MAJORITY RULES EXCEPT IN NEW MEXICO:
CONSTITUTIONAL AND POLICY CONCERNS RAISED BY
NEW MEXICO’S SUPERMAJORITY REQUIREMENT FOR
JUDICIAL RETENTION
Sarah Elizabeth Saucedo∗
TP
PT
INTRODUCTION ............................................................................................... 174
I. BRIEF HISTORY AND SURVEY OF JUDICIAL SELECTION IN THE
UNITED STATES ................................................................................... 176
II. JUDICIAL SELECTION REFORM IN NEW MEXICO ................................. 179
III. THE NEW MEXICO SUPERMAJORITY REQUIREMENT MAY VIOLATE
EQUAL PROTECTION ............................................................................ 186
A. Prelude to Gordon v. Lance: State Election Systems Should
Give Equal Weight to Each Vote Cast
B. Gordon v. Lance: Supermajority Rules for Referenda Do Not
Violate Equal Protection ............................................................. 191
C. Lefkovits v. State Board of Elections: Gordon in the Context
of Judicial Retention.................................................................... 199
D. New Mexico Retention Elections Are “Elections of Public
Officers” and Not “Referenda” .................................................. 204
E. Additional Equal Protection Concerns........................................ 206
IV. THE NEW MEXICO SUPERMAJORITY REQUIREMENT RAISES
IMPORTANT POLICY AND POPULAR SOVEREIGNTY ISSUES ................. 213
V. THE NEW MEXICO SUPERMAJORITY REQUIREMENT COMPOUNDS
THE PROBLEMS MERIT SELECTION WAS DESIGNED TO ADDRESS ...... 215
A. Retention Margin Impacts Retention Rate................................... 216
B. Voter Apathy, Abstention, and Confusion Are Especially
Problematic in Judicial Retention Elections ............................... 217
C. Judicial Ethics and Campaign Rules Put Judges at a
Disadvantage, Particularly in Retention Elections ..................... 218
D. Judicial Elections Are Becoming Increasingly Expensive........... 221
E. Retention Elections Are Becoming More Partisan, Especially
as Special Interest Groups Enter the Fray .................................. 223
∗
J.D. Candidate, Boston University, 2006. The author would like to thank Justice
Patricio M. Serna, New Mexico Supreme Court; Justice Petra Jimenez Maes, New Mexico
Supreme Court; former Justice Joseph Baca, New Mexico Supreme Court; former Chief
Judge W. John Brennan, Second Judicial District of New Mexico; former Judge Rebecca
Sitterly, Second Judicial District of New Mexico; Raymond Sanchez, former Speaker, New
Mexico House of Representatives. The author would also like to thank her father, Manuel
D.V. Saucedo, former Chief Judge, Sixth Judicial District of New Mexico, who challenged
the constitutionality of the New Mexico supermajority requirement.
TP
PT
173
174
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
CONCLUSION................................................................................................... 225
INTRODUCTION
Lawyers, judges, and legal scholars have long debated the ideal method for
selecting judges.1 While the federal judiciary is an entirely appointive body,
states employ a variety of judicial selection systems, including appointment,
election, merit selection, or a hybrid of the three.2 The New Mexico legal
community has actively engaged in this debate since shortly after New Mexico
became a state in 1912, and, in the past two decades, New Mexico’s judicial
selection system has undergone fundamental reforms.3
This Note contends that New Mexico’s supermajority requirement for the
retention of state judges raises important federal constitutional questions,
including a possible violation of Equal Protection under the Fourteenth
Amendment. This Note does not purport nor strive to resolve the question of
which judicial selection system is best. Rather, this Note addresses the New
Mexico judicial selection system’s potential constitutional infirmities and the
array of important policy questions the system raises.
These questions are particularly topical, as elections and election rights
occupy the forefront of national political consciousness.4 In addition, the
legitimacy of supermajority requirements recently entered the public spotlight
during debate surrounding the U.S. Senate’s use of the filibuster5 to prevent the
1
See Shirley S. Abrahamson, The Ballot and the Bench, in 76 N.Y.U. L. REV. 973, 973
(2001) (stating that the “fascinating, difficult, and very personal subject” of judicial
selection is “now in its fourth century of debate in this country”).
2 See generally American Judicature Society, Judicial Selection in the States,
http://www.ajs.org/js/ (last visited Jan. 23, 2006) (compiling comprehensive information on
judicial selection processes in each of the fifty states and the District of Columbia, including
methods of selecting, retaining, and removing judges; successful and failed reform efforts;
the roles of parties, interest groups, and professional organizations in selecting judges; and
the diversity of the bench).
3 See infra Part II.
4 Only a few years ago, the United States grappled with the realization that its President
was elected by less than a majority of voters and only after protracted legal proceedings.
Lingering questions about electoral legitimacy remained even through the 2004 Presidential
election. While this Note does not address the issue of President George W. Bush’s 2000
electoral victory nor the merits of the Electoral College, it suggests that questions about
electoral legitimacy, in general, and the legitimacy of New Mexico’s now decade-old
judicial selection system, in particular, remain ripe.
5 The U.S. Senate’s unlimited debate rule allows for so-called filibusters, which function
to delay or block legislative action. A three-fifths supermajority, or sixty Senators, are
needed to end a filibuster or invoke cloture, in Senate parlance. See United States Senate,
Filibuster
and
Cloture,
http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm (last
visited Jan 23, 2006).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
175
approval of federal judicial and other nominees.6 The broad message of this
Note is that the constitutionality and legitimacy of supermajority requirements
must be determined on a case-by-case basis, analyzing the particular
requirement’s historical, political, and legal underpinnings.
First, this Note details the historical context of the New Mexico judicial
selection system. Part I provides a brief history and survey of judicial
selection in the United States. Part II details the history of judicial reform in
New Mexico from a purely partisan judicial selection system to the current
hybrid merit selection system. These sections draw heavily on recent
interviews with the architects of the current system, as well as current and
former New Mexico Supreme Court justices and a former Speaker of the New
Mexico House of Representatives, which provide important insights for
analyzing the system.
Against this backdrop, Part III examines relevant Equal Protection
principles and arguments. Part III begins with an introduction of the potential
Equal Protection problems with the New Mexico supermajority requirement,
and examines the principle of one-person, one-vote. Part III then analyzes the
seminal case on supermajority rules, Gordon v. Lance, in which the United
States Supreme Court found that a West Virginia supermajority requirement
for the approval of certain referenda did not violate Equal Protection,7 along
with Lefkovits v. State Board of Elections, a federal case applying Gordon to
the Illinois supermajority requirement for judicial retention elections, also
finding no Equal Protection violation.8 Further, this Part examines important
differences between the New Mexico and Illinois supermajority requirements
6
Opponents of the filibuster rule argue that it essentially requires that every legislative
act and nominee garner a three-fifths supermajority vote. Debate over the use and
constitutionality of the filibuster has been ongoing for years. See Michael J. Gerhardt, The
Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 446, 449 (2004) (addressing
“the basic arguments for and against the constitutionality of the filibuster” and concluding
that “the filibuster is best understood as a classic example of a nonreviewable, legislative
constitutional judgment”). But see Benjamin Lieber & Patrick Brown, Note, On
Supermajorities and the Constitution, 83 GEO. L.J. 2347, 2348 (1995) (“[T]he Filibuster
Rule raises many of the same concerns as other [legislative] supermajority voting
requirements. Like those rules, it is an unsound legislative policy and rests on shaky
constitutional grounds.”). Recently, Republicans have threatened to invoke the “nuclear
option” and use Senate procedural rules to prevent filibusters for judicial nominees, thereby
eliminating the need for the supermajority cloture vote. Peter Baker & Charles Babington,
Are a Nominee’s Views Fair Game?; As High Court Battle Nears, Parties Parse the Senate
Filibuster, WASH. POST, July 6, 2005, at A1. However, in May 2005, a bipartisan group of
Senators reached agreement to avoid a showdown over President George W. Bush’s judicial
nominees. Id. Under the agreement, Democrats vowed not to use the filibuster to block
certain Court of Appeals nominees, and Republicans, in exchange, promised to oppose the
“nuclear option,” if it ever came up for a vote. Id.
7
403 U.S. 1 (1971).
8
400 F. Supp. 1005, 1015 (N.D. Ill. 1975).
176
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
and judicial selection systems, and explains why, even in light of Gordon and
Lefkovits, the New Mexico supermajority requirement may violate Equal
Protection.
Finally, Parts IV and V raise a variety of important policy and popular
sovereignty issues that the New Mexico supermajority requirement implicates,
regardless of its constitutionality. The Note concludes with a discussion of the
ongoing debate in New Mexico over the judicial selection system and the
funding of judicial campaigns, which demonstrates that, although the system is
more than a decade old, questions about its legitimacy remain ripe for debate.
I.
BRIEF HISTORY AND SURVEY OF JUDICIAL SELECTION IN THE UNITED
STATES9
Creating an independent and politically-insulated federal judiciary was a
primary concern of the Founding Fathers,10 so they designed an entirely
appointive system.11 Proponents of appointment contend that it creates a more
independent judiciary and allows for a more informed determination of the
qualities necessary to be a competent judge, a determination that the electorate
is not sufficiently informed to make.12 States employ a variety of appointment
methods; however, the two most common are gubernatorial and legislative
appointment.13
9 See generally Kelley Armitage, Denial Ain’t Just a River in Egypt: A Thorough Review
of Judicial Elections, Merit Selection and the Role of State Judges in Society, 29 CAP. U. L.
REV. 625 (2001) (providing a history of judicial selection in England and the United States
as well as theories of the role of judges in society); Kyle D. Cheek & Anthony Champagne,
Partisan Judicial Elections: Lessons from a Bellwether State, 39 WILLAMETTE L. REV. 1357
(2003) (providing a historical overview of judicial selection); Daniel R. Deja, How Judges
Are Selected: A Survey of the Judicial Selection Process in the United States, 75 MICH. B. J.
904 (1996) (examining four primary methods for judicial selection, consisting of
gubernatorial appointment, gubernatorial appointment with retention election, partisan
election, and nonpartisan election); Judith L. Maute, Selecting Justice in State Courts: The
Ballot Box or the Backroom?, 41 S. TEX. L. REV. 1197 (2000) (surveying current judicial
selection formats).
10 See THE FEDERALIST NO. 78, at 438-40 (Alexander Hamilton) (Isaac Kramnick ed.,
1987) (discussing the need for an independent judiciary in order to uphold the Constitution
and the rights of the people).
11 U.S. CONST. art. II, § 2 (declaring that “[the President] shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all
other Officers of the United States”); id. at art. III (describing the structure and functions of
the judicial system); see also Sandra Schultz Newman & Daniel Mark Isaacs, Historical
Overview of the Judicial Selection Process in the United States: Is the Electoral System in
Pennsylvania Unjustified?, 49 VILL. L. REV. 1, 6 (2004) (stating that “[t]he Drafters of the
United States Constitution did not . . . embrace the idea of an elected judiciary because of
the concern that it would undermine judicial independence”).
12 See Newman & Isaacs, supra note 11, at 9-10.
13 See id. at 10-11 (commenting, however, that these appointment methods can still be
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
177
While it is the oldest form of judicial selection, appointment is no longer the
prevailing method.14 The majority of states employ some form of election to
select their judges, ranging from purely partisan election to nonpartisan
election in which only the candidates’ names appear on the ballot.15
Proponents of election are generally more concerned with judicial
accountability than judicial independence and thus believe the people should
directly select their judges.16
A third option, merit selection, which the American Bar Association
endorsed in 1937 as the preferred form of judicial selection,17 combines
elements of both traditional appointment and election methods.18 Merit
selection is also commonly referred to as “the Missouri Plan” after the first
state to introduce such a system in 1940.19 The classic form of merit selection
entails “a nonpartisan commission composed of lawyers and non-lawyers who
actively identify, recruit, and screen candidates for judicial vacancies.”20 The
commission presents the list of candidates to the governor, who then makes an
appointment.21 The appointed judge is then subject to periodic retention
elections in which the electorate is asked to vote “yes” or “no” as to whether
the judge should be retained in office.22 In all but two of the states that employ
some form of merit selection followed by retention elections, judges are
required to garner only a bare majority of the vote (i.e., more than 50%) to
highly politically motivated and not necessarily conducive to an independent judiciary).
14 See id. at 9. California, Maine, New Jersey, and New Hampshire initially select judges
through gubernatorial appointment without a nominating commission procedure; Virginia
and South Carolina initially select judges through legislative appointment without a
nominating commission procedure. See American Judicature Society, Judicial Selection in
the States: Appellate and General Jurisdiction Courts, “Summary of Initial Selection
Methods,” http://www.ajs.org/js/SummaryInitialSelection.pdf (last visited Jan. 23, 2006).
15 See Newman & Isaacs, supra note 11, at 13-14.
Alabama, Illinois, Louisiana,
Michigan, Ohio, Pennsylvania, Texas, and West Virginia initially select judges through
partisan election. See Appellate and General Jurisdiction Courts: Summary of Initial
Selection Methods, supra note 14. Arkansas, Georgia, Idaho, Kentucky, Minnesota,
Mississippi, Montana, Nevada, North Carolina, Oregon, Washington, and Wisconsin
initially select judges through nonpartisan election. See id.
16 See Newman & Isaacs, supra note 11, at 13-14.
17
See American Bar Association, Standards on State Judicial Selection, Report of the
ABA Standing Committee on Judicial Independence, Commission on State Judicial
Selection Standards, July 2000, at 32, available at
http://www.abanet.org/judind/downloads/reformat.pdf (last visited Feb. 14, 2006).
18 See generally Jona Goldschmidt, Merit Selection: Current Status, Procedures, and
Issues, 49 U. MIAMI L. REV. 1 (1994) (providing a thorough analysis of the theory and
history of merit selection).
19 See Newman & Isaacs, supra note 11, at 13-14; Peter D. Webster, Selection and
Retention of Judges: Is There One “Best” Method?, 23 FLA. ST. U. L. REV. 1, 30 (1995).
20 Newman & Isaacs, supra note 11, at 11 (explaining the mechanics of merit selection).
21 See id.
22 See id.
178
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
remain in office.23 New Mexico and Illinois, however, require supermajorities
of 57% and 60%, respectively.24
Merit selection assumes long tenures because judges are chosen initially
based on professional merit; therefore, a merit selection system envisions “very
few removals by the electorate, and only in egregious cases.”25 Proponents of
merit selection contend that it effectively solves the common problems in
judicial selection of voter ignorance and apathy, increases the pool of qualified
candidates, and insulates the judiciary from the partisan political process.26
Opponents, however, argue that judges chosen by merit selection are neither
representative of the people nor accountable to the people and that the process
merely shifts the politics to the commission and appointment procedures.27 In
23
Robert C. Luskin et al., How Minority Judges Fare in Retention Elections, 77
JUDICATURE 316, 318 (1994) (stating that, at the time of publication, “[i]n every state but
Illinois, a bare majority suffice[d]” in judicial retention elections). This article was written
before New Mexico adopted its supermajority requirement in 1994. See infra notes 60-70
and accompanying text. Alaska, Colorado, Connecticut, Delaware, District of Columbia,
Hawaii, Iowa, Maryland, Massachusetts, Nebraska, New Hampshire, New Mexico, Rhode
Island, Utah, Vermont, and Wyoming employ merit selection through nominating
commissions to initially select judges. See Appellate and General Jurisdiction Courts:
Summary of Initial Selection Methods, supra note 14. Arizona, Florida, Indiana, Kansas,
Missouri, New York, Oklahoma, South Dakota, and Tennessee combine merit selection and
other methods to initially select judges. See id.
24 N.M. CONST. art. VI, § 33A (1994); ILL. CONST., art. 6, § 12(d). See also infra notes
178-181 and accompanying text (detailing the Illinois judicial selection system).
25 Susan B. Carbon, Judicial Retention Elections: Are They Serving Their Intended
Purpose?, 64 JUDICATURE 210, 213 (1980) (explaining that “lengthy tenure for judges, and
public accountability” are the two main goals that proponents of retention elections hope to
achieve). Since New Mexico adopted merit selection, only two judges have not been
retained in office. Leo M. Romero, Judicial Selection in New Mexico: A Hybrid of
Commission Nomination and Partisan Election, 30 N.M. L. REV. 177, 208 (2000)
(summarizing the results of a study examining the effects of the new judicial selection
system in New Mexico). Both judges were on the bench before New Mexico adopted merit
selection, and both lost their retention elections when the retention margin was increased to
57%. Id. However, both judges garnered more than 50% of the vote. See infra notes 87,
277.
26 See Newman & Isaacs, supra note 11, at 11-12; Luskin et al., supra note 23, at 317
(describing theories and procedures of merit selection and stating that “[t]he aim of merit
selection, in addition to making for more competent judges, is to insulate them from
political pressures”); see also Traciel V. Reid, The Politicization of Retention Elections:
Lessons from the Defeat of Justices Lanphier and White, 83 JUDICATURE 68, 68 (1999)
(stating that “[j]udicial retention elections are intended to preserve the court’s role as an
impartial and detached resolver of disputes by ensuring that judges can retain their seats
without engaging in the fund raising, politicking, and electioneering that characterize
political elections and the political process”).
27 Newman and Isaacs, supra note 11, at 12 (summarizing arguments put forth by
opponents of merit selection).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
179
recent years, retention elections have become, in the oft-quoted words of one
commentator, “noisier, nastier, and costlier.”28
II.
JUDICIAL SELECTION REFORM IN NEW MEXICO
For most of New Mexico’s history, the state constitution required partisan
election of the entire judiciary with the governor filling judicial vacancies by
appointment.29 Although reform through constitutional amendment was
unsuccessful until 1988, as early as 1951 Governor Ed Mechem voluntarily
moved toward merit selection by instituting a judicial nominating system to
recommend candidates for appointment.30 All subsequent New Mexico
governors used some form of “voluntary merit selection” to fill judicial
vacancies; thus Mechem’s system became an entrenched tradition.31
Reform efforts finally succeeded in 1988, at which point New Mexico was
one of a small minority of states still maintaining an all-partisan election
system.32 During the 1988 legislative session, two Bernalillo county33 district
court judges, W. John Brennan and Rebecca Sitterly, spearheaded a reform
effort, drafting a constitutional amendment proposal, which they submitted to
the New Mexico legislature. 34 After studying the federal appointive system
28 Richard Woodbury, Is Texas Justice For Sale?: The State’s Top Judge Resigns to
Fight for Reform, TIME, Jan. 11, 1988, at 74 (quoting Roy Schotland, Georgetown Law
Professor and “an authority on campaign spending,” criticizing the politics of judicial
elections).
29 Romero, supra note 25, at 177, 180-81 (describing the historical process of judicial
selection in New Mexico). New Mexico became a state in 1912. New Mexico State
Government,
Fast
Facts
About
NM,
http://www.state.nm.us/category/aboutnm/fastfacts.html (last visited Jan. 23, 2006).
30 See Glenn R. Winters, The New Mexico Judicial Selection Campaign – a Case
History, 35 JUDICATURE 166, 167, 169 (1952) (providing the definitive discussion of New
Mexico’s early judicial selection reform efforts and describing Governor Mechem’s support
for judicial selection reform); see also Romero, supra note 25, at 181 (discussing Governor
Mechem’s initiative in organizing a judicial nominating commission); Kenneth W. Miller &
Gilbert K. St. Clair, State Judicial Selection: The New Mexico Plan 5 (Mar. 1992)
(unpublished paper, on file with author).
31 See Romero, supra note 25, at 181-82.
32
See Eric D. Dixon, A Short History of Judicial Reform in New Mexico, 73 JUDICATURE
48, 48 (1989) (describing failed attempts at reform throughout New Mexico’s history, as
well as the partisan election system New Mexico had in place until reform eventually
succeeded).
33 Bernalillo is New Mexico’s most populous county; Albuquerque, the state’s largest
city, is the county seat.
About Bernalillo County, New Mexico,
http://www.bernco.gov/live/info.asp?content_item_id=3298 (last visited Jan. 30, 2006).
34 Telephone Interview with W. John Brennan, former Chief District Judge, Second
Judicial District of New Mexico (Jan. 26, 2005) (explaining Brennan’s desire to work with a
legislator who would sponsor a bill that would initiate reform in the judicial selection
process); Telephone Interview with Rebecca Sitterly, former District Judge, Second Judicial
180
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
and various state judicial selection systems, as well as reviewing judicial
selection in other countries, Brennan, Sitterly, and several other district court
judges determined that the New Mexico system was in need of reform away
from partisan politics.35 Thus, they designed a merit system based on the
Missouri Plan.36
The group had three primary concerns that guided their design of a meritbased system for New Mexico.37 First, they worried that requiring judges to
stand for partisan election interfered with the judge’s role as impartial decision
maker tasked with upholding the federal and state constitutions.38 Second,
they were concerned about the ethical issues implicated by the fact that judges
had to raise and spend large sums on their campaigns in order to compete,
since the bulk of that money came from attorneys appearing regularly before
the courts.39 Finally, there was a perceived lack of voter recognition,
particularly in Bernalillo County, New Mexico’s largest county.40
The original reform proposal was carefully engineered to create what the
group hoped would be a nonpartisan, purely merit-based system consisting of:
District of New Mexico (Jan. 11, 2005) (discussing Sitterly’s desire for reform and her
efforts to work with other judges to obtain legislative reform). Due to the paucity of
published accounts of the legislative history, this Note relies in large part on interviews the
Author conducted with various key former and current members of the New Mexico
judiciary and legislature. There is a particular dearth of information with respect to the
adoption of the supermajority requirement. This Note strives to fill that vacuum.
35
Telephone Interview with W. John Brennan, supra note 34 (discussing the other
systems, nationally and internationally, that Brennan and the other judges examined, as well
as their reasons for concluding that merit selection was the most desirable).
36 Telephone Interview with W. John Brennan, supra note 34; see also supra text
accompanying notes 17-19 (discussing the history of merit selection, as well as arguments
for and against this method of judicial selection).
37 Telephone Interview with W. John Brennan, supra note 34.
38 Id. (discussing Brennan’s concerns that partisan judicial selection hinders the
functioning of an impartial judiciary); Telephone Interview with Rebecca Sitterly, supra
note 34 (discussing Sitterly’s concerns about a system that requires judges to have a political
constituency).
39 The New Mexico campaign finance system is designed such that judges must form an
election committee so that they do not know who the money comes from, but both Brennan
and Sitterly noted that judges are well aware of who donates to them, thus raising potential
ethical issues and possibilities for impropriety, e.g., contributors may expect judges to
support their position in court. Telephone Interview with W. John Brennan, supra note 34;
Telephone Interview with Rebecca Sitterly, supra note 34; see also David B. Rottman &
Roy A. Schotland, What Makes Judicial Elections Unique?, 34 LOY. L.A. L. REV. 1369,
1372 (2001) (stating that “[m]any judicial campaigns are primarily funded by lawyers’
contributions”).
40 Telephone Interview with W. John Brennan, supra note 34. Indeed, voter recognition,
that is, the ability of voters to distinguish between candidates, is one of the main problems
cited in judicial campaigns. See Marie Hojnacki & Lawrence Baum, Choosing Judicial
Candidates: How Voters Explain Their Decisions, 75 JUDICATURE 300, 300 (1992).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
181
(i) bipartisan nominating commissions41 chaired by the Dean of the University
of New Mexico Law School;42 (ii) gubernatorial appointment; and (iii)
nonpartisan retention elections requiring a simple majority to prevail.43
However, some legislators were concerned about the proposed system’s
removal of public participation from the judicial selection process.44
Therefore, the legislature amended the plan to require that all judges and
justices, following appointment, be subject to an initial partisan election before
they would be eligible for nonpartisan retention election.45
Brennan was concerned that the partisan election requirement would
undermine the nonpartisan system the group had carefully designed, but he
accepted the compromise as necessary to garner the legislature’s support.46
Moreover, Brennan was hopeful that the concerns about fundraising,
campaigning, and voter recognition would be taken care of by the provision for
subsequent nonpartisan retention elections.47 In the end, the legislature
approved and sent to the voters the bill that would become Amendment Six to
41
Although Democrats outnumbered Republicans in New Mexico two-to-one at the
time, the group designed a system in which the nominating commissions would be balanced
equally between the parties, giving Republicans more representation than was reflected in
voter registration – in the hopes of providing for a politically-neutral system. Telephone
Interview with Rebecca Sitterly, supra note 34.
42 The group decided on the University of New Mexico (UNM) Law School Dean
because he or she, in theory, would be politically neutral. Telephone Interview with
Rebecca Sitterly, supra note 34. However, Joseph Baca, former Justice of the New Mexico
Supreme Court, thinks it is an “absolutely foolish” idea to give the Dean a constitutional
duty to chair the commissions because, for example, the current Dean of UNM is from
Michigan and is not intimately familiar with the New Mexico legal system and community.
Telephone Interview with Joseph Baca, former Justice, New Mexico Supreme Court (Jan.
21, 2005). In the prototypical Missouri Plan system, the chief justice of the state supreme
court would chair the nominating commissions. Id. However, Baca did note that most of
the Deans have been “hands-off” in terms of the politics of the commission, and this is
precisely what the drafters had in mind. Id.
43 Telephone Interview with W. John Brennan, supra note 34 (outlining the basic
parameters of the proposed judicial selection reform).
44 See Telephone Interview with Rebecca Sitterly, supra note 34 (discussing concerns
about obtaining sufficient support in the legislature without at least one partisan election to
allow for some measure of public participation).
45 Id. (explaining that the judges decided to adopt an initial partisan election as part of
their proposal in order to satisfy populist concerns regarding public participation);
Telephone Interview with W. John Brennan, supra note 34.
46 Brennan explained that many legislators opposed merit selection because it would
reduce their political power with respect to judicial appointments. See Telephone Interview
with W. John Brennan, supra note 34; see also Miller & St. Clair, supra note 30, at 4 ( “The
requirement of a partisan election is certainly subversive of the intention to de-politicize the
judicial selection process.”).
47 Telephone Interview with W. John Brennan, supra note 34.
182
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
the New Mexico Constitution.48
In the months leading up to the 1988 general election, interested parties
engaged in a vigorous debate over Amendment Six.49 The proponents’
overarching message was that removing partisan politics from judicial
selection would result in a higher quality judiciary.50 In particular, they
emphasized that the proposed system would reward competence, instead of
political and campaign skills, and would eliminate the negative effects on the
judiciary that result from political campaigning and fundraising demands.51
Meanwhile, opponents of Amendment Six52 vehemently argued that the plan
was elitist and condescending to voters because lawyers would dominate the
judicial nominating committees, which would imply that “nominating
committees know [what is] best” for the general electorate.53 Opponents of the
48 The New Mexico Senate approved the amendment on February 2, 1988, and the New
Mexico House approved it on February 10, 1988. Dixon, supra note 32, at 48 (summarizing
the history of Amendment Six).
49 Dixon, supra note 32, at 49 (chronicling the debate surrounding Amendment Six).
50 See id. (discussing the argument put forth by the group People for Judicial Reform that
Amendment Six would result in a more competent judiciary). Proponents included
Common Cause, the League of Women Voters, and groups called “New Mexicans for the
Improvement of the Judicial System” and “Court Update.” See id.; see also Romero, supra
note 25, at 182-83 (citing a 1999 telephone interview with Judge Brennan, then Chief Judge
of the Second Judicial District of New Mexico). In addition, the state’s most prominent and
influential newspapers, the Albuquerque Journal and the Santa Fe New Mexican, also
endorsed the Amendment. See Editorial, Journal Endorsements, ALBUQUERQUE J., Nov. 6,
1988, at B2 (urging voters to vote “Yes on Amendment Six, proposing a modified merit
selection process for judges”); Opinion, Amendments: Some Tough Choices, NEW MEXICAN,
Nov. 5, 1998, at A12 (stating “[t]his amendment. . .would take the ‘politics’ out of
becoming a judge. Judges should judge impartially; they should not have to take part in
fund raising, hand shaking and the other diversions of political campaigns”).
51 In a public debate, Judge Brennan characterized partisan election as “enslav[ing]”
judges to politics. Dixon, supra note 32, at 49 (quoting Judge Brennan in a debate with then
New Mexico Supreme Court Justice Dan Sosa, Jr., a vocal critic of the proposal, at the
UNM Law School). Although judges would still be required to run in an initial partisan
election, proponents emphasized that thereafter judges would no longer be “forced to go to
attorneys who appear before them with an open hand for campaign funds.” Id. Proponents
also argued that the proposal would improve accountability, as the retention system always
allows voters the opportunity to reject judges, while judges running unopposed on a partisan
ballot “get[] a free ride and the voters are not heard.” Id. Ultimately, proponents argued,
the proposal would produce a more qualified judiciary than the existing system and one that
would be much less beholden to politics and campaigning. Id.
52 See id. (observing that a majority of the justices on the New Mexico Supreme Court
opposed Amendment Six).
53 See id. The judicial nominating commissions are comprised of four lay persons and
twelve judges and attorneys. See infra notes 76-79 and accompanying text (discussing
composition and function of nominating commissions). Opponents of Amendment Six
included a judicial reform organization known as “HALT.” Id. HALT, founded in 1978, is
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
183
reform also argued that both the nominating commissions and the retention
elections took away power directly from the people.54 Moreover, they
contended that retention elections would grant judges de facto life tenure, as
judges are rarely defeated in such elections.55 Furthermore, rather than taking
politics out of the system, the proposal would merely shift political wrangling
along with judicial selection to the nominating commissions.56 Finally,
opponents noted that no empirical evidence suggested that an appointmentretention system would do anything to improve the quality of the judiciary.57
After much public debate, voters eventually approved Amendment Six on
November 8, 1988,58 and the new system entered into force on January 1,
1989.59
In 1994, New Mexico changed its judicial selection system again. A group
of attorneys, including prominent members of the criminal defense bar, found
their political power diminished under the new merit system because campaign
fundraising was not as crucial as it had been under the partisan election
system.60 These attorneys, opposed to the new merit system, mobilized in an
attempt to increase the margin necessary for judicial retention from a simple
“the nation’s largest and oldest legal reform organization” and is “[d]edicated to the
principle that all Americans should be able to handle their legal affairs simply, affordably,
and equitably.” About HALT, http://www.halt.org/about_halt/ (last visited Feb. 2, 2006).
“HALT’s Reform Projects challenge the legal establishment to improve [public] access and
reduce costs” in the state and federal civil justice systems. Id.
54 See Dixon, supra note 32, at 49 (stating the arguments put forth by opponents that the
proposed system would take power away from the people, with no guarantee of a real
increase in the quality of the judiciary).
55 Id.; see also Miller & St. Clair, supra note 30, at 2 (stating that prior to 1988, few
judges were defeated because “usually the incumbents were unopposed in either primary or
general elections”); supra note 25 and accompanying text (conceding that long tenure is
admittedly one of the goals of the merit system, as it assumes a more qualified judiciary is
selected by this process than by partisan election, and noting that the vast majority of judges
in New Mexico have been retained since the merit system was adopted).
56 See Dixon, supra note 32, at 49 (relating the argument put forth by opponents that
“requiring nominating committees to be balanced between Democrats and Republicans did
not take politics out of the judicial selection, but took selection out of the public forum and
put it in control of a committee”).
57 Dixon, supra note 32, at 49.
58 See id. at 49 n.36 (referencing the Office of the Secretary of State, Canvass of Returns
of the General Election held on November 8, 1988, of Constitutional Amendment No. 6
(Dec. 4, 1988)).
59 Romero, supra note 25, at 182.
60 See Telephone Interview with W. John Brennan, supra note 34 (suggesting that
lawyers who supported the supermajority requirement thought it would “return some
power” to them by requiring judges to fundraise); Telephone Interview with Joseph Baca,
supra note 42 (stating that some members of the criminal defense bar supported the
supermajority requirement because they hoped to regain the “leverage” that they had lost
when the partisan election system was abolished).
184
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
majority to 65%.61 Judges, including Brennan, who had been the primary
architect of the merit system, fervently opposed increasing the margin to such a
high threshold, fearing it would require judges to wage intense campaigns in
order to garner sufficient votes.62 Judge Brennan was able to broker a
compromise that decreased the supermajority margin to 57%, which the
legislature ultimately approved to submit to the voters as Amendment Ten.63
Varying accounts exist as to the precise rationale for the 57% figure, but
nothing suggests that it was based on any principle of political science or
constitutional jurisprudence.64 Then Speaker of the New Mexico House of
Representatives Raymond Sanchez has stated that the figure was the
“arbitrary” result of legislative politics in which legislators, lobbyists, and
other stakeholders “split it down the middle” between the original 50% and the
proposed 65%.65 Sanchez does not think the supermajority requirement
undermined the merit selection system but simply “added another
dimension.”66 On the other hand, Judge Brennan has called the supermajority
requirement a “terrible idea” that “completely undermined the merit system we
fought for and violated the principle of majority rule.”67
Some New Mexico judges considered challenging Amendment Ten as an
unconstitutional violation of Equal Protection, but none were willing to
campaign openly against it.68 Unlike the fierce and organized campaign which
61
Telephone Interview with W. John Brennan, supra note 34.
See id. (deploring the 65% requirement as “impossibly high”); Telephone Interview
with Joseph Baca, supra note 42 (discussing judges’ concern that the supermajority
requirement “would be prohibitive”).
63 Telephone Interview with W. John Brennan, supra note 34 (acknowledging that,
although he disliked the 57% requirement, he saw it as “the lesser of two evils” and was
therefore willing to “strike a compromise”).
64 One observer attributes the 57% figure to the fact that 57% of registered voters in New
Mexico were Democrats at the time. Telephone Interview with W. John Brennan, supra
note 34 (recalling that then House Speaker Raymond Sanchez settled on the 57% figure
after determining that Democratic registration in New Mexico was 57% at the time).
Another observer suspects that 57% was chosen because a “very unpopular judge” had
received 55% of the vote in his last retention election. Telephone Interview with Joseph
Baca, supra note 42; see also supra text accompanying notes 23-24 (pointing out that New
Mexico is the only state to adopt a 57% requirement for judicial retention).
65 Telephone Interview with Raymond Sanchez, former Speaker of the New Mexico
House of Representatives (May 10, 2005). Sanchez disapproved of a supermajority
requirement but ultimately supported it because he “saw it was going to happen” and figured
it would be problematic if judges could not garner “a little more than fifty percent” in their
retention elections. Id.
66 Id.
67 Telephone Interview with W. John Brennan, supra note 34.
68 Telephone Interview with Joseph Baca, supra note 42 (lamenting that, although judges
thought about challenging Amendment Ten, “nobody was willing to get out on the front on
that”).
62
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
185
accompanied the passage of Amendment Six, neither advertising nor public
debate took place with respect to Amendment Ten, despite the fundamental
change it would effect.69 At the 1994 general election, voters quietly approved
Amendment Ten to the New Mexico Constitution, thereby increasing the vote
percentage required for retention from a simple majority to 57%.70 This Note
argues that the supermajority requirement has served to undermine the
nonpartisan, merit-based system that Amendment Six created.71
Amendments Six and Ten created a hybrid merit selection-partisan election
plan unlike any other system in the country.72 This selection system broadly
applies to the selection of all New Mexico Supreme Court justices and New
Mexico Court of Appeals judges,73 as well as all district74 and metropolitan
court judges.75
The new system created fifteen judicial nominating commissions, one for
the appellate courts,76 one for each of the thirteen judicial districts,77 and one
for the metropolitan court.78 The two largest political parties in the state must
be equally represented on each commission.79 When a judicial vacancy occurs,
the relevant commission has thirty days to solicit, accept, and evaluate
applications for the judicial position and submit to the Governor a list of
69
Id. (regretting the lack of “concerted effort” or “advertising” in opposition to
Amendment Ten).
70 See N.M. CONST. art. VI, § 33 (declaring that “[r]etention of the judicial office shall
require at least fifty-seven percent of the vote cast on the question of retention or
rejection”); see also Romero, supra note 25, at 208.
71 See infra Part V.
72 See Romero, supra note 25, at 184 (stating that the New Mexico system “differs
substantially from the nomination-appointment-retention plans in other states and also from
the Model Judicial Selection Provisions developed by the American Judicature Society”);
supra text accompanying notes 23-24 (pointing out that New Mexico is the only state to
adopt a 57% requirement for judicial retention).
73 See N.M. CONST. art. VI, § 35.
74 See id. § 36.
75 See id. § 37. State magistrate, municipal, and probate judges continue to be selected
under a purely partisan election system. See Miller & St. Clair, supra note 30, at 2.
76 N.M. CONST. art. VI, § 35 (detailing the membership and function of the “appellate
judges nominating commission”).
77 Id. § 36 (detailing the membership and function of the “district court judges
nominating committee” for each judicial district).
78 Id. § 37 (detailing the membership and function of the “metropolitan court judges
nominating committee”).
79 Id. § 35. In order to achieve this balance, the Bar president and the judges on the
commission can make a minimum number of additional appointments. These additional
appointments must be lawyers and must “be appointed such that the diverse interests of the
state bar are represented.” Id. The Dean of the UNM Law School serves as the “final
arbiter” of whether such “diverse interests” are indeed represented. Id.
186
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
qualified candidates.80 The Governor must then make an appointment within
thirty days of receiving the final list.81
The judicial appointee serves until the next general election, at which time
he or she must prevail in a partisan election in order to continue in office.82
The winning candidate takes office and serves out the remainder of the original
term.83 At the end of the term, the incumbent judge, having previously won a
partisan election, is subject to a nonpartisan retention election requiring a 57%
affirmative vote to be retained.84 If more than 43% of the electorate votes to
reject the incumbent judge, he or she must vacate office on January 1,
following the general election.85 The Governor must then fill the vacancy
pursuant to the procedures described above.
III. THE NEW MEXICO SUPERMAJORITY REQUIREMENT MAY VIOLATE EQUAL
PROTECTION
New Mexico’s unique 57% requirement presents an important federal
constitutional question. This Note contends that the supermajority requirement
may violate the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, in particular the principle of one-person, onevote.86 To be clear, the supermajority requirement does not give certain
80
Id. The Governor can make one request for additional names immediately following
receipt of the commission’s original list. Id.
81 Id. If the Governor fails to make an appointment within the prescribed time period,
the Chief Justice of the Supreme Court fills the vacancy from the commission’s final list of
candidates. Id.
82 See id. (declaring that “[a]ny person appointed shall serve until the next general
election,” and “[t]hat person’s successor shall be chosen at such election”). In the initial
partisan election, the judicial appointee need only garner a simple majority of the vote to
prevail; thus, the supermajority requirement only applies to the nonpartisan retention
election. See N.M. CONST. art. VI, § 33A. Furthermore, judges on the bench as of January
1, 1989, were deemed to have fulfilled the partisan election requirement and were thus
immediately eligible for nonpartisan retention. See id. §33E.
83 Id. § 35 (“Any person appointed shall serve until the next general election. That
person’s successor shall be chosen at such election and shall hold the office until the
expiration of the original term.”).
84
Id. § 33 (declaring that once a justice or judge has been elected in a partisan election,
“each such justice or judge shall be subject to retention or rejection on a nonpartisan ballot,”
and that retention requires “at least fifty-seven percent of the vote cast”).
85 Id. § 34 (stating that a justice or judge’s office “becomes vacant on January 1
immediately following the general election at which the justice or judge is rejected by more
than forty-three percent of those voting on the question of his retention or rejection”).
86 But cf. Neals-Erik William Delker, The House Three-Fifths Tax Rule: Majority Rule,
the Framers’ Intent, and the Judiciary’s Role, 100 DICK. L. REV. 341, 355 (1996). Delker
surmises, in a discussion of the constitutionality of a U.S. House of Representatives
legislative supermajority rule, that
the Supreme Court, on many occasions, has recognized that the structure of state
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
187
persons more than a single vote. However, New Mexico’s supermajority
requirement is constitutionally suspect because, by requiring judges to garner
more than a majority of votes to be retained, the system grants more weight to
the votes of certain people vis-à-vis others.
In January 1997, two New Mexico district court judges who lost their 1996
retention elections,87 along with individuals who voted to retain them,
challenged the constitutionality of the 57% requirement embodied in
Amendment Ten.88 They argued that the supermajority requirement violated
the Equal Protection Clause of the U.S. Constitution, particularly the principle
of one-person, one-vote, by diluting the votes of those who favored retention
of incumbent judges.89 The New Mexico Supreme Court granted certiorari
and, after oral arguments, deliberated for forty minutes before ruling from the
bench to dismiss the writ of mandamus.90 By dismissing the writ without
opinion, the New Mexico Supreme Court neither addressed nor resolved the
constitutional issues presented. Accordingly, the constitutionality of New
governments does not have to mirror that of the federal government. In fact, the Court
has held that states are not required to incorporate integral structural features of the
federal Constitution like the doctrine of separation of powers. No apparent reason
exists for states to be bound by majority rule even if the U.S. Constitution requires
Congress to abide by majority rule in all situations except as otherwise provided.
Id. (citations omitted).
87 More than 50%, but less than 57%, of the voters in each judge’s district voted to retain
the judge. Petition at 3, New Mexico ex rel. Salinas v. State Canvassing Bd., No. 24033
(N.M. Dec. 16, 1996) (hereinafter Ex rel. Salinas Petition) (asserting that “[p]etitioner
Saucedo received 8,246 favorable votes and 8,096 votes opposed in the 1996 General
Election, which is 50.46% favorable votes; and Petitioner Grisham received 10,045
favorable votes and 8,154 votes opposed in the 1996 General Election or 55.2% favorable
votes”).
88 See id. (arguing that Amendment Ten “is in violation of the Constitution of the United
States”). The Petitioners also challenged the constitutionality of the actual adoption of
Amendment Ten under the New Mexico Constitution. See id. at 5. In addition, they
contended that the supermajority requirement violated their freedom of association under
the First Amendment to the U.S. Constitution. Reply Brief for the Petitioners at 30, New
Mexico ex rel. Salinas v. State Canvassing Bd., No. 24,033, (N.M. Jan. 14, 1997)
(hereinafter Ex rel. Salinas Petitioners’ Reply). This Note does not address these issues.
89 See Ex rel. Salinas Petition, supra note 87, at 4 (contending that Amendment Ten
“violate[s] the one person, one vote principal established under the United States
Constitution”); see also Gray v. Sanders, 372 U.S. 368, 380-81 (1963):
The only weighting of votes sanctioned by the Constitution concerns matters of
representation such as the allocation of Senators irrespective of population and the use
of the electoral college in the choice of a President. . . . The conception of political
equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the
Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one
person, one vote.
90 Denial of Petition for Writ of Mandamus, New Mexico ex rel. Salinas v. State
Canvassing Bd., No. 24,033 (N.M. dismissed, Jan. 15, 1997); see Fritz Thompson, Judge
One of 2 Ousted by Voters, ALBUQUERQUE J., Mar. 2, 1997, at A7.
188
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
Mexico’s 57% supermajority requirement remains unexamined.
A court looking at the constitutionality of New Mexico’s supermajority
requirement would likely begin its analysis with the United States Supreme
Court’s decision in Gordon v. Lance.91 In Gordon, the Court found no Equal
Protection violation in a West Virginia requirement that no bonded
indebtedness be incurred, nor tax rates increased, without the approval of 60%
of voters.92 While some might argue that the Gordon Court definitively
decided that supermajority requirements are constitutionally sound, the
following discussion demonstrates that New Mexico’s supermajority
requirement is distinguishable from the provision at issue in Gordon, and,
accordingly, that Gordon should not control.93 Moreover, the reasoning the
Court applied in Gordon is problematic in light of the Court’s existing Equal
Protection jurisprudence.94
A.
Prelude to Gordon v. Lance: State Election Systems Should Give Equal
Weight to Each Vote Cast
The Supreme Court has broadly defined three ways in which state electoral
laws violate the Equal Protection Clause of the Fourteenth Amendment.95
First, in a line of cases referred to as the one-person, one-vote decisions, the
Court has struck down electoral laws that, based on geographic factors,
districting, or apportionment, have led to the weighting or dilution of the votes
of some people vis-à-vis others.96 Second, the Court has struck down electoral
91
403 U.S. 1 (1971).
Id. at 8 (“That West Virginia has adopted a rule . . . by which the strong consensus of
three-fifths is required before indebtedness is authorized, does not violate the Equal
Protection Clause.”).
93 See infra notes 165-166 and accompanying text (explaining that the holding in Gordon
“does not apply to the election of public officers”); Part III.D (contending that New Mexico
retention elections are “elections of public officers” and not “referenda”).
94 See Brett W. King, Deconstructing Gordon and Contingent Legislative Authority: The
Constitutionality of Supermajority Rules, 6 U. CHI. L. SCH. ROUNDTABLE 133, 141 (1999)
(contending that “the Court’s reasoning in [Gordon] is so devoid of any principled legal
theory relevant to a constitutional analysis of supermajority rulemaking that it has little to
offer in the debate over the appropriate interrelationship between majority rule and
supermajority requirements”).
95 See id. at 146 (distinguishing between three categories of cases in which the Court has
held that state electoral laws violated Equal Protection: “vote denial cases, vote dilution
cases, and ‘procedural process equal protection’ cases”).
96 Id. at 146-47. King states that
[One] line of cases addresses the fairness of the election process itself, such as the
apportionment of districts, the composition of state legislatures and the establishment
of at-large representation. These cases are seen as safeguarding the fundamental right
of voters, once qualified, to enjoy a process that is fair and does not debase the votes
actually cast by weighting or diluting the votes of some citizens as compared to others;
these are the ‘one-person, one vote’ cases.
Id.; see also e.g., Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397 U.S. 50, 57 (1970)
92
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
189
laws that deny access to the ballot based on some extraneous condition or
characteristic.97 Third, the Court struck down electoral laws that impose
special burdens on a distinct class, such as “those who would benefit from laws
barring racial, religious, or ancestral discrimination.”98 Each line of cases
relies on a distinct analytical framework.
In the years preceding Gordon, the Supreme Court decided a number of
reapportionment cases in which it expounded on the need for each person’s
vote to be counted equally in order to protect the constitutional principle of
one-person, one-vote.99 In the seminal case of Reynolds v. Sims, the Court
ruled that Alabama’s proposed apportionment plan for state legislative seats
violated Equal Protection, because it would result in vote dilution.100 In
powerful dicta, the Court noted that the Equal Protection Clause clearly would
prohibit “a law that would expressly give certain citizens a half-vote and others
a full vote” because “[t]he constitutionally guaranteed right to vote and the
(holding that the apportionment system used in Missouri’s junior college trustee elections
violated the one-person, one-vote principle because it “result[ed] in a systematic
discrimination against voters in the more populous school districts”); Reynolds v. Sims, 377
U.S. 533, 568 (1964) (holding that the apportionment system used in Alabama’s legislative
elections violated the one-person, one-vote principle because some citizens’ votes were
“diluted when compared with votes of citizens living in other parts of the State”); Gray v.
Sanders, 372 U.S. 368, 379 (1963) (holding that the county-unit system used in Georgia’s
Democratic senatorial primary elections violated the one-person, one-vote principle because
it “weight[ed] the rural vote more heavily than the urban vote”).
97 See, e.g., Cipriano v. City of Houma, 395 U.S. 701, 702 (1969) (striking down a law
limiting the right to vote in a revenue bond referendum to “property taxpayers”); Kramer v.
Union Free Sch. Dist. No. 15, 395 U.S. 621, 622 (1969) (holding that states cannot deny
access to the ballot based on tax status); Harper v. Va. Bd. of Elections, 383 U.S. 663, 666
(1966) (holding that states cannot deny access to the ballot based on wealth); Carrington v.
Rash, 380 U.S. 89, 96 (1965) (holding that states cannot deny access to the ballot based on
military status); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that states cannot
deny access to the ballot based on race).
98 See, e.g., Hunter v. Erickson, 393 U.S. 385, 391 (1969) (striking down an amendment
to Akron’s city charter that made it more difficult to pass open housing ordinances than
other city ordinances).
99 See King, supra note 94, at 141-43 (citing Avery v. Midland County, 390 U.S. 474
(1968), Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713 (1964), Reynolds, 377
U.S. 533, Gray, 372 U.S. 368, and Baker v. Carr, 369 U.S. 186 (1962), as examples of
Court opinions “thick with rhetoric about the need for each person’s vote to be ‘equally
counted’”).
100 Reynolds, 377 U.S. at 568. The court reasoned that
an individual’s right to vote for state legislators is unconstitutionally impaired when its
weight is in a substantial fashion diluted when compared with votes of citizens living in
other parts of the State. Since, under neither the existing apportionment provisions nor
either of the proposed plans was either of the houses of the Alabama Legislature
apportioned on a population basis, the District Court correctly held that all three of
these schemes were constitutionally invalid.
Id.
190
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
right to have one’s vote counted clearly imply the policy that state elections
systems, no matter what their form, should be designed to give approximately
equal weight to each vote cast.”101
The Reynolds Court also noted that, because the Constitution mandates
“equality among citizens in the exercise of their political rights,”102 the
principle that “one group can be granted greater voting strength than another is
hostile to our standards for popular representative government.”103 Moreover,
the Reynolds Court emphasized that the right to vote “includes the right to have
the vote counted at full value without dilution or discount,” and “[t]hat
federally protected right suffers substantial dilution . . . [where a] favored
group has full voting strength . . . [and t]he groups not in favor have their votes
discounted.”104
“Supermajority voting rules are a form of weighted voting.”105 In a
referendum, a supermajority requirement gives affirmative votes
proportionally less weight than negative votes. Similarly, in an election, a
supermajority requirement accords less weight to votes cast in support of a
candidate vis-à-vis votes opposing that candidate.106 Therefore, groups
concerned about various state supermajority provisions read “the Court’s
growing body of anti-dilutional voting rhetoric . . . with peaked [sic]
interest.”107
Prior to Gordon, the United States District Court for the District of
101
Id. at 563 n.40 (quoting Colegrove v. Green, 328 U.S. 549, 569-70 (1946) (Black, J.,
dissenting)).
102
Id. at 564 n.41 (quoting MacDougall v. Green, 335 U.S. 281, 290 (1948) (Douglas, J.,
dissenting)).
103 Id.
104 Id. at 555 n.29 (quoting South v. Peters, 339 U.S. 276, 279 (1950) (Douglas, J.,
dissenting)) (emphasis added). The Reynolds Court further explained that
[t]he right to vote freely for the candidate of one’s choice is of the essence of a
democratic society, and any restrictions on that right strike at the heart of representative
government. And the right of suffrage can be denied by a debasement or dilution of
the weight of a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.
Id. at 555.
105 King, supra note 94, at 143.
106 Id. at 150 n.98 (stressing that “[i]t is clear that supermajority rules are a form of vote
dilution”); Thurston v. Greco, 474 P.2d 881, 888 (Wash. 1970) (Rosellini, J., dissenting)
(criticizing the majority opinion’s conclusion that a supermajority requirement “does not
directly or indirectly result in the debasement or the dilution of the vote,” and arguing that
this conclusion “distorts reality, defies all logic and rewrites the law of mathematics”);
Altadena Library Dist. v. Bloodgood, 237 Cal. Rptr. 649, 653 (Ct. App. 1987) (pointing out
that, under the supermajority requirement at issue in Gordon v. Lance, “if the voter cast a
ballot for a tax increase as to a certain proposition his vote would be diluted by the
supermajority requirement,” and “if he voted against a tax increase . . . his voting power
would be enhanced”).
107 King, supra note 94, at 143.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
191
Minnesota, and the highest courts of California and West Virginia each ruled
that supermajority voting rules were unconstitutional in light of the Supreme
Court’s expanding Equal Protection jurisprudence.108 However, the United
States District Court for the Western District of Missouri and several state high
courts rejected similar arguments.109 The constitutionality of supermajority
rules was, therefore, ripe for Supreme Court review.110
B.
Gordon v. Lance: Supermajority Rules for Referenda Do Not Violate
Equal Protection
Against this legal landscape, the Supreme Court took up the case of Gordon
v. Lance.111 In Gordon, the Court addressed whether a West Virginia
supermajority requirement that 60% of voters approve bonded indebtedness
and tax increases violated Equal Protection.112 The West Virginia Constitution
and certain statutes provided that political subdivisions could not incur bonded
indebtedness or raise taxes without the approval of 60% of the electorate in a
referendum election.113
In a 1968 election, the Board of Education of Roane County submitted to
voters a proposal for the issuance of general obligation bonds to construct new
school buildings and to improve existing infrastructure, as well as a proposal to
levy additional taxes to support current expenditures and capital
improvements.114 Although votes of 51.55% and 51.51%, respectively, were
cast in favor of the proposals, the Board of Education declared the proposals
defeated because each proposal had failed to obtain the requisite 60%
affirmative vote.115 After failing to persuade the Board of Education to
authorize the funding anyway, the supporters sought declaratory judgment that
the 60% supermajority requirements were unconstitutional violations of Equal
Protection under the Fourteenth Amendment.116 A West Virginia trial court
dismissed the complaint; on appeal, the West Virginia Supreme Court of
Appeals reversed, holding that the 60% requirements indeed violated Equal
108 Id. at 143 (citing Rimarcik v. Johansen, 310 F. Supp. 61 (D. Minn. 1970); Westbrook
v. Mihaly, 471 P.2d 487 (Cal. 1970); and Lance v. Bd. of Educ., 170 S.E.2d 783 (W. Va.
1969).
109 King, supra note 94, at 143-44 (citing Brenner v. Sch. Dist., 315 F. Supp. 627 (W.D.
Mo. 1970); Bogert v. Kinzer, 465 P.2d 639 (Idaho 1970); Adams v. Fort Madison Cmty.
Sch. Dist., 182 N.W.2d 132 (Iowa 1970); Tiews v. Timberlane Reg’l Sch. Dist., 273 A.2d
680 (N.H. 1971); Thurston v. Greco, 474 P.2d 881 (Wash. 1970)).
110 King, supra note 94, at 144.
111 403 U.S. 1 (1971).
112 Id. at 2-3.
113 Id. at 2.
114 Id. at 3.
115 Id.
116 Id.
192
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
Protection.117 The Supreme Court subsequently granted certiorari and
reversed, finding no constitutional violations.118
The Gordon Court offered four primary reasons for holding that the West
Virginia supermajority voting provisions did not violate the Constitution: (i)
the requirements did not discriminate against any “independently identifiable
group”; (ii) the requirements were applied in a neutral fashion; (iii) the
requirements were analogous to supermajority requirements in the U.S.
Constitution; and (iv) many other states require supermajorities to increase
taxes and bonded indebtedness.119 One commentator, however, posits that
Gordon v. Lance is “one of the most poorly reasoned High Court opinions in
the post-New Deal era” and that “the case is wholly inapposite to any
principled theory that attempts to synthesize supermajority requirements with
the text and history of the Constitution.”120 Nevertheless, it is important to
analyze the Gordon Court’s reasoning in order to determine how a future court
might rule, not only on the New Mexico supermajority requirement, but also
on supermajority requirements in other contexts.121 Therefore, this Note
discusses each of the four bases of the Gordon decision in turn.
First, the Court found that the West Virginia supermajority requirement did
not violate Equal Protection because it did not discriminate against any
The Court could “discern no
“independently identifiable group.”122
independently identifiable group or category that favors bonded indebtedness
over other forms of financing;” therefore, “no sector of the population may be
said to be ‘fenced out’ from the franchise because of the way they will
vote.”123 The Gordon Court’s “independently identifiable group” rationale is
117
Lance v. Bd. of Educ., 170 S.E. 2d 783 (1969).
Gordon, 403 U.S. at 3.
119 Id. at 5-6; see also King, supra note 94, at 145.
120 King, supra note 94, at 145; see also John Cornyn, Our Broken Judicial Confirmation
Process and the Need for Filibuster Reform, 27 HARV. J.L. & PUB. POL’Y 181, n. 49 (2003)
(quoting King, supra note 94, for the proposition that “the Supreme Court’s decision in
Gordon v. Lance has little to offer efforts at constructing a theory of supermajoritarianism”);
Jerry W. Calvert, The Popular Referendum Device and Equality of Voting Rights – How
Minority Suspension of the Laws Subverts “One Person-One Vote” in the States, 6
CORNELL J.L. & PUB. POL’Y 383, 404 (1997) (discussing “the troubling case of Gordon v.
Lance” in which “the U.S. Supreme Court appeared to depart from the principle of ‘one
person, one-vote’”). See also generally Brett W. King, Wild Political Dreaming: Historical
Context, Popular Sovereignty, and Supermajority Rules, 2 U. Pa. J. Const. L. 609, 610-611
(2000) (“Unfortunately, to date no such theory [of supermajoritarianism] has become
generally accepted by American political and legal scholars, leaving a theoretical vacuum at
the heart of our received version of democratic liberalism.”).
121 See King, supra note 94, at 145 (declaring that although flawed, the reasoning
employed by the Gordon Court is important to consider when evaluating the
constitutionality of supermajority provisions).
122 Gordon, 403 U.S. at 5.
123 Id. (quoting Carrington v. Rash, 380 U.S. 89, 94 (1965)); see also King, supra note
118
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
193
inconsistent and unclear when examined against the reasoning applied in
previous Equal Protection cases,124 in part because the opinion never stated
whether the Court viewed it as a vote dilution (i.e., one-person, one-vote) case
or a political process case.125 The distinction is crucial because it determines
both the appropriate analysis and standard of review; without it the
“independently identifiable group” rationale provides little guidance for future
cases.126
If Gordon is properly viewed as a vote dilution case, the supermajority
requirement would be analyzed in light of the Court’s reapportionment
cases.127 Analysis under this approach would emphasize “the Court’s
constitutionally mandated principle of ‘one-person, one-vote’ and its rhetoric
surrounding its declarations of a constitutionally protected right to have each
vote that is cast be ‘equally counted’ and ‘equally effective.’”128 In contrast, if
viewed as a political process case, a court would focus its analysis on whether
the government has singled out an identifiable group for unfair or
discriminatory treatment, and if so, whether any government interest justifies
the additional burdens.129 Because the Gordon Court did not distinguish
between the two types of cases, the Gordon decision offers little guidance.130
At the very least, the Gordon Court did seem to say that as a necessary
prerequisite in any Equal Protection case, a court would need to determine the
presence of an “identifiable class” alleging discrimination.131
If, as the Gordon Court implied, the group of affirmative voters is not an
“independently identifiable group,” no cause of action would exist under Equal
94, at 151 (observing that “the concept of ‘fencing out’ only arises in vote denial cases,” of
which there was no allegation in this case, and “thus the entire concept of ‘fencing out’ is
inapposite to the discussion”).
124 See supra notes 95-98 and accompanying text (outlining the three strands of Equal
Protection cases – vote denial, vote dilution, and political process); see also supra note 123
(commenting that the “fencing out” concept has historically only applied to vote denial
cases).
125 See King, supra note 94, at 146-54 (stating that it is clear that Gordon is not a vote
denial case, but that the Court is unclear as to whether Gordon should properly be
considered a vote dilution or a political process Equal Protection case).
126 See id. at 148 (intimating that each theory has its own set of assumptions and
expected results, depending on the characterization of the case).
127 Id. at 147 (remarking that “as a vote dilution case, supermajority voting rules would
be seen as a method of diluting votes . . . and, as such, the propriety of such action would
need to be analyzed in light of the reapportionment cases”).
128 Id. at 147.
129 Id.
130 See supra notes 123-126 and accompanying text.
131 King, supra note 94, at 148 (concluding that the initial inquiry in any Equal
Protection case then becomes, “[W]hat class of citizens is asserting an equal protection
claim?”).
194
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
Protection doctrine.132 Given the Court’s lack of clarity regarding whether
Gordon was a vote dilution or political process case, it is not surprising that the
Court failed to find an “independently identifiable class.”133 Viewed as a vote
dilution case, such a class would likely be defined with respect to how citizens
cast their votes (i.e., in favor or against).134 Viewed as a political process case,
in which the court focuses on the class affected by the supermajority rule, the
class in Gordon is easy to identify (i.e., the group of individuals who would
benefit from the educational expenditures which the proposed bonds and taxes
would fund).135
Nevertheless, the Gordon Court chose not to consider such voters an
identifiable class; and, as a result, the Court never discussed the appropriate
standard of review in cases where a class could be identified.136 Therefore, a
future court would have to determine what standard of review to apply. If the
supermajority requirement infringes the right to vote, the court would apply
strict scrutiny because the right to vote is considered a fundamental right under
Equal Protection jurisprudence.137 However, if courts were to classify the
supermajority requirement as a procedural rule, then the government would
need only supply a rational basis for its enactment in order to surpass any
Equal Protection hurdles.138
132
King, supra note 94, at 149 (stating “if such a group of affirmative voters cannot be
considered an identifiable class of individuals, the case would be inactionable on equal
protection grounds”); see Gordon v. Lance, 403 U.S. 1, 5 (1971) (quoting Carrington v.
Rash, 380 U.S. 89, 94 (1965)).
133 See King, supra note 94, at 151.
134 Id. at 152 (commenting that “attempting to find ‘independently identifiable’ groups in
supermajority dilution cases is inherently problematic . . . because the class can only be
defined by how citizens cast their votes”).
135 Id. at 153. King argues that
[i]f in Hunter [v. Erickson, 393 U.S. 385 (1969)] the class singled out was ‘those who
would benefit from laws barring racial, religious, or ancestral discriminations’ then in
Gordon the class should be equally easy to identify . . . . It would seem, a priori,
objectively easier to identify those individuals in Roane County who would benefit
from increased spending on educational infrastructure and additional school programs
(that is, students enrolled in Roane County schools) than it would be to identify those
citizens of Akron who might derive future benefit from its fair housing ordinance. If
there is an independently identifiable class in Hunter, then there certainly is one in
Gordon.
(citation omitted).
136 Id. at 154 (stating that “the Court’s analysis was aborted at an early stage without a
discussion of the appropriate level of scrutiny to be used had a class been found”).
137 Id. at 148 (citing Burson v. Freeman, 504 U.S. 191, 213-14 (1992) (Kennedy, J.
concurring); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964); Yick Wo v. Hopkins, 118 U.S.
356, 370-71 (1886)).
138 King, supra note 94, at 148 (affirming the importance of supermajority requirement
classifications by observing the difference between scrutiny for fundamental rights and
“mere procedural rules”).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
195
Second, the Gordon Court reasoned that the West Virginia supermajority
requirements did not violate Equal Protection because they “single[d] out no
‘discrete or insular minority’ for special treatment.”139 Instead, the Court
found that the 60% requirement applied equally to all bond issues.140 The
Court’s “discrete or insular minority” reference appears to be an inappropriate
and misguided invocation of the Carolene Products141 footnote four analysis.
If the Court is serious about the Carolene Products analysis, the logical
inference of its ruling in Gordon would be that a supermajority requirement
that applies only to a certain type of bond (as opposed to all bonds like in
Gordon) would single out a “discrete or insular minority,” i.e., the bonds to
which the supermajority requirement did not apply.142 Although this makes
logical sense, a constitutional scholar would surely dispute this application of
Carolene Products footnote four, which was intended to suggest a more
exacting standard of review for racial and ethnic minorities because of their
immutable characteristics.143
The West Virginia Supreme Court of Appeals relied heavily on the Supreme
Court’s reasoning in Gray v. Sanders144 and Cipriano v. City of Houma145 in
holding that the 60% requirement violated Equal Protection.146 However, the
Gordon Court distinguished Gray and Cipriano because in those cases the
constitutional defect lay in the “denial or dilution of voting power [based on]
group characteristics – geographic location and property ownership[,
respectively,] – that bore no valid relation to the interest of those groups in the
subject matter of the election.”147 However, the distinction does not withstand
careful scrutiny because “even a supermajority requirement for all bonds is not
‘neutral’ but inherently disfavors groups that support increased government
139
See Gordon v. Lance, 403 U.S. 1, 5 (1971); see generally ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 669 (2d ed. 2002) (explaining that the
Court indicated in U.S. v. Carolene Products, 304 U.S. 144, 153 n.4, from which the
“discrete and insular minorities” concept is derived, that heightened scrutiny would be
justified for “government actions discriminating against racial and national origin minorities
. . . because of the relative political powerlessness of these groups”).
140 Gordon, 403 U.S. at 5.
141 304 U.S. at 153 n.4 (stating that government discrimination against “discrete and
insular minorities” requires “more searching judicial inquiry”).
142 See Gordon, 403 U.S. at 5 (defining bond issues as the basis for potential
discrimination).
143 See CHEMERINSKY, supra note 139, at 669.
144 372 U.S. 368 (1963) (holding that discarding superfluous votes in a “county-unit
system” once a candidate achieved enough votes to win a “unit” constituted geographical
discrimination and was, therefore, unconstitutional under the Equal Protection Clause).
145 395 U.S. 701 (1969) (reasserting that an individual may not be denied a vote because
of an extraneous condition such as race).
146 See Gordon, 403 U.S. at 4 (stating that “the West Virginia court’s reliance on the
Gray and Cipriano cases was misplaced”).
147 Id.
196
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
spending and higher levels of government services (and taxes) while
preferencing groups who seek lower levels of government services and
expenditures.”148
Third, the Gordon Court compared the West Virginia supermajority
requirement to provisions in the U.S. Constitution that require a supermajority,
e.g., impeachment and treaty ratification, as another rationale for finding the
West Virginia requirement constitutional.149 However, this analogy is
inapposite because federal supermajority provisions that deal with the
fundamental structure of government “are not necessarily the same – in design
or effect” as state supermajority requirements that dilute voting rights.150
Furthermore, one commentator has argued that the analogy the Court draws
“would seem to strain the definition of an ‘analogy’” and that the Court
employs the federal analogy “opportunistically” in this case because it seems
just as “inapposite and irrelevant” as in the reapportionment cases where the
Court “reject[ed] it out-of-hand.”151
Fourth and finally, the Gordon Court pointed out that many states, in
addition to West Virginia, require supermajorities to increase bonded
indebtedness and to levy new taxes.152 The Court reasoned that “in voting to
issue bonds voters are committing, in part, the credit of infants and of
generations yet unborn, and some restriction on such commitment is not an
unreasonable demand.”153 In other words, the supermajority requirements seek
to limit the ability of one generation to burden the next by making it more
difficult to undertake certain types of governmental actions. Regardless of the
wisdom behind these supermajority requirements, the Court made clear that
“the balancing of interests is . . . for the State to resolve.”154
One problem with the intergenerational justification is that it appears
inconsistent with the facts in Gordon and thus contributes little to a coherent
theory of supermajority rule.155 This is exemplified by the fact that the Gordon
Court upheld the supermajority requirement with respect to both tax increases
and bond proposals.156 The tax increase at issue would have been effective for
only five years, and consequently would not have indefinitely burdened future
148
King, supra note 94, at 156.
Gordon, 403 U.S. at 6.
150 King, supra note 94, at 158-162.
151 Id.
152 Gordon, 403 U.S. at 6 (citing, inter alia, IND. CONST., art. 10, § 5; OHIO CONST., art. 8,
§ 3; TEX. CONST., art. 3, § 49; WIS. CONST., art. 8, § 4).
153 Id.
154 Id. at 7.
155 See King, supra note 94, at 163 (positing that the intergenerational justification seems
to have “no real effect on the use of supermajority rules by the states or any bearing on the
legal appropriateness of constitutional departures from majority rule”).
156 403 U.S. at 5; see also King, supra note 94, at 162-63 (pointing out that the Court
upheld the supermajority requirement despite the length of the tax commitment).
149
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
197
generations.157 Moreover, the supermajority requirement applied to all types
of bonds, including short-term bonds, not just long- and medium-term
bonds.158 If the Court had upheld only long-term tax increases and bonds, the
relevance of the intergenerational justification would be easier to identify.
However, by upholding a supermajority requirement broadly applied to all
types of bonds, regardless of their term, the intergenerational justification
seems inapposite to the Court’s determination. Therefore, one commentator
has opined that states need not justify the use of supermajority rules with the
intergenerational argument.159
Beyond these four rationales for upholding the West Virginia supermajority
requirement, the Court refused to recognize any constitutional principle of
strict majoritarianism. Although the Court conceded that West Virginia had
“made it more difficult for some kinds of governmental actions to be taken,”
the Court found that “nothing in the language of the Constitution, our history,
or our cases . . . requires that a majority always prevail on every issue.”160 To
illustrate this point, the Court cited Fortson v. Morris where it found no
constitutional violation when a state legislature selected a governor because no
candidate received a majority of the popular vote.161 However, it seems that
the Gordon Court misconstrued the import of Fortson.162 Although Fortson
may be read superficially to reject the principle of majoritarian rule with
respect to the election of a public official, a closer reading of the case makes
157
Gordon, 403 U.S. at 5; see also King, supra note 94, at 162.
King, supra note 94, at 162 (“[W]hile such a justification would be acceptable for
long term bonds and might be acceptable for medium term bonds, under West Virginia’s
law all bonds were subject to the three-fifths supermajority requirement.”). The Gordon
Court’s neutral application rationale seems to directly contradict the intergenerational
justification. In the former context, the Court used application of the supermajority
requirement to all bond issues to prove its consistency with the Equal Protection Clause,
while in the latter context it is precisely this neutral application that shows that the
intergenerational justification is of no consequence to the requirement’s consistency with
the Court’s Equal Protection jurisprudence. See supra notes 139-140 and accompanying
text.
159 King, supra note 94, at 162-63:
Since the Court did not overrule the five year tax provision, clearly the
intergenerational argument is not necessary for supermajority rules to be utilized by a
state. . . . [M] any states approve the issuance of long term bonds by majority vote, [so]
a supermajority vote is also not necessary when intergenerational concerns are
undeniably present.
160 Gordon, 403 U.S. at 5-6.
161 Id. at 6 (citing Fortson v. Morris, 385 U.S. 231 (1966)).
162 See Delker, supra note 86, at 355-356 (contending that the Gordon Court’s “bald
assertion” that the Constitution does not require majority rule “is not supported by any
analysis of the structure of the U.S. Constitution or the history of its ratification,” and
“[m]oreover, dicta in other cases supports a conclusion different from that reached in
Gordon”); cf. Ex rel. Salinas Petitioners’ Reply, supra note 88, at 13 (discussing the
Lefkovits court’s similarly misplaced reliance on Fortson).
158
198
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
clear that the Fortson Court did not believe it was dealing with the majoritarian
principle. On the contrary, Justice Black reasoned that “the general election is
over and that a new, and different, alternative procedure is now about to be
used” and that “this election is to be scrubbed and ignored, and Georgia’s
Constitution merely provided for the selection of a Governor by the
legislature.”163 Therefore, a proper reading of Fortson by no means reveals an
anti-majoritarian rule; instead it “merely sanctions a state’s ability to select
public officials by appointment rather than by popular election.”164
Ultimately, the Gordon Court held that “so long as such [supermajority]
provisions do not discriminate against or authorize discrimination against any
identifiable class, they do not violate the Equal Protection Clause.”165 In a
footnote, however, the Supreme Court cabined its holding by explicitly stating
that Gordon does not apply to the election of public officers, announcing “we
[do not] decide whether a State may, consistently with the Constitution, require
extraordinary majorities for the election of public officers.”166 To date, the
Supreme Court has not ruled on this question. One commentator contends that
the Court’s footnote was “wholly unnecessary” because “the use of
supermajority voting rules in the election of public officials is almost unknown
in the American political system and would be a readily distinguishable case
without the need for a qualifying footnote.”167
This Note seeks to answer the question the Gordon Court left open: whether
a supermajority requirement is constitutional with respect to the election of
163
Cf. Ex rel. Salinas Petitioners’ Reply, supra note 88, at 13 (quoting Fortson, 385 U.S.
at 243, in its discussion of the Lefkovits court’s similarly misplaced reliance on Fortson).
164 Cf. id. at 13-14 (citations omitted):
[R]ather than carving out an exception to the majoritarian rule, the court actually takes
the case out of that context altogether. . . . The opinion merely sanctions a state’s
ability to select public officials by appointment rather than by popular election. It is
only when the public participates in the selection of a public official that the oneperson, one-vote rule applies.
But see Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 244245 (1997):
[T]he Supreme Court has expressly rejected the argument that the Constitution requires
simple majority rule and has allowed legislatures to deviate from such rule. Gordon v.
Lance states this point clearly. . . . The point is not that majoritarianism is an
unimportant value in the American system of government; obviously it is of enormous
significance. Rather, the point is that majoritariansm is not a universal principle of
American government such that all deviations from it are unconstitutional.
165 Gordon, 403 U.S. at 7.
166 Id. at 8 n.6 (emphasis added) (limiting case holding to the facts at hand and not
expressing an opinion about provisions requiring unanimity, conferring a veto power on a
small group, or applying to the election of public officers).
167 King, supra note 94, at 170 (citing Lefkovits v. State Bd. of Elections, 400 F. Supp.
1005, 1015 (N.D. Ill. 1975), discussed infra Part III.C, in which the court found that the
Illinois judicial retention system, which requires a supermajority vote, was actually a
referendum and thus not subject to footnote six in Gordon).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
199
public officers – in particular, state judges in New Mexico.
C.
Lefkovits v. State Board of Elections: Gordon in the Context of Judicial
Retention
In the 1975 case of Lefkovits v. State Board of Elections, the United States
District Court for the Northern District of Illinois held that Illinois’s 60%
supermajority requirement for judicial retention does not violate Equal
Protection.168 The Lefkovits decision, however, avoided the ultimate question
presented by this Note: whether supermajority requirements for the election of
public officials violate Equal Protection. Instead, it classified the Illinois
retention election as a referendum, as opposed to an election of a public
official.169 The United States Supreme Court later affirmed the case without
opinion.170
Neither Gordon nor Lefkovits should constitute direct authority or even
persuasive precedent for a constitutional challenge to the New Mexico
supermajority requirement. With particular respect to Lefkovits, it must be
noted that a summary affirmance by the Supreme Court does not confer the
same precedential authority as a decision rendered after plenary consideration
and, likewise, does not present the same justification for declining to
reconsider a prior decision as does a full opinion the Court renders after oral
argument.171 Indeed, a summary affirmance extends only to the “‘precise
issues presented and necessarily decided by those actions.’”172 Because a
summary affirmance serves only as an affirmance of the judgment below, “the
rationale of affirmance may not be gleaned solely from the opinion below.”173
Therefore, neither the Lefkovits judgment nor reasoning forecloses a decision
on the constitutionality of the New Mexico supermajority requirement.
Like the Gordon Court, the Lefkovits court seemed to employ a mish-mash
of Equal Protection doctrine without ever enunciating the precise analysis or
168 400 F. Supp. at 1016 (announcing that “[s]ince the 60% requirement does not
discriminate against or authorize discrimination against any identifiable class there is no
violation of the equal protection clause”).
169 Id. at 1015 (stating that the court would leave open “the question of whether a judge
or any public official can be required to be elected by more than majority vote”); see also
infra Part III.D.
170 Lefkovits v. State Bd. of Elections, 424 U.S. 901 (1976).
171 See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500 (1981) (explaining that
“summary actions do not have the same authority in this Court as do decisions rendered
after plenary consideration”); Illinois State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 180-181 (1979) (proclaiming that “summary affirmances have considerably less
precedential value than an opinion on the merits”).
172 Ill. State Bd. of Elections, 440 U.S. at 182 (quoting Mandel v. Bradley, 432 U.S. 173,
176 (1977)).
173 Mandel, 432 U.S. at 176.
200
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
standard of review it was applying.174 Nevertheless, because the New Mexico
supermajority requirement bears certain similarities to the Illinois requirement,
Gordon and Lefkovits constitute “a logical starting point” for analysis of the
New Mexico supermajority requirement.175 However, the New Mexico
supermajority requirement and the judicial selection system of which it is a
part are distinguishable in several fundamental ways from the Illinois system.
Indeed, as the preceding and following discussion make clear, the reasoning in
both Gordon and Lefkovits is problematic and should not serve as persuasive –
much less binding – precedent for a court considering the constitutionality of
the New Mexico supermajority requirement.176
In Lefkovits, Cook County Circuit Court Judge David Lefkovits garnered
59.8% affirmative vote in his retention election, and thus failed to receive the
60% affirmative vote required for judicial retention under Illinois law.177 All
Illinois judges are initially selected in partisan elections requiring a plurality of
the vote to prevail.178 At the expiration of his or her term, a judge may either
seek nonpartisan retention or run for reelection in a partisan election.179 If a
judge chooses to seek nonpartisan retention, he or she must garner a 60%
affirmative vote to be retained.180 If a judge chooses instead to run for
reelection in a partisan election, he or she is required to garner only a plurality
of the vote.181 Lefkovits182 sought declaratory and injunctive relief to establish
that the supermajority requirement for judicial retention violated both the
Illinois and U.S. Constitutions.183 Lefkovits184 alleged three denials of
174 This is not surprising considering that the Lefkovits court almost directly applied the
framework of the Gordon opinion to the Illinois facts.
175 See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1009 (N.D. Ill. 1975)
(stating that the case “presents a federal question . . . upon which there is no direct authority.
Fortunately, however, the Supreme Court has considered an extraordinary majority
requirement in another context and that decision is a logical starting point of analysis”).
176 See King, supra note 94, at 172 (contending that “Gordon contributes little to a larger
understanding of how majority rule, supermajority requirements and the Constitution should
interact in a modern democratic state”).
177 Lefkovits, 400 F. Supp. at 1006.
178 Id. at 1007-08; see ILL. CONST. art. 6, § 12.
179 Lefkovits, 400 F. Supp. at 1007-08; see also ILL. CONST. art. 6, § 12.
180 Lefkovits, 400 F. Supp. at 1007-08; see also ILL. CONST. art. 6, § 12.
181 Lefkovits, 400 F. Supp. at 1008; see also ILL. CONST. art. 6, § 12.
182 John T. Meagher, a qualified elector in Cook County who cast his ballot in favor of
Judge Lefkovits’s retention, filed the action along with Judge Lefkovits, who later dropped
out of the challenge. Lefkovits, 400 F. Supp. at 1006.
183 Id.
184 While the action was pending, Judge Lefkovits dropped out of the suit and voluntarily
relinquished his judgeship. In the meantime, the Illinois State Bar Association, the Chicago
Council of Lawyers, and the Chicago Bar Association moved to intervene as defendants.
The defendants moved to dismiss on the ground that Meagher lacked standing to bring the
challenge and that the issue was moot since Lefkovits had retired, but the U.S. District Court
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
201
constitutional rights. In addition to asserting violations of the Illinois state
equal protection clause185 and the Federal Constitution’s Guaranty Clause,186
Lefkovits also argued that the Illinois supermajority requirement violated the
Equal Protection Clause of the Fourteenth Amendment.187
The District Court observed that there was “no direct authority” but found
Gordon v. Lance to be “a logical starting point of analysis.”188 Despite the
Gordon Court’s disclaimer that it expressed no opinion on the constitutionality
of supermajority requirements for the election of public officials,189 the
Lefkovits court found Gordon to be “persuasive on the question subjudice[,] for
the Illinois retention system is in essence a referendum on whether a particular
judge shall be retained in office.”190 The Lefkovits court’s assertion, with
minimal discussion, that the Illinois supermajority requirement was a
referendum and not an election allowed the court to avoid the difficult and
more fundamental question of whether electoral supermajority rules for the
election of public officials violate Equal Protection.191
found a “live case or controversy that Meagher ha[d] standing to pursue.” Id. at 1006-09.
185 Lefkovits contended that the supermajority requirement, contained in the Illinois
Constitution, violated the equal protection clause of the same constitution. The Court,
however, found no violation because “ipso facto the provision is constitutional . . .
notwithstanding the existence of a general state constitutional provision that could be read to
prohibit the same procedure if enacted as a statute.” Id. at 1009.
186 Lefkovits asserted that the Illinois supermajority requirement violated the Guaranty
Clause of the United States Constitution, which states that “[t]he United States shall
guarantee to every State in this Union a Republican Form of Government.” U.S. CONST. art.
IV, § 4. The court found this argument foreclosed by the Supreme Court’s decision in
Luther v. Borden, 48 U.S. 1 (1849), which held that such claims are nonjusticiable and thus
not cognizable by the federal courts. Lefkovits, 400 F. Supp. at 1009; cf. King, supra note
94, at 171 (pointing out that it is unclear from Gordon how and why supermajority
requirements violate the Guaranty Clause or other provisions in the Constitution (e.g., the
Due Process Clause), because the Gordon Court broadened its holding to include all
provisions of the Constitution without discussion, explanation, or legal reasoning as to these
other constitutional provisions).
187 Lefkovits, 400 F. Supp. at 1009.
188 Id.
189 See Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971).
190 Lefkovits, 400 F. Supp. at 1011 (emphasis added).
191 See id. at 1014-15:
Because of the Supreme Court’s disclaimer that Gordon did not decide whether states
could require extraordinary majorities in the election of public officials, an examination
of the Illinois retention provision has been undertaken. We conclude that the provision
in essence calls for a referendum, not an election, on the proposition of whether a
particular judge shall be retained in office.
See also Ex Rel. Salinas Petitioners’ Reply, supra note 88, at 17 (contending that “[s]imply
by (incorrectly) labeling the election a referendum, the court attempts to avoid the fact that a
court has never, before (nor since) Lefkovits, held that a state may require an extraordinary
majority in the election of a public official”).
202
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
The Supreme Court, however, has clearly distinguished elections of public
officials from referenda. First, the Court applies different standards of Equal
Protection to referenda and elections of public officials based on the inherently
different processes they entail and policies they reflect. In Town of Lockport v.
Citizens for Community Action, the Court explained that when voters are
electing their legislative representatives, “all citizens have an equal interest in
representative democracy, and . . . the concept of equal protection therefore
requires that their votes be given equal weight.”192 The Court went on to note
that the one-person, one-vote mandate applies to elections of representatives at
both the local and state level.193 In contrast, the Court has eased the Equal
Protection standards applied to referenda by distinguishing referenda in two
important ways.194 The primary reason is that in a referendum “the expression
of voter will is direct, and there is no need to assure that the voters’ views will
be adequately represented through their representatives in the legislature.”195
In addition, referenda and elections of representatives implicate different
policies, that is, “instead of sending legislators off to the state capitol to vote
on a multitude of issues, the referendum puts one discrete issue to the
voters.”196 Based on these distinctions, the Lockport Court announced that
states need not apply the one-person, one-vote principle in such a rigid fashion
to referenda.197
The second important distinction the Court has recognized is that judges,
like legislators and other public officials, are “representatives” under the
Voting Rights Act.198 The Court has held that when voters participate in the
selection of public officials, the one-person, one-vote mandate, as well as the
full panoply of Equal Protection rights, apply without regard to the nature of
192 430 U.S. 259, 265-66 (1977) (citing Lucas v. Colo. Gen. Assembly, 377 U.S. 713
(1964); Fortson v. Dorsey, 379 U.S. 433 (1965); Burns v. Richardson, 384 U.S. 73 (1966);
Swann v. Adams, 385 U.S. 440 (1967); Kilgarlin v. Hill, 386 U.S. 120 (1967); and
Whitcomb v. Chavis, 403 U.S. 124 (1971)).
193 Lockport, 430 U.S. at 265 n.11 (citing Avery v. Midland County, 390 U.S. 474 (1968)
and Hadley v. Junior Coll. Dist., 397 U.S. 50 (1970)).
194 See Lockport, 430 U.S. at 266 (describing the Court’s differing treatment of referenda
and elections of public officials in Equal Protection analysis).
195 Id.
196
Id.
197 See id. (commenting that “[t]he equal protection principles applicable in gauging the
fairness of an election involving the choice of legislative representatives are of limited
relevance . . . in analyzing the propriety of recognizing distinctive voter interests in a
‘single-shot’ referendum”).
198 See Chisom v. Roemer, 501 U.S. 380, 399-401 (1991) (explaining that Congress must
have intended elected judges to be included in the term “representatives” because the term
“describes the winners of representative, popular elections” and not simply legislators). The
Court did not hold that referenda are not subject to the Voting Rights Act. Id. Rather, the
important point is that the Court views the election of judges as equivalent to the election of
other public officials, to which the Equal Protection Clause fully applies.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
203
the office.199
The Lefkovits court’s determination that judicial retention elections
constituted referenda seems to strain the definition of referenda, thereby
blurring any meaningful distinction between the two. Given the Supreme
Court’s decision in Lockport to apply one-person, one-vote Equal Protection
principles to the election of state representatives,200 it is unclear whether other
courts would agree with the Lefkovits reasoning that judicial elections are
referenda and whether courts would apply that rationale to the New Mexico
judicial selection system.
The decision whether to retain a judge requires voters to make a decision
analogous to the decision involved in selecting a legislator because, “[l]ike a
legislator, ‘a judge both makes and implements governmental policy.’”201 In a
retention election, as in a contested judicial election or an election of a
legislator,
the voters decide whether the incumbent judge will or will not continue to
make policy decisions that will affect their lives for another term. . . .
[and] the voters cannot know the content of the numerous decisions the
judge will make, or what direct policy decisions . . . will be made.”202
Voters make fundamentally different decisions in this type of election, as
opposed to a referendum in which they vote on issues such as “whether their
taxes should fund a particular bond obligation.”203 In sum, a judicial retention
election implicates much more than the type of “single-shot” issue decided in a
referendum.204
The Lefkovits court hid behind semantics to avoid the real constitutional
question. Rather than confront the issue, the Lefkovits court, much like the
199
See Hadley v. Junior Coll. Dist., 397 U.S. 50, 54-55 (1970):
When a court is asked to decide whether a State is required by the Constitution to give
each qualified voter the same power in an election open to all, there is no discernible,
valid reason why constitutional distinctions should be drawn on the basis of the
purpose of the election. If one person’s vote is given less weight through unequal
apportionment, his right to equal voting participation is impaired just as much when he
votes for a school board member as when he votes for a state legislator. While there
are differences in the powers of different officials, the crucial consideration is the right
of each qualified voter to participate on an equal footing in the election process. It
should be remembered that in cases like this one we are asked by voters to insure that
they are given equal treatment, and from their perspective the harm from unequal
treatment is the same in any election, regardless of the officials selected.
200
See Lockport, 430 U.S. at 265-66.
201 Ex rel. Salinas Petitioners’ Reply, supra note 88, at 18 (quoting Kurowski v.
Krajewski, 848 F.2d 767 (7th Cir. 1988)).
202 Id.
203 Id. at 18-19.
204 Id. at 19; see also supra note 197 (observing similar language in the Supreme Court’s
Lockport decision).
204
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
Supreme Court in Gordon, simply decided it was “not going there.”205
D.
New Mexico Retention Elections Are “Elections of Public Officers” and
Not “Referenda”
It is clear from the legislative history of the New Mexico judicial selection
system and the constitutional text that the supermajority requirement is “for the
election of public officers”206 and not “in essence a referendum on whether a
particular judge shall be retained in office.”207 Although the architects of the
New Mexico merit selection system envisioned a system devoid of partisan
political wrangling, they nevertheless created a system that included a series of
partisan and retention elections.208
Even if the Illinois system is correctly characterized as a referendum, the
New Mexico judicial selection system, including its supermajority retention
requirement, is distinguishable in several fundamental ways.209 The New
Mexico supermajority requirement is contained in a section of the state
Constitution entitled “Judicial elections,” which refers to both “partisan
election” and subsequent “nonpartisan retention election.”210 In this way, the
New Mexico Constitution expressly classifies both partisan and retention
elections as elections and not as referenda.211 The electoral ballot itself
provides further proof that retention elections are in fact elections by labeling
the section “Election of Nonpartisan Judges.”212 Indeed, the New Mexico
Constitution further distinguishes referenda by requiring only a simple
majority vote with respect to most referenda, as opposed to the supermajority
205 See King, supra note 94, at 165 (postulating that the Gordon Court, “without
explicitly overruling any Supreme Court precedent . . . seemed to look toward the
supermajority part of the thicket and simply conclude, ‘we don’t want to go there’”).
206 See Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971) (declining to express a binding opinion
as to supermajority requirements for the election of public officers).
207 See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1011 (N.D. Ill. 1975)
(holding that Illinois judicial retention elections function as referenda).
208 See supra Part II (detailing the New Mexico judicial election system and its framers’
goals).
209 See Ex rel. Salinas Petitioners’ Reply, supra note 88, at 19:
The Lefkovits court came to the wrong conclusion in labeling a judicial retention
election as a referendum, unless the nature of referendum in Illinois varies greatly from
the nature of referendum in New Mexico, where “. . . people have a much narrower
right of referendum than is allowed in any other state in which the right is reserved.”
Lefkovits simply is inapplicable.
(citation omitted).
210 N.M. CONST. art. VI, § 33 (emphasis added).
211 Moreover, the New Mexico Constitution makes no reference to retention elections as
“referenda” either explicitly or implicitly.
212 See, e.g., Official General Election Ballot, Hidalgo County, New Mexico (Nov. 2,
2004) (emphasis added).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
205
required in judicial retention elections.213 Moreover, referenda and judicial
elections are distinguishable in that campaigns regarding the former, in
contrast to the latter, are not subject to the same ethical rules.214
The Illinois Constitution, on the other hand, sets forth its judicial selection
procedures in a section entitled “Election and Retention.”215 By doing so, the
text and structure of the Illinois Constitution draw a distinction between
partisan elections and nonpartisan retention, making it apparent that the
drafters did not consider such events equivalent. Additionally, unlike Illinois,
the New Mexico judicial selection system does not grant New Mexico judges a
choice between running in a partisan election or seeking nonpartisan
retention.216 More generally, elections involving public officials are inherently
different from referenda in both process and purpose.217 Therefore, a court
considering the New Mexico supermajority requirement should recognize the
distinction and find the supermajority requirement to be an “extraordinary
majorit[y] for the election of public officers”218 and, because it is distinct from
the Illinois requirement, not controlled by the reasoning and holding in Gordon
213 See infra notes 258-261 and accompanying text (describing the types of referenda for
which the New Mexico Constitution requires only majority approval).
214 See infra Part V.C (detailing the relevant ethical rules applicable to judicial
campaigns).
215 ILL. CONST. art. 6, § 12 (emphasis added).
216 See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1007-08 (N.D. Ill. 1975).
In Illinois, an incumbent judge may choose to seek to retain his or her office through a
nonpartisan retention election. The Illinois constitution states in pertinent part:
Not less than six months before the general election preceding the expiration of his
term of office, a Supreme, Appellate or Circuit Judge who has been elected to that
office may file in the office of the Secretary of State a declaration of candidacy to
succeed himself. . . . The names of Judges seeking retention shall be submitted to the
electors, separately and without party designation, on the sole question whether each
Judge shall be retained in office for another term. . . . The affirmative vote of threefifths of the electors voting on the question shall elect the Judge to the office for a term
commencing on the first Monday in December following his election.
ILL. CONST. art. 6, § 12(d). Alternatively, an incumbent judge may choose to seek reelection
by partisan election. The pertinent section states:
Supreme, Appellate and Circuit Judges shall be nominated at primary elections or by
petition. Judges shall be elected at general or judicial elections. . . . A person eligible
for the office of Judge may cause his name to appear on the ballot as a candidate for
Judge at the primary and at the general or judicial elections by submitting petitions.
Id. § 12(a). In New Mexico, on the other hand, incumbent judges can only retain their
office through nonpartisan retention elections. N.M. CONST. art. VI, § 33A states that each
incumbent judge, after winning an initial partisan election, “shall be subject to retention or
rejection on a nonpartisan ballot.” (emphasis added).
217 See supra notes 192-204 and accompanying text.
218 See Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971) (limiting the court’s holding by
refusing to extend the decision to extraordinary majorities for the election of public
officers).
206
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
or Lefkovits.219
E.
Additional Equal Protection Concerns
Regardless of the distinction between elections and referenda, New
Mexico’s supermajority requirement is distinguishable from that considered by
the Lefkovits court. As such, application of the rationales relied on by the
Gordon Court to uphold the West Virginia supermajority requirement would
still not justify upholding the New Mexico supermajority requirement.
Guided – or perhaps misguided – by Gordon, the Lefkovits court was
equally vague with respect to the type of analysis and standard of review that
applied to the Illinois supermajority requirement. The Lefkovits court first
determined that there was no denial of the franchise to any particular group, in
spite of the fact that no one alleged vote denial.220 In other parts of the
opinion, the court seemed to settle on the one-person, one-vote analysis.221 For
example, the court found that “when a judge is to be elected or retained,
regardless of the scheme of apportionment, the equal protection clause requires
that every qualified elector be given an equal opportunity to vote and have his
vote counted. This is the essence of the one-person-one-vote principle.”222
However, the court then misconstrued and diminished the weight and
principles of the Supreme Court’s one-person, one-vote cases by finding that
these cases only applied to geographic discrimination, that is, weighting or
diluting a citizen’s vote based on where he or she lived.223 The court stated
that the “Illinois judicial retention process does not suffer from this infirmity”
219 Cf. Christopher J. Soller, “Newtonian Government:” Is the Contract with America
Unconstitutional?, 33 DUQ. L. REV. 959, 979 (1995) (finding Gordon not “dispositive of the
constitutionality of a House Rule requiring a supermajority to pass simple legislation”
because Gordon’s footnote six “exemplifies that in Gordon, the Court was focusing
specifically on whether a supermajority requirement in a referendum election was
constitutional”) (emphasis added).
220 Lefkovits, 400 F. Supp. at 1011-12 (stating that “[t]he Illinois constitutional provision
does not arbitrarily deny the franchise to any particular group” and that “[a]ll otherwise
qualified voters are entitled to vote on the question of whether a judge should be retained”).
221 See id. at 1012-13 (explaining that “[t]o decide that the Illinois judicial retention
article must be compatible with the one-person-one-vote requirement only begins the
inquiry” because “[t]he next step is to determine the scope of the principle and its
applicability to the particular facts at hand”).
222 Id. at 1012.
223 See id. at 1013 (relying on cases where sparsely populated rural districts were given
equal voting and legislative power as more populous urban districts). As a threshold
principle, the one-person, one-vote cases also made clear that each citizen’s vote must be
weighted equally. See King, supra note 94, at 165 (arguing that “[t]he Court’s opinion in
Gordon is all but inexplicable when viewed in the context of stare decisis and general tenets
of judicial interpretation” because “[i]t simply does not seem possible to identify any
principled, coherent theory that would reconcile the Court’s decision in Gordon with its
prior rhetoric and actions in the area of equal protection”); see also supra Part III.A.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
207
because “[e]ach voter is entitled to cast one vote and that vote is counted at the
same value as any other voter’s” without any “geographic discounting.”224
The court also rejected the plaintiff’s argument that “his vote does not have
the same marginal impact on the outcome of the election as a voter of a
different persuasion,” calling this “merely an assertion that the majority will
must prevail in a judicial retention election.”225 The court never cited,
discussed, or applied the long line of reapportionment cases thick with
language on the importance of majoritarianism and giving equal weight to
every vote.226 The court instead dismissed the cases as “some language in the
reapportionment cases to the contrary” and found no principle of
majoritarianism in the Supreme Court’s jurisprudence.227 The Lefkovits court
based its conclusion that the Constitution does not require majoritarianism on
the same faulty reasoning as the Gordon Court – the misinterpretation of
Fortson v. Morris.228 Without further explanation, the Lefkovits court
summarily found that “[t]he preceding discussion necessitates the conclusion
that a denial of majoritarianism does not deny political equality to those who
favor the retention of judges.”229 The court stated that “the plaintiff must go
further and show that the retention provision is designed to dilute the voting or
representational strength of a particular identifiable political element.”230
Even applying Gordon as Lefkovits did, a court considering the New Mexico
supermajority requirement could find a violation of Equal Protection. The
New Mexico supermajority requirement is properly construed as an electoral
rule because it affects the weighting of votes and thus impairs the franchise.231
A supermajority rule in the context of a referendum, as in Gordon, indeed
results in the underweighting of votes, but “does not dilute anyone’s right to
vote – every citizen has the same opportunity to influence the outcome as any
other. It simply makes it more difficult for the more burdensome position to
224
Lefkovits, 400 F. Supp. at 1013.
Id. at 1013-14.
226 See generally id.; see also supra Part III.A (explaining reapportionment cases decided
prior to Gordon, in which the Supreme Court found violations of the Equal Protection
Clause).
227 Lefkovits, 400 F. Supp. at 1014.
228 See id. (citing Fortson v. Morris, 385 U.S. 231 (1966), which found no constitutional
violation when, pursuant to the Georgia Constitution, the Georgia state legislature selected a
Governor because no candidate received a majority of the popular vote); see also supra
notes 160-164 and accompanying text (explaining the misinterpretation of Fortson that led
the Supreme Court to conclude that the Constitution does not require majoritarianism).
229 Lefkovits, 400 F. Supp. at 1014.
230 Id.
231 Petitioners in the New Mexico challenge contended that “[a] change in the weight
given to a person’s vote, even if that change is constitutional, affects that person’s vote. A
57% vote requirement weighs the votes in judicial retention elections differently and thereby
affects the elective franchise.” Ex rel. Salinas Petitioners’ Reply, supra note 88, at 7.
225
208
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
win at the polls.”232 Thus in the referendum context, a supermajority
requirement discriminates between action and non-action, but, not between
classes of voters.233 New Mexico’s supermajority requirement, by contrast,
operates in the context of an election of public officials and impairs the right to
vote by impermissibly underweighting the votes in favor of retention vis-à-vis
rejection of an incumbent judge.234 Equal Protection prevents states from
making it more difficult for one candidate to be victorious by making votes in
his or her favor of unequal value.235 Because New Mexico’s supermajority
requirement affects the fundamental right to vote in this way, the court should
apply strict scrutiny pursuant to one-person, one-vote analysis236 in considering
the constitutionality of the provision.
Under this standard, in order to uphold the New Mexico supermajority
requirement, a court would have to identify a compelling government interest
232
Recent Case, Lance v. Board of Educ., 170 S.E.2d 783 (W. Va. 1969), cert. granted
sub nom. Gordon v. Lance, 90 S. Ct. 1264 (1970), 83 HARV. L. REV. 1911, 1918 (1970).
233 Id. at 1917.
234 See id. at 1916-17. This anonymous case brief states that
[i]n a candidate election, state action making more difficult the victory of one of the
two candidates may well impair the right to vote. So long as the elected government
official is viewed as standing in for a group of citizens, equal protection requires that
each elected official stand in for an equal number of people and that he be the choice of
more of his constituents than any other candidate. Any other result implies either that
one candidate is legally preferable to another or that some people are entitled to more
representation than are others. Neither of these implications is consonant with equal
protection. In the context of a candidate election, all choices are of equal value – all
legally qualified candidates are, by definition, equal in the eyes of the law. Hence a
state may not weight votes according to the candidate for whom they are cast, even if
the candidate whose votes will be more heavily weighted is not predetermined.
Id. (emphasis added). While retention election and partisan election between two candidates
are by no means identical, this Note contends that they are fundamentally analogous and
that retention elections should be accorded similar Equal Protection treatment as regular
partisan elections, and thus distinguished from referenda.
235 Id.
236 See King, supra note 94, at 148 (“[I]f supermajority voting rules are seen to infringe
upon the right to vote, the appropriate level of review would be strict scrutiny in that the
right to vote has previously been classified as a ‘fundamental right.’”). But cf. Recent Case,
supra note 232. The case brief advocates a less stringent review in the context of
supermajority requirements for referenda:
Unless the courts are willing to impose an absolute standard of majoritariansm and thus
force the states to ignore real differences between the burdens imposed by different
proposals, they should refrain from an active review of extraordinary majority
requirements. Active review would place the courts in the position of deciding in each
case whether the position discriminated against did in fact entail greater burdens than
the favored position, and whether the required majority was drawn with sufficient
precision to achieve the consensus necessary to undertake action involving that degree
of added burden. In making such judgments the courts would have no guide but their
own political instinct.
Id.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
209
to justify the departure from Equal Protection. The New Mexico retention
system was implemented with the dual purposes of assuring a politically
The Lefkovits court found
independent yet accountable judiciary.237
justification for the Illinois supermajority requirement in the notion that a
simple majority requirement would render “almost impossible” the removal of
judges “who had lost public confidence.”238 Such reasoning fails to amount to
even a rational government interest, let alone a compelling interest, because the
notion that “a judge who has received a majority vote . . . can be said to have
lost the confidence of the voters is beyond rational explanation.”239 Indeed, the
policy considerations discussed in Part V demonstrate that the supermajority
requirement actually undermines the assurance of an independent yet
accountable judiciary by placing even more pressure on judges to campaign,
while simultaneously constraining their ability to do so in an ethical yet
effective manner.240 In light of such considerations, the supermajority
requirement cannot be justified as a narrowly tailored measure even rationally
related to serving a compelling state interest.241
A close examination of the legislative intent and history behind the
supermajority requirement discloses even more problems.
First, the
supermajority requirement was an ad hoc change to a carefully drafted,
publicly-debated judicial selection reform.242 The legislative history also
indicates that dislike for certain judges and desire to find a way to control
judges in the absence of partisan elections played at least some role in the New
Mexico legislature’s eventual passage of the requirement.243 In response to a
237
See supra notes 41-47 and accompanying text.
Lefkovits, 400 F. Supp. at 1015.
239 Ex rel. Salinas Petitioners’ Reply, supra note 88, at 20; see also supra note 25 and
accompanying text (explaining that the merit selection system is designed to avoid removals
except in egregious cases).
240 See infra Part V.
241 But cf. Fisk & Chemerinksy, supra note 164, at 245 (contending that the
supermajority rule required to overcome a Senate filibuster is unconstitutional only if it
“offends some other constitutional principle besides majoritariansm,” but that “no other
viable constitutional arguments seem to exist” because “[f]ilibusters. . . cannot be attacked
on the ground they are arbitrary and unreasonable, rendering them unconstitutional.
Reasonable people can differ as to whether it is desirable to have a strong presumption in
favor of allowing debate to continue”).
242 Telephone Interview with W. John Brennan, supra note 34; see also supra notes 6170 and accompanying text.
243 Telephone Interview with W. John Brennan, supra note 34 (explaining that an ad hoc
group of attorneys proposed a supermajority of 65% in order to preserve active campaigning
under the merit system and to decrease judicial support for the merit system); Telephone
Interview with Joseph Baca, supra note 42 (explaining how the resulting 57% number was a
compromise between a lawyer’s initial proposal of 75% and legislative and judicial
concerns that the proposed percentage was too high); see also supra note 64 and
accompanying text.
238
210
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
constitutional challenge, the state would be hard-pressed to justify these
motivations as compelling.244
As in Gordon, the Lefkovits court found no “identifiable class of voters”
against whom the Illinois supermajority requirement discriminated,245 probably
because much like the Gordon Court, the Lefkovits court did not properly
distinguish the doctrine.246 One-person, one-vote cases are concerned with
dilution and improper weighting of votes, while political process cases focus
on the effects of a voting requirement on an identifiable group.247 Following
Gordon almost without discussion, the Lefkovits court refused to identify a
class of voters against whom the Illinois supermajority requirement
discriminated.248 Although the focus on an “independently identifiable group”
is wholly misplaced in a one-person, one-vote case, two classes are readily
identifiable with respect to the New Mexico supermajority requirement: judges
seeking retention and voters who believe they would benefit from, inter alia,
the stability of an incumbent judge’s retention.249
From there, the Lefkovits court simply concluded that Gordon was
“persuasive authority in support of the validity of the Illinois judicial retention
system” and, because the supermajority requirement actually constituted a
referendum, “an extraordinary majority requirement is constitutionally
244 The state might argue that the supermajority requirement replaced a layer of
accountability that removing contested, partisan elections took away. In light of the history
and intent detailed in this Note, such an argument should not withstand scrutiny. See U.S. v.
Virginia, 518 U.S. 515, 532 (1996) (holding that the state’s justification for a discriminatory
classification “must be genuine, not hypothesized or invented post hoc in response to
litigation”).
245 Gordon v. Lance, 403 U.S. 1, 5 (1971); accord Lefkovits v. State Bd. of Elections,
400 F. Supp. 1005, 1015-16 (N.D. Ill. 1975).
246 As discussed previously, “the failure of the [c]ourt to find an ‘independently
identifiable class’ . . . seems in large part the result of its abject confusion over vote dilution
and political process equal protection analysis.” King, supra note 94, at 151 (criticizing the
Gordon Court’s failure to distinguish between dilution and political process cases).
247 See supra notes 128-129 and accompanying text.
248 See Lefkovits, 400 F. Supp. at 1011-12 (determining that “if the section does not
authorize discrimination against an identifiable class there can be no violation of the equal
protection clause”).
249 See King, supra note 94, at 153 (arguing that, in a political process equal protection
case, the focus “should be on the class of individuals affected by the supermajority rule, not
on those casting ballots”); see also supra note 135 and accompanying text. Calvert would
find a third “independently identifiable group,” the majority “yes” voters. See Calvert,
supra note 120, at 404. Calvert asserted that “in Gordon, the Court erred. There is an
identifiable class of citizens that is disadvantaged. The majority of voters who voted ‘yes’
had been disenfranchised because their votes were given less weight than those who had
voted ‘no.’” Id. He added that the Court, in recognition that perhaps it “had gone out on a
limb in relation to the one person-one vote principle,” may have cabined its holding by
adding footnote six, which stated that it was inapplicable to the election of public officials.
Id.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
211
permissible so long as it does not discriminate against an identifiable class of
voters.”250 The Lefkovits court observed that, like the Gordon Court, it had not
passed on the question of supermajority requirements for the election of public
officials.251
Although the Lefkovits court never reached the question, a court examining
the New Mexico supermajority requirement would not be able to find
justification for it under Gordon’s neutral application rationale.252 Rather,
New Mexico “singles out [a] ‘discrete or insular minority’ for special
treatment”253 in two ways – by applying the supermajority requirement only to
judges and not to other elected officials, and by applying it only to incumbent
judges running in retention elections and not to judges running in partisan
elections. Therefore, the New Mexico supermajority requirement is not
applied in a neutral fashion.
The federal analogy, discussed previously, is inapposite because there is
little, if any, similarity between the supermajority provisions in the federal
Constitution, which help form the fundamental federal structure, and a
supermajority requirement for the election of certain state judges.254
Therefore, the court should give little, if any, weight to Gordon’s federal
analogy reasoning in determining the constitutionality of the New Mexico
supermajority requirement.
The intergenerational rationale255 also fails to provide justification for the
New Mexico supermajority requirement, which applies to judges being
retained for terms ranging from four to eight years.256 Such periods of time
can hardly be considered to affect intergenerational concerns, especially
because a judge’s mandate is to interpret and apply the law, not to make
policy.257
250
251
252
Lefkovits, 400 F. Supp. at 1014-15.
Id. at 1015.
See Gordon v. Lance, 403 U.S. 1, 5; see also supra notes 139-148 and accompanying
text.
253
See Gordon, 403 U.S. at 5. The term “discrete and insular minority” is used here as
the Gordon Court used it and not in the normal Carolene Products footnote four sense. See
supra note 139 and accompanying text.
254 See supra notes 149-151 and accompanying text (deconstructing the analogy between
the West Virginia supermajority requirements and the supermajority requirements in the
federal Constitution).
255 See supra notes 152-159 and accompanying text.
256 New Mexico Supreme Court justices and court of appeals judges serve eight-year
terms; district court judges serve six-year terms; and metropolitan court judges serve fouryear terms. N.M. CONST. art. VI, § 33(B)-(D).
257 While some observers argue that judges in merit selection systems essentially serve
life tenures, incumbency plays an equally strong role in other elections for public office.
See Lefkovits v. State Bd. of Elections, 400 F. Supp. 1005, 1015 (N.D. Ill. 1975) (explaining
that a majority of Illinois delegates believed that a requirement of anything less than 60%
“would make it almost impossible to remove judges”). Furthermore, because the New
212
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
Unlike in many states, the New Mexico Constitution does not, in general,
require supermajorities for most legislative action. While many states require
supermajorities for certain types of legislative referenda, including the
incurrence of debt, the New Mexico Constitution requires only a simple
majority vote.258 Even with respect to amending its constitution, New Mexico
generally requires only a simple majority vote for ratification.259 Furthermore,
one of the two types of constitutional amendments for which the New Mexico
Constitution requires a supermajority is any amendment that restricts voting
rights.260 Such amendments require approval by 75% of both houses of the
New Mexico legislature, as well as 75% of the electorate.261 It would be
difficult for a court to justify the New Mexico judicial retention supermajority
based on this ‘do-it-too’ rationale because New Mexico only rarely requires
legislative supermajorities, and when it does, these supermajorities are
intended to protect voting rights, the very rights abrogated here.
The Gordon Court refused to acknowledge a constitutional principle of
majoritarianism based on the Court’s reasoning in Fortson v. Morris.262
Perhaps most distressing, the Gordon Court dismissed the long line of oneperson, one-vote cases that stand precisely for the principle of
majoritarianism.263 Popular sovereignty, realized through the fundamental
principle of majority rule, is one of the United States’ basic democratic
Mexico judicial selection system requires a supermajority for retention and because, as
discussed infra in Part V.E even nonpartisan retention elections are becoming more difficult
political affairs, concerns about life tenure should not be dispositive of the resolution of this
question. Moreover, the Gordon Court’s confused reasoning discounts the importance and
applicability of this factor. See supra notes 152-159 and accompanying text.
258 N.M. CONST. art. IX, § 10 (stating that county indebtedness “shall be incurred only
after the proposition to create such debt has been submitted to the registered voters of the
county and approved by a majority of those voting thereon”); id. § 12 (stating that local
government indebtedness shall be incurred only based on “a majority of those voting on the
question”); see also id. art. IV, § 1 (requiring a “majority of the legal votes . . . and not less
than forty per centum of the total number of legal votes cast” to repeal laws enacted by the
legislature).
259 Id. art. XIX, § 1 (stating that “[a]n amendment that is ratified by a majority of the
electorate voting on the amendment shall become part of this constitution”).
260 Id.
No amendment shall restrict the rights created by Sections One and Three of Article
VII hereof, on elective franchise . . . unless it be proposed by vote of three-fourths of
the members elected to each house and be ratified by a vote of the people of this state
in an election at which at least three-fourths of the electors voting on the amendment
vote in favor of that amendment.
261 Id.
262 Gordon v. Lance, 403 U.S. 1, 6 (1971) (citing Fortson v. Morris, 385 U.S. 231 (1966);
see also supra notes 160-164 and accompanying text (asserting that the Gordon Court
misconstrued the import of Fortson).
263 See supra Part III.A.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
213
values.264 The Gordon opinion is therefore “surprising given the Court’s selfappointed task as keeper of the majoritarian process flame.”265 Justice Harlan,
concurring in Whitcomb, also questioned how the Court could reconcile its
decision in Gordon with the Court’s past precedent of majoritarianism, stating
that the Court would have reached a different result “[i]f this philosophy of
majoritarianism had been given its head . . . for it is the very nature of the
principle that it regards majority rule as an imperative of social organization,
not subject to compromise in furtherance of merely political ends.”266 Harlan
cautioned the Court that “[i]f majoritarianism is to be rejected as a rule of
decision, as the Court implicitly rejects it [in Gordon] today, then an
alternative principle must be supplied if this earlier line of cases . . . is still to
be regarded as good law.”267
In considering the New Mexico supermajority requirement, a court should
find that the requirement cannot be justified under any of the rationales set
forth in Gordon, and, moreover, that it violates the principle of majoritarianism
on which the Supreme Court has expounded in the long line of one-person,
one-vote cases.268 A court considering the New Mexico supermajority
requirement should be careful not to misapply Gordon and the one-person,
one-vote principle or avoid the issue in the way that the Lefkovits court did
with respect to the Illinois supermajority requirement.269 Accordingly,
applying heightened scrutiny and the proper analysis, a court could find that
the New Mexico supermajority requirement violates Equal Protection under
the Fourteenth Amendment based on the abridgement of the voting rights of
the class identified above.
IV. THE NEW MEXICO SUPERMAJORITY REQUIREMENT RAISES IMPORTANT
POLICY AND POPULAR SOVEREIGNTY ISSUES
The New Mexico supermajority requirement also raises important policy
and popular sovereignty issues that the courts, legislature, and people of New
Mexico should carefully consider.270 As previously noted, the legislative
264
See King, supra note 94, at 133.
Id. at 171-72 (recognizing that the Supreme Court, in prior cases, “would closely and
thoroughly examine any rules that mandate departures from majoritarianism” but that it
failed to do so in Gordon).
266 Whitcomb v. Chavis, 403 U.S. 124, 167 (1971) (Harlan, J., concurring) (referring to
Gordon, which was decided the same day as Whitcomb).
267 Id.
268 See supra note 96 and accompanying text.
269 It is not surprising that the Lefkovits court got it wrong given the confusion generated
by Gordon. See King, supra note 94:
The Court’s justification for its holding in Gordon and the discussions of its reasoning
in light of past voting rights and equal protection cases is so addled that lower courts
often cite Gordon’s reasoning without a clear understanding of its shortcomings, which
often leads to confusion over the application of its rationale to cases at bar.
270 The Author does not dispute the fact that states have broad power to determine how
265
214
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
history of the New Mexico supermajority requirement demonstrates the
arbitrariness of the 57% figure.271 Thus, the question arises whether a 65%
requirement – or even a 75%, 80%, or 90% requirement – would be
permissible. Although the Gordon Court stated in a footnote that its holding
“intimate[d] no view on the constitutionality of a provision requiring
unanimity or giving a veto power to a very small group,”272 it is difficult to
discern any constitutional principle that would distinguish between a 57% and
a 99% rule.273 Even if there is no constitutional principle of majoritarianism,
as the Gordon Court suggests, this arbitrariness certainly raises questions about
the legitimacy of such a requirement.
And if the Constitution puts up no barrier against supermajority
requirements for judicial elections, why not also require legislators and the
their officials are elected. See e.g., Sugarman v. McDougall, 413 U.S. 634, 647 (1973)
(stating that “‘[e]ach State has the power to prescribe the qualifications of its officers and
the manner in which they shall be chosen’” including “persons holding state elective and
important nonelective executive, legislative, and judicial positions” (quoting Boyd v.
Thayer, 143 U.S. 135, 161 (1892))); see also supra note 86.
271 See supra notes 64-65 and accompanying text.
272 Gordon v. Lance, 403 U.S. 1, 8 n.6 (1971).
273 See Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment
Outside Article V, 94 COLUM. L. REV. 457, 503 (1994) (stating that “[o]nce majority rule is
abandoned, there is no logical stopping point between, say, a 50% plus two rule, and a
99.9% rule). King contends that
[t]he [Gordon] footnote’s first sentence on small group vetoes is understandable but
problematic. It is conceivable, given the Court’s ruling in Gordon, that a state might
adopt a provision that required, say, 90 percent of all voters to approve a certain type of
referendum, thus giving a practical veto over certain policy decisions to a mere 10
percent of voters. While such a provision may seem unwise or patently unfair in light
of democratic norms, it is difficult to see how it is constitutionally distinguishable from
the situation in Gordon. The Court is intimating that it might be able to find
somewhere in the Constitution the notion that, for example, an 89.9 percent
supermajority voting rule is permissible, while a 90 percent supermajority rule would
be unconstitutional. Even in the grayest penumbras and deepest emanations of equal
protection theory such a line could never be viewed as anything but the arbitrary
adoption of a naked preference wrapped in the garb of legal rulemaking.
King, supra note 94, at 169; see also King, supra note 120:
The failure of American political and legal theorists to craft . . . a theory [of
supermajoritariansm] is due in part to its perceived consequences. Any theory that
might justify the use of a three-fifths (60%) or two-thirds (66.6%) decision rule should
be equally effective at justifying a nine-tenths (90%) decision rule, or even the rule of a
single person (99.9999%). Once simple majority rule is departed from, there is no
logical stopping point between a fifty-one percent rule and autocracy, and so political
and legal theorists – staring at a slippery slope of supermajoritarian theory that would
seem necessarily to imply a justification for dictatorship – back away from the
precipice and instead choose either to reframe the question or deny the existence of a
wholly principled solution.
(citations omitted).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
215
governor to garner a supermajority?274 These officials certainly affect policy
to the same extent, if not more than, judges. As New Mexico elections include
both legislative and judicial contests on the same ballot, it seems problematic
to apply different voting margins to each, especially with no such indication on
the ballot.275 Moreover, it must be disorienting for the voter, assuming the
voter is aware of the different rules, to realize that he or she must think
differently about his or her vote for judges as opposed to legislators because
each vote signifies a different effect on the outcome of the election.276
V.
THE NEW MEXICO SUPERMAJORITY REQUIREMENT COMPOUNDS THE
PROBLEMS MERIT SELECTION WAS DESIGNED TO ADDRESS
Setting aside the theoretical problems, the supermajority requirement
clashes directly with the original intent behind New Mexico’s shift to a merit
selection system. The architects of Amendment Six, seeking a stable judiciary,
designed a nonpartisan, majoritarian system intended to insulate the judiciary
from partisan politics to the greatest degree possible without completely
removing citizen participation.277 Although the architects were willing to
274
Moreover, the fact that legislators are determining the margin by which judges should
be retained in office clearly implicates fundamental separation of powers concerns;
however, a complete separation of powers analysis is beyond the scope of this Note.
275 Moreover, when Amendment Ten was on the ballot, no concerted public outreach
campaign explained the significant change this Amendment would effect. See supra notes
69-70 and accompanying text. The lack of public debate on Amendment Ten stands in stark
contrast to the debate and public outreach campaigns with respect to Amendment Six. See
supra notes 49-50 and accompanying text.
276 That different significance is potentially much more than seven percentage points
(i.e., the amount greater than a majority that judges in retention elections must garner) since
other officials need only win a plurality of the vote (i.e., one vote more than the other
candidate, and not necessarily a majority, or one single vote in the case of uncontested
races). See also infra notes 286-288 and accompanying text (referring to the voter apathy,
abstention, and confusion often associated with judicial retention elections).
277 See Larry Calloway, Op-Ed., Judicial Re-tension, ALBUQUERQUE J., Jan. 21, 1997, at
1:
The special commissions that nominate district judge candidates for consideration by
the governor have a ticklish problem to solve this week in Alamogordo and Deming.
In both judicial seats the applicants for appointment include people who are qualified,
have experience on the bench and recently won the support of a majority of the voters
in their districts.
Problem: the candidates . . . lost their seats because in the November election they fell
just short of the 57 percent majority required for judicial retention by a new
constitutional amendment.
....
. . . The best guess is both will be nominated, among others. Then it becomes the
governor’s problem. If he follows the “will of the majority” in each district, he’ll have
to reappoint them.
(emphasis added).
216
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
compromise by including one partisan election at the beginning of a judge’s
term, they were certain that their goals of nonpartisanship and reducing the
need for campaigning and fundraising would be achieved at the retention
election stage.278 Amending the system nearly a decade later to require a 57%
retention margin clearly undermines the merit selection system because, as the
following discussion illuminates, even retention elections that require only a
simple majority vote are becoming “noisier, nastier, and costlier.”279 The
presence of a supermajority requirement only compounds the problem and may
have destabilizing effects on the judiciary.
A.
Retention Margin Impacts Retention Rate
The vast majority of judges are retained.280 However, the retention
threshold can have an impact on the rate of retention. A 1994 study examining
2,641 judicial retention elections in the United States between 1980 and 1990
found that voters rejected only thirty-four judges, or about 1%.281 However, of
those thirty-four judges not retained, eighteen of them (more than 50%) were
from Illinois, where retention requires a 60% supermajority vote.282 While the
study was concluded in 1994, the year New Mexico increased its margin to
57%, it is possible that New Mexico’s supermajority rate could have a similar
effect on retention rates.
Additionally, a 1999 study of the period between the 1960s and 1998
revealed that only fifty-two of 4,588 judges were not retained.283 Strikingly,
while Illinois retention elections composed only about one-third of the survey,
more than half of the defeated judges were from Illinois.284 The study also
found that of the twenty-eight defeated Illinois judges, only one failed to
278
See supra notes 46-47 and accompanying text.
See Woodbury, supra note 28, at 74 (quoting Georgetown Law Professor Ray
Schotland for the contention that merit selection has not depoliticized the judicial selection
and retention process). Although Brennan thinks that the system has accomplished many of
the goals he and his colleagues set out to achieve, the benefits do not outweigh the problems
that the supermajority requirement has created. Brennan believes the supermajority
requirement is too high and that it should be changed back to a simple majority. Telephone
Interview with W. John Brennan, supra note 34; see also supra note 67 and accompanying
text.
280 Larry Aspin, Trends in Judicial Retention Elections, 83 JUDICATURE 79, 79 (1999);
see also supra note 25 and accompanying text.
281 Luskin, supra note 23, at 319 (covering all retention elections in that time period
except those in Alaska between 1980 and 1984, Kansas between 1982 and 1990, and Utah
in 1988).
282 Id. at 320.
283 Aspin, supra note 280, at 79 (covering all retention elections in Alaska, Arizona,
Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, and Wyoming between 1964
and 1998).
284 Although Illinois retention elections composed only 32.7% of the survey, 53.8% of
defeated judges were from Illinois. See id.
279
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
217
garner a majority of the vote.285 In other words, had the requirement been a
simple majority of the vote, twenty-seven of the twenty-eight judges would
have been retained. The study was concluded only four years after New
Mexico instituted its supermajority requirement and does not mention New
Mexico’s experience. However, as with the previous study, it seems possible
(if not likely) that New Mexico’s supermajority requirement could have a
similar impact to that in Illinois. The people of New Mexico should carefully
assess New Mexico’s supermajority requirement in light of these studies to
determine whether such an effect is in the best interests of a system intended to
provide for long tenures, stability, and insulation from politics.
B.
Voter Apathy, Abstention, and Confusion Are Especially Problematic in
Judicial Retention Elections
Judicial retention elections, even more so than partisan judicial elections,
suffer from a significant level of voter apathy, abstention, and confusion.
Empirical studies suggest that the more voters know about the candidates, the
more likely they are to vote.286 This is bad news for judicial elections, which
are characterized by “the dearth of meaningful information typically provided
to voters.”287 This information access problem only increases in judicial
retention elections because voters are unable to rely on the ballot itself to
provide any information beyond name and incumbency.288
Due to the information access problems, abstention in judicial retention
elections is strikingly high.289 Approximately one-third of voters who vote in
other races on the ballot abstain from voting in retention elections.290 As one
commentator explains, “[r]etention elections, devoid of partisan cues, force
most voters to make a decision on which they have no basis for judgment.
Small wonder, then, that most abstain, and most of the rest vote blind.”291
New Mexico should examine the issue of voter confusion and, at the least,
mount a public information campaign to educate voters with respect to how
285
Id.
See Hojnacki & Baum, supra note 40, at 301 (analyzing how differences in
information provided to voters affect voter behavior).
287 See id.
288 See id. at 300-01 (stating that “judicial voters rely heavily on name recognition and
information provided by the ballot itself”).
289 See Luskin, supra note 23, at 318 (observing that low turnout is “rooted in public
ignorance and apathy”).
290 B. Michael Dann & Randall M. Hansen, Judicial Retention Elections, 34 LOY. L.A. L.
REV. 1429, 1431 (2001) (reporting on a study of retention elections in Alaska, Arizona,
Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, and Wyoming during the
period 1964-1994, which indicated that “rolloff rates do not correlate with the rate of
affirmative votes”) (citing Larry Aspin et al., Thirty Years of Judicial Retention Elections:
An Update, 37 SOC. SCI. J. 1, 12 (2000)).
291 Luskin, supra note 23, at 319.
286
218
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
retention elections function and what it means to vote “yes” as opposed to
“no.”
Although the vast majority of judges are retained in office and with wide
margins,292 a recent study indicates that total affirmative vote percentages
declined in the period from 1964 to 1994.293 This trend could signal “a greater
vulnerability to defeat than previously known in judicial retention
elections.”294 Because long tenure and stability are two of the purposes of
merit selection, the people of New Mexico should take note of this trend in
thoughtfully reassessing the supermajority requirement and the undermining
effect it may have on merit selection in the state.
C.
Judicial Ethics and Campaign Rules Put Judges at a Disadvantage,
Particularly in Retention Elections
The supermajority requirement also raises the electoral hurdles that judges
already face, including ethical and legal constraints on campaign speech,
campaigning in general, and fundraising.295 Simply stated, it is “easy . . . to
target judges for removal,” but “difficult . . . for targeted judges to defend
themselves.”296
In New Mexico, judges must declare their intention to seek retention.297 In
addition, they are constrained from actively raising money and campaigning
unless they are opposed.298 However, such campaign disclosure requirements
292
Aspin, supra note 280, at 79 (finding that all of the states’ mean affirmative votes
within the scope of the study were “well above the thresholds required for retention. Thus,
the vast majority of judges have been retained; only occasionally have voters removed them
from the bench”); see also supra note 25 and accompanying text.
293 Aspin, supra note 290, at 3.
294 Dann & Hansen, supra note 290, at 1430.
295 Supreme Court Justice Anthony Kennedy has stated that
the campaign process itself does not easily adapt to judicial selection. Democracy is
raucous, hurly-burly, rough-and-tumble. This is a difficult world for a jurist, a
scholarly, detached neutral person to operate within. So, the whole problem of judicial
campaigns is . . . difficult for us to confront. Now, when you add the component of
this mad scramble to raise money and to spend money, it becomes even worse for the
obvious reason that we’re concerned that there will be either the perception or the
reality that judicial independence is undermined.
See
Justice
For
Sale,
Frontline,http://www.pbs.org/wgbh/pages/frontline/shows/justice/etc/justicest.html
(last
visited Nov. 27, 2005).
296 Reid, supra note 26, at 75 (positing that the electoral advantages that state election
laws provide opposition groups may actually encourage special interest groups and other
political actors “to mount ouster campaigns”).
297 N.M. CONST. art. VI, § 34 (requiring judges to file “a declaration of candidacy for
retention of office” on the same day “as that for filing a declaration of candidacy in a
primary election”).
298 New Mexico’s Code of Judicial Conduct prohibits judges from responding unless
they have been ‘attacked.’ See N.M. SUP. CT. R. ANN. 21-700-B (1995).
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
219
and filing deadlines are difficult to interpret and apply especially in the context
of retention elections in which judges technically run unopposed.299 Moreover,
these rules do not apply to opposition groups (from “Citizens Against Judge
X” to the U.S. Chamber of Commerce).300 In this way, state laws, by failing to
require any filings by opposition groups that intend to unseat an incumbent
judge, “provide an incentive for ‘surprise attacks.’”301 Thus, it is often too late
before judges realize that they have some opposition, albeit faceless and under
no obligation to file or disclose, against whom they must fight to set the record
straight and retain their office.302 Incumbent judges running in contested
elections do not face these same problems because their opponents are also
subject to the Code of Judicial Conduct.
Sitting judges also face the problem of having to defend against attacks on
specific decisions they have made on the bench.303 It is easy for an opposition
group to distort a judicial decision and make it into a campaign issue in an
Candidates for election to judicial office in partisan, nonpartisan and retention
elections, including judges, lawyers and non-lawyers, are permitted to participate in the
electoral process, subject to the requirements that all candidates:
....
(7) may respond to personal attacks or attacks on the candidate’s record as long as the
response does not violate Paragraph B(4) of this rule[, which prohibits judicial
candidates from making promises about cases coming before the court as well as from
making material misrepresentations of the candidate or opponent].
(emphasis added)).
299 See Reid, supra note 26, at 76 (contending that “special interest groups may be
encouraged to politicize retention elections because they can challenge incumbents at any
point in the electoral process” and that “[t]he absence of any state requirement that these
groups notify election boards of their intent to challenge sitting judges provides interest
groups with an incentive to target judges as well as an electoral advantage that they will be
able to unseat incumbents”).
300 See Scott D. Wiener, Note, Popular Justice: State Judicial Elections and Procedural
Due Process, 31 HARV. C.R.-C.L. L. REV. 187, 197 (1996) (arguing that “non-judges
running for judgeships and groups campaigning against incumbents in a retention election
are often not bound by rules of judicial ethics[ and] . . . can therefore make any issue into a
campaign issue”).
301 See Reid, supra note 26, at 76 (commenting on how the absence of a requirement for
special interest groups to notify election boards of their intent to challenge incumbent judges
“albeit unintentionally, make[s] it difficult for targeted judges to successfully defend
themselves”).
302 Justices Serna and Baca and Judge Brennan discussed this problem in light of the
ethical constraints on judges’ ability to campaign. Telephone Interview with Patricio M.
Serna, Justice, New Mexico Supreme Court (Jan. 6, 2005); Telephone Interview with Joseph
Baca, supra note 42; Telephone Interview with W. John Brennan, supra note 34.
303 See Wiener, supra note 300, at 197-200 (contending that “sitting judges . . .
understand that each decision that they make on the bench is potential fodder for an
opponent or special interest group during the next election” and that, for example, “even a
single decision to overturn a death sentence could jeopardize their prospects for reelection”).
220
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
effort to target and remove an incumbent judge.304 Judges’ campaign speech,
on the other hand, is ethically and legally constrained. As judges can only
refer to their entire record rather than to specific decisions, their opponents
have the advantage.305 Although some argue that judges in retention elections
have the advantage because they do not face another candidate, many judges
would much rather directly face a candidate who is constrained by the same
rules.306
304
See, e.g., Reid, supra note 26, at 70 (describing how the Tennessee Supreme Court’s
1996 decision in a death penalty case caused several special interest groups to oppose the
retention of Justice Penny White). Justice Serna and Judge Sitterly also discussed this issue
and explained that judges face difficult decisions because their duty is to uphold the
Constitution which may or may not be politically expedient or popular. Telephone
Interview with Patricio M. Serna, supra note 302; Telephone Interview with Rebecca
Sitterly, supra note 34; see also supra note 38 and accompanying text.
305 One observer contends that “. . .money [can] hardly compensate for the electoral
disadvantages [judges] ha[ve] to overcome.” Reid, supra note 26, at 72. They cannot
respond directly to their critics’ contentions . . . because incumbent judges are ethically
barred from defending their previous decisions. They [can] only refer to their entire
judicial record rather than explain their opinions in specific cases. Consequently, their
opponents [have] the advantage: it is easier to appeal to popular frustration and
emotion by citing one or two sensational rulings than it is to galvanize public opinion
around statistical charts that demonstrate an overall pattern of judicial decision making.
Id.
306 Justice Serna explained that sometimes facing an opponent may be more desirable
than running in a retention election due to the issues explained here. Telephone Interview
with Patricio M. Serna, supra note 302. One observer has analogized judges running in
elections with the plight of the prisoners in Plato’s Allegory of the Cave. He explains that
judicial elections are unique in terms of the restrictions placed on candidates’ speech.
In the election systems, the voters resemble the prisoners in Plato’s Allegory of the
Cave.
Although a large fire lights the cave, the prisoners cannot see the light source.
Instead, they can only make out figures that dance and parade in front of them
illuminated by the fire. The prisoners cannot even see the figures directly, only their
shadows. Everything that the prisoners know about reality they have learned from
the distorted shapes of the shadows dancing about the cave’s walls.
Eventually, a prisoner frees himself from his restraints and sees the figures themselves.
He, however, fails to recognize the three-dimensional bodies he now sees directly;
instead, the prisoner finds the figures less real than the two-dimensional images he saw
on the wall. Correspondingly, voters, imprisoned by overly expansive interpretations
of the canons of judicial conduct, see only figures that dance and parade in front of
them, not three-dimensional candidates interacting with the electorate by answering
questions regarding their personal and judicial philosophies.
Armitage, supra note 9, at 652-53 (citations omitted) (quoting Jay S. Bybee, The Tenth
Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave, 23 HARV.
J.L. & PUB. POL’Y 551, 551-52 (2000)).
2006]
D.
MAJORITY RULES EXCEPT IN NEW MEXICO
221
Judicial Elections Are Becoming Increasingly Expensive
Retention elections have become extremely expensive in recent years.307
Numerous reports indicate that the once sedate world of judicial campaigning
has degenerated into “expensive mud-wrestling contests.”308 Studies indicate
that campaign finance is not merely an issue in large states or in courts of last
resort.309 It follows that if judges must garner a higher vote percentage, the
need to raise money to campaign will also be proportionally greater.
Campaign finance was one of the main concerns of the architects of the New
Mexico system, so these reports are especially problematic.310 In fact, supreme
court justices from fifteen states recently held a “summit” on campaign finance
to express their concerns about “‘the million-dollar war chests, attack
advertising and even outright distortion of an opponent’s record that seem to
have become more widespread in judicial races . . . and threaten public
confidence in the courts.’”311
In New Mexico as well, judges are spending more on retention elections.312
307 See id. at 652 (stating that nonpartisan elections are no less expensive than partisan
elections); see also William Glaberson, Fierce Campaigns Signal a New Era for State
Courts, N.Y. TIMES, June 5, 2000, at A1 (reporting on the politicization and expense of
judicial campaigns in states where judges are elected). But see Cheek & Champagne, supra
note 9, at 1361 (stating that “although it is still rare, retention elections can be very
expensive, highly partisan political battles”).
308 Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY. L.A. L. REV.
1391, 1396 (2001) (quoting Stephen J. Ware, Money, Politics and Judicial Decisions: A
Case Study of Arbitration Law in Alabama, 15 J.L. & POL. 645, 659 (1999)) (commenting
that between 1986 and 1996, the cost of Alabama Supreme Court races increased by 776%);
see also Armitage, supra note 9, at 644 (stating that judicial elections were once “low-key
affairs, conducted with civility and dignity” and were thus “relatively inexpensive,” but that
lately, “judicial elections have taken on all the trappings of partisan politics, significantly
increasing the resulting cost”).
309 See e.g., Armitage, supra note 9, at 647 (observing that an Arkansas supreme court
campaign cost more than $500,000, while a Florida circuit court campaign cost $600,000).
310 Brennan was especially concerned with judges having to solicit funds from lawyers
who appear before them in court. Telephone Interview with W. John Brennan, supra note
34. See also David Barnhizer, “On the Make”: Campaign Funding and the Corrupting of
the American Judiciary, 50 CATH. U. L. REV. 361, 369 (2001) (positing that “[t]he system of
campaign contributions has legalized a corrupt process in which lawyers do make payments
to judges before whom they practice and the payments are legitimated by labeling them as
campaign contributions”); Wiener, supra note 300, at 196 (commenting that “the
increasingly expensive nature of elections generally” requires judges to “seek substantial
campaign contributions, often from litigants and lawyers with business before the judge at
issue”); supra note 39 and accompanying text.
311 Barnhizer, supra note 310, at 363 (quoting William Glaberson, State Chief Justices to
Meet on Abuses in Judicial Races, N.Y. TIMES, Sept. 8, 2000, at A14). Justice Serna
mentioned these same concerns. Telephone Interview with Patricio M. Serna, supra note
302.
312 Fred Harris, Editorial, End Big Money’s Grip on Top State Judgeships,
222
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
During the latest legislative session, the New Mexico legislature considered the
relationship between campaign finance and judicial independence in a
proposed bill called the Judicial Campaign Funding Act.313 The legislation
would have addressed the rising costs of campaigning for the New Mexico
Supreme Court and Court of Appeals by creating a voluntary public financing
system for New Mexico Supreme Court and Appeals Court candidates and by
placing a cap on the amount of money candidates could spend on judicial
elections.314 Judges running in retention campaigns, however, would not be
eligible for such funds.315
The Albuquerque Journal, the state’s largest newspaper, endorsed the
measure, stating that “[j]udicial decisions are supposed to be on the basis of the
law – not politics, not connections,” so for judges “[t]o have their campaign
coffers filled with contributions from people, companies or organizations that
have or may have interests before the judges doesn’t do much to bolster public
confidence.”316 In addition, many of the groups that supported merit selection,
including Common Cause-New Mexico and the League of Women Voters,
also supported the Judicial Campaign Funding Act.317
Although the legislature ultimately failed to act on the legislation before the
end of the session, it is clear that New Mexico legislators are fully cognizant of
the serious issues facing judicial selection in the state. Legislators and citizens
alike should consider whether the supermajority requirement is compounding
or at least contributing to the impending crisis of “big-money” in New Mexico
ALBUQUERQUE
J.,
Mar.
3,
2005,
http://www.abqjournal.com/opinion/guest_columns/313652opinion03-03-05.htm
(commenting that “[n]owadays, political campaigns cost great and ever increasing sums of
money – and that includes New Mexico judicial races, as well” and that “New Mexico
appellate judicial races have lately become the target for big, out-of-state, ax-to-grind,
special interest money[] [a]nd that’s alarming”).
313 SB 642, 47th Leg., 1st Sess. (N.M. 2005); HB 990, 47th Leg., 1st Sess. (N.M. 2005).
314 Id.; see also Editorial, Judicial Campaign Reform Deserves a Try, ALBUQUERQUE J.,
Mar. 19, 2005, at A10 (explaining that “[c]andidates who choose to participate would be
required to collect $5 contributions from 500 registered voters as a broad-based measure of
support,” and then, “primary candidates would be eligible for up to $25,000, general
election candidates up to $100,000”).
315
S.B. 642, 47th Leg., 1st Sess., § 12E (N.M. 2005) (stating that “[f]or retention
elections and all other uncontested races, no money shall be distributed to the candidates”);
H.B. 990, 47th Leg., 1st Sess., § 12E (N.M. 2005) (stating that “[f]or retention elections and
all other uncontested races, no money shall be distributed to the candidates”).
316 Editorial, supra note 314 (opining that the New Mexico legislature should approve
legislation “to get top judicial candidates out of the business of raising campaign funds”).
Former U.S. Senator Fred Harris of Oklahoma, now a professor at UNM, contends that the
cost of public financing for judicial elections is “a small amount to pay to ensure that these
courts remain truly independent and, importantly, that they appear to the public to be so.”
Harris, supra note 312.
317 See Harris, supra note 312; see also supra note 50.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
223
judicial elections.318 Indeed, they might consider the possibility of public
funding for retention elections.
Retention Elections Are Becoming More Partisan,319 Especially as
Special Interest Groups Enter the Fray
E.
Recent studies indicate that retention elections are becoming more and more
partisan.320 Removing partisan politics from judicial selection was one of the
primary purposes of the New Mexico system.321 New Mexico’s supermajority
threshold for retention means that judges must campaign harder to retain their
office.322 Therefore, the architects and the people of New Mexico should be
concerned about the increasing politicization of judicial elections, both partisan
and retention.323
The intervention of interest groups and their big money has increased the
politicization of judicial elections and has become an object of real concern in
One study indicates that interest groups’ campaign
recent years.324
318
See Harris, supra note 312.
This Note does not address the notion that merit selection simply shifts the politics to
the nominating commission. The architects apparently determined commission nomination
to be an integral part of merit selection. This Note leaves the issue of commission politics,
which the New Mexico system’s bipartisan set-up by no means lacks, for another day.
320 See Malia Reddick, Merit Selection: A Review of the Social Scientific Literature, 106
DICK. L. REV. 729, 735 (2002) (observing that a recent study of voter behavior finds that
“retention elections are not immune from partisan politics and other contextual forces”); see
also Anthony Champagne, Political Parties and Judicial Elections, 34 LOY. L.A. L. REV.
1411, 1421 (2001) (stating that “[t]here is a viciousness, a stridency to many modern day
judicial elections that goes beyond routine maneuvering by the parties for greater
representation on the bench” and that “[j]udicial candidates are faced with hard-hitting,
bitter attacks being waged by partisans using the mass media”); Glaberson, supra note 307,
at A1.
321 See supra note 38 and accompanying text.
322 In 1997, the New Mexico Senate approved a bill to return judicial selection to
partisan elections because Senators found that partisanship had actually increased with merit
selection, especially after imposition of the supermajority requirement. See John Robertson,
Judge Selection Amendment to Wait, ALBUQUERQUE J., Mar. 11, 1997, at A5 (stating that
“[t]he [merit selection] system was intended to limit the intrusion of partisan politics into
judicial selection, but senators said the politics have increased, especially with a requirement
that judges must win 57 percent of the vote to be retained”); see also infra note 334 and
accompanying text (detailing proposed amendments to the New Mexico Constitution that
would change the judicial selection process).
323 See Armitage, supra note 9, at 655 (stating that merit selection “has yet to prove that
it eliminates politics from the selection process”); Cheek & Champagne, supra note 9, at
1361-62 (arguing that “[m]erit selection promises more than it delivers in removing
partisanship from the judicial selection process and in improving the quality of judges” and
that “[s]ome nonpartisan elections have actually proven to be partisan”).
324 See Deborah Goldberg et al., The New Politics of Judicial Elections: How 2000 Was a
Watershed Year for Big Money, Special Interest Pressure, and TV Advertising in State
319
224
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
advertisements are “often more hard-hitting and less focused on a candidate’s
background and qualifications than traditional campaign ads,” and they are,
therefore, “coarsening the tone of judicial campaigns.”325 Interest groups, in
particular the U.S. Chamber of Commerce, have come to realize that state
judges, particularly those on the highest courts, have important impacts on
social, political, business, and environmental policy.326 Therefore, state
supreme court elections, in particular, have become “hotly contested battles,
almost indistinguishable from the rest of the American partisan political
process.”327 Studies indicate that many retention elections “now involve the
same level of campaign expense as do actual contests in order to rebut specialinterest groups’ misleading and outcome-determinative criticism.”328
Although the New Mexico system provides for one partisan election before
the nonpartisan retention format takes effect, the architects of the system made
clear that they intended the retention elections to correct that slight, but
politically necessary, defect in the otherwise nonpartisan system they
designed.329 The increasing politicization of judicial elections and the
involvement of various special interest groups “threatens the systemic benefits
Supreme Court Campaigns 4 (Brennan Ctr. for Justice & The Nat’l Institute on Money in
State Politics, 2003), available at http://www.justiceatstake.org/files/JASMoneyReport.pdf
(explaining “how the year 2000 signaled a dangerous turning point for America’s courts,
documenting the growing, systemic, and unprecedented infusion of big money and special
interest pressure into the election of Supreme Court justices across the country”).
325 Id. at 5.
326 Paul J. De Muniz, Politicizing State Judicial Elections: A Threat to Judicial
Independence, 38 WILLAMETTE L. REV. 367, 367, 385-86 (2002). The New Mexico
judiciary has not been immune from attack by such groups. A legal reform interest group
called the New Mexico Alliance for Legal Reform has become active in New Mexico
judicial campaigns. Telephone Interview with Patricio M. Serna, supra note 302. The New
Mexico Alliance for Legal Reform bills itself as “a non-profit grassroots public interest
organization dedicated to promoting integrity and fairness in the New Mexico legal system.”
New Mexico Alliance for Legal Reform, http://www.nmlegalreform.org/default.asp (last
visited Feb. 2, 2006); see also Champagne, supra note 308, at 1397 (stating that “[b]y the
early 1990s, a look at judicial politics in the states shows that interest groups were taking a
more active role in judicial elections in numerous states” and that “[r]egion of the country
made no difference, population of the states made no difference, and it even made no
difference if the judges were elected in partisan or nonpartisan elections”).
327 De Muniz, supra note 326, at 367; see also Barnhizer, supra note 310, at 377 (quoting
a Pennsylvania lobbyist, whose interest group became involved in judicial races because
“[t]he business community woke up in the late 1980s and realized that there are three legs to
the government stool . . . [and that they] were playing quite well for over a decade in two of
those three and decided that the judicial branch are the abitrators [sic] of the final
interpretation of all rules and regulations that are passed by the legislature”); Champagne,
supra note 308, at 1393 (stating that “[i]nterest groups today often draw no distinction
between achieving their goals through the courts or through the political process”).
328 De Muniz, supra note 326, at 392.
329 See supra notes 46-47 and accompanying text.
2006]
MAJORITY RULES EXCEPT IN NEW MEXICO
225
accrued from judicial retention elections.”330 The New Mexico supermajority
requirement only compounds that problem by making retention elections even
less like the apolitical contests the drafters had in mind and by forcing judges
to campaign actively in an attempt to garner a supermajority of the vote.331
CONCLUSION
This Note argues that New Mexico’s supermajority requirement for judicial
retention may violate the Equal Protection Clause of the U.S. Constitution. As
the foregoing analysis elucidates, the constitutionality of the New Mexico
supermajority requirement is ripe for review as neither Gordon, the seminal
Supreme Court case regarding supermajority requirements, nor Lefkovits,
which deals with supermajority requirements in the context of judicial
retention, should be persuasive, much less controlling. Moreover, the New
Mexico Supreme Court has yet to decide the issue. Because the legitimacy of
supermajority rules is implicated in a variety of important contexts, the broad
message of this Note is that the U.S. Supreme Court would do well to review
and synthesize its Equal Protection jurisprudence regarding the
constitutionality of supermajority rules for the election of public officials332
and, more generally, the principle of one-person, one-vote.
As a policy matter, this Note contends that supermajority requirements for
the election or retention of public officials undermine both the accountability
and independence views of judicial selection and impact fundamental notions
of democratic rule and popular sovereignty. One possible lesson to be gleaned
from New Mexico’s experience with judicial selection reform is that
supermajority requirements, if ever appropriate, seem most appropriate as a
safeguard against ad hoc, shortsighted ‘reforms’ to state constitutions.333 This
Note demonstrates that Amendment Ten enshrined just that type of change in
the New Mexico Constitution, thus perpetuating systemic problems that
thoughtful legislation like Amendment Six was designed to address. In the
context of constitutional amendment procedures, supermajority requirements
would serve (to some extent) the purpose of making it more difficult to effect
fundamental structural changes without careful analysis, public debate, and
strong consensus.
Indeed, judicial selection remains an active topic of debate in New Mexico,
330
Reid, supra note 26, at 68 (describing the purpose of judicial retention elections as
“preserv[ing] the court’s role as an impartial and detached resolver of disputes by ensuring
that judges can retain their seats without engaging in the . . . electioneering that
characterizes political elections and the political process”).
331 See Robertson, supra note 322.
332 It is not surprising that the Court has dealt little with this issue as the Illinois and New
Mexico supermajority requirements for judicial retention seem to be unique among rules for
the election of public officials.
333 The New Mexico Constitution requires only a bare majority for most amendments.
See supra notes 258-259 and accompanying text.
226
BOSTON UNIVERSITY LAW REVIEW
[Vol. 86:173
just as the legitimacy of the supermajority requirement to overcome filibusters
is the center of U.S. Senate debate over approval of judicial and other
nominees. During almost every recent legislative session, the New Mexico
legislature has considered amendments to the New Mexico Constitution that
would change the judicial selection process in some fundamental way,
including returning judicial selection to a wholly partisan election scheme.334
During the latest legislative session, the New Mexico legislature considered the
relationship between judicial independence and campaign finance.335
These recent legislative efforts make clear that the question remains open
whether the current judicial selection system, including the supermajority
requirement, is the best method for New Mexico to select its judiciary. Does
the supermajority requirement undermine the careful reform that took nearly
fifty years to adopt and implement? Have retention elections become as ugly
and expensive as partisan elections both nationally and in New Mexico?
Ultimately, the people of New Mexico must decide whether the current system
appropriately serves their conceptions of popular sovereignty. Guidance from
the U.S. Supreme Court on the constitutionality of supermajority requirements
would greatly facilitate this debate.
334
S.J. Res. 4, 46th Leg., 2nd Sess. (N.M. 2004) (proposing amendments to Article 6 of
the New Mexico Constitution to provide for partisan election of state district and
metropolitan court judges); S.J. Res. 16, 46th Leg., 1st Sess. (N.M. 2003) (proposing
amendments to Article 6 of the New Mexico Constitution to provide for the partisan election
from districts of New Mexico Supreme Court Justices); S.J. Res. 6, 45th Leg., 1st Sess.
(N.M. 2001) (proposing amendments to Articles 6 and 20 of the New Mexico Constitution
to provide for partisan election of state judges and justices and to abolish the Appellate
Judges Nominating Commission); S.J. Res. 6, 44th Leg., 2nd Sess. (N.M. 2000) (proposing
amendments to Articles 6 and 20 of the New Mexico Constitution to provide for partisan
election of state judges and justices and to abolish the Appellate Judges Nominating
Commission); S.J. Res. 7, 44th Leg., 1st Sess. (N.M. 1999) (proposing amendments to
Article 6 of the New Mexico Constitution to create districts for New Mexico Supreme Court
justices and Appeals Court judges and to abolish the Appellate Judges Nominating
Commission); S.J. Res. 9, 43rd Leg., 2nd Sess. (N.M. 1998) (proposing amendments to
Article 6 of the New Mexico Constitution to create districts for New Mexico Supreme Court
justices and Appeals Court judges and to abolish the Appellate Judges Nominating
Commission); S.J. Res. 14, 43rd Leg., 1st Sess. (N.M. 1997) (proposing amendments to
Article 6 of the New Mexico Constitution to provide for partisan election of state judges and
justices and to repeal Sections 33 and 34 of Article 6 regarding nonpartisan retention of
judges and justices); see also, e.g., S.J. Res. 8, 42nd Leg., 2nd Sess. (N.M. 1996) (proposing
amendments to Articles 6 and 20 of the New Mexico Constitution to provide for partisan
election of state judges and justices).
335 See S.B. 642, 47th Leg., 1st Sess. (N.M. 2005); H.B. 990, 47th Leg., 1st Sess. (N.M.
2005); see also supra Part V.D (discussing the enormous costs of running for judicial
office).