Long opposed to changing New Mexico's closed primary system, top Democrats are starting to flirt with the idea of allowing independents to vote in partisan primaries.
"I've originally been in the position that I was not in favor of opening primaries, but I'm reconsidering," says Sam Bregman, chairman of the Democratic Party of New Mexico.
New Mexico is one of 11 states that does not allow registered
independents, most of whom are known here as "declined to state voters," to cast ballots in
either Democratic or Republican party primary elections.
But just 20 percent of the state's eligible voters showed up to the polls to vote in the primary last week, which critics cite as a reason the current system isn't working. Statewide, voters who decline to affiliate with a party make up 19 percent of the electorate, or about 238,500 people, according to Secretary of State figures as of Dec. 31, 2013. In Santa Fe County, that proportion is even greater at 20 percent of registered voters, or 20,589 people.
"We had low voter turnout," Bregman says of the June 3 primary. "That's unacceptable. We want to do everything we can to encourage participation, so that's weighing heavily."
A lawsuit filed last week in the Second Judicial District Court against Secretary of State Dianna Duran and Bernalillo County Clerk Maggie Toulouse Oliver alleges that the closed primary system in New Mexico is violating the state constitution.
David Crum, an Albuquerque lawyer, argues that the state's current primary system violates a provision in the New Mexico constitution that allows all registered voters to "be qualified to vote in all elections in New Mexico."
Mario Sanchez, a spokesman for Crum, cites a precedent from a 2005 US Supreme Court decision that rejected an argument against Oklahoma's semi-closed primary system. That state allows registered independents to vote in one of the political party's primary elections but still restricts registered Democrats and Republicans to voting with their respective parties.
Plaintiffs in the case, Clingman v. Beaver, argued that Oklahoma's system violated political parties' freedom of association rights under the First Amendment. In a 6-3 ruling, the Supreme Court held that the semi-closed system could remain in place; it didn't impose enough of a burden on political parties to be held unconstitutional.
Toulouse Oliver, a Democrat who's also running for Secretary of State against Republican Duran, tells SFR that her office doesn't have the authority to question the legality of the state's closed primary system.
"Whether that law is unconstitutional is up to the courts to determine," Toulouse Oliver says.
Like Bregman, she says that adopting a semi-closed system like that of Oklahoma should be seriously considered. But both Bregman and Toulouse Oliver stopped short of supporting changing the system outright. They argue that any discussion of changing the primary elections must be robust and include voters, political parties and elected officials.
Bregman says he'll soon talk to the plaintiff's lawyer in the lawsuit and be briefed more on the issue by Fred Nathan, executive director of Think New Mexico, which supports opening primaries to independents.
State Republicans, for now, aren't opening up to changing primaries. Republican Party of New Mexico spokeswoman Emily Strickler writes in an email to SFR that the party supports the state's closed primary system.
SFR reached out to Duran's office about the lawsuit and will update this post if it responds.
Read the lawsuit below: