Extraordinary Requirements

The So-Called Unnameable Sections The civil rights of Spanish-speaking citizens of the new state with regard to voter qualification, protection from religious and racial discrimination on holding office, the requirement that the legislature provide teachers proficient in both English and Spanish and the protection of the right of children of Spanish descent to be admitted to and attend public schools was deemed of sufficient importance to be worthy of special protection by not only the framers of the constitution but also by the approving congress. This protection took the form of extraordinary requirements for amendments incorporated in Articles 7 and 12 and repeated in Article 19.

Under these provisions, no amendment restricting the rights created by Article 7, Sections 1 and 3 and Article 12, Sections 8 and 10 can be proposed except by a three fourths' vote of the members elected to each house of the legislature voting separately and ratified by a vote of the people by at least three-fourths of those voting in the whole state. Until 1968, there was an added requirement that the amendment must also receive an approving vote of at least two-thirds of those voting in each county of the state.

- 9 - The term "unnameable" became common usage with respect to these sections because of the near impossibility of obtaining the required majorities to effect amendment. For example, under the original two-thirds-in-each-county requirement, a small number of voters in a single county, such as Harding, could defeat a proposed amendment of one of these sections even though the voters in each of the other counties of the state voted overwhelmingly in support of the amendment.

To make certain that Article 19, Section 1, in which the extraordinary vote requirements also appear, could not be amended by a piecemeal change, the framers added Section 5 to that article that prohibited any amendment of Section 1 except by a constitutional convention (Section 5 was repealed in 1996). From 1912 to 1968, the "unnameable sections" remained just that, unnameable, even though from 1919 to 1964 there were 11 attempts to provide absentee voting by amending Article 7. In each case, the proposed amendment received more than a majority of statewide approval but was defeated by the extraordinary vote requirement, in particular, the two-thirds-in-each county provision. At the special election in 1967, absentee voting was again submitted to the voters as Constitutional Amendment 7 and failed because it did not get the required two-thirds' vote in each county. This time, however, the attorney general, acting on the initiative provided by the New Mexico municipal league, went to the supreme court requesting an order to the state canvassing board to certify the adoption of the amendment regardless of the two-thirds' requirement. The attorney general argued to the court that the two-thirds' requirement violated the equal protection clause of the 14th amendment of the federal constitution. He pointed out that the amendment had received a 32,344 vote majority but was denied adoption because it failed to get a two-thirds' majority in 12 counties. The supreme court agreed with the attorney general's argument of denial of equal protection and on February 5, 1968 issued a writ of mandamus requiring the state canvassing board to certify the adoption of the amendment.7 With that one stroke of the judicial pen, the court cut that Gordian knot that had been since statehood an obstacle to giving the New Mexico voters the right to adopt absentee voting for themselves. The decision, in effect, only nullified the two-thirds-in-each-county requirement. It did not affect the requirement for a three-fourths' statewide majority.

- 10 - Amendment of Compact Provisions On June 20, 1910, congress passed the Enabling Act setting forth the conditions and procedures for the territories of New Mexico and Arizona to hold constitutional conventions.8 It also set forth certain requirements with which the proposed constitutions must comply. These mandatory provisions of the Enabling Act were incorporated in the
1910 constitution as Article 21, titled "Compact with the United States".

Section 2 of the Enabling Act and Article 21, Section 10 of the constitution declared the compact provisions irrevocable without the consent of the United States and the people of New Mexico. Any change in those provisions, in whole or in part, by a constitutional amendment cannot be made without the consent of congress. During the ensuing years since the adoption of the constitution, many of the provisions of the compliance provisions of the compact, particularly those referring to the convention procedures, are moot and no longer operative. Others of a substantive nature, such as the location of the state capitol, have been deemed by the United States supreme court to be beyond the authority of the federal congress to control while unilateral change by the state of other substantive requirements depends on a determination of the jurisdiction of congress over the subject matter. There still remain, however, other areas of the compact where any change requires the consent of congress in addition to a constitutional amendment.

Sections 6 through 9 of the Enabling Act, which pertain to specified public lands that were granted to the state to be held in trust for the benefit of designated schools and institutions and which were consented to by Article 21, Section 9, require that any constitutional change in the use of the trust must be consented to by congress.

Article 19, Section 4 of the constitution sets forth the manner in which such change is to be effected: When the United States shall consent thereto the legislature, by a majority vote of the members of each house, may submit to the people the question of amending any provision of Article XXI of this constitution on compact with the United States to the extent allowed by the act of congress permitting the same, and if a majority of the qualified electors who vote upon any such amendment shall - 11 - vote in favor thereof the said article shall be thereby amended accordingly.

This procedure indicates that the consent of congress should be obtained before the amendment is voted on by the people. The vehicle for obtaining the consent is usually a joint resolution. Article 21 has been amended three times with the consent of congress: - Section 5 was amended in 1912 to delete provisions requiring all state officers and legislators to be sufficiently fluent in English so as to conduct their duties without an interpreter; - Section 11 was added in 1932 to consent to a 1926 act of congress authorizing the governor and other state officers to execute instruments to effect the exchange of lands with the government of the United States and the method of determining the value of such lands; and - Section 1 was amended in 1953 to delete prohibition of the sale, barter or gift of intoxicating liquors to Indians or the introduction of liquors into Indian country.

More Than One Subject Prohibited In the regular piecemeal amendment process, Article 19, Section 1 provides that if two or more amendments are initiated by the legislature, "they shall be so submitted as to enable the electors to vote on each of them separately". This is the so-called single subject doctrine.

In 1995, the single subject doctrine came under the interpretation of the state supreme court with respect to the adoption of CA 8 in the 1994 general election.9 The question concerned the proposal to authorize a state-operated lottery and wagering on video games of chance. The court held that the question of authorizing a lottery and the question of authorizing wagering on video games of chance should have been submitted separately to the voters "because the rights created, the means of implementation, and the subject matter and purpose of the two prongs of Amendment 8 are not interdependent, and have no direct, necessary, or logical connection in their operation.".

In support of its holding, the court noted that the title of the joint resolution proposing the amendment, which described it as permitting "a statewide lottery and - 12 - certain games of chance", was technically proper but "exacerbated" the problem of logrolling that the constraint in Article 19 was designed to prevent. The court said the title did not alert the voter as to the nature or scope of the second prong of the amendment regarding the video gaming. Stated another way, CA 8 "log rolled together two independent objects by piggybacking the passage of one on the popularity of the other".

The court did provide a standard against which a proposed amendment could be tested under the single subject doctrine. It said there must be a rational linchpin joining the various elements of an amendment that would prevent "the linking of independent propositions simply by selection of a sufficient broad overarching theme".

As a result of this opinion, the court issued a writ of mandamus to the state canvassing board to not certify the 90 percent approval vote received by CA 8.