Method of Constitutional Change

The procedures for change in the constitution of New Mexico are set forth in Article 19 of that document. Most of the delegates at the 1910 convention had great pride in their work and did not see the necessity of making change either easy or necessary. Perhaps they failed to understand that amendment of the document was essential to its continuing life force. Procedure for amendment was a great 18th century contribution to modern political theory.

- 3 - As adopted in 1910, Article 19 required that a legislative proposal of an amendment must have a two-thirds' vote of the elected members of each house voting separately. The only exception to this was for those amendments that might be proposed at the first regular session convening two years after the adoption of the constitution and at each session convening every eighth year thereafter. No more than three amendments could be submitted at any one election.

Approval of the proposed amendment required an affirmative 40 percent vote of the people in at least one-half of the counties in the state. In addition, special protection was provided for Article 7, Sections 1 and 3, the election law, and Article 12, Sections 8 and 10, pertaining to education. No amendment could be submitted to these sections "unless it be proposed by a vote of three-fourths of the members elected to each house voting separately. . .". As the final clincher, no amendment could be made to these requirements except by a constitutional convention.

When the constitution was sent to congress and the president for approval, there was a collective shaking of heads about Article 19. The new Democratic-controlled congress deemed it too harsh and on August 21, 1911 passed the Smith-Flood resolution that contained the following condition: Before the proclamation of the President shall issue announcing the result of said election in New Mexico and at the same time that the state election aforesaid is held [the 1911 general election for new state officers] the electors shall vote on the following proposed amendment of their state constitution as a condition precedent to the admission of said state. . . .4 It should be noted that the condition required only the submission of the amendment proposed by congress to the New Mexico voters. It did not require that it be adopted before congress would approve the new constitution. In fact, another provision of the Smith-Flood resolution said that if the proposed change in Article 19 was rejected by the voters, the original amendment provision of the convention would be considered adopted.

- 4 - The proposed amendment by congress of Article 19 was submitted to the voters at the 1911 general election on a separate paper ballot tinted blue. It was adopted by a vote of 34,897 to 22,831 and, with the exception of the recent 1996 changes, constitutes the present Article 19.

This article today authorizes only three methods for effecting change in the constitution of New Mexico. These methods may be broadly classified as legislative proposals of piecemeal amendments to the voters, amendment or revision by a constitutional convention and amendment or partial revision upon recommendation of a legislatively created independent commission to the legislature and further submitted to the voters.

Piecemeal Amendment

When the legislature proposes amendments to the voters, it is not acting pursuant to its powers under Article 4, the legislative article, but under the authority granted by Article 19. The vehicle used to propose an amendment to the voters is a joint resolution.

A joint resolution proposing an amendment may be introduced in either house but only in a regular legislative session. Unlike bills, the joint resolution is not subject to the limitation on introductions after the 30th day of the odd-year session or the 15th day of the even-year session nor is it subject to a gubernatorial veto.

For most of the proposed amendments, passage and printing on the ballot results when they receive a majority of the votes of all the elected members in each house voting separately. However, proposed amendments restricting the rights created by Sections 1 and 3 of Article 7, pertaining to elections, and Sections 8 and 10 of Article 12, pertaining to education, must receive a vote of three-fourths of the members elected to each house voting separately before the amendments will be printed on the ballot.

In adopting a joint resolution, the legislature must specify whether the proposed amendment will be submitted to the voters at the general election coming in November of the even year or at a special election prior to that November date that is called for that purpose. The special election cannot be held less than six months from the date of adjournment of the legislative session.

- 5 - As mentioned, under the constitution, the governor plays no procedural role in the amendment process. Passage of a joint resolution sends the proposed amendment directly to the secretary of state, who assigns it a constitutional amendment number and requires it to be printed on either the general election ballot or the special election ballot as the case may be. In addition, the secretary of state has other duties with respect to proposed constitutional amendments. Article 19 requires that this officer publish the proposed constitutional amendments in newspapers in both English and Spanish for a specified number of weeks. Also, the secretary of state is required to make "reasonable effort to provide notice of the content" of proposed amendments in indigenous languages of minority language groups.

To date, piecemeal amendment has been the only successful procedure of the three set forth in Article 19 for constitutional change in New Mexico.

Convention Method

The second method of constitutional change authorized by Article 19 is for the legislature to call a constitutional convention. The process must be initiated by the legislature (New Mexico not having a constitutional initiative) by the enactment of a joint resolution receiving at least a two-thirds' vote of all the members of each house voting separately. The question of calling a constitutional convention is then submitted to the voters at the next general election following the legislative session that proposed the question.

If the question is approved by a majority of those voting on it, the legislature is required at the next succeeding legislative session to enact a law calling the convention.

Article 19 is silent as to the content of this law as it is also silent on the manner of selecting the delegates other than requiring that the number of delegates must be at least equal to the number of members elected to the house of representatives. Presumably, such a law could specify that delegates be appointed by the legislature and the governor or it could provide that the legislature itself constitutes the constitutional convention, as was once suggested by some legislators during the debate on the 1969 bill to call the second constitutional convention.

- 6 - The law calling the 1969 convention provided for a nonpartisan election of 70 delegates, set the date for the election of delegates, set the date for convening and adjournment, fixed the procedure for organization, appropriated money for operation and for payment of delegates and designated the secretary of state to act ex official as temporary presiding officer.

Once organized, the convention becomes independent with regard to its own proceedings and content of subject matter as necessary to carry out the purposes for which it was called. There is some doubt as to the legislature's power to limit the scope or content of the matters considered by the convention.

Recommendations for revisions or amendments of the constitution made by the convention must be submitted to the voters at an election date set by the convention. The 1996 amendment of Article 19 provides that revisions or amendments proposed by the convention may be submitted in whole or in part, or with alternatives, as decided by the convention. If a majority vote favors a proposal or alternative, that proposal or alternative is adopted and becomes effective 30 days after the certification of the returns unless otherwise specified by the convention.

Independent Commission

Constitutional Amendment 4, adopted at the 1996 general election, made other significant changes in Article 19. In addition to the manner in which convention recommendations can be submitted to the voters, the article now provides a third method of constitutional change. It authorizes the legislature to create an independent commission that may initiate amendments separately or grouped as a single ballot question. Any commission-initiated amendments that are not substantially altered by the legislature may be submitted to the electors in the separate or single ballot form recommended by the commission. Presumably, this provision would allow the commission to propose the revision of one or more entire articles as a single ballot issue, thereby effecting constitutional change, except to a more limited extent, much as a constitutional convention might do. As of the date of this publication, the legislature has not created by law the independent commission authorized in Article 19.

Judicial Decision and Federal Preemption

- 7 - The constitution of New Mexico is the supreme law of the state except where it may conflict with the federal constitution or any federal law made pursuant to the federal constitution. Change in the state constitution may also result because of such conflict or preemption of the subject matter under the authority of the federal constitution. There are in our state constitution certain provisions that are, in fact, nullified or repealed by judicial decisions rendered pursuant to interpretation of the federal constitution or preemption by congress under the authority of the federal constitution. Following are examples.

- The first paragraph of Article 4, Section 4 apportions the state senate by county and establishes staggered terms for the election of members to that body. In 1966, a state court held this provision to be invalid because it violated the provisions of the 14th amendment of the U.S. Constitution.5 According to Attorney General Opinion 1988-06, staggered terms are not unconstitutional per se; however, the staggered term provision was instituted based on the one county apportionment, and thus could not be implemented.

- Article 7, Section 1 still sets the minimum age for voting at 21 years. The 26th amendment to the federal constitution provides that the right of United States citizens who are 18 years of age or older shall not be denied or their right to vote be abridged.

Because of this federal amendment, a person is entitled to vote in New Mexico, regardless of the provision of Article 7, Section 1, when he reaches the age of 18.

- Article 7, Section 1 requires, as a qualification for voting, residency in the state for 12 months, the county 90 days and in the precinct in which a person offers to vote 30 days. The federal Voting Rights Act as amended in 1970 established a nationwide uniform residency period of 30 days in elections for president and vice president. This law as a matter of practice has effectively changed the residency requirements set forth in Article 7, Section 1 of the constitution of New Mexico.

- Article 9, Sections 11 and 12 limit voting on school district and municipal bonds to owners of real estate in the school district or persons who have paid a property tax in the municipality. These conditions have been rendered inoperable by a series of federal and state court decisions that held that as long as the election in question "is not - 8 - one of special interest, any classification other than residence, age and citizenship cannot stand absent a demonstration of compelling state interest.".6 Consent of congress was also deemed necessary for the 1967 addition of Article 24 relating to mineral leases on state trust lands for the development of geothermal steam and waters; for the 1964 addition of Article 13, Section 3 confirming patents issued to portions of land sold under contract when the balance due on the sale contract was not paid at the time of the issuance of the patent; and in 1994 for proposed but unsuccessful amendments pertaining to the investment of the permanent funds. A similar amendment (CA 1) pertaining to investment of the permanent funds was successful in 1996, with the effective date of the amendment made conditional on the consent of congress to Sections 2, 3 and 4 of the amendment. Congress approved the amendment on August 7, 1997 and President Clinton approved it a month later.