N.M. R. Civ. P. Dist. Ct. 1-096

As amended through May 8, 2024

Rule 1-096 - Challenge of nominating petition

A.Complaint; filing deadline. Court action challenging a nominating petition provided for in the Primary Election Law, Sections 1-8-10 through 1-8-52 NMSA 1978, shall be initiated by filing a complaint and request for expedited hearing no later than ten (10) days after the last day for filing the declaration of candidacy with which the nominating petition was filed. The plaintiff shall immediately deliver a copy of the complaint and request for expedited hearing to the assigned judge and to any subsequent judges appointed pursuant to Rule 1-088 NMRA or Paragraph G of this rule.

B.Service of process. The complaint shall be served in accordance with Rule 1-004 NMRA upon the proper filing officer as provided in Section 1-8-35(B) NMSA 1978 and as defined by Section 1-8-25 NMSA 1978, and the plaintiff shall, immediately after filing the complaint, also deliver a copy of the complaint and request for expedited hearing to the candidate whose nominating petition is challenged. Delivery shall be effected in a manner that is reasonably calculated to provide actual notice to the candidate of the filing of the complaint.

C.Challenges to signatures; separate counts and specificity in complaint required. If claim is made that any signature on a nominating petition should not be counted, the complaint shall

(1) specify in separate counts each signature so challenged;

(2) specify the grounds on which the signature is challenged as required by Paragraphs D and E of this rule;

(3) identify the line number and the page of the nominating petition where each such signature appears;

(4) attach a copy of the nominating petition upon which the signature appears; and

(5) attach any exhibits required by Paragraph D of this rule. If multiple signatures are challenged on one common ground only, notwithstanding Subparagraph (1) of this paragraph, those signatures may be challenged in one count that lists the signatures so challenged and otherwise satisfies the requirements of Subparagraphs (2), (3), (4), and (5) of this paragraph.

D.Challenges based on duplicate signatures. If any signature is challenged on the ground that the person signing has signed more than one nominating petition for the same office, or has signed one petition more than once, the complaint shall attach as an exhibit all nominating petitions containing such signatures and identify the page and line number on each such petition where the person is alleged to have signed.

E.Challenges to the qualifications of the person signing the petition. If any signature is challenged on the ground that the person signing is not qualified to sign the nominating petition, the complaint shall specify as to each signature:

(1) that the qualifications of the person signing the nominating petition are challenged because that person:

(a) was not a registered member of the candidate's political party ten (10) days prior to the filing of the nominating petition;

(b) failed to provide information required by the nominating petition;

(c) is not a qualified voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate;

(d) is not of the same political party as the candidate named in the nominating petition as shown by the signer's certificate of registration; or

(e) is not the person whose name appears on the nominating petition;

(2) the voter registration records upon which the challenge relies;

(3) the name and address of each person who searched the voter registration records upon which the challenge relies;

(4) the date on which each search was made; and

(5) any variations in names, spelling or addresses for which search was made.

F.Challenges to Nominating Petition. If a nominating petition, or any page thereof, is challenged because it fails to comply with statutory requirements for the form of the nominating petitions, the complaint shall specify each challenged page of the nominating petition and each violation of statute on which the challenge is based.

G.Waiver. Objection to counting a signature and any ground for rejecting a signature shall be conclusively waived unless set out in the manner above provided within ten (10) days after the last day for filing the challenged nominating petition.

H.Disqualification of judge. The provisions of Paragraph C of Rule 1-088.1 NMRA notwithstanding, the plaintiff may exercise the statutory right to excuse the district judge assigned to the case by filing a peremptory election to excuse on the same day the complaint is filed. The plaintiff shall serve notice of the peremptory election to excuse at the same time that the complaint is served and delivered in accordance with Paragraph B of this rule. If more than one plaintiff is named in the complaint, the plaintiffs only may exercise one collective peremptory election to excuse the district judge. The candidate whose nominating petition is challenged may file a peremptory election to excuse the district judge within two (2) days after delivery of the complaint. In all other respects, Rule 1-088.1 NMRA governs the exercise of peremptory elections to excuse the district judge. If there is an excusal for cause or a recusal, the chief justice shall reassign the case to another judge, justice or judge pro tempore to hear all further proceedings.

I.Hearing and decision. Within ten (10) days after the complaint is filed, the district court shall hold a hearing and render a decision.

J.Appeal. The decision of the district court may be appealed to the Supreme Court in accordance with Rule 12-603 NMRA.

N.M. R. Civ. P. Dist. Ct. 1-096

As amended by Supreme Court Order No. 09-8300-040, effective 11/10/2009; by Supreme Court Order No. 12-8300-004, effective for cases filed on or after3/1/2012; as amended by Supreme Court Order No. 16-8300-009, effective for all cases pending or filed on or after12/31/2016.

Committee commentary. - The time periods in this rule are to be computed under NMSA 1978, Section 1-1-22. The 2012 and 2016 amendments to Paragraphs B and C of this rule were intended to incorporate the Supreme Court's ruling in Charley v. Johnson, 2010-NMSC-024, && 16, 22, nn. 1 & 3, 148 N.M. 246, 233 P.3d 775, and to recognize the need for expeditious and fair resolution of petition challenges.

The Legislature, in NMSA 1978, Sections 1-8-25 and -35, has made the secretary of state (or county clerk depending on the office involved) the statutory agent for service of process on candidates whose petitions have been challenged and has required the secretary of state or county clerk to then mail the process to the candidate, while requiring the district court to conduct an evidentiary hearing on the challenge within no more than ten days of the filing date. Because these statutory requirements may not result in actual notice of the action getting to the candidate in time to know about and prepare for the evidentiary hearing, the Supreme Court has added provisions under its rule-making authority to increase the likelihood of prompt actual notice to the candidate without placing on the challenger technical demands that may be unreasonably difficult in a particular case. Accordingly, Paragraph B of this rule provides for delivery to be "effected in a manner that is reasonably calculated to provide actual notice to the candidate of the filing of the complaint." Although the rule does not provide exclusive methods of providing actual notice of the filing and evidentiary hearing, illustrative examples of such delivery could include the following:

(1) handing it to the candidate; or if the candidate refuses to accept delivery, by leaving the copies at the location where the candidate has been found;

(2) electronic transmission to the email address listed on the "Candidate Information for Campaign Reporting" filed with the secretary of state;

(3) leaving it at the candidate's campaign office with a clerk or other person in charge thereof, or, if there is no one in charge, leaving it in a conspicuous place in the office; or

(4) leaving it at the candidate's residence address as listed on the candidate's "Declaration of Candidacy" filed with the secretary of state pursuant to NMSA 1978, Section 1-8-29 with some person of suitable age and discretion, or if no one is present, by posting in a conspicuous place.

[Adopted by Supreme Court Order No. 09-8300-040, effective November 10, 2009; as amended by Supreme Court Order No. 12-8300-004, effective for cases filed on or after March 1, 2012; as amended by Supreme Court Order No. 16-8300-009, effective for all cases pending or filed on or after December 31, 2016.]

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-009, effective December 31, 2016, required that a plaintiff challenging a nominating petition deliver to the candidate whose nominating petition is challenged a copy of the request for expedited hearing immediately after filing the complaint, removed the service requirement pursuant to Rule 1-004 NMRA, but required the plaintiff make an earnest attempt to provide actual notice to the candidate of the complaint and request for expedited hearing, and revised the committee commentary; in Paragraph (B), after "copy of the complaint and", deleted "notice of" and added "request for expedited", after "shall be effected in", deleted "the manner provided in Subparagraph (a) of Subparagraph (1) of Paragraph F of Rule 1-004 NMRA" and added "a manner that is reasonably calculated to provide actual notice to the candidate of the filing of the complaint"; and in the committee commentary, added the last undesignated paragraph relating to the new delivery requirements. The 2012 amendment, approved by Supreme Court Order No. 12-8300-004, effective March 1, 2012, provided for expedited hearings of complaints; permitted challenges of multiple signatures on a common ground to be stated in one count; required that a complaint challenging the qualification of a person to sign a petition allege that the person is not a qualified voter; provided for challenges to the form of a nominating petition; in Paragraph A, in the first sentence, after "initiated by filing a complaint", added "and request for expedited hearing" and added the second sentence; in Paragraph C, added the last sentence; in Item (c) of Subparagraph (1) of Paragraph E, at the beginning of the sentence, deleted "sufficient to determine that the person" and after "is", added "not"; and added Paragraph F. The 2009 amendment, approved by Supreme Court Order No. 09-8300-040, effective November 10, 2009, in Paragraph A, in the title, added "filing deadline" after "Primary Election Law", added "Sections 1-8-10 through 1-8-52 NMSA 1979", and after "initiated by filing a complaint" added the remainder of the sentence; in Paragraph B, in the first sentence, at the beginning of the sentence, deleted "In addition to serving process on the" and added "The complaint shall be served in accordance with Rule 1-004 NMRA upon the proper", after "filing officer as provided in" added "Section 1-8-35(B) ", after "NMSA 1978" deleted "Comp." and added "and as defined by Section 1-8-25 NMSA 1978, and", and after "immediately after filing the complaint" added "also", and in the second sentence, after "in the manner provided in" added "Subparagraph (b) of"; in Subsection C, in the title, after "challenges to signatures", deleted "should not be counted", in Subparagraph (1), after "specify" added "in separate counts", and after "each signature so challenged" deleted "and the specific", in Subparagraph (2), at the beginning of the sentence, added "specify the" after "on which", added "the signature", and after "is challenged" added "as required by Paragraphs D and E of this rule", and added Subparagraphs (4) and (5); in Paragraph D, in the title, after "Challenges", deleted "signator signed two petitions" and added "based on duplicate signatures", after "has signed more than one" added "nominating", after "the same office" added "or has signed one petition more than once", after "the complaint shall" added "attach as an exhibit all nominating petitions containing such signatures and", and after "line number on" changed "such other petition" to "each such petition where", and after "alleges to have signed" deleted "and shall attach such other nominating petition as an exhibit"; in Paragraph E, in the title, after "Challenges", changed "unqualified person signed" to "to the qualifications of the person signing the petition", after "If any signature" deleted "or signatures are", after "the person signing is not" deleted "a voter of the state, district, county or area to be represented by the office for which the person seeing the nomination is a candidate or on the ground that the person signing is not of the same political party as the candidate named in the nominating petition" and added "qualified to sign the nominating petition", after "the complaint shall" deleted "in a separate numbered paragraph, allege that the challenge is based on a diligent search of all registration records of the appropriate county and shall", added Subparagraph (1), Items (a) through (d) of Subparagraph (1), and Subparagraph (2), and in Subparagraph (3), after "of each person" changed "making the search" to "who searched the voter registration records upon which the challenge relies"; and added Paragraphs G, H and I. Request for expedited hearing. - A complaint challenging a nominating petition should be accompanied by a request for an expedited hearing, and the matter should immediately be called to the attention of the judge assigned to the case. Charley v. Johnson, 2010-NMSC-024, 148 N.M. 246, 233 P.3d 775. Notice to the candidate of the proceeding. - Time is of the essence in a proceeding challenging a nominating petition, and plaintiff must notify the candidate of the action by serving the complaint on the candidate's statutory agent for service of process and by immediately delivering a copy of the complaint and notice of hearing to the candidate. Charley v. Johnson, 2010-NMSC-024, 148 N.M. 246, 233 P.3d 775. Challenged signatures must be set forth in a single count. - Each signature challenged by the plaintiff must be set forth in a separate count in the complaint, and if the signature is challenged on multiple grounds, each of those grounds must be set forth in the count for that signature. Charley v. Johnson, 2010-NMSC-024, 148 N.M. 246, 233 P.3d 775. Rule not followed. - Where plaintiffs challenged the sufficiency and validity of defendant's nominating petition for magistrate judge; plaintiffs did not file a request for an expedited hearing when the complaint was filed or obtain a setting within ten days of the filing of the complaint; the complaint did not state who conducted the search of the voter registration records; the complaint did not set forth each challenged signature and the multiple grounds for challenging each signature as a separate count, but multiple signatures were grouped into single counts based on the type of challenge; plaintiffs did not attempt to deliver the complaint or a notice of hearing to defendant; and the county clerk testified summarily that the nominating petition had only eighteen valid signatures, but did not discuss each signature individually or explain why the county clerk concluded that the remaining signatures were invalid, the district court erred by removing defendant's name from the ballot. Charley v. Johnson, 2010-NMSC-024, 148 N.M. 246, 233 P.3d 775.