Elect, Retain and Amend, Oh, My

How to interpret all the (sometimes confusing) judiciary-related questions on Election Day

Election Day ballots each year include choices for voters in a host of judicial races, some contested, some not. This year is no different, though increases in crime around New Mexico have shone a brighter light on those who sit on the bench.

Some of the options are straightforward enough. Our state’s somewhat unique system for electing judges can cause confusion at the ballot box, though, with complexities beyond Candidate A vs. Candidate B muddying up some of the questions voters face.

Statewide ballots feature competitive races. Two incumbent Democratic state Supreme Court justices, Briana Zamora and Julie Vargas, have drawn Republican challengers: Kerry Morris and Thomas Montoya, respectively. The New Mexico Court of Appeals, our second-highest judicial body, features two contests, with incumbent Democrat Gerald Baca taking on Barbara Johnson, a Republican, and Libertarian Sophie Cooper; while Judge Katherine Wray, the incumbent Democrat, faces off against Republican Gertrude Lee and Stephen Curtis, a Libertarian.

There are four races on the ballot for the Santa Fe Magistrate Court, too, but none of them are contested.

Here is where it gets weird—the concept of “judicial retention” and a proposed amendment to the New Mexico Constitution that would slightly alter the odd way in which our state conducts elections for those who wish to don the black robe.

To help walk you through the labyrinth, SFR enlisted the aid of Roderick Kennedy, a former state Appeals Court judge and longtime watcher of the legal world here.

To start, Kennedy offers some context on how judges become judges in the first place. A seat on the bench opens, and a 15-member commission, helmed by the dean of the University of New Mexico School of Law, is formed to begin the vetting. It’s a bi-partisan deal, Kennedy says, “with the governor and pooh-bahs of the Legislature appointing some of each party, and the State Bar making up the difference, trying to keep the political balance.”

The commission takes applications “sent in under oath (yes, some folks lie), and then” conducts interviews, Kennedy continues. The commission then recommends candidates it has deemed qualified to the governor for appointment—no specific number of potential judges is spelled out.

“Though single-name lists don’t make governors happy,” he says, adding that governors can reject the list and ask for a new one. Should the governor reject a second list, the state Supreme Court makes the appointment.

“In New Mexico, unlike any other state I know of—though North Carolina may have just adopted this as part of their ‘screw the Dem governor’ beguine—a qualified, nominated and appointed new judge then has to run against any stinking bozo with a law license or perhaps qualified candidate,” Kennedy says. “If the appointee (or that judge’s opponent) wins, it’s non-partisan retention races from now on. These are very hard to lose, though it has happened.”

So, when you ferry your ballot to one of those cheap plastic booths that’s ostensibly meant to provide some election privacy, you’ll see the chance to “retain”—or not— state Supreme Court Justice Michael Vigil and Court of Appeals Judge Jane Yohalem. That’s because, in Vigil’s case, the Democrat already won a competitive election, taking down then-Gov. Susana Martinez appointee Gary Clingman, a Republican, by a whopping 19% in the 2018 election.

Gov. Michelle Lujan Grisham appointed Yohalem to the Appeals Court in June 2020 to succeed retiring Judge Linda Vanzi. Because of the peculiar system New Mexico uses in judicial races, as Kennedy pointed out, Yohalem had to run a couple months later against Montoya (who is trying again to win a seat on the Appeals Court, this time against Judge Vargas.) She beat him by 4% and, now, will stand for retention.

Confusing as all of this is, the state in 1990 created a group meant to help voters decide whether judges should be retained: The Judicial Performance Evaluation Commission (JPEC), a group of seven lawyers and eight non-lawyers appointed by the state Supreme Court via nominations from the legislative and executive poo-bahs Kennedy mentioned earlier. This year, JPEC recommends retaining Justice Vigil. For Yohalem, the commission had “insufficient time to evaluate.”

Yohalem’s quick turnaround between appointment and election—and other scenarios like it—has drawn criticism from court observers of pretty much every political stripe. The argument is essentially that a few months is not enough time to allow a judge to establish a record.

That’s why you’ll see Constitutional Amendment 3 on your ballot in November. It proposes a change to the state’s guiding document so that “an appointed judge [would] serve at least one year before a general election is held for the office to which the judge was appointed.”

There you have it.

Whether you decide to elect, retain or amend, SFR hopes some of this is demystified for you and, most of all, vote!

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