Republican AG candidate to remain on the ballot after his NM residency is challenged
State district judge finds challenge ‘either seven months too late, or two months too early’
Jeremy Gallegos and Carter Harrison represented Republican attorney general candidate Jeremy Michael Gay in court on Sept. 16, 2022. (Photo by Austin Fisher / Source NM)
Barring any appeal, Republican Jeremy Michael Gay will remain on the ballot for New Mexico Attorney General, a District Court judge ruled on Friday.
Former Bernalillo County Commissioner James Collie had asked the court to order Secretary of State Maggie Toulouse Oliver to remove Gay’s name from the ballot, alleging he has not lived in New Mexico long enough to be qualified to run for the office.
In a ruling issued from the bench on Friday, Judge T. Glenn Ellington sided with attorneys representing Gay and Toulouse Oliver who asked him to dismiss Collie’s petition.
The Santa Fe judge said that Collie and his attorney “basically sat on their rights” and filed their petition to knock Gay off the ballot “at a time that provides a severe disadvantage” to Gay and also to Toulouse Oliver.
“Looking at the arguments by (Collie), either this petition is seven months too late, or two months too early,” Ellington said.
Collie’s attorney Ryan Harrigan said there is no state law or previous court decisions that set any deadline for challenging a candidate’s constitutional eligibility.
“There’s a reason why the Legislature hasn’t set any deadline on this: because simply you cannot set a deadline when somebody becomes eligible under the constitution,” Harrigan said. “They’re either eligible, or they’re not.”
But Dylan Lange, general counsel for Toulouse Oliver, said Harrigan failed to make any legal argument that it is her duty to investigate whether a candidate is constitutionally qualified for office.
All the Legislature has required is that the secretary of state ensures that candidates turn in the required documents to declare their candidacy, Lange said.
After the hearing, Harrigan said it was too early to say whether his client would appeal the decision.
“I think I need to talk with my client about it and see,” Harrigan said. He also wanted to review Ellington’s written ruling.
Gay’s campaign manager did not respond to a request for an interview about the judge’s ruling but issued a news release saying the case was a “politically motivated lawsuit.”
“As our campaign has said from the beginning, this lawsuit was a baseless stunt aimed to distract from our opponent’s failed record,” Gay said in the release.
Harrigan said there is no question that Gay is ineligible for the office of attorney general because he does not meet the New Mexico constitutional requirement of having lived continuously in New Mexico for five years before the election, and that voters would be disenfranchised without that information.
“And the voting public should know if he’s an eligible candidate,” Harrigan said as he looked to his left over at the news media in the courtroom. “The voting public has a right to know if the person that they may vote for, if they win, is ineligible to be sworn in. That can affect their decision.”
Gay and the Secretary of State’s Office asked Ellington to dismiss the case on the grounds that anyone could have challenged his candidacy based on whether he’d lived in the state long enough starting in February when he first declared his run for office.
“In this particular case, there was no such challenge that occurred at that time,” Ellington said.
Gay participated in the Republican preprimary nominating convention and won the Republican nomination to run, Ellington said.
“There was no challenge at that time, either,” the judge said.
In response to a question from Ellington during oral arguments, State Elections Director Mandy Vigil — seated in the courtroom audience — confirmed by nodding her head that after the preprimary nominating convention, the Republican Party confirmed to the Secretary of State’s Office that Gay is their nominee for attorney general.
“Again, there was no challenge immediately after that certification,” Ellington said.
These deadlines are important, the judge said, because the Secretary of State’s Office has responsibilities under state and federal law to ensure the integrity of the election. The Secretary of State’s Office argued that given how late Collie filed his petition, its ability to respond and follow the election code has “become basically a practical impossibility,” he said.
Collie filed his petition 63 days before the general election, just two days before the Secretary of State’s Office sent the finalized ballot to the printers so that they would be available to military and overseas voters, Ellington pointed out.
Gay’s attorneys argued that the timing of the petition was a cynical attempt to go around the established process of reviewing candidates’ qualifications, as well as to predetermine the outcome of the attorney general race. That process is laid out in the New Mexico Election Code which sets several deadlines for anyone to challenge candidates’ qualifications — all of which had passed by the time Collie filed his petition.
Ellington seemed to agree with that assessment by saying that the “net result” of what Collie was asking him to do would be “to predetermine the outcome of the general election for the office of attorney general.”
“To my knowledge, there’s never been a scenario exactly like this, where we are past the deadline for a major party to respond if there was an invalidation of their candidate, to allow the voters to have a choice in an upcoming election,” Ellington said.
The Election Code states that challenges like this one must be made within 10 days of the last declaration of candidacy. That was back in February.
So, Ellington ruled that Collie already had a way under existing law to fix his problem, and that the intervention he was asking for was “inappropriate.”
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