candidates by convention. 1-8-21.1. Designation of candidates by convention. A. State conventions of major political parties may designate candidates for nomination to statewide office or the office of United States representative. B. No state convention for designating candidates shall be held later than the third Sunday in March preceding the primary election, and delegates to the convention shall be elected according to state party rules filed in the office of the secretary of state. C. The state convention shall take only one ballot upon candidates for each office to be filled. Every candidate receiving twenty percent or more of the votes of the duly elected delegates to the convention for the office to be voted upon at the ensuing primary election shall be certified to the secretary of state as a convention-designated nominee for that office by the political party. Certification shall take place no later than 5:00 p.m. on the first Tuesday succeeding the state convention. D. The certificate of designation submitted to the secretary of state shall state the name of the office for which each person is a candidate, his name and address and the name of the political party that the candidate represents, and shall certify that the candidate has been a member of that political party for the period of time required by the Election Code [1-1-1 NMSA 1978]. Additional Qualification for Other Federal Offices While this certification process of the political parties seems to directly contravene Article I, which provides: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature, it has been met with a complacency if not advocacy over the years. Amendment XVII which provides similar access for Senate candidates: “The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures” has also been accepted as the traditional practice without a direct challenge that it “adds additional qualification to the office.” It should also be noted that in 2008, the Legislature reduced the preprimary requirement to a “more obtainable” 15% as six candidates filed in the Third Congressional District. Four did not achieve that requirement and filed additional signatures. The preconvention result ended one Second congressional candidacy as he did not file the additional signatures. And a Variable Signature System For nomination to the United States Senate by a “major” party, a declaration of candidacy, along with “proof of registration,” ethics compliance and a threshold of signatures of voters are required. The required number is derived from the vote in a previous election. A Republican candidate is required to provide 3% of the vote in the last preceding Republican primary, while a Democrat is required 3% of the preceding Democratic primary vote. The number of signature requirements under this system is a changing number; hence it is called “the variable Signature System” 1-8-33. Primary election law; nominating petition; number of signatures required. A. As used in this section, "total vote" means the sum of all votes cast for all of the party’s candidates for governor at the last preceding primary election at which the party’s candidate for governor was nominated. B. Candidates who seek preprimary convention designation shall file nominating petitions at the time of filing declarations of candidacy. Nominating petitions for those candidates shall be signed by a number of voters equal to at least two percent of the total vote of the candidate’s party in the state or congressional district, or the following number of voters, whichever is greater: for statewide offices, two hundred thirty voters; and for congressional candidates, seventy-seven voters. C. Nominating petitions for candidates for any other office to be voted on at the primary election for which nominating petitions are required shall be signed by a number of voters equal to at least three percent of the total vote of the candidate’s party in the district or division, or the following number of voters, whichever is greater: for metropolitan court and magistrate courts, ten voters; for the public regulation commission, fifty voters; for the public education commission, twenty-five voters; for state representative, ten voters; for state senator, seventeen voters; and for district attorney and district judge, fifteen voters. One Thousand equals Two thousand equals Seventeen Thousand Translated into numbers, in 2008, the Democratic candidates for the United States Senate were required to obtain and file 2,162 party member's signatures, while the Republican Party members for the Senate needed 1,062 party members. Candidates for New Mexico’s First Congressional District were required to file 607 party member' signatures for the Democrats and 329 for the Republicans. In the Second Congressional District, the requirements were 592 party Democrats and 402 Republican Party members, respectively. The Third Congressional District requirements included 959 Democratic signatures and 328 Republican signatures. Congressional Districts are Equal in Population Congressional district are equalized at 646,952. A statistical discrepancy betweene 959 and 329 as a percentage of 646,952 may not be a discrepancy of great magnitude. Nor might a difference between 1062 and 2162, as they each fulfill a recognizable minority group of voters of the State, but just as certain is that the requirements are not of equal measure. The variable system may produce results that appear insignificant. But measured then upon the requirements that are the alternatives to the major parties, the result of the variable system is clearly a dilution of the opportunity to represent . Minor party candidates for statewide office required 5,592 voter signatures, plus they had to meet the requirements of the election administration in order to qualify for ballot access. Independent candidates for the Senate needed 16,775 voter signatures. Independent candidates for Congress (which are typically localized issues candidacies) were required to file with the First Congressional District, 6,320 signatures, the Second Congressional District, 4,676 and the Third Congressional District, 5,779 signatures. Clearly, the access which results from the variable system is of a different magnitude. It weighs more heavy because it measures the scale rather than a quantified body of voters. Case Law of New Mexico New Mexico is in accord with much of the continuance of the procedures found in the New Mexico State Supreme Court decision of 1944, Roberts v. Cleveland. The statute defended the principle that a “political party shall have the right to select its own candidate and that such right was protected by the Legislature”. Apparently then a party switch for a congressional office created a legal controversy in addition to a political challenge. The Congressional offices were elected every two years and until 1943, the delegation was one Congressman. (The elections of the second Congressional district were also held state wide until a later Court ruling required district wide, rather than state wide elections.) The understanding at the time was that the Party would apportion the state and federal candidates. This would mean that statutes providing that no person shall become a candidate for nomination for any office prior to the issuance of the Governor’s proclamation would not be unconstitutional as a result of denying a candidate who was covered by upholding the restrictions of equal protection. Thus, New Mexico case law reflects opinions that veils a segregation or “Jim Crow” statute with the argument that the state is only avoiding as a laundry list [of candidates] which “tend to confuse and frustrate those who participate . “ The laundry list , as it has been aptly characterized by our Chief Justice , is a real and present danger in our history. Our electoral history vividly demonstrates that unrestricted primaries….foster a rank and verdant growth of candidates. … For example, in the 1972 primary race for the Senate nomination in the Democratic party ( in which under federal decree) no filing fee could be charged, twenty-eight candidates completed the course. The polls ranged from candidate 45, 648 for the successful candidate, Mr. Jack Daniels, to the least successful, Mr. Thomas S. “El Diferente” Macaione. By way of comparison, in the parallel race for the nomination of the Democratic party for the House of representatives, in which a filing fee was still required by our decision in State ex.rel. Apodaca v. Fiorina, there were only five candidates and the vote ranged from 27, 109 from the winner, Mr. Ernie Gallegos, to a respectable 3570 for Ms. Sparkle Plenty, who brought up the rear. Dillon v. King, 87 NM 79, 529 P. 2nd. 745 . …The payment of a filing fee as a prerequisite for having a candidate’s name served legitimate objectives of avoiding overcrowded ballots, in protecting the integrity of the state’s political processes, and did not violate the equal protection clause of the Fourteenth Amendment. State ex. rel Apodaca v Fiorina, 83 NM 663, 495 P.2nd 1379 (1972) A filing fee of 6% of the first years salary of office is reasonable and provides no element of arbitrary or capricious discrimination against or among the candidates. …The state in discharging the obligations to secure the secrecy of the ballot, the purity of elections and guarding against the abuse of the election franchise…is a legitimate interest and did not violate the equal protection clause State ex. rel Apodaca (1972) Three Phases of Selection Process Historically New Mexico has gone through three phases of selection process: The convention method which balanced the interests of the State through party appointment and representative process. In the 1960’s, there developed the “wide open primary system“. This had been favored by the Democratic Party forces of Senator Anderson, while those general supporters of Senator Chavez favored continuing the system of party selection. During this phase, a diverse number of persons posted the required bond amounts and declarations of candidacy. About a decade later, there was a general consensus for a modified selection process insofar as the wide open primaries system tended to encourage some party switching between the major parties. It also tended to create an array of names of persons without a modicum of reasoned success in election, but who were simply competing for ballot placement. Thus, a modified system of selection was adopted. The candidates of major Parties “would be serious candidates” who had not only survived the process of legal challenge which comes subsequent to filing of a declaration of candidacy, but they would have accomplished a showing of 20% of that party’s pre-primary convention vote to obtain ballot positioning in that party’s primary. If the 20% pre-primary convention is not obtained, the candidate’s name will not appear on the ballots in the June primary, unless he or she makes a successful initiative for additional signature requirements. Essentially this procedure provides for a renewed declaration and the resubmission of signatures, or another additional qualification. In 2008, there were three candidates of the major parties for the Senate. Each was an incumbent Congressman. Each received their “pre- primary convention designation” and was certified for ballot placement. Congressional candidates seeking to fill their vacating seats did not fare so easily through the election administration. Two candidates received legal challenges which the state district courts did not uphold, while several others did not meet the requirements of 20%(15%) for the pre-primary convention. Some not receiving the 20% (15%) pre-primary designation reaffirmed their candidacy by submitting additional signatures. Some candidates were not certified for ballot access. The disparity is heightened by the provision in the Election code that bars a candidate, who was unsuccessful in the pre- primary convention, from “bolting” and seeking a general election designation from a different party or a designation as unaffiliated. A similar ban is placed upon candidates who successfully appear on the ballot, but who have not won that party's nomination. Primary Candidacy Bars Another for General Elections 1-8-19. Candidacy in primary of one party bars general election ballot designation of different party or as an unaffiliated candidate. If a person has been a candidate for the nomination of a major political party in the primary election, he shall not have his name printed on the ballot at the next succeeding general election except under the party name of the party designated on his declaration of candidacy filed for such primary election. While the modified system tends to provide for “party unity” at the general election, it limits or otherwise dilutes the practical influences of divergent groups in the general election. Some of the divergent groups may be small in number; they can also be very recognizable. And in several recent elections, the absence of these divergent groups has significantly affected the outcome of statewide elections. A Bolt of Green The recent history of the Green Party of New Mexico displays the disqualification of a minor party under color of statutes. The Green Party was founded in 1994. The candidate for Governor, Roberto Mondragon, left the Democrats after losing the primary to Governor Bruce King. As a result of the outcome of the general election, the Green Party had become the first 3rd ‘major party” . As defined under the Election code: 1-7-2 Qualification; Removal; requalification . A. To qualify as a political party in New Mexico, each political party through its governing body shall adopt rules and regulations providing for the organization and government of that party and shall file the rules and regulations with the secretary of state. Uniform rules and regulations shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks. At the same time the rules and regulations are filed with the secretary of state, the governing body of the political party shall also file with the secretary of state a petition containing the hand- printed names, signatures, addresses of residence and counties of residence of at least one-half of one percent of the total votes cast for the office of governor or president at the preceding general election who declare by their signatures on such petition that they are voters of New Mexico and that they desire the party to be a qualified political party in New Mexico. B. Each county political party organization may adopt such supplementary rules and regulations insofar as they do not conflict with the uniform state rules and regulations or do not abridge the lawful political rights of any person. Such supplementary rules shall be filed with the county clerk and the secretary of state in the same manner as other rules are filed. C. All political parties that appeared on the 1988 New Mexico general election ballot shall continue to be qualified political parties unless disqualified in accordance with this subsection. Beginning with the general election in 1990, a qualified political party shall cease to be qualified for the purposes of the Election Code [1-1-1 NMSA 1978] if two successive general elections are held without at least one of the party’s candidates on the ballot or if the total votes cast for the party’s candidates for governor or president of the United States, provided that the party has a candidate seeking election to either of these offices, in a general election do not equal at least one-half of one percent of the total votes cast for the office of governor or president of the United States, as applicable. After giving notice by registered mail to the state chairman of the party at his last known address, the secretary of state shall remove all material dealing with the political party from his file of parties qualified in New Mexico. D. The secretary of state shall then notify all county clerks of the removal and no qualification of the political party. The county clerk is then authorized to remove such rules and regulations from the county files. The county clerk shall immediately notify by mail all voters registered as members of such party of the removal and nonqualification of the party. E. To requalify, the party must again comply with the provisions of the Election Code dealing with filing requirements for political parties. In 1996, the status obtained by the Green Party of New Mexico continued as a “major party." The National presidential candidacy of Ralph Nader polled over the disqualifying threshold of one half of one percent of the total votes cast. An Attorney General opinion provided that “ a major party is a qualified political party “ if any of whose candidates received the minimum votes” .(NMAG opinion 96-01) In 1998, the Green Party of New Mexico did not field a candidate for governor, but it did have a slate of candidates which polled enough to retain “major party status”. In 2000 The Green party of New Mexico fielded Presidential candidate and a slate of other candidate. The results of the 2000 Presidential voting in New Mexico was: PRESIDENT OF THE UNITED STATES RALPH NADER / WINONA LA DUKE GREEN 21,251 4% AL GORE / JOE LIEBERMAN DEMOCRAT 286,783 48% GEORGE W. BUSH / DICK CHENEY REPUBLICAN 286,417 48% HARRY BROWNE / ART OLIVIER LIBERTARIAN 2,058 0% HOWARD PHILLIPS/ J. CURTIS FRAZIER CONSTITUTION 343 0% JOHN HAGELIN/ NAT GOLDHABER NATURAL LAW 361 0% PAT BUCHANAN / EZOLA FOSTER REFORM 1,392 0% Through November, 2000, the Green Party of New Mexico was treated as a major party and again featured a national candidate Ralph Nader. The percentage garnered did not meet statutory threshold requirements for votes of the total determined to be required to remain “a major party ”. In March of 2001, the Secretary of State notified that the Green Party of New Mexico that they “were a minor political party,” despite one of the 2000 Court judge polling 9% and its Public regulation candidate garnering 6%. In 2002, The Green party of New Mexico again featured a candidate for Governor who did not garner 5% . Subsequently the Green party has not fielded a candidate for Governor, but occasionally fielded some candidate in unsuccessful general elections. But to gain ballot access they needed to fulfill “requalification”under the statutes .In light that at all times the number of persons who had maintained their registration as Green Party voters exceeded three times the number of persons to “requalify” (2750), and that the treatment for the candidates included additional procedures not required of major party and their candidate. March 2001 also saw the Secretary of State issuing instructions to the County clerks to remove the Libertarian and Reform parties as they had been disqualified from “minor party” listing. The letter provided: “as required by law, you must remove the party rules and regulations from your files and notify all voters registered as members of that party of the disqualification. By axiom, the demotion and disqualification of the parties removed reduce or diluted the ability to field candidates and to present its platform . Implicitly, the removal letters promised litigation which has since been brought before several courts and extended over the years . Thus ‘major party status and true ballot access ‘ was reserved on the basis and subject to numerous litigations. (Similar State authored proceedings were initiated upon other minor political parties.) Demotion Contrary to the Fundamental fact of a Recognizable Minority On the date of the proclamation of the Governor in 2008, despite its obscure status, the number of registered voters affiliated as “Green” exceeds 8300 persons, or three times the number for a party to “re-qualify” as a major party. Such classification as separate facilitation of candidates, with party requirements in addition to individual nomination requirements, dilutes the voice of those who freely have chosen ‘the green alternatives and platform ” Moreover, as the litigation has been preserved at State expense and with the directed purpose of disestablishing the parties, it is a denial of consequence. Extended into the State and district offices, such as the Judiciary and Legislature, the working order of the election administration effectively removed the apparatus of alternative access to the public ballots. With the additional requirements of requalification of parties, candidates desiring access under the “Natural Law”, “Libertarian”, “Green” and “reform” would be required to wait through the next election cycle under the New Mexico scheme that also “freezes“ party affiliations. The results of the last three election cycles demonstrate the consequential effect of removing parties from access on to the ballots . The state legislative branch is composed of two houses: Senate and House. The senators are elected every four years. House members are elected every two years. The senate is composed of 42 members; the house has 70 members. No Opposition in the Statehouse In 2004, 60 % of the House district races, Democrats and Republicans had no opposition-- either in a primary or general campaign. In 2002, 54% had no opposition candidate-- none in party primaries nor from any general election opponent (green party, libertarian or independent.) In 2006, our last election cycle, 55.7% were without opposition. The overwhelming result is that its branch is composed in a manner of an aristocracy of the Roman republic rather citizen body of democracy and a great american experiment.. One of the onerous statutes which prevent opposition from arising after the date of the Governor’s proclamation in January is a bar to “party switching”. A dissatisfied constituent group cannot recompose itself after the January date for the general election in November. Effectively, a person must be registered with that party in January of the current year—or, in the case of an independent campaign arising after the “governor’s proclamation,” be a registered independent prior to its signing, to be eligible. The sheer number of “uncontested“ races is the consequence. Another consideration is that from there are numerous challenges to the nomination petitions to other party candidates .These are stricken in a process which provides challenges nominations for “failures, such as signature requirements or objections which… underscored that the signatures did not fulfill [a] threshold number” or for failure on several other grounds. A signature shall be counted if: (NMSA 1-8-31) A person who signs a nominating petition shall sign only one petition for the same office unless more than one candidate is to be elected to that office, and in that case a person may sign not more than the number of nominating petitions equal to the number of candidates to be elected to the office. B. A person who signs a nominating petition shall indicate his residence as his address. If the person does not have a residential address, he may provide his mailing address. C. A signature shall be counted on a nominating petition unless there is evidence presented that the person signing: (1) was not a registered member of the candidate’s political party ten days prior to the filing of the nominating petition; (2) failed to provide information required by the nominating petition sufficient to determine that the person is a qualified voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate; (3) has signed more than one petition for the same office, except as provided in Subsection A of this section, or has signed one petition more than once; (4) is not of the same political party as the candidate named in the nominating petition as shown by the signer’s certificate of registration; or (5) is not the person whose name appears on the nominating petition. In practice, objections of nominations are often practiced by professional firms representing an objector. Provision of the election code reads: 1-8-35. Primary Election Law; nominating petition; limitation on appeals of validity of nominating petitions. A. Any voter filing any court action challenging a nominating petition provided for in the Primary Election Law [1-8-10 NMSA 1978] shall do so within ten days after the last day for filing the declaration of candidacy with which the nominating petition was filed. Within ten days after the filing of the action, the district court shall hear and render a decision on the matter. The decision shall be appealable only to the Supreme Court and notice of appeal shall be filed within five days after the decision of the district court. The Supreme Court shall hear and render a decision on the appeal forthwith. B. For the purposes of an action challenging a nominating petition, each person filing a nominating petition under the Primary Election Law appoints the proper filing officer as his agent to receive service of process. Immediately upon receipt of process served upon the proper filing officer, the officer shall, by certified mail, return receipt requested, mail the process to the person. New Mexico’s Court rules provide a limited Rule which governs one a challenge of a nomination petition is complained. Neither 1-8-35 nor Rule 1-096 (which provides for court proceedings of the objection) upon “fraud” or a “legitimate State interest.” The acceptable purpose for the statutes of the Election code is to assure the integrity of Election process-- not to provide a device for exclusion by political attack under the guise of Law. The difference between the “politically motivated objection” and the “authority to regulate or otherwise supervise elections” can be distinguished by character of the complaint. Is the complaint about “voter fraud”? Is the complaint about are signatures invalid? Does the complaint include or involve a scheme to deprive a verifiable minority, or candidacy, of its equal protection to the assured ballot rights? Was the complaint by a citizen in his own name, a“political action committee” or an agency of government? “to the extent that they [campaign finance laws] prohibit a corporation from making expenditures expressly advocating the election, or defeat, of a candidate, except through political committee, such laws are unconstitutional as applied.” Beaumont v. FEC, 395 Federal Supplement 2nd1001 ( Dist Ct of Colo, 2005) Governments must play an active role in structuring elections as a practical matter, because it is unavoidable that there must be substantial regulation of elections if they are to be fair and honest. Election laws should protect everyone if the democratic process is going to be successful. The right to vote is the right to participate. Burdick v. Takushi, 504 US 428, 112 S.Ct. 2059 “A state has legitimate interests in preventing corruption.” Nixon v. Shrink Mo Gov't PAC, 528 US 377, 120 S Ct 897 The legitimate interests of the State includes to prevent abuse. The compelling interests are effected in a vigilance rather silent sit of neutrality. The purpose includes provide safeguards upon a process which by definition excises candidates for the public offices. The practice of private practice firms for preparing and executing a complaint , including at times , by a power pf attorney may well require address under campaign finance reform. The state has the power under the United States Constitution (Art 1 SS 4 cl 1) to regulate the time, place and manner of holding elections. That power is matched by state control over the election process for state offices. “Without additional protections for candidates in parties other than the Democrats and the Republicans, there is no justice in the current laws regarding the fundamental right to vote.” Tashjian v Republican Party of Connecticut (479 US 208, 107 S.Ct. 544) Eliminations by Public Challenges An example originates in a complementary and second complaint: The petition of Joseph D R Sena complaining and challenging the Gould candidacy for the nomination of the First Judicial District attorney in the First Judicial District (NM 1-1- 2008 CV 0845).While it may appear on the face to comport with a statutory voter’s right to challenge an improper petition, the Sena complaint provided several “irregularities” and no “the compelling state interests”. It was not the complaint of a government agency, but one founded upon a “political interest”. As not the complaint of the government administering the elections, and one conducted under the hand of a private citizen, it traditionally evaded the Constitutional bars upon the States. Challenges are civil action between citizens. The nature is upon statutory compliances, and for which no correction or changes can be made.. Upon the filing under this statute which provides for a “complaint by any citizen” , the State, by and through the Secretary of State provide is required to immediately forward a certified service to Respondent candidate” and “is made a party of service in the Court.” Customarily, the Responding state office provides a strict appearance only, a statement of no preference in the dispute, and that the office shall comply with any Court order. Typically, these citizen complaints offer a statutory recitation and complaint which concludes that the signatures do not meet the statutory requirement and the Responding candidate should be “removed“. These complaints, in accordance to the Rules of the District Courts, are often entered by attorneys for the objector. They are prosecuted by a reduction of the number of signatures as valid until a threshold number is reached. In proceedings, the counsel for the objector generally provides an opening statement as to “why” the statutorily the complaint was made. Respondents generally appear pro se and give a response “that they went out to all their friends, and in different neighborhoods and gathered signatures and filed the papers to run. They didn’t know their friends were not registered’. ( see Proceedings of Montoya Nomination, First Judicial District, 2008) The proceedings then hear evidences, first being that the witness/objector with a showing that “ he is a voter in the district and otherwise qualified to object.” His counsel then calls upon an “expert witness”. An examination of certified copies of registrations is compared upon the lists of signatures showing “the person signing was not provide a registered voter of the party, or a registered voter at that address,” or that the person was not “ a registered voter 10 days prior to the submission of the nominations“ or that the “registered voter was not a registered voter of that district.” The number of signatures is thus reduced from , say, 230 to 170 when the required statutory formula for that district is 185. There is typically no ‘evidence” of fraud ( like the person signing the died six months ago) but evidences of irregularities and compliance requirements. . The disqualification of the candidate (unless reversed immediately) is final for that election cycle in light of the Governor’s proclamation. As appeals and restoring ballot placement are few, if any, the consequence is generally that a (incumbent) candidate enjoys a “free ride” without any opposition. Upsidedown are the Purposes of Preventing Fraud New Mexico’s process turns upsidedown the purposes of preventing fraud and abuse. The State, by and through its Attorney General, acts remedially upon that which is explicitly statutory notices ( 1-8-35) and implicitly with its “neutrality” between the private parties.. The practice of professional prosecution in these challenge cases introduces that which is the costs of private firms carrying forward a complaint in the district court, included with filing and service fees, amounts which are neither registered nor reported. The process effectively grants “Paid agents intimidating others or discouraging selected precincts so to influence a final outcome or course of an election violates, by conspiracy , the election franchisee” contrary the “purity of election law and its guard against abuse.” Relative to campaign finance statutes, these matters may well run afoul the Campaign Finance statutes. Article 1-19-16 provides: A. It is unlawful for any person, organization or political campaign advertising or Communication which does not specify the name of the sponsor or the name of the Responsible officer who authorized the printing or publication of such material , in any election, special election, school district election or an election authorizing a bond hearing. This prohibition extends only to handbills, petitions, circulars or similar written material. C. Any person, organization, or political committee violating the provisions of Sub- section A or B of Section1- 19-16 NMSA 1978 is guilty of a fourth degree felony and shall be punished as provided by the Criminal Code [30-1-1 NMSA 1978] Article 19.26.1 reads: A. It is unlawful for any political committee that receives, contributes or expends in excess of five hundred dollars ($500) in any calendar year to continue to receive or make any contribution unless that political committee appoints and maintains a treasurer of a campaign committee and registers with the Secretary of State. B. A political committee shall register with the secretary of state within 10 days of receiving, contributing or expending in excess of five hundred dollars ( $500) by paying a filing fee of fifty ($50.00) and filing a statement of organization under oath on the prescribed form showing: (1) The full name of the political committee, which shall fairly and accurately reflect the identity of the committee, including any sponsoring organization, and its address; (2) a statement of the purpose for which the political organization was organized; (3) the name address and relationship of any connected or associated organization; (4) the names and addresses of the officers of the committee (5) the identification of the bank used by the committee for all expenditures made or received. 1-19-26 provides (F) “contribution’ means a gift, subscription, loan , advance, deposit of money or other thing of value, including the estimated value of an in-kind, that is made or received for a political purpose, including the payment of debt incurred in an election campaign, but does not include the value of services without compensation or reimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee. Related to this Section of the Disclosures , there was an absolute and determinable cost to the filing of the complaint of Sena. It is within the record itself. The cost for filing the complaint “Complaint Challenging Candidacy for District Attorney for the First Judicial District” required a filing fee of $122. Service by the Sheriff’s Department adds $25. Hiring an attorney is be a thing of debt. Assuming a reputable firm‘s charges (as it clearly it names itself in a representative capacity) with a four hour minimum, the expenses are bound to exceed the $500 limitation. To date, there has been no filing as “a political action committee” nor made an accounting of costs with Election authorities. The outcome of the elections, both Federal and State is affected, and often with the reduced choice of one candidate. END BACKGOUND PART II The background and references in Part I of this memorandum attempts to present to the Court that there is winnowing process in the candidate selection founded in New Mexico election scheme. The process include : A. Additional Qualification for ballot access to Federal Offices B. Statutory Barriers upon small parties and unaffiliated independents, including State supported litigations C. Challenge Nomination proceeding for Compliances and Political purposes rather than Fraud or any State interest D. Complacent and Negligent Oversight by Election Officials E. Statutory Restrictions on Change of Parties for candidacies The result in the election races is more often than not ‘uncontested race’ or “predictable” two person races throughout the State and Federal election since the 2000 election. Further presented is that the Election code of New Mexico requires reform and necessitates of revision.. There is a pattern of outdated, antiquated processes and practices counter purity in the elections. There are statutes which clearly convene the explicit language in the United States Constitution. The background and references in Part I were presented to display a backdrop for the instant case, Gould v. Campbell. While Courts may not generally be disposed to musings or a prologue that are not direct upon the circumstances, issues of the particular constitutional question that is presented there is significance to the backdrop that legal foundation brings. The case brings its own particulars. It should be decided as in all matters, on a case by case basis. The backdrop is purposed toward providing a totality : an atmosphere of several of the restriction of the election code of New Mexico that counter the principle brought forth in Harper . (383 U.S. 663 ) In the recent decision, Crawford v. Marion County Board of Elections ( related to the voter identification .Justice Stevens, joined by The Chief Justice and Justice Kennedy, concluded that ….(a) Under Harper, even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. However, "even handed restrictions" protecting the "integrity and reliability of the electoral process itself" satisfy Harper's standard. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9. A state law's burden on a political party, an individual voter, or a discrete class of voters must be justified by relevant and legitimate state interests "sufficiently weighty to justify the limitation." Norman v. Reed, 502 U. S. 279, 288- 289. Pp. 5-7. Perimeters of Review The instant case, Gould v. Campbell, necessitates required review. While the primary of June 2008 has passed, the issue is not moot. It is capable of repetition and yet evading review. Moore v. Oglevie, 394 US 814, 816 (1969) The right of a citizen to seek public office regardless of a candidate’s race is a protected liberty under the first and Fourteenth Amendments amendment. The identification of the liberty interests that are protected by the Due process clause is a question of Federal constitutional law. Harper v. Young, 10th Circuit( 1995) Anderson v. Celebrezze 460 US 780 (1983) provided: “ In resolving constitutional challenges to a State's election laws, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights.” The Fourteenth Amendment of the United States provides that no state ’ shall deprive any person of life, liberty, or property, without due process of law.” (USCA XIV)“ A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word “liberty” or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 US 209, 221 (2005) The instant case, Gould v Campbell, particularly provides that a declaration for candidacy was filed with the Secretary of State, along with over 950 signatures and proper ethics compliance by Eliot P. Gould for the office of First Judicial Attorney on March 18, 2008, the date for the submission of “nomination papers“. On that same date, Joseph E. Campbell also filed declaration with 675 signatures for the same office. Joseph Campbell serves as an Asst. District Attorney in the first Judicial District. The First Judicial District Attorney’s Office is located in Santa Fe, New Mexico. However, the judicial district encompasses three counties: Santa Fe, Los Alamos, and Rio Arriba. These counties cover a large area (7,876 sq. miles) and have a very diverse population. Santa Fe County is 1,909 square miles and has a population of about 120,000. The only urban area in the county is the city of Santa Fe, which serves as a haven for tourists year round. The county is primarily Hispanic with a small Anglo population. The city of Santa Fe has a significant population of gay, lesbian, bi- sexual, and transgender individuals. Los Alamos is a very small in land size, 109 square miles, but has a population of 18,200. Government scientists live and work in Los Alamos. Nuclear weapons are created and tested there. The community is very “closed” and employees have high-level security clearances. The population is largely Asian and Anglo, although there are a few Hispanics. Rio Arriba is the largest of the three counties, 5,858 square miles, and extends north to the Colorado border. This county has nine Indian reservations, one Apache and eight northern pueblos. Each reservation has its own government and court system. Tribes enjoy a tax- free income from casinos that on their reservations. There is also a large Hispanic population, and there has recently been an influx of Mexican nationals to this area. Rio Arriba County is often in the top ten counties in the nation when it comes to illegal drug use. Heroin is the primary drug of choice. The cities of Santa Fe, Los Alamos, and Espanola have municipal courts, which enforce city ordinances. The ordinances cover most of the misdemeanor crimes. Municipal courts have jurisdiction for crimes that carry penalties of 90 days or less. Police officers prosecute cases in municipal court and there are no victim advocates assigned to the court. Magistrate Courts are administered by the State and have jurisdiction in a specific county for misdemeanor cases. Judges in this court are required to have a high school diploma and are elected officials. This court hears cases for crimes that carry a punishment up to 364 days. Preliminary hearings for felonies also take place there. District Court hears felony cases that carry a punishment of more than one year. A fourth degree felony is punishable for 18 months or more, third degree for 3 years, second degree for 9 years, and first degree for 18 years. Native American reservations in the area each have their own court system. Tribal organizations handle their own misdemeanor domestic violence cases. Felony domestic violence cases are sent to the U.S. Attorney’s Office and the Bureau of Indian Affairs investigates these cases. If a crime is committed on a reservation by a non-tribal member, the local law enforcement agency is called and the District Attorney handles the case. Issued a Certificate as Qualified Candidate On March 25, 2008, Secretary of State Mary Herrera issued a certificate find the candidate Eliot P. Gould ‘qualified’ to be on the ballots of the Democratic Party primary of June 4, 2008 for the First Judicial District. The Secretary of State also issued a certificate of qualification to Joseph E. Campbell. On March 28, 2008, Mr. Campbell filed a petition before the First Judicial District Court challenging the qualifications of Mr. Gould. Citing Chavez v. Evans ( Supreme Court of New Mexico No. 8746 79 N.M. 578, 446 P. 2nd 445 , 1968) with an excerpt of that case , “ learned in the law ” and being a “licensed attorney” as synonymous and with a claim that as “unlicensed”, there must be a disqualification of the candidacy of Eliot P. Gould as First Judicial District Attorney the Campbell petition prayed. (0-01-CV 2008-0845, First Judicial District Court of New Mexico) Also on March 28, 2008, Eliot P. Gould and the Citizens Committee for Eliot P. Gould filed a petition challenging the candidacy of Joseph E. Campbell in the District Court . (0-01-CV 2008- 0845, First Judicial District Court of New Mexico) The allegations were that Mr. Campbell’s signatures were insufficient in number to qualify for ballot placement and included fraudulent signatures and other irregularities. The complaint itemized by line and page each complained signature, including that “pages 21 and 19 “ were written by the same hand and not of the registered Voters. A Request for a Jury Demand was Filed promoting that the District court impanel a jury to examine and otherwise count the signatures for validity. A request for a “handwriting expert’ of the State was requested to examine and for testimony. On April 10, 2008 the District Court heard both cases independently. District Court Case against Gould’s Candidacy In the state matter “Campbell v. Gould”, Mr. Campbell presented opening remarks in essence complained that “on March 18, 2008 Respondent Gould filed all necessary documentation for certification as a candidate for the office of First Judicial District Attorney.” Mr. Campbell complained that on March 25, 2008, Respondent Mary Herrera caused her office “to officially certify Eliot Gould” as a candidate to the office of First Judicial District Attorney. Mr. Campbell stated that the requirements for District attorney must be 18 years of age, a resident of New Mexico, must be learned in the law, and must be a resident in the district. Mr. Campbell then brought forth “State ex rel. Chavez v. Evans”, a state Supreme Court case (1968) which equated that “learned in the law” was the same as “licensed attorney.” “Respondent Eliot Gould is not a “licensed attorney and therefore is not qualified candidate for the office of First Judicial District Attorney.” Mr. Campbell closed his remarks with the request that the Court find that “Eliot Gould is not a qualified candidate” and to “order Respondent Mary Herrera to remove his name from the official ballot.” In response, Mr. Gould , who had filed a written answer to Campbell’s petition, remarked that he agreed with the listed qualifications which Mr. Campbell had presented, but provided that the qualifications of “holding public office is an election franchise. The qualifications for District attorney requires fulfilling the state‘s constitutional provisions “ It requires fulfilling the election statutes in conformity with the statutes with the constitution.” Mr. Gould furthered that “it has been long established that the right to vote includes the rights to seek public office and in equal manner in each phase of the ballot process.” Gould again reaffirmed the oath (holding up his right hand) and stating: The Declaration of Candidacy submitted on March 18, 2008 included: “ I, Eliot P. Gould, first being duly sworn say that I reside at 354 ½ Calle Loma Norte, Santa Fe, as a voter of Precinct No__28_ of the county of Santa Fe, State of New Mexico; That I am a member of the Democratic Party as shown on my certificate of registration and that I have not changed such party affiliation subsequent to the governor’s proclamation calling the primary for which I seek to be a candidate; I desire to be a candidate for the office of the First Judicial District Attorney on the date set by law this year, and if the office be that of a member of the Legislature or that of the State Board of Education, that I actually reside at the address designated on the Certificate of voter registration. I will be eligible and legally qualified to hold this office at the beginning of the term. If a candidate for any office for which a nominating petition is required, I am submitting with this statement a nominating petition in the form and manner as prescribed by the primary election Law; and I make the foregoing affidavit under oath, knowing that any false statement herein constitutes a felony under the criminal laws of New Mexico. And that the same was duly subscribed and sworn. The duties and office of the District attorney are derived from the state constitution. The pertinent articles in creating the office is found at Article VI Sec. 24 of the state constitution: [ District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24) A second Article of the state constitution relating to the elective franchise including: Article VII: [Qualifications for holding office.] A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. The language and specific term “learned in the law” has not been changed or amended to any other qualification relative to the District office qualification. Interpreting away from the straight forward and honest reading of the constitution and its flexibility in remaining unchanged and constant proposes not order but confusion. Thereafter, the District Court rendered the opinion and decision upon the challenge. It found candidate “learned in the law” and “unqualified as a candidate as not a licensed attorney. ” “The Secretary of State shall remove his name from the ballots of the June primary. ” Thus, Gould’s name would not appear on the ballots of the June 4, 2008 primary. Next, Gould’s Challenge as Fraud The matter, Gould and Citizens Committee v Campbell was heard immediately thereafter in separate Court by a different District Court Judge. Parties were introduced. The representatives of the Citizens Committee were barred from the Plaintiffs Table. Opening statements made. The Court ruled upon “pending motions”; that it had jurisdiction as an election matter; that the motion for Expert handwriting Analysis of the State Police be denied, and that the request for Jury Empanelment , as they had been paid for ,to examine the Signatures was denied. Mr. Gould brought forward that the voters on the lists could be verified by an internet site “voter View” through the Secretary of State’s office. The Representative from the secretary of State’s office then testified that the “voter View” might not be as accurate as the main Internal records. Testimony elicited that a CD Rom of the Voters of the District Might hold some inaccuracies between the time of transfer. The District therefore denied the use of the internet access to the voter records and the use a permanently printed CD-Rom of voters by Secretary of State’s office. It further denied the introduction of expert testimony showing that “pages 21 and 19 were written by the same hand.” Mr. Gould then requested a continuance with a “short date of Monday or Tuesday. The request was denied. Thus , the District Court dismissed the cause with a final order. Joseph Campbell’s name would appear on the ballots of the June 4, 2008 primary. In accordance to the Statute 1-8-35, a petition for mandamus was filed in the New Mexico State Supreme Court by Mr. Gould on April 10, 2008 . ( No 8/ 31060 ) The petition provided that the district Court’s determination “added additional qualification” to the sole source of the office, the State Constitution and otherwise abridged the candidacy and from participation in the election franchise. The writ was denied. Mr. Gould then filed “a reconsideration “ as the “printing of the ballots was imminent” and insisting that he was due a reasoned opinion that he was not qualified in accordance to the explicit requirements of the State constitution . That reconsideration was denied without more. The result was that Mr. Gould’s name was removed from the ballots of the primary of the state of New Mexico on June 4, 2008. Additionally, as a registered Democrat on the date of the Governor‘s proclamation, he was barred by statutes to fulfill a candidacy as ‘unaffiliated“ or “minor party“--not only for the office of the District attorney, also for the federal and state offices to be held on the general election of November 4, 2008. FOR REVIEW Thus while this controversy involves election to state office, and the state apparatus of election, presents an issue of Federal concern. Federal Courts have broad powers to remedy violations of the Voters Rights Act. Dillard v. City of Foley, 926 F Supp 1233 The Court is not being asked to interpret state laws but to measure the weight of those laws and practices applied by the State of New Mexico upon the scale of its powers and limitations. The Court is being asked to address that fundamental right of liberty to seek public office is entitled to each of its citizens and that in the Gould candidacy, it was taken in a manner contrary and arbitrary. While the Tenth Amendment of the Constitution preserves the rights of the individual states to control the election of presidential electors, and grants the States powers for public safety and regulation, the States are required to ensure that the enfranchisement are true and proper in each phase of the ballot process, to be absent discriminatory practices or effect the dilution of a politically cohesive minority. The Voter rights Act provides as much. In 1965 the Voter Rights Act of 1965 was enacted to provide a comprehensive and direct solution to protecting the rights guaranteed by the Fifteenth Amendment. With the support of President Lyndon B. Johnson, the Voting Rights Act of 1965 was specifically designed to combat racial discrimination in voting. The Voting Rights Act was used to register millions of Americans who had never been allowed to vote. Unfortunately, once the registration of new voters increased, many schemes were developed in an attempt to cancel out the effect of the new voters. Attempts such as changing elected positions to appointed positions, gerrymandering election boundaries, and changing single-member districts to at-large elections became commonplace. The Voting Rights Act was crafted with two main areas of coverage. The first area governed special remedies for specific areas of the country where statistics showed large differences between the number of eligible voters and the number of persons actually registered to vote. These special provisions authorized the United States Attorney General to provide for examiners and observers to register voters and monitor elections, banned the use of tests, and also required these certain areas to submit any changes in their voting laws to the federal government for approval . The second aspect of the Act generally prohibited discriminatory voting practices throughout the entire nation. The Voting Rights Act has been extended three times since 1965 -- in 1970, in 1975, and in 1982. While provisional section related to ‘pre-clearance provisions’ expired in 2007, the Voting Rights Act provision against discriminatory practices is permanent. In Harper v. Virginia Board of Elections (383 U.S. 663 1966), the U.S. Supreme Court held 6-3 that state poll taxes (for both federal and state elections) were officially declared because they violated the Equal Protection Clause of the Fourteenth Amendment. Harper followed a series of voting rights cases over states statutory techniques that had been used to disenfranchise along racial lines. These techniques included direct disenfranchisement and indirect disenfranchisement. "Direct" disenfranchisement refers to actions that explicitly prevent people from voting or having their votes counted, as opposed to "indirect" techniques, which attempt to prevent people's votes from having an impact on political outcomes (e.g., gerrymandering, ballot box stuffing, stripping elected officials of their powers). The 1982 amendment to the Voter Rights Amendment provided: Section 1973aa provides: Application of prohibition to other States; "test or device" defined (a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. (b) As used in this section, the term "test or device" means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. In this amendment, the Congress made clear that while the numerous cases that had minorities were not strict upon race or color, but purposed “to the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice," Thornburg v. Gingles, 478 U.S. 30 (1986). The amendment provided “that to make clear that a violation of § 2 could be proved by showing discriminatory effect alone, rather than having to show a discriminatory purpose, and to establish as the relevant legal standard the "results test." Section 2(a), as amended, prohibits a State or political subdivision from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures that result in the denial or abridgment of the right of any citizen to vote on account of race or color. Section 2 (b), as amended, provides that § 2(a) is violated where the "totality of circumstances" reveals that "the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." “Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the equal Protection Clause of the Fourteenth Amendment. Thus, state measures which have the effect of denying or diluting a citizen’s vote must be justified with a compelling state interest.( Harper at 670, 86 Supreme Court 1079) (striking down the State Poll tax ); Reynolds v. Sims, 377 US 533. Title 42, Section 1973 (h) provides: Congressional finding and declaration of policy against enforced payment of poll taxes as a device to impair voting rights. The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting. The right of a citizen to seek public office is a free exercise derived from the First Amendment. Additionally, the Fourteenth Amendment provides that no state shall “deprive any person of life liberty, or property, without due process of law.” Under that light and the scope the Voter Rights Acts and Amendments , a review of the events will bear the following facts: 1. Gould’s name did not appear on the ballots of the June 4, 2008 primary 2. Gould’s name was removed through the application of a “test or device” as the state district Court required an“ additional non-constitutional qualification though the candidacy satisfied the Statutory requirements and constitutional requirements of New Mexico for the office of District Attorney 3. No reasonable address nor meaningful hearing was conducted in the process of removing the candidate’s name from the ballots-- though an appeal of the district Court’s order was filed before the State Supreme court under the specific statutes governing. Invidious Discrimination Invidious discrimination applies a differentiation scale to people who belong or appear to belong group or another group. The group being discriminated against is generally seen as being lower, lacking or deficient in some way. (This type of discrimination is an unfair and often illegal practice that can go on daily in many different forms.) In the context of the instant matter, there was no overt or subtle racial appeal or issue. However, the Nomination Signatures constitute, by axiom, a “minority group that is politically cohesive”. There were over 950 raw signatures, of which over the statutory requirement of 545 for the First Judicial District. The “minority” is a mixture of persons who had personal contact with the candidate. Most received literature of platforms and positions of the candidate . Their individual signatures were provided by their own hands, freely absent any coercions or misrepresentations, and recorded the names ( as registered to vote), signatures, places which the person resided and city of residences. The signature process was carried out regularly in public places, private lands and included persons from each of the three counties that compose the First Judicial District. The petitions clearly stated the candidate’s name, address, county of registration, and the pertinent information regarding the time, place and conduct of the election. And the validity of the petitions were not challenged, except upon ‘additional qualification” that a license was necessary. As the record reads, that issue was addressed before the state district court . “ New Mexico’s constitution provides: [District attorneys] There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall be a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as prescribed by law. (NMSC Art VI Sec 24) The direct language of the State constitution upon the qualifications for the district attorney is the sole source of the qualifications. New Mexico’s constitution also provides: “Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. (Article VII, New Mexico State constitution) When the District Court’s promoted its finding that the candidate was “learned in the law” but to be removed from the ballot as he was not a licensed attorney , in one swipe of his hand , the state district Court judge toppled the state’s constitutional structure. “Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.” is rendered meaningless. So was another imperative of the state’s constitution. Purity in elections be maintained is promoted in Article II of the New Mexico constitution : Sec 8. [Freedom of Elections] All elections shall be free and open, and no power, civil or military shall at any time prevent the free exercise of the right of suffrage. Direct Appeal Taken An appeal of the Gould’s removal by the state District was taken as provided under the Election code: once the decision of the state district court is rendered, “The decision shall be appealable only to the supreme court and notice of appeal shall be filed within five days after the decision of the district court. The supreme court shall hear and render a decision on the appeal forthwith. 1-8-35 NMSA On April 14, 2008, Mr. Gould and a representative of the Citizen’s Committee for Eliot Gould District Attorney appeared at the Clerk’s office of the state supreme Court with a petition for mandamus to restore the ballot position. The state supreme court heads the Judicial Branch of State government. It is the state’s appellate court of last review and has supervisory control over all lesser courts. The state supreme court has original jurisdiction. The court also is empowered to issue necessary and proper writs and to provide for the transfer of any action or decision enumerated in the statutes. The Appeal contained the necessary elements a reviewing Court to issue a mandamus and the compelling feature that ‘time was of the essence” as the ballots were scheduled for printing. The general fee was tendered to the Clerk of the Court by certified check. The Respondent of the District Court, Mr. Campbell and the Attorney General for the Respondent Secretary of State were served with notice of the action and copies of the complaint. That court returned an order, “whereas, this matter came on for consideration by the Court upon motion for reconsideration and request for hearing, and the Court having considered said motion, and being sufficiently advised, Justice Patricio M. Serna, Justice Petra Jimenez Maes and Justice Charles W. Daniels concurring; Now therefore, it is ordered that the motion for reconsideration be DENIED… IT IS SO ORDERED. Witness, The Hon. Edward L. Chavez, Chief Justice That order gave form but not substance. It abdicated the Courts “ reserved’ powers. Whether by design or negligence, it failed to properly address the necessary reinterpretation of Chavez nor address other substantive predicates of election law. That order certainly left hollow any reason for the removal of the name from the ballots. About Chavez v. Evans Chavez v. Evans,[79 N.M. 587, 446 P.2nd 445 ] the state Supreme court case introduced and underlying the objections to the candidacy did not simply equate “licensed and learned” as interchangeable ( as is commonly understood). It did not attempt to raise itself to substantially amend the express state constitution. It presented the state’s compelling rationale as to why certain candidates were withheld from the ballots in 1968. It also offered that certain other candidates would be returned to the ballots as their removals were based upon additional qualifications of the state’s constitution or of the Federal government. Chavez was written in the era of Harper and voting rights expanse. It established a review of the threshold qualifications of the slate of “People Constitutional Party”. “Petitioners, eight in number, seek mandamus to require to certify their names… for the offices to which they were nominated….The remaining candidates of that party have already been certified. Chavez articulated the questions involving each of the Peoples Constitutional party candidates separately. The Court noted that the “constitution must be read as a whole’ and that two sections must be read together. In ordering the mandamus to for the candidates for President, Vice –president, (a state board of education member) and (at that time) the two Congressional District candidates, Chavez provided that the refusal to certify those candidates was erroneous. “The constitutional qualifications for membership in the lower house of Congress exclude all other qualifications, and state law can neither add nor subtract from them”. “The state may provide such qualifications and restrictions as it may deem proper for offices created by the state; but for offices created by the United States Constitution, we must look to the creating authority for all qualifications and restrictions.” Thus it followed that the ‘statute unconstitutionally adds additional qualifications. With respect to the candidates of the Peoples Constitutional state offices of Governor, Lt Governor and District attorney, Chavez provided that those candidates did not meet the qualifications as provided for office. Gubernatorial candidate Tijerina was denied certification because ‘a conviction of a felony within the constitutional prohibition. As Tijerina was disqualified , so to was the candidate for Lt. Governor ‘as those offices are elected jointly”. Finally, Chavez dealt with the question of Preston Monongye, the candidate for District Attorney of the Peoples Constitutional Party. It pointed out that Montagye was denied certification ‘for the announced reason that he is not learned in the law as required by the New Mexico Constitution for one to hold that office.” ‘While providing “to our minds to hold that “learned in the law” and being a licensed attorney are synonymous as indicated”, it more importantly showed that the denied certification of Monongye was because of an absence of any showing of “learned in the law” as constitutionally required. “By affidavit the petitioner sets forth his qualifications which do not include the completion of a law course or graduation from an approved law school. Neither does he claim that he has been admitted or is qualified to be admitted to practice law in this or any other state. Under these circumstances, can he be learned in the law”? We would answer unhesitantly in the negative were it not for the different qualifications contained in our constitution, as noted above, for the holding of the offices of district attorney, attorney general and justice of the Supreme Court. It follows that in light of the statute and the surrounding circumstances present when our constitution was adopted, an interpretation such as argued for by petitioner Monongye is unreasonable and incongruous and will not be adopted by us. Chavez per se is not the fault. In no manner did it attempt to provide an undeclared amendment to the state constitution. Rather categorically, Chavez provided a straight-forward and direct interpretation. It dealt with circumstances which were specific to that time and those events, stated the questions and provided a rationale direct upon those questions. Chavez per se is not at fault. It is the practices such as introducing excerpts and concluding that the excerpt gives the full meaning. Election controversies are inherently constitutional. The elimination with a broad swath of one or several candidates requires a substantive and rational basis for which the state law is interpreted and a declaration that the removal is not offensive to the equal protection that must be afforded Much different is the set of circumstances than were present in 1968. Mr. Gould had never been engaged in any insurrection against the United States,nor participated in a rebellion or other crime. Unlike Monogye, Mr. Gould presented evidences that he was “learned in the law”, having attended law school in Chicago and the passed the bar in Illinois. The state District court provided no rationale nor any compelling state reason of the State in its decision . Nor did it provide any rationale for removing his name for the ballot other than finding Mr. Gould was not a licensed attorney. The District Court did not, for example, find Mr. Gould had not filed the necessary papers. Or that he had filed them in the wrong office . Or that he had filed them on the wrong date. The Court did not include any finding related to collected fees or donations upon any promise or performance. Nor did it provide that there was coercive factors in their collection. Failure to Address is No Option The failure of the state Supreme Court to address the issue with reason and substance compounded the circumstances. The failure to properly review constitutes its own form of a denial of consequence. No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law. Amendment XIV. Fundamental to due process is the process include a meaningful hearing of judicial review. Due process is violated if a practice or rule ''offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'' Snyder v. Massachusetts, 291 US 97,105 (1934). That the “court was sufficiently advised in the premises was not enough.” The reviewing court must include substantive predicates and employ explicitly mandatory language specifying how the outcome is reached. Part III In Part I there was presented an ‘atmosphere and background’ supportive that the election code and practices of administration of elections which provide undue restrictions upon candidates , with processes unchallenged, and thus maintained. In Part II, there is a specific set circumstances leading to “removal from the Primary ballots” of one candidacy by means and methods that not only removes the candidate’s name from the ballot but prohibits him from registering, under separate party or unaffiliated, and further participation in the General election to be held on November 7, 2008. In Part III, the Petitioners are not asking the Court to “interpret state law” but to apply the same measure of facts that created controversy that resulted in the removal of the “name from ballots” as not compatible and acceptable under the Equal protection clause, prohibited by the limitations of the reserved rights upon the States, and contrary to the fundamental due process right of judicial review.. In the United States there exist concurrent powers. These are powers held by both the states and the federal government. These powers also have limitations and restrictions under the Constitution .The powers may be exercised simultaneously within the same territory and in relation to the same body of citizens. This is contrasted with delegated and reserve powers. Some of the concurrent powers enjoyed by both the federal and state governments are: the power to tax, make roads, protect the environment, create lower courts and borrow money. The foundation of the states’ concurrent powers is a trusim: the Tenth Amendment to the United States: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment X, United States Constitution The rights granted to the States are no more than a showing of a relationship between a national government in a declaratory manner allaying fears against a centralized tyranny. By inclusion in the Constitution, it offered no more nor any less than the states exercise those powers fully, but not in any prohibition. “ The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens." Raich v. Gonzales, Opinion of Justice OConnor in dissent, joined by Chief Justice Rehnquist and Justice Thomas. This delicate relationship between the federal and state governments, and the judicial branches thereof, is basic to our system of Federalism. There is strong interest to ensure that the rights of the States, as individual states with the traditional autonomy to administer elections for the Federal and state offices free are to interpret state laws governing elections, and maintaining the core functions for the general welfare and peace without interference by the federal courts. Justice O’Connor in New York v. United States modeled a classic structure: States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead "leaves to the several States a residuary and inviolable sovereignty," The Federalist No. 39, reserved explicitly to the States by the Tenth Amendment. The holding in New York, that Congress may not ``commandeer'' state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized. This perspective of Federalism retains characteristics also known as trias politica. The model was first developed in ancient Greece and came into widespread use by the Roman republic. In this model of government, the state is divided into branches or estates. Each estate has separate and independent powers and areas of responsibility. The normal division of estates is into an executive, legislative and judiciary.Proponents of separation of powers believe that it protects liberty and democracy and avoids tyranny. Critics of separation of powers question whether it indeed does protect liberty, and historically point out that model of government that it may slows down the process. The founding fathers of the United States, in order to quell concerns about a centralized federal government imposing tyranny, incorporated the characteristics of trias politicia with the States and Commonwealths with a dual set of constitutional officers. The expressed and enumerated rights of the Federal government , and each of its branches, their authority and limitations were present in the Constitution recently ratified by the States. The Federal government would remain as it was composed and without amendment but for the “ The Bill of Rights as “ rights of the people” and thereafter, “the remainder the rights the States”. So upon the States came “reserved rights”. These have generally been in public safety, health and welfare of people, and other sovereign rights. However, the rights of the States are limited by the Tenth Amendment itself.: “nor prohibited by it to the States, are reserved to the States respectively, or to the people. One prohibition exists in the 1982 amendment to the Voter Rights amendment provided: Section 1973aa provides: Application of prohibition to other States; "test or device" defined (a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. (b) As used in this section, the term "test or device" means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. Title 42, Section 1973 (h) provides: Congressional finding and declaration of policy against enforced payment of poll taxes as a device to impair voting rights. The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting. The state’s powers for a license requirement is as much a truism as the amendment providing . A license is a payment of a tax, or fee affording and individual or company a privilege, for which no general right exists. While licensure statutes promote business and performances standards, assure a public confidence, and provide safeguards in public safety and health, relative to a qualification for public office, it constitutes beyond the State’s limitations. It is “ invidious discrimination“—a classification which is arbitrary, irrational, and not reasonably related to a legitimate purpose. (McLaughlin v Florida; 379 US In this case, the Tenth Amendment powers are limited by the Twenty-fourth Amendment. Amendment XXIV of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962 and was ratified by the states on January 23, 1964. It wasn't until the U.S. Supreme Court ruled 6-3 in Harper v. Virginia Board of Elections (1966) that all state poll taxes (for both state and federal elections) were officially declared unconstitutional, because they violated the equal protection clause of the Fourteenth Amendment. Thus the question involved in this controversy is not a question of the reserved rights to interpret the state laws. It is the often noticed or unmentioned component in federalism, the rights reserved to the people. The construct of the model of Federalism is more fluid than government to government, but active promotes the citizen participation. Justice Breyer, in dissent in United States v Morrison provides a key of the evolving fluidity.” Its state/federal division of authority protects liberty-both by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home. The matter Gould v. Campbell has significances. Just as the Tenth amendment extends powers to the States the truism of the Tenth Amendment provides that the States' rights, originally , as a political theory, every citizen had the right to appear at an election for any public office. Much of the United States lands, which had been acquired in the settlement with the British Government, accompanied the reserved powers delegated to the States. The period did not feature political parties per se, but were organized by States-- in minority and majority. Amendment X gives the minority party - whichever party that may be -- the power to make its case in each of the state legislatures , and thereby provides a vital outlet for their policy preferences. As for those elections to the Congress, the states would elect from their Legislatures , the Senator or ‘representative of the sovereign state for the terms in the Constitution. The States also would have delegations “from the People” through elections to the House of Representatives. At the time of the American Revolution and at the framing of the Constitution, the right to vote was restricted upon two assumptions : First, that men who owned property, especially land, had a "stake" in preserving society and the government in order to protect their wealth. Second, only men of property had the "independence" to decide important political matters and to choose the members of the assembly who would debate and decide these matters. The Constitution did not original mention “voting” but referred to the election of offices and electors from the States. Restrictions to the right to vote or disqualification were constitutional provided for under the same Amendment that is generally cited as “Equal Protection” or Due Process. The Fourteenth Amendment provides that “no state shall deprive any person of life, liberty, or property, without due process of law”. Section 2 of the Fourteenth amendment provides for Representation as it is Apportioned to the Congress and to be for the States and to provide for no denial including the Executive, judicial and legislatures; or in any way abridged: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 of the Amendment provides the exceptions. Other than “non taxpaying Indians” certain classes were barred or disqualified for public office. : Section 3. No one shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. By the time of Harper, many of the Reconstruction period objections ( “he was a confederate or had given aid or comfort to the enemies thereof ’) had been codified by the State’s legislatures. The right of Women came by Amendment and granted women full political equality. Progressive measures replaced the “confederate disqualifications”. “laws relating to primaries and elections do not confer the rights of qualified persons to become candidates, but merely regulate the exercise of such right in an orderly way. (Manning v. Young , 210 Wis. 588, 247 NW 61 (1933). The majority opinion in Morrison write: The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society . The rights of the State are “limited” by the Tenth Amendment itself. And by other portions of the Constitution and the power of Congress over elections. That power of Congress like that of interstate commerce `is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or non- exercise of state power. . . . It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered.''--Chief Justice Stone, 312 U.S. 100, 114, 123, 124 (1941). When the state district court judge ruled candidate Gould was “ disqualified the candidate and removed his name from the ballot “, he did more than add additional qualifications not present in the creating document for the office-- the state constitution. He applied a standard from which he and other state officers are prohibited: a test or device. It is a fundamental prohibition of constitutional proportion. The right of citizens of the United States to vote in any primary or other election . . . shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax. Amendment XXIV (1964) But just as significant is that the matter was as provided statutes governing elections brought to the state Supreme Court. The fees paid, upon the state question: that the district court had added additional qualification to the language and meaning of the state’s constitution and that the name would be placed on the ballot. When reason had to be, it was void. The statutes of the State dictate an answer “forthwith”. Elections are inherently constitutional questions. The concept that a state Court judge could elevate a partial excerpt of a reference of a case and so disturb the voting rights is unacceptable. That it would reduce the viability of the minority and mark a change of the constitution of the state is appalling . That a review required of the consequences of such a decision is denied is outrageous conduct. Such process defying a true meaning of due process of the individual, substitutes additional denial of due process, and leaves the public only to speculate upon the meaning. Due process is best defined in one word-- fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. This includes informed statements that are established with predicators . When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process. The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). Negligence and arbitrarily applied procedures in the state’s challenge process are further compounded by the State supreme abdication of review. Arbitrary procedures and the failure to provide adequate safeguards in that phase of the election process are contrary to the very principles of judicial review and the sanctity that the laws of the Constitution and state constitution are superior. Modern federalism adds an additional measure. Since 1970, and the national revenue sharing administrations, the states have been ‘induced’ to participate with the federal entity to assure certain objectives and programs with “grants”. Participating states could opt out of participation in the general programs of the Federal government. Or they could choose to apply for discretionary grants, which require that State or its agency an additional and certain obligation. Compelling Mandate Since 2002, the primary vehicle for funding to the States has been the “Help America Vote Act”. The goals of HAVA included: replace punch card voting systems, create the Election Assistance Commission to assist in the administration of Federal elections; and establish minimum election standards. Under HAVA, New Mexico provides an ongoing Certification that the standards in the conduct of elections include “Safeguards to ensure that eligible voters are not removed in error from the official list of eligible voters. ” New Mexico is a participatory state, thus the complaint does not erode the right of the States. The imperative is that judicial review cannot be simply denied. It is compelled, and must bear more than form. It must be rational and reasoned, It must be timely and address the state’s interest in the removal and be taken into the totality of circumstances that are election administration and process. The total HAVA funds received by New Mexico as reported to the Congress : $19,279,790. ( report of Election Assistance Commission , July 24, 2008). Role of the District Attorney It is more than mere irony that this case provides for the removal of a candidate for District Attorney in light of the concept of modern Federalism. The District Attorney, in the most comfortable model of modern Federalism is within the State’s compliment of constitutional officers. Under no manner is the District attorney an agent of the Federal government or any of its agencies. The District Attorney is a representative of the State’s traditional interest in sovereignty as they have been extended since the adoption of the Bill of Rights. Within the total structure of constitutional Federalism , the function of his office is constitutional , unique and one of the “seats” of the State government. Under new Mexico’s constitution, the District Attorney participates as “the chief legal officer’ of the District of the state. Under the most comfortable model of federalism, the district attorney of the state’s district has responsibility, along with other state officials, to assure the procedures and safeguards to Voting rights are paramount. If there is a condition of fraud , one man attempting to vote twice or two men attempting to conspire in a manipulation of the vote, the District attorney dictated by custom and statute to prosecute the case that originates in his District. It is his obligation to perform within his solemn oath for a term of faithful service. While the District attorney’s responsibilities include prosecutions of the criminal offenses--hence, he is popularly considered “the chief law enforcement’ officer-- the duties are far more than that. The District attorney is the “chief legal officer ”of the district. But the responsibilities are far more than that. They extend into the processes of the local administration of justice and the places where the rules of the Courts and issues begin. Just as the responsibilities extend into the conduct of state elections they extend with authority and certain immunities to the promotion of justice. They extend with authority to provide for compliance and revisions of environmental and emergency procedures. The office can promote applications for grants and provision for their dedicated services in the relationship with the Federal government for modernization and to implement learned lessons in the administration of justice and other public safety concerns. The office of district attorney of the First Judicial district of New Mexico is in the most suitable position of all the slate of State officials to deal with significance the very working of justice in the state’s courts. “The system in these courts in Santa Fe isn’t about the ideals of defense for the accused, or the individual rights which are secured by the nation's Constitution and the State's Bill of Rights. Theirs is geared for the major majority of charged. If you do the crime, do the time. Plea it out and be done with it. ”. The state Court system is much worse than good intent gone awry. We are in the United States, defendants in the Magistrates Court entitled to "due process". That includes a procedural process that assures any and all individual from the throes of judicial tyranny. In New Mexico, if one is charged with a misdemeanor, that includes a meaningful hearing with 60 days on two simple questions: 1) is he a danger to any person or the community? and 2) will he be likely to appear in Court? . . Under Rule 5-401 A, the court MUST order the release of any person who is entitled to bail under Article II, Section §13 of the New Mexico Constitution, either on personal recognizance or upon execution of an unsecured appearance bond, unless the Court determines that such release will not reasonably assure the appearance of the accused or "will endanger the safety of any other person or the community." If the court makes such a determination, the rule permits the court to impose such conditions as "will reasonably assure the safety of any person and the community." The New Mexico Constitution guarantees a defendant's right to be released on bond pending trial. N.M. Constitution, Article II, §13. The court may only deny bail in non-capital cases for up to sixty days after the defendant's incarceration, by an order entered within seven days of incarceration, and only in specified cases where the defendant, who is accused of a felony, has been previously convicted of felonies. Specifically, if the defendant has been previously convicted of two or more felonies committed within New Mexico, neither of which arose from the same or a common transaction with the case for which the defendant is now before the court, the court may deny bail for sixty days. The constitution also allows denial of bail altogether for the sixty-day period if the defendant has been convicted of only one prior felony within the State, if the current charge involves a felony alleged to have been committed with a deadly weapon. The sixty-day limit may be extended to the extent that the trial has been delayed at the request of the defendant. But rather than go to that extent of what it MUST do, the Magistrate Courts organize a deception of itself, rerouting arraignments on the same charges, and then again, and then again. Never giving a thought to the meaning of liberty or the Constitutional requirements of the State. And how does Chad Redhouse deal with this? To save his soul and to preserve his sanity at the depths of this Kafkaesque nightmare, he files motions. The motions are denied. He filed one last week, asking that the charges be dismissed because he hadn’t been arraigned for 110 days after his arrest, and the New Mexico Statutes say it must be done within 30 days. Judge David Segura denies the motion, and then arraigns him, as if the statutes somehow don't apply, how many days late? 110-30=80 days late. It seemed another example of surreal justice under a guise of law. Then there are the questions of double docketing and triple docketing, filing the same charges in 3 different courtrooms with three different judges. And keeping him in longer because they have never been consolidated—or were they as the NM Courts website reports two orders to consolidate and then a reconsideration to deny consolidation. . In all twelve charges in 4 cases brought before 3 Judges based on two events. There are constitutional limits to what the Court can and cannot do. Excerpt from “UNFAIR PROSECUTION DENIES BULLYING LEGAL TACTICS ON NAVAJO ACCUSED OF BATTERY by Eliot Gould, Sun News of Santa Fe, November 2007. The District Attorney is not an agent of the Federal government. His duties and responsibilities to the discharge of justice are unique under the constitutional system. It is from that office that the leadership necessary to take proactive compliance measures may undertaken. Learned lessons need not remain buried in silence. … While Mr.Redhouse was released and all charges dismissed, which is the point of a habeas, there is a sadness in that silence that now is. We have knowledge that the magistrates Court employs an inferior public defender system. We witnessed arraignment processes over 100 days late. And that “the 60 day “ bond requirement was either misinterpreted or ignored as an obligation by the magistrates Court. The exactness may be better understood with an examination of the Courts calendar years rather than a single case which by now is a “given” as an example of the badly broken system. In 2002, the Santa Fe Magistrate Court had 843 misdemeanor cases filed. Based on the disposition codes entered by the Administrative Office of the Supreme Court, 29 resulted case trials. In 2007, the number of misdemeanor cases had risen 1521, and the number of case trials had reduced to 8. Of course there are several ways to interpret those figures; but the only reasonable conclusion that can be is that the “system” is out of balance, lacking constitutional integrity. That conclusion becomes even clearer, with its underlying disparaging effect with some additional information. The report shows while there were 8 trials of 1526 cases, and 5942 traffic cases, there were also issues 2452 bench warrants issued. For the most part, bench warrants are issued for failure to appear. The summarized jail time for sentencing and warrants in 2007 was 137,018 days. Fines and fees summarized $511,989. Community service and credits for jail time were summarized with negative figures, so those are not useful figures now to consider the consequence and effects. …. Certainly the figures are alarming. And that is the case without delving into profiles, racial, economic or age characteristics. What seems certain is less than constitutional integrity. The figures are alarming in comparison to findings of Court statistics nationwide related to “innocence” whereby 94 % of accused are decidedly guilty without doubt, and more than reasonably so. To them I say” Do the crime, you’ll do the time”. But then there is the nebulas, the 6% who are not guilty beyond a shadow of a doubt. There seems a 99% certainty that they will face jail time. This despite constitutional protections and assurances, which are often obscured in misapplied practices. -- excerpt “Protecting the Quality of Life, Eliot Gould, First Judicial Candidate, Sun News of Santa Fe , March 2003 The District Attorney is in the most suitable office under Federalism from which justice may prevail and be served equally for all. Elected directly of the people, while he represents the State in prosecutions of alleged criminals, the District Attorney also serves as the people’s representative from judicial abuse and tyranny. The District attorney can most suitably act in the role of training law enforcement and his prosecution staff that assure the production of evidences, witnesses, and timely processing of arrests and trials. He can address a system that is prone to errors and defects with techniques that inherently apply the fundamental safeguards and integrity which the public expects in its courts administration. The District attorney is in an extraordinary position to establish that justice is for all, and not equally bad—therefore equal. The District attorney can raise the standards so that prosecutions are not handled with deficiencies but the state’s rights are applied with the assurances and proficiencies. It may not be a popularly accepted position as the street often holds Justice Scalia’s sarcasm: “Why try him? We know he’s guilty”. The removal abridged any hope of a public discourse. That, according to Mr. Jefferson on his queries, is the intent of a campaign. That right was barricaded -- the right to speak and campaign and formulate the public opinion. It may not sit well with the politicians or the public in general to address such concerns, balances and constitutional integrity. It is a liberty right, the right to seek public office. A liberty right is the freedom which does not entail the obligation of others, but rests solely upon the permission of the rightholder. It is an instilling thing to have a vision that justice be served equally for all. It is instilling to set forth to constitutionally advance rather than accept a badly broken system that contravenes fundamental rights of so many. It is a worthy endeavor toward an extraordinary office. And as endeavor was denied under the pretense of law absent its constitutional moorings, it is debasing. To the extent that a citizen's right to vote is debased, he is that much less a citizen. … This is the clear and strong command of our Constitution's Equal Protection Clause. …. As long as ours is a representative form of government, and our legislators are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system Chief Justice Earl Warren , Reynolds v. Sims, 1962 And Now, Without the Court’s intervention the compounded acts to remove the candidate’s name by manner contrary to equal protection and continued denial of due process in the judicial review would likely repeat. PROPOSED ORDER: The Federal District Court of New Mexico for an order : 1.Declares it finds jurisdiction and that the the removal of the name “Eliot P. Gould” from the ballots void of the June 2008 primary improper and specious. 2. Direct the Respondent Secretary of State decertify the results of the election primary results and conduct a special election on or before December 15, 2008 in the First Judicial District for the office of District Attorney 3. The Clerk of the District Court is instructed for a copy of the order to be direct to the New Mexico State Supreme Court for appropriate measure. Verification: Also denied the fair and equal opportunity of the salary that is established by the Legislature for the term. The complaint is not an abstract exercise. It holds a solemn purpose: a fundamental right to seek public office direct of the people in accordance to the prescribed constitutional requirements. End memorandum/ Appendix: Table of Citations United Sates Constitution and Amendments: Article I, USCA Elections for Congress’ House of Representatives Amendment I Liberty Rights of the People Amendment X Reserve Rghts of the States Amendment XIV Sec. 1 Equal protection and Due process Sec 2 Apportionment requirement Sec. 3 Excluded Individuals Amendment XV Prohibition of Governments to prevent Vote on account of race, color or previous servitude Amendment XVII Direct Election of US Senators Amendment XXIV Poll tax Prohibition Congressional Legislation : Help America Vote Act, 2002 Voter Rights Act, 1965 Guarantee to Provide Comprehensive Solution Sec. 2(a) prohibits practices that result in denial or Abridgement of any citizen on account of race Sec 2(b) provides for a “totality of circumstances” upon processes not equally open 1982 Amendment Sec. 1973aa: “Test or Device” defined Sec. 1973 (h) Congressional declaration against enforced payment of poll taxes U.S. Cases: Anderson v. Celebreeze 460 U.S. 780 (1983) Board of Regents v. Roth 408 U.S. 564, 569 (1972) Burdick v. Takushi 504 U.S. 428, 112 S.Ct. 2059 Crawford v. Marion County Board of Elections, U.S. Supreme Ct, 2008 East Jefferson Coalition for Leadership & Development v. Jefferson Parrish 691 F.Supp.991 Forsennius v. Harmon 380 U.S. 528 Harper v Virginia Board of Elections 383 U.S. 663 (1966) Harper v. Young U.S. Tenth Circuit (1995) McLaughlin v. Florida 379 U.S. Moore v. Oglevie 394 U.S. 814, 816 (1969) New York v. United States 505 U.S. 144 (1992) Nixon v. Shrink Mo Gov’t PAC 528 U.S. 377 Norman v. Reed 502 U.S. 279, 288-289 (1992) Raich v. Gonzales 545 U.S. 1 (2005) Reynolds v. Sims 377 U.S. 533 (1962) Snyder v. Massachusetts 291 U.S. 97, 105 (1934) Tashjian v. Republican Party of Connecticut 479 U.S. 208, 107 S. Ct. 544 Wilkerson v. Austin 545 U.S.209, 221 (2005) New Mexico Constitution Article II Sec. 8 Freedom of Elections Sec.13 Defendant’s Right to be released on Bond Article VI Sec. 24 District Attorney Established; Qualifications Article VII Sec 1 Qualifications of Voters Sec 2 Qualifications for holding Office New Mexico Statutes and Rules 1-7-2 Oualification;removal:requalification of Political Parties 1-8-1 Nominating procedures 1-8-12 Proclamation of the Governor 1-8-18 Requirement of candidates by record of voter 1-8-19 Candidacy in primary of one party bars change in general election 1-8-21 Designation fo candidate by “preprimary” Convention 1-8-31 Requirements for valid signatures 1-8-33 Establishes variable signature requirements 1-8-35 Establishes Challenge Procedures 1-19-16 Campagn Finance Requirements Rule 1-096 Petition Challenge Procedures New Mexico Cases Chavez v. Evans 79 N.M. 587 Dillon v. King 87 NM 79 ( see also 549 F.2nd 183) Roberts v. Cleveland 48 NM 226 (1944) State ex. rel Apodaca v. Fiorina 83 N.M. 663 (1972) Sena v. Gould , First Judicial District of New Mexico, 1-1-2008CV 0845 Additional References Manning v Young 210 Wis 588, 247 N.W. 61 Bullying Legal Tactics, Sun-News of Santa Fe, November, 2007 Protecting the Quality of Life, Sun- News of Santa Fe,March ,2008