NO.

39,950 _________________________________________

SUPREME COURT OF THE STATE OF NEW MEXICO

_________________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES OLIVER REESE, Defendant Appellant. _________________________________________
ON CERTIFIED QUESTION FROM THE UNITED STATES TENTH CIRCUIT COURT OF APPEALS CASE NO. 09-CR-02982-JEC

_________________________________________

AMICUS BRIEF OF NEW MEXICO CRIMINAL DEFENSE LAWYERS ASSOCIATION

_________________________________________ TRACE L. RABERN, ESQ.
Attorney for Amici 1626 Ben Hur Dr. Santa Fe, New Mexico 505-690-7969 87501

Table of Contents Certified Question:...............................................................................................1 Answer: .................................................................................................................1 Statement of the Case:..........................................................................................2 I. NEW MEXICO CONSTITUTIONAL PROVISIONS ..............................................3 A. The New Mexico Constitutional Provisions On The Right to Vote and Hold Elective Office. ........................................................................3 B. Article VII of The New Mexico Constitution Clearly Provides That the Constitution, Alone, Sets Qualifications for Elective Public Office (While the Legislature Is Delegated to Power To Set the Qualifications for Appointed Public Office and Employees). .............5 C. Article VII of The New Mexico Constitution Provides OtherwiseQualified Electors A Substantive Right To Be Qualified To Hold Elective Public Office.............................................................................6 D. Extra-constitutional Burdens on the Right to Seek and Hold Elective Public Office Would Violate Constitutional Rights by: (1) Denying Other Voters Opportunity To Vote Candidate of Their Choice, and (2) Denying And Individual Voters Right to Participate in Political Process. .................................................................................8 1. Voters' Rights to Vote for Candidate of Choice .....................8 2. Individual Right to Participate in Political Process .................9 E. The New Mexico Constitution Requires Separation Of Powers. .11 F. It Is Clear from the New Mexico Constitution That IF the Legislature Purports to Add Any Qualifications or Barriers To Holding Elected Office, Such Statute Would Violate Article VII and Article III. ................................................................................................................11 II. NEW MEXICO STATUTES ...........................................................................12 A. Section 10-1-2, unchanged from 1912, does not Conflict with Constitution...........................................................................................12 ii

B. NMSA 1978, 31-13-1. Felony conviction; restoration of citizenship. .............................................................................................14 C. Operation of 31-13-1 on Mr. Reese..............................................16 D. Sub-section 31-13-1(E) Is Unconstitutional If It Applies To Elected Office or Any Qualified Elector Under Article VII...........................17 II. EXPLAINING THE EXISTENCE OF (E): THE LANGUAGE THAT IS 31-13-1(E) IS A HISTORICAL VESTIGE THAT BECAME IRRECONCILABLE WITH ARTICLE VII AND WAS RENDERED USELESS BY 2001 FELONY DISENFRANCHISEMENT REFORMS IN SUB-SECTIONS 31-13-1(A) -(D). The Language That Became (E) Was Never Originally Intended To Be An Obstacle To Restoration of Rights. ..................19 A. Why (E) Gives Way: Legislatures Choice of Policy ........................20 B. New Mexico Legislature Reforms Felon Disenfranchisement Laws 21 1. 2001 Reforms.........................................................................21 2. 2005 Expanded Reforms .......................................................26 C. Reforming Tarnished Felon Disenfranchisement Laws, As New Mexico Has Done, Is Sound Criminal Justice and Democratic Government Policy. ...............................................................................27 1. Felony Disenfranchisement Beyond End of Sentence Does not Advance Law Enforcement Goals. .......................................28 2. Felony Disenfranchisement Beyond End of Sentence Does not Advance Goals of Suffrage and Democratic Participation. .29 D. The Legislature Did Not Originally Enact the Language that Became 31-13-1(E) to Restrict Political Rights, But To Facilitate Them. ................................................................................................................31 1. Old Regime Before 2001 Reforms. .......................................33 2. The Certification of Completion to the Governor for a Certificate Restoring Rights Language of 31-13-1(E) Referred to Pre-2001 Path for Restoration after a Suspended Sentence.......35 31-13-1(E) ................................................................. Error! Bookmark not defined. iii

Suspended Sentence Statute ...................................... Error! Bookmark not defined. E. Even Ignoring This Legislative History, The Two Possible Ways To Read Sub-section 31-13-1(E) To Make It Constitutional, However Untenable, Both Mean Sub-section 31-13-1(E) Cannot Apply To Limit the Civil Rights of People Like Mr. Reese.............................................39

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TABLE OF AUTHORITIES New Mexico Cases Charley v. Johnson, 2010- NMSC-024, 148 N.M. 246, 233 P.2d 775 ..........................11 Ex parte Bates, 20 N.M. 542 (1915).............................................................................20 Gunaji v. Macias, 2001-NMSC-028, 130 N.M. 734, 31 P.2d 1008 ............................11 Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980) ....................................................21 Ruiz v. Vigil-Giron, 2008-NMSC-063, 145 N.M. 280, 196 P.3d 1286 ........................10 Shankle v. Woodruff, 324 P.2d 1017, 64 N.M. 88 (1958) ............................................21 State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33 (per curiam) .................................................................................................................................41 State ex rel. Sofeico v. Heffernan, 41 N.M. 219, 67 P.2d 240 (1936).............................20 State ex. Rel. Taylor v. Johnson, 1998-NMSC-015, 125 N.M. 343, 961 P.2d 768.........11 State v. Armstrong, 31 N.M. 220, 243 P. 333, 347 (1924) ...........................................20 State v. Gutierrez, 116 N.M. 431, 441, 863 P.2d 1052 (1993) ....................................13 Torres v. State, 119 N.M. 609, 894 P.2d 386 (1995) ...................................................21 New Mexico Statutes 2001 New Mexico Laws Ch. 89 (S.B. 272) (amending NMSA 1978 30-7-16(C)(2) ..26 2005 New Mexico Laws Ch. 116 (H.B. 64)................................................................23 NMSA 1978 31-13-1(A)(1) and (B)...............................................................................1 NMSA 1978 31-13-1(E)......................................................................................... passim NMSA 1978, 31-13-1(A) (2001 before 2005 amendments) ...................................24 NMSA 1978, 10-1-2 (1912)......................................................................................13 NMSA 1978, 1427.1(A).......................................................................................22 v

NMSA 1978, 31-13-1 (2005).............................................................................. passim NMSA 1978, 31-13-1(C) (2001 before 2005 amendments)............................. 25, 37 NMSA 1978, 31-20-8 (1977)....................................................................... 32, 33, 34 NMSA 1978, 31-20-9 (1977)....................................................................................34 Other Authorities N.M. Attorney General Advisory Letter 85-29, 1983-86 N.M. Op. Atty. Gen. 483, N.M. A.G. Op. No. 85-29, 1985 WL 204891................................................. 33, 35 N.M. Attorney General Advisory Letter 88-03, N.M. A.G. Op. No. 88-03, 1988 WL 407410 ....................................................................................................................35 Other Jurisdictions' Cases Bullock v. Carter, 405 U.S. 134 (1972) ..........................................................................9 Dunn v. Blumstein, 405 U.S. 330 (1971)........................................................................9 Gregory v. Ashcroft, 501 U.S. 452 (1991) .....................................................................11 Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)......................................10 Kramer v. Union Free School District, 395 U.S. 621 (1969).............................................9 Powell v. McCormack, 395 U.S. 486 (1969) ...................................................................8 Reynolds v. Sims, 377 U.S. 553 (1964). ....................................................................8, 28 United States v. Texas, 252 F.Supp. 234 (W.D. Tex. 1966) ...........................................9 Wesberry v. Sanders, 376 U.S. 1 (1964).....................................................................9, 27 Treatises, Books, and Scholary Works Anthony M. Kennedy, Associate Justice, Supreme Court of the United States, Address at the American Bar Association Annual Meeting (Aug. 9, 2003), in 16 FED. SENTG. REP. 126 (2004). ....................................................................................30 anza, Jeff; Uggen, Chris Locked Out: Felon Disenfranchisement and American Democracy (2006 Oxford. ISBN 0-19-514932-7). .....................................................................28 Nicole D. Porter, The Sentencing Project, Expanding the Vote: State Felony vi

Disenfranchisement Reform, 1997-2010 (October 2010) ...........................................22 Proceedings of the Constitutional Convention of the Proposed State of New Mexico (1910) 13 Robert W. Larson, New Mexico's Quest for Statehood 18461912 272304 (1968) ....13 Ryan S. King, THE SENTENCING PROJECT, A DECADE OF REFORM: FELONY DISENFRANCHISEMENT POLICY IN THE UNITED STATES (2006) ....................... 22, 31 THE SENTENCING PROJECT AND HUMAN RIGHTS WATCH, LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (1998). .......................................................................................31 Constitutional Provisions N.M. Const. Art. III 1 .............................................................................................11 N.M. Const. Art. IV 3........................................................................................5, 6, 7 N.M. Const. Art. V 1.................................................................................................5 N.M. Const. Art. V 3..............................................................................................5,7 N.M. Const. Art. V 6...............................................................................................20 N.M. Const. Art. VII 1 ................................................................................. 3, 13, 21 N.M. Const. Art. VII 2 ........................................................................... 4, 10, 17, 18

CERTIFICATE OF COMPLIANCE WITH RULE Amici certify that this conforms to the type-volume limitations of Rule 12-213 NMRA 2012, and state the total word count of the body of this brief is 9,098 words. To count the words I relied on MS Word 2008 for the Mac.

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CERTIFIED QUESTION:
If an otherwise-qualified person has completed a deferred sentence for a felony offense, is that person barred from holding public office without a pardon or certificate from the governor, as required by N.M. Stat. Ann. 31-13-1(E), or is that persons right to hold office automatically restored by Article VII, 1, 2 of the New Mexico Constitution and N.M. Stat. Ann. 31-13-1(A)(1)? (The Tenth Circuit Order added: Our statement of this question is not intended to limit the New Mexico Supreme Courts scope of inquiry we acknowledge the Court may reformulate our question and invite it to do so in any way it finds helpful.)

ANSWER:
The latter, to the exclusion of the former. An otherwise-qualified person who has completed a deferred sentence for a felony offense has the right to hold elective public office automatically restored by function of law by Article VII, Sections 1 and 2 of the New Mexico Constitution and Sections 31-13-1(A)(1) and (B) of New Mexico Statutes. A persons right to vote is restored by operation of law upon successful completing of a deferred sentence by Section 31-13-1(A)(1) and (B). Article VII of the New Mexico Constitution provides a substantive right to qualified electors (people with the right to vote) to hold any elective public office they qualify for, and makes clear that the only qualifications for elective public office are those contained in the New Mexico Constitution. Therefore, the pardon requirement in Subsection 31-13-1(E) is unconstitutional to the extent that it functions as the Government contends it does: as a barrier to or sets a qualification for a voter to seek and hold elective public office. The Legislature may not place barriers on who may seek and hold elective public office because to do so would violate Article VII which sets the state constitution as the exclusive source of qualifications, violates separation or powers, infringes on the rights of qualified voters to seek and hold public office, and the right of the voting public to choose a constitutionally-qualified candidate of their choice.

STATEMENT OF THE CASE:

Was Mr. Reese required by 31-13-1(E) to obtain an executive pardon to qualify to hold public elective office? The answer is clearly no. New Mexico law ( 31-13-1(A)(1), (B)) automatically restored Mr. Reeses right to vote when he successfully completed his deferred sentence. The New Mexico Constitution (Art. VII 2(A)) automatically made Mr. Reese, a resident with the right to vote, qualified to hold any elective public office for which he meets the constitutional qualifications. To the extent that 31-13-1(E) burdens Mr. Reese and people like him to obtain an executive pardon to gain the right to hold elective public office, 31-131(E) is unconstitutional. Subsection 31-13-1(E) cannot affect Mr. Reeses qualification to hold elective public office without violating the New Mexico Constitution in four ways: (1) It violates Article VII Section 2 of the New Mexico Constitution, which makes clear that the Constitution is the exclusive source of qualifications for elective public office, by purporting to add a qualification not in the Constitution. (2) Moreover, it infringes on the Article VII substantive right of qualified electors (voters) to seek and hold elective public office by placing a burden on exercise of that right. (3) It infringes on the Article VII rights of all voters to elect a constitutionally-qualified candidate of their choice. And: (4) It violates the separation of powers proscription in Article III by (a) the legislative branch asserting authority (setting qualifications) -2-

reserved by the Constitution; and (b) the legislative branch invoking the unbounded discretion of the administrative branch to do so. At the end of the day 31-13-1(E) cannot affect Mr. Reeses qualification to hold elective public office without 31-13-1(E) being unconstitutional.

I. NEW MEXICO CONSTITUTIONAL PROVISIONS A. THE NEW MEXICO CONSTITUTIONAL PROVISIONS ON THE RIGHT TO VOTE AND HOLD ELECTIVE OFFICE.
Article VII of the New Mexico Constitution provides rights relating to the elective franchise. Article VII, Section 1 of the New Mexico Constitution (Voter eligibility) provides a substantive right to vote to qualified electors: Every citizen of the United States, who is over the age of twenty-one years1, and has resided in New Mexico twelve months, in the county ninety days, and in the precinct in which he offers to vote thirty days, next preceding the election, except idiots, insane persons and persons convicted of a felonious or infamous crime unless restored to political rights, shall be qualified to vote at all elections for public officers N.M. Const. Art. VII 1 (emphasis added). That section also provides that the Legislature shall have the power to regulate the manner, time and places of voting,

The 26th Amendment to the United States Constitution granted the elective franchise to persons eighteen years or older and superseded the minimum age requirements for voter registration in the New Mexico Constitution. -3-

require registration, and pass laws to enforce the secure secrecy of the ballot and purity of election sand guard agains the abuse of the elective franchise. N.M. Const. Art. VII 1. This section was last amended in 1967. Article VII Section II describes Public officer qualifications; discrimination and provides: A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. B. The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee. C. The right to hold public office in New Mexico shall not be denied or abridged on account of sex, and wherever the masculine gender is used in this constitution, in defining the qualifications for specific offices, it shall be construed to include the feminine gender. The payment of public road poll tax, school poll tax or service on juries shall not be made a prerequisite to the right of a person to vote or hold office. N.M. Const. Art. VII 2 (emphasis added). This provision was last amended in 1973 (to reflect New Mexicos passage of the Equal Rights Amendment).

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B. ARTICLE VII OF THE NEW MEXICO CONSTITUTION CLEARLY PROVIDES THAT THE CONSTITUTION, ALONE, SETS QUALIFICATIONS FOR ELECTIVE PUBLIC OFFICE (WHILE THE LEGISLATURE IS DELEGATED TO POWER TO SET THE QUALIFICATIONS FOR APPOINTED PUBLIC OFFICE AND EMPLOYEES).
Article VII Section 2 (A) is very clear: every citizen resident who is a qualified elector is qualified to hold any elective public office except as otherwise provided in this constitution. N.M. Const. Art. VII 2(A). This makes the Constitution the sole authority on qualification for elective public office. There is no room in this provision for the Legislature, or any branch of government, to place any additional limits on who is qualified to hold any elective public office. See id. Examples of additional qualifications otherwise provided in this

constitution include, by way of illustration, the requirement that the Governor and Lieutenant Governor be at least 30 years old and have resided in New Mexico continuously for five years. N.M. Const. Art. VI 3. Two other additional qualifications provided in this constitution include that the Attorney General be a licensed attorney in good standing, and that the superintendent of public instruction be a trained and experienced educator. N.M. Const. Art. V 3. Another additional qualification is that executive branch elected officials are ineligible to run for re-election for a third consecutive term. N.M. Const. Art. V 1. Another additional qualification is that Justices of the Supreme Court be at least 35 -5-

years old and have been in actual practice of law for at least ten years and resided instate for at least three years. N.M. Const. Art. VI 8. Two other additional qualifications are that senators be not less than 25 years of age and representatives not less than 21, and both must maintain residence in their respective districts. N.M. Const. Art. IV 3.

C. ARTICLE VII OF THE NEW MEXICO CONSTITUTION PROVIDES OTHERWISE-QUALIFIED ELECTORS A SUBSTANTIVE RIGHT TO BE QUALIFIED TO HOLD ELECTIVE PUBLIC OFFICE.
Not only does Article VII Section 2 of New Mexico Constitution clearly state that this constitution, exclusively, sets qualifications of elected officials in New Mexico, but it also provides qualified New Mexico voters with a substantive right to be qualified to hold any elective public office provided they are qualified to vote and meet the constitutional qualifications for a given office. Article VII Section 2 is not worded as the qualifications shall be.; it is emphatically worded as an individual right: Every citizen...who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. Thus any legislation (or any agency action) that imposed additional qualifications on or barriers to holding elective public office would infringe on this substantive state constitutional right.

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Article VII does more than just make it clear that the Constitution was the exclusive source of qualifications for elected office--it also makes perfectly clear that the only way to restrict the to vote any further than the constitution provides is by formal constitutional amendment: The right of any citizen of the state to vote, hold office, or sit upon juries, shall never be restricted, abridged, or impaired on account of religion, race, language or color or inability to speak, read, or write the English or Spanish languages except as may otherwise be provided in this constitution; and the provisions of this section and of Section One of this article shall never be amended except upon a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state, and at least two-thirds of those voting in each county of the state, shall vote for such amendment. Art. VII 3. In contrast, Article VII section 2(B) clearly delegates to to the Legislature the question of the qualifications and standards necessary for holding an appointive position by any public officer or employee. N.M. Const. Art. VII 2(B) (emphasis added). This delegation or authority to the Legislature to set qualifications for appointed positions comes with limits, however: Article VII Section 2(C) makes clear that [t]he right to hold public office in New Mexico shall not be denied or abridged on account of sex and Article VII Section 3 makes clear that the right to hold office shall never be restricted, abridged, or impaired on account of religion, race,

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language or color, or inability to speak, read or write the English or Spanish languages except as otherwise provided in this constitution. Art. VII 2(C), 3.

D. EXTRA-CONSTITUTIONAL BURDENS ON THE RIGHT TO SEEK AND HOLD ELECTIVE PUBLIC OFFICE WOULD VIOLATE CONSTITUTIONAL RIGHTS BY: (1) DENYING OTHER VOTERS OPPORTUNITY TO VOTE CANDIDATE OF THEIR CHOICE, AND (2) DENYING AND INDIVIDUAL VOTERS RIGHT TO PARTICIPATE IN POLITICAL PROCESS.
An extra-constitutional burden on the right to seek and hold public elective office violates constitutional rights in two ways. First, these burdens impinge voters' participation rights by denying them the opportunity to cast their votes freely for the candidates of their choice. Second, these burdens violate the ex-felons' political participation rights by permanently barring them from serving the public by holding elective office.

1. VOTERS' RIGHTS TO VOTE FOR CANDIDATE OF CHOICE

A fundamental principle of our representative democracy is, in Hamilton's words, that the People should choose whom they please to govern them. Powell v. McCormack, 395 U.S. 486, 547 (1969). The right to vote freely for the candidate of one's choice is of the essence in a democratic society, and any restrictions on that right strike at the heart of representative government. Reynolds v. Sims, 377 U.S. 553, 555 (1964). -8-

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). It cannot be doubted that the right to vote is one of the fundamental personal rights included within the concept of liberty as protected by the due process clause. United States v. Texas, 252 F.Supp. 234 (W.D. Tex. 1966). Disqualification of a constitutionally-qualified ex-felon candidate deprives the voters of the opportunity to support the candidate of their choice. See Reynolds v. Sims, 377 U.S. at 555. Laws that limit the candidates limit the choices of voters. See Bullock v. Carter, 405 U.S. 134, 143 (1972).

2. INDIVIDUAL RIGHT TO PARTICIPATE IN POLITICAL PROCESS

The right to political participation in a democracy is not limited to voting. When the Supreme Court has referred to the right, its language has suggested a right to active participation in government through the political process. In Kramer v. Union Free School District, 395 U.S. 621 (1969), the Supreme Court stated that [a]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. Id. at 629. In Dunn v. Blumstein, 405 U.S. 330, 336 (1971), the high court noted that [i]n decision after decision this Court has made clear that a citizen -9-

has a constitutional right to participate in elections on an equal basis with other citizens in the jurisdiction. This Court has said: [W]e are committed to examine most carefully, and rather unsympathically any challenge to a voter's right to participate in any election, and will not deny that right absent bad faith, fraud or reasonable opportunity for fraud. Ruiz v. Vigil-Giron, 2008-NMSC-063, 5, 145 N.M. 280, 196 P.3d 1286 (internal quotation marks and citations omitted). Obviously in our democratic form of government participation and involvement in the political process is not equal basis if a citizen cannot be involved as an elected leader, which is exactly that the New Mexico Constitution provides in Article VII Section 2(A): Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. N.M. Const. Art. VII 2(A). Because of the fundamental importance of a fully representative democracy, the freedom of individuals to participate fully in the political process should be closely guarded. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966) (holding a poll tax to be unconstitutional on the grounds that wealth or fee paying has...no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned). Laws regulating elections implicate citizens' fundamental right to nominate and vote for candidates of their choice. See generally Charley v. Johnson, 2010- NMSC-024, 5, 10, 148 N.M. 246, - 10 -

233 P.2d 775 (recognizing right); Gunaji v. Macias, 2001-NMSC-028, 5, 26, 130 N.M. 734, 31 P.2d 1008 (same).

E. THE NEW MEXICO CONSTITUTION REQUIRES SEPARATION OF POWERS.

The New Mexico Constitution contains an explicit separation of powers requirement: 1. Separation of powers The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted. N.M. Const. Art. III 1 (1986) (emphasis added). This provision [of the State Constitution] articulates one of the cornerstones of democratic government: that the accumulation of too much power within one branch poses a threat to liberty. State ex. Rel. Taylor v. Johnson, 1998-NMSC-015, 1, 125 N.M. 343, 961 P.2d 768 (citing Gregory v. Ashcroft, 501 U.S. 452, 458-59 (1991)).

F. IT IS CLEAR FROM THE NEW MEXICO CONSTITUTION THAT IF THE LEGISLATURE PURPORTS TO ADD ANY QUALIFICATIONS OR BARRIERS TO HOLDING ELECTED OFFICE, SUCH STATUTE WOULD VIOLATE ARTICLE VII AND ARTICLE III.
Before one even gets to the relevant statutes, it is clear as a matter of New Mexico constitutional law that the Constitution, alone, sets the qualifications for - 11 -

elective office, while the Legislature is delegated authority to set the qualifications for appointed office. If the Legislature purports to add qualifications for elective public office, it is doing the job the Constitution reserved for itself, and violating separation of powers. Moreover, the Constitution has provided a substantive right for citizens that meet its qualifications to hold elective public office, and imposing any further qualifications for or barriers would infringe on that right. Accordingly, it is clear from the New Mexico constitution that if the New Mexico Legislature has purported to add or set any qualifications for elected public office to those in the Constitution, such statutes would conflict with the New Mexico Constitution, violate state constitutional rights of citizens, and be unconstitutional.

II. NEW MEXICO STATUTES

A. SECTION 10-1-2, UNCHANGED FROM 1912, DOES NOT CONFLICT WITH CONSTITUTION.
New Mexico Statutes Section 10-1-2 provides: 10-1-2. Person convicted of crime; ineligibility for office; exception No person convicted of a felonious or infamous crime, unless such person has been pardoned or restored to - 12 -

political rights, shall be qualified to be elected or appointed to any public office in this state. NMSA 1978, 10-1-2 (1912). This statute dates to the same year New Mexico became a State, and the New Mexico Constitution became effective. See State v. Gutierrez, 116 N.M. 431, 441, 863 P.2d 1052, 1062 (1993) (New Mexico Constitution was drafted 1910, approved by the voters on January 21, 1911, and became effective January 6, 1912, upon New Mexico's admission as a state, citing Robert W. Larson, New Mexico's Quest for Statehood 18461912 272304 (1968); Proceedings of the Constitutional Convention of the Proposed State of New Mexico (1910)). This 1912 statute does not conflict with Article VII of the New Mexico Constitution because it does not add any qualifications or barriers to serving in elected office beyond those in the Constitution, nor does it place any burdens or restrictions on those with the right to serve elective public office under the Constitution. The language excluding felons unless.restored to political rights in 10-1-2 mirrors the language from Article VII Section 1 defining qualified elector as excluding felons unless restored to political rights. See N.M. Const. Art. VII 1. As noted above, Article VII Section 2 then gives a right to all such qualified electors to hold elective office (as long as they meet any additional qualifications contained in the Constitution for a particular office). The universe of citizens given the right to hold elective public office by Article VII, then, is exactly the same - 13 -

universe of citizens Section 10-1-2 qualifies for elective or appointed office. Section 10-1-2 places no additional qualifications on who may hold elective office than Article VII.

B. NMSA 1978, 31-13-1. FELONY CONVICTION; RESTORATION OF CITIZENSHIP.

Section 31-13-1 is chiefly a statute that functions to restore political rights after completion of a felony sentences. It is actually entitled Felony conviction; restoration of citizenship. NMSA 1978, 31-13-1 (2005). In Sub-sections (A), (B), (C) and (D), 31-13-1 provides the mechanism for people convicted of felony

offenses to have restoration of their right to vote upon completion of their sentence and debt to society. As currently in effect (after 2005 amendments) the statute 31-13-1 provides as a whole (with emphasis on the portions of concern to the Tenth Circuit in Mr. Reeses case): 31-13-1. Felony conviction; restoration of citizenship A. A person who has been convicted of a felony shall not be permitted to vote in any statewide, county, municipal or district election held pursuant to the provisions of the Election Code, unless the person: (1) has completed the terms of a suspended or deferred sentence imposed by a court;

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(2) was unconditionally discharged from a correctional facility under the jurisdiction of the corrections department or was conditionally discharged from a correctional facility under the jurisdiction of the corrections department and has completed all conditions of probation or parole; (3) was unconditionally discharged from a correctional facility under the jurisdiction of a federal corrections agency or was conditionally discharged from a correctional facility under the jurisdiction of a federal corrections agency and has completed all conditions of probation or parole; or (4) has presented the governor with a certificate verifying the completion of the sentence and was granted a pardon or a certificate by the governor restoring the persons full rights of citizenship. B. When a person has completed the terms of a suspended or deferred sentence imposed by a court for a felony conviction, the clerk of the district court shall notify the secretary of state. The secretary of state shall notify all county clerks that the person is eligible for registration. C. A person who has served the entirety of a sentence imposed for a felony conviction, including a term of probation or parole shall be issued a certificate of completion by the corrections department. Upon issuance, the corrections department shall inform the person that the person is entitled to register to vote. The certificate of completion shall state that the persons voting rights are restored. D. When the corrections department issues a person a certificate of completion, the corrections department shall notify the secretary of state that the person is entitled to register to vote. The secretary of state shall notify all county clerks that the person is eligible for registration. Additionally, a county clerk shall accept the following - 15 -

documents as proof that a person has served the entirety of the sentence for a felony conviction and is eligible for registration: (1) a judgment and sentence from a court of this state, another state or the federal government, which shows on its face that the person has completed the entirety of the sentence; (2) a certificate of completion from the corrections department; or (3) a certificate of completion from another state or the federal government. E. A person who has been convicted of a felony shall not be permitted to hold an office of public trust for the state, a county, a municipality or a district, unless the person has presented the governor with a certificate verifying the completion of the sentence and was granted a pardon or a certificate by the governor restoring the persons full rights of citizenship. NMSA 1978, 31-13-1 (2005).

C. OPERATION OF 31-13-1 ON MR. REESE.

Mr. Reese indisputably falls under sub-section 31-13-1(A)(1): He has completed the terms of a suspended sentence imposed by a court. So, Mr. Reese had his right to vote restored automatically, by operation of (A)(1) and (B): When a person has completed the terms of a suspended or deferred sentence imposed by a court for a felony conviction, the clerk of the district court shall notify the secretary of state. The secretary of state shall notify all county clerks that the person is eligible for registration. NMSA 1978, 31-13-1(B) (2005). - 16 -

At this point in 2005 (and, for that matter, 2001 and before) Mr. Reese was clearly a qualified elector under the New Mexico Constitution Article VII Section 1. Despite being a felon, he had been restored to political rights by operation of law under 31-13-1(A)(1) and (B) after completing his deferred sentence successfully. Because Mr. Reese was a qualified elector, Article VII Section 2(A)--every citizen resident who is a qualified elector is qualified to hold any elective public office except as otherwise provided in this constitution--provided that he was qualified, and had a right, to hold public elected office. N.M. Const. Art. VII 2(A). Moreover, if the Legislature (or any branch) required additional qualifications, or erected barriers to holding elected public office besides those in the Constitution, such requirements would violate Article VII and Article III of the New Mexico Constitution, as described above.

D. SUB-SECTION 31-13-1(E) IS UNCONSTITUTIONAL IF IT APPLIES TO ELECTED OFFICE OR ANY QUALIFIED ELECTOR UNDER ARTICLE VII.
If Subsection (E) functions as any kind of qualification or barrier at all, it does not pass constitutional muster. As noted above, Article VII makes very clear that there is no authority for the Legislature to place any additional limits on who is qualified to hold any elective public office. See id. (emphasis added). The universe of citizens qualified to hold elective office consists of qualified electors who meedtany additional qualifications for any specific office contained in the state - 17 -

constitution itself. In contrast, the Legislature was clearly given the authority to establish qualifications for holding an appointive position by any public officer or employee. N.M. Const. Art. VII 2(B) (emphasis added). Article VII further makes clear that constitutional amendment is required to add any additional qualifications, so the Legislature utterly lacks authority to require any qualifications beyond those in the Constitution. See N.M. Const. Art. VII 2(A); Art. VII 3. So, to the extent that 31-13-1(E) can be interpreted as a legislative limit on Mr. Reeses right to hold public elective office, it runs afoul of the state constitution. To the extent it functions as a precondition or a burden on the individual right to seek hold elective public office in New Mexico, Subsection (E) also conflicts with the Article VII substantive right for otherwise-qualified people with the right to vote to seek and hold elective public office. And finally, to the extent it burdens the right to seek and hold elective public office, Subsection (E) impinges on the substantive rights of voters to elect officers of their choice. So to the extent that 3113-1(E) can be read to require a felon to seek and obtain an executive act of clemency before serving in elective office, it unconstitutionally burdens that right and violates Article VII.

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II. EXPLAINING THE EXISTENCE OF (E): THE LANGUAGE THAT IS 31-13-1(E) IS A HISTORICAL VESTIGE THAT BECAME IRRECONCILABLE WITH ARTICLE VII AND WAS RENDERED USELESS BY 2001 FELONY DISENFRANCHISEMENT REFORMS IN SUB-SECTIONS 31-13-1(A) -(D). THE LANGUAGE THAT BECAME (E) WAS NEVER ORIGINALLY INTENDED TO BE AN OBSTACLE TO RESTORATION OF RIGHTS.
We are here because in the Tenth Circuit in Mr. Reeses case, the United States Government maintained 31-13-1(E) is an additional qualification, requirement or burden that a former felon must complete to hold public office. As per the analysis above, to the extent that this describes 31-13-1(E), it is unconstitutional. And that probably ends the question. However declaring a piece of New Mexico law unconstitutional is no small matter. Whenever this Court is faced with a situation where a legislative enactment is unconstitutional as applied, it will prefer to construe the statute in a way that avoids the constitutional fault. And, for example, this Court will undoubtedly consider the larger question of: If (E) is made unconstitutional by the function of 31-13-1(A) through (D) together with Article VII, why does Subsection (E) give way, and not Subsections (A) through (D)? We answer these concerns here.

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A. Why (E) Gives Way: Legislatures Choice of Policy The answer to why 31-13-1(E) must give way and not 31-13-1(A) through (D) is both constitutional and a function of legislative history. Nothing in the New Mexico Constitution constrains the Legislature and Judiciary from determining when and how a person is restored to political rights. Article V Section 6 provides the executive with the right to pardon, which is broad and unfettered, but nothing indicates the power to restore political rights is exclusive to the executive. See N.M. Const. Art. V 6; see generally Ex parte Bates, 20 N.M. 542 (1915) (statute allowing courts in their discretion to suspend any sentence imposed does not encroach on the constitutional power of the executive to grant reprieves and pardons). It is entirely consistent with the Constitution that the Legislature also determine as a matter of public policy who is entitled to restoration of political rights. This Court has said that only the legislative branch is constitutionally established to create substantive law. See State ex rel. Sofeico v. Heffernan, 41 N.M. 219, 23031, 67 P.2d 240, 246 (1936) (stating that the Legislature, rather than the State Game Commission, has the power to define what constitutes a game animal, because only the Legislature constitutionally can create substantive law); State v. Armstrong, 31 N.M. 220, 255, 243 P. 333, 347 (1924) (stating that the Legislature possesses the sole power of creating law). This Court has recognized the unique position of the Legislature in creating and developing public policy. [I]t is the particular domain of the - 20 -

legislature, as the voice of the people, to make public policy. Elected executive officials and executive agencies also make policy, [but] to a lesser extent, [and only] as authorized by the constitution or legislature. Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995) (discussing the judiciary's role in determining the existence of a tort duty). The power to restore political rights is a quintessential policy question that overlaps all three branches. See Mowrer v. Rusk, 95 N.M. 48, 53, 618 P.2d 886, 891 (1980) (The constitutional doctrine of separation of powers permits some overlap of governmental functions.); Shankle v. Woodruff, 324 P.2d 1017, 64 N.M. 88 (1958) (notwithstanding prior executive clemency, courts and legislature could impose habitual offender penalty on offender who subsequent to clemency committed another crime). For example, language in Article VII Section 1 defines qualified elector as excluding felons unless restored to political rights, not unless pardoned by the governor. See N.M. Const. Art. VII 1. B. New Mexico Legislature Disenfranchisement Laws Reforms Its Felon

1. 2001 Reforms In 2001 the New Mexico Legislature undertook several reforms to ensure and facilitate the return of civil rights to all people convicted of felonies who had fulfilled

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their debt to society. See Ryan S. King, THE SENTENCING PROJECT, A DECADE REFORM: FELONY DISENFRANCHISEMENT POLICY IN THE UNITED STATES (2006).2

OF

2001 Senate Bill 204 (2001 New Mexico Laws Chapter 46) was enacted, which both drastically re-wrote the Statute 31-13-1 and added a new section to the Election Code, both of which provided for the automatic restoration of the franchise to felons who had received various sentences and successfully completed them. This law did away with lifetime disenfranchisement in New Mexico for the first time. See Nicole D. Porter, The Sentencing Project, Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2010 (October 2010) at 20.3 According to The

Sentencing Project data, this returned the right to vote to nearly 69,000 residents. Id. The new 2001 law enacted a new section of the Elections Code describing the mechanics of disenfranchisement upon a felony, see NMSA 1978, 1427.1(A) and (B), and providing the mechanics for the automatic restoration of the franchise

Avail. online at http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf. 3 Avail. online at http://www.sentencingproject.org/doc/publications/publications/vr_Expandingthe VoteFinalAddendum.pdf - 22 -

after completion of the sentence. The automatic restoration of the franchise was to occur in one of three ways4: I. Successful completion of a deferred or suspended sentence automatically triggers the clerk of court to restore the right to vote; NMSA 1978, 1427.1(D) II. Service of a state prison sentence served in full (including parole and probation) automatically triggers the department of corrections to restore the right to vote; NMSA 1978, 1427.1(E) III. Service of a federal prison sentence in full (including parole) automatically triggers the federal government to restore the right to vote; NMSA 1978, 1427.1(F). See NMSA 1978, 1427.1(D)-(F), (B). The new law in 2001 Senate Bill 204 also substantially re-wrote Section 31-131, entitling it Felony conviction; restoration of citizenship. New Sub-sections (A) and (B), paralleling the Elections Act language, provided the mechanics for automatic restoration of civil rights of felons, upon their completing of sentence, providing four alternative paths to restoration of the right to vote:

Originally the 2001 law provided that the clerk of court, department of corrections, or federal agency restore the franchise by notification to the voters county clerk that they were again eligible to register. But in 2005 the Legislature automated the process even further. Now the clerk of court or correction department is to notify the Secretary of State, who in turn is to notify all the county clerks, that the voter is qualified to register to vote. See 2005 New Mexico Laws Ch. 116 (H.B. 64). - 23 -

(1) automatically by law when the felon has completed the terms of a suspended or deferred sentence imposed by a court; (2) automatically by law when the felon was unconditionally discharged from a correctional facility under the jurisdiction of the corrections department or was conditionally discharged from a correctional facility under the jurisdiction of the corrections department and has completed all conditions of probation or parole; (3) automatically by law when the felon was unconditionally discharged from a correctional facility under the jurisdiction of a federal corrections agency or was conditionally discharged from a correctional facility under the jurisdiction of a federal corrections agency and has completed all conditions of probation or parole; or (4) when the felon has presented the governor with a certificate verifying the completion of his sentence and was granted a pardon or a certificate by the governor restoring his full rights of citizenship. See NMSA 1978, 31-13-1(A) (2001 before 2005 amendments). Path number (1) deliberately broke from prior law described above, by treating completion of both suspended sentences and deferred sentences the same: Completion of either one triggers the automatic restoration of the franchise. See id. Paths (2) and (3), for the first time, abolished lifetime disenfranchisement, and restored the franchise to any felon who has completed her entire sentence

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obligations.5 Path (4) set out the already-existing alternative to any felon, to seek pardon from the governor. (Note the language of Path (4) mirrors the language in todays Sub-section (E).) These four paths were independent alternative paths to restoration of civil rights, not cumulative requirements. Sub-section (C) of that amended statute in 2001 retained the language what now is 31-13-1(E): C. A person who has been convicted of a felony shall not be permitted to hold an office of public trust for the state, a county, a municipality or a district, unless the person has presented the governor with a certificate verifying the completion of his sentence and was granted a pardon or a certificate by the governor restoring his full rights of citizenship. NMSA 1978, 31-13-1(C) (2001 before 2005 amendments). However, given that the Legislature had just provided restored the right to vote, automatically as a function of law, to all felons who had completed their sentences, and Article VII

The new 2001 law in Senate Bill 204 laid out, for the first time, the mechanics of how the franchise would be restored to a felon who served her entire sentence. Such a person shall, upon his request be granted a certificate of completion by the corrections department, and then presenting that certificate of completion to the county clerk shall entitle a person to register to vote. NMSA 1978, 31-13-1(B) (2001 before 2005 amendments). Thus the 2001 reforms made restoration of suffrage at the completing of sentence a matter of law, but not self-executing--the felon had to request the certification from the prison, and had to present it to the county clerk. The felon could not be denied suffrage, but the process of returning to the voter roles was cumbersome. As detailed infra, in 2005 the Legislature changed the process to make it both automatic as a matter of law and self-executing. - 25 -

grants the right to hold elective public office to otherwise-qualified people with the right to vote, as of 2001 this section ceased to language that facilitated restoration of civil rights, and began to be an unconstitutional burden on the path to same. That same year Senate Bill 272 (2001 New Mexico Laws Chapter 89) was also enacted, amending the New Mexico criminal law for felon in possession to define felon to exclude (1) anyone who received a deferred sentence, (2) anyone more than ten years beyond completion of sentence, and (3) anyone pardoned by the proper authority. 2001 New Mexico Laws Ch. 89 (S.B. 272) (amending NMSA 1978 30-716(C)(2), definition of felon). 2. 2005 Expanded Reforms In 2005 the Legislature undertook even greater felon disenfranchisement reforms. Section 31-13-1 was amended to its present form. The changes in 2005 further facilitated the automatic restoration of the franchise and ensured that the right statewide databases would reflect the right to vote6: In 2005, in order to make

Four changes were made to ensure the automatic return of the franchise right to all felons: (1) the clerk of court is now required to notify the Secretary of State automatically when a suspended or deferred sentence is completed, and the Secretary of State is to notify all the county clerks that the former felon is eligible to register to vote; (2) The Department of Corrections is required to automatically issue a certificate of completion to any felon competing her sentence (no longer requiring the prison to request it) and this certificate of completion is to state that the persons voting rights are restored; (3) The Department of Corrections is required to automatically and affirmatively advise the prisoner she is now entitled to register to vote, and notify the Secretary of State of same; (4) Finally, any county clerk is required to - 26 -

the restoration procedure easier, the New Mexico legislature implemented a notification process by which the Department of Corrections is required to issue a certificate of completion of sentence to an individual upon satisfaction of all obligations. The Department of Corrections is also required to notify the Secretary of State when such persons become eligible to vote. See Nicole D. Porter, The Sentencing Project at 20.7 Obviously the intent of the 2001 re-write and 2005 amendments was to restore the right to vote to more people who had been convicted of felonies and to have the right to vote restored as automatically as possible with as few obstacles to suffrage as possible. C. Reforming Tarnished Felon Disenfranchisement Laws, As New Mexico Has Done, Is Sound Criminal Justice and Democratic Government Policy. No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). "[S]ince the right to exercise the franchise

accept as proof that a person has served the entirety of the sentence for a felony conviction and is eligible for registration a certificate of completion from any jurisdictions corrections department or a judgement and sentence from any court which clearly shows on its face the person has completed the sentence. NMSA 1978, 31-13-1(B)-(D) (2005). 7 Avail. online at http://www.sentencingproject.org/doc/publications/publications/vr_Expandingthe VoteFinalAddendum.pdf - 27 -

in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Reynolds v. Sims, 377 US 533, 562 (1964). As the New Mexico Legislature recognized in enacting felony disenfranchisement reforms in 2001 and expanding them in 2005, felon disenfranchisement beyond the end of an offenders sentence does not serve either criminal justice policy ends, nor democratic participation policy ends. 1. Felony Disenfranchisement Beyond End of Sentence Does not Advance Law Enforcement Goals. Felon disenfranchisement that extends beyond a criminal sentence does not advance the goals of the criminal justice system. Manza, Jeff; Uggen, Chris Locked Out: Felon Disenfranchisement and American Democracy (2006 Oxford. ISBN 019-514932-7). Christopher Jeff Manza, Professor of Sociology New York University, and Uggen, Distinguished McKnight Professor of Sociology,

comprehensively surveyed and summarized cases, statutes, and legislative history of felon disenfranchisement. Rather than being a natural, inevitable feature of any mature system of criminal justice, they concluded that denying large numbers of citizens with felony convictions the right to vote is virtually unique to the United States. (Manza & Uggen, pp. 3839, 235.) They also concluded it was a Jim-Crow era instrument of vote suppression and political hegemony. They conclude that - 28 -

despite its remarkably wide acceptance in codes across the country, it stands without well-articulated justification or rationale, particularly as it applies to people who have fully completed their of sentence. Id. Manza and Uggen present the case that felony disenfranchisement actually leads to more crime. Someone who has a stake in making the laws is less likely to break them, data shows: For those with criminal records and without, voting reduced future criminal involvement. (Manza & Uggen, pp. 13233, 256.) Which is, of course, a central virtue of representative democracy: those who feel like they are part of society and its decision-making are be more likely to follow its rules, while individuals labeled outsiders and adversaries to the system find less reason to comport themselves with its rules. See id. Political disengagement or exclusion breeds crime. If those who vote are actually less likely to commit new crimes, extending the franchise may facilitate reintegration efforts and perhaps even improve public safety. (Manza & Uggen, p. 129.) 2. Felony Disenfranchisement Beyond End of Sentence Does not Advance Goals of Suffrage and Democratic Participation. Nor does felony disenfranchisement beyond incarceration advance the goals of universal suffrage and democratic participation. See id. It is a profound decision to hold that those convicted of crime, even relatively minor crimes a long time ago, can never regain their places as full and equal members of society. As Justice Anthony - 29 -

Kennedy said in his remarkable speech to the American Bar Association in 2003, in which he criticized mass incarceration, mandatory minimum sentences, and the absence of discretion: To be sure the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind. Anthony M. Kennedy, Associate Justice, Supreme Court of the United States, Address at the American Bar Association Annual Meeting (Aug. 9, 2003), in 16 FED. SENTG. REP. 126, 127 (2004). When only white men property owners enjoyed the franchise, felon disenfranchisement was entirely consistent with this elite franchise, restricted as well by race, sex and wealth. Now, however, voting is a civil right enjoyed by all adults, and restrictions on the franchise based on land ownership, race, ethnic origin, language, education, gender and similar classifications are constitutionally taboo. In the present, disenfranchising a substantial portion of the population for relatively trivial or long-ago offenses is potentially inconsistent with the idea of representative government. Uggen and Manza conclude that felon disenfranchisement beyond completing of sentence is not only unjustifiable, but might well be affirmatively harmful measured against relatively uncontroversial policy goals.

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In 1998, Marc Mauer of The Sentencing Project published a careful survey of American felon disenfranchisement laws. See THE SENTENCING PROJECT AND HUMAN RIGHTS WATCH, LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (1998).8 In 2006 Ryan King of the Sentencing Project published a report on states' (including New Mexico's) efforts at felony disenfranchisement reform. See RYAN S. KING, THE SENTENCING PROJECT, A DECADE OF REFORM: FELONY

DISENFRANCHISEMENT POLICY IN THE UNITED STATES (2006).9 Both provide numbers and studies showing that reducing felony disenfranchisement improves the democratic process. D. The Legislature Did Not Originally Enact the Language that Became 31-13-1(E) to Restrict Political Rights, But To Facilitate Them. The only cognizable explanation for sub-section (E)s existence is that it is leftover language that originally addressed how to regain suffrage and civil rights after completion of a felony suspended sentence. (This language never applied to a

deferred sentence.) The language in 31-13-1(E) is directly parroting the language in the suspended sentence statute, NMSA 1978, 31-20-8: 31-20-8. Effect of termination of period of suspension without revocation of order Available at http://www.sentencingproject.org/pdfs/9080.pdf Available at http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf - 31 -

8 9

Whenever the period of suspension expires without revocation of the order, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime. He shall thereupon be entitled to a certificate from the court so reciting such facts, and upon presenting the same to the governor, the defendant may, in the discretion of the governor, be granted a pardon or a certificate restoring such person to full rights of citizenship. NMSA 1978, 31-20-8 (1977). Before the 2001 reforms, this language in the suspended sentence statute provided the only way to regain the civil rights of suffrage (and concomitant right of service in elective office) after a suspended sentence. Felons completing a suspended sentence were required to take a certification of completion to the Governor to ask for a discretionary act of clemency to restore rights. After the 2001 reforms, however, this was no longer necessary. The 2001 amendments made the restoration of the (concomitant) rights to vote and hold elective office automatic by function of law upon completion of either a suspended sentence or a deferred sentence. The 2001 and 2005 amendments essentially did away with the old legal distinction between the effects of a suspended sentence or a deferred sentence, and treated both the same: upon successful completion of a suspended or deferred sentence, the franchise is automatically restored under Section 31-13-1(A)(1) and (B) (2005). The language in the suspended sentence statute,

Section 31-20-8, has been rendered unnecessary and meaningless by Section 31-13- 32 -

1(A)(1) and (B).

The language in 31-13-1(E) that comes directly from the old

suspended sentence statute has been rendered just as unnecessary and meaningless. 1. Old Regime Before 2001 Reforms. A person convicted of a felony in New Mexico is sentenced either to prison, or to a suspended sentence, or a deferred sentence. Before the 2001 reforms, if a person was sentenced to prison, he was disenfranchised for life. His only recourse was to cause the governor to exercise her absolute Article V, Section 6 power of pardon and reprieve. If he sentenced to a suspended sentence, he avoided prison in favor of probation, but was also disenfranchised for life. Except, there was one way out: The suspended sentence statute10 provided that upon successful completion of the

10

Before 2001 reforms to felon disenfranchisement, a suspended sentence required clemency action by the Governor to restore civil rights: 31-20-8. Effect of termination of period of suspension without revocation of order Whenever the period of suspension expires without revocation of the order, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime. He shall thereupon be entitled to a certificate from the court so reciting such facts, and upon presenting the same to the governor, the defendant may, in the discretion of the governor, be granted a pardon or a certificate restoring such person to full rights of citizenship. (History: L. 1963, Ch. 303, 29-21; L. 1977, Ch. 216, 16.) - 33 -

probationary conditions that replaced the suspended sentence, he was thereupon be entitled to a certificate of completion which he could take to the governor to seek pardon or a certificate restoring such person to full rights of citizenship, in her discretion. NMSA 1978, 31-20-8 (1977). While this was not a separate path from executive clemency, is was, in effect, a small leg up toward obtaining it. The statute it required the court to provide the predicate paperwork, and a formalized procedure to follow. (Restoration of rights was, however, still entirely a matter of the governors discretion.) However if our pre-2001 felon were sentenced to a deferred sentence, he not only avoided prison in favor of probation, but also upon successful completion he was almost-magically returned his civil rights by the legal fiction of dismissal of the charges before sentencing. NMSA 1978, 31-20-9 (1977). In New Mexico we used this dismissal fiction to effect a restoration of civil rights, by function of law,

NMSA 1978, 31-20-8 (1977); N.M. Attorney General Advisory Letter 85-29, 198386 N.M. Op. Atty. Gen. 483, N.M. A.G. Op. No. 85-29, 1985 WL 204891. A deferred sentence did not--restoration of civil rights was self-executing: 31-20-9. Completion of total term of deferment Whenever the period of deferment expires, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime, the court shall enter a dismissal of the criminal charges. (History: L. 1963, Ch. 303, 29-22; L. 1977, Ch. 216, 16.) NMSA 1978, 31-20-9 (1977). - 34 -

without invoking executive clemency. In Attorney General Opinion No. 7344 this provision was interpreted to mean that a person successfully completing his deferment was restored to his rights to vote and to hold office automatically, without having to seek the governors pardon. N.M. Attorney General Advisory Letter 8529, 1983-86 N.M. Op. Atty. Gen. 483, N.M. A.G. Op. No. 85-29, 1985 WL 204891; see also N.M. Attorney General Advisory Letter 88-03, N.M. A.G. Op. No. 88-03, 1988 WL 407410 (This section [deferred sentence statute] has been interpreted to mean that the right to vote is automatically restored upon successful completion of the period of deferment. Thus, successful completion of a deferred sentence under New Mexico law would not be considered a conviction for purposes of 18 U.S.C. 922.). 2. The Certification of Completion to the Governor for a Certificate Restoring Rights Language of 31-13-1(E) Referred to Pre-2001 Path for Restoration after a Suspended Sentence.

The pardon process language that is now 31-13-1(E) appears to have been written to refer directly to the parallel language the suspended sentence statute, NMSA 1978, 31-20-8 (1977). Compare the two:

31-13-1(E)

Suspended Sentence Statute

31-20-8. Effect of termination of periodd of suspension without revocation of order Whenever the period of suspension expires without revocation of the order, - 35 -

E. A person who has been convicted of a felony shall not be permitted to hold an office of public trust for the state, a county, a municipality or a district, unless the person has presented the governor with a certificate verifying the completion of the sentence and was granted a pardon or a certificate by the governor restoring the persons full rights of citizenship.

the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime. He shall thereupon be entitled to a certificate from the court so reciting such facts, and upon presenting the same to the governor, the defendant may, in the discretion of the governor, be granted a pardon or a certificate restoring such person to full rights of citizenship.

So in historical context that language entitling a person to a certificate of completion and instructing the felon to use it to seek executive pardon or certificate of restoration of civil rights was not written to restrict who could vote or hold office, but to facilitate and provide a leg up on the only path to restoration of civil rights available to people who had completed a suspended sentence. The roots of the language that became 31-13-1(E) was not intended as to impose an obstacle to civil rights, but to facilitate them. Thus the Legislature could not have intended the language in (E) to undermine the effectiveness of Subsections (A) through (D), embodying the 2001 and 2005 reforms. This entire old regime was made moot in 2001: It deliberately broke from prior law described above, by treating completion of both suspended sentences and deferred sentences the same: Completion of either one triggers the automatic restoration of the franchise. See id. It

also, for the first time, abolished lifetime disenfranchisement for felons, and restored - 36 -

the franchise to any felon who has completed her entire sentence obligations. Moreover, the reforms in Sub-sections (A) through (D) also kept the option for any felon to seek pardon from the governor. Sub-section (C) of that amended statute in 2001 retained the language what now is 31-13-1(E): C. A person who has been convicted of a felony shall not be permitted to hold an office of public trust for the state, a county, a municipality or a district, unless the person has presented the governor with a certificate verifying the completion of his sentence and was granted a pardon or a certificate by the governor restoring his full rights of citizenship. NMSA 1978, 31-13-1(C) (2001 before 2005 amendments). However, given that the Legislature had just provided restored the right to vote, automatically as a function of law, to all felons who had completed their sentences, and Article VII grants the right to hold elective public office to otherwise-qualified people with the right to vote, as of 2001 this section ceased to language that facilitated restoration of civil rights, and began to be an unconstitutional burden on the path to same. In 2005 the Legislature amended 31-13-1 to its present form, enacting measure that further facilitated the automatic restoration of the franchise and ensured that that statewide voter databases would accurately reflect the automatic restoration of the right to vote.

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After the 2005 amendments former Sub-section (C) became current Subsection (E) but was otherwise unchanged. NMSA 1978, 31-13-1(E). 3. Subsection (E) Language Rendered A Nullity After 2001 and 2005 Amendments. As detailed above, sub-section 31-13-1(E) language reflected what was the the sole path to suffrage for felons coming off a suspended sentence before the 2001 reforms, but that path was made obsolete in 2001.11 New sub-sections (A) through (D) have provided for a restoration of the right to vote through operation of law for every felon completing a sentence, and specifically for those who served a suspended or deferred sentence. Seeking executive clemency remains one of the options of a path (31-13-1(A)(4)) to restoration of civil rights, but not a precondition. Article VII of the New Mexico Constitution provides those qualified electors are qualified to hold public elective office. Given that, there is simply no one who will ever need avail themselves of 31-13-1(E).

11

In the interests of completeness,, the pardon requirement in 31-13-1(E) has never historically applied to Mr. Reese. Mr. Reese completed a deferred (not suspended) sentence under the old regime and his case was dismissed, which invoked the legal fiction of the time that Mr. Reese enjoyed his civil rights again. In 2001, the Legislature codified that process (retroactively applying to Mr. Reese), making the automatic restoration of his franchise effective as a matter of law under 31-13-1(A), which in turn invoked Article VIIs right that he might seek and hold public elective office. At no point in history, either before 2001 or since, did the language in (E) apply to Mr. Reese. - 38 -

So at best 31-13-1(E) is vestigial, absurd, and meaningless. It require felons to present the Governor with a certificate of completion, and obtain from the Governor a pardon or certificate restoring his full rights of citizenship. But the 2005 Amendments to 31-13-1(C) and (D), however, provide for the automatic issuance of a certificate of completion that states on its face that the persons voting rights are restored. And Article VII of the New Mexico constitution provides that the right to vote brings the right to seek and hold public elective office. Taking such a certificate to the governor to request a duplicitous act of executive clemency is absurd as it is fruitless. (As Mr. Reese points out in his merits brief, at the time he completed his obligations, the then-Governor would not entertain any such requests because there was no need.) At best (E) is gratuitous; at worst, it is unconstitutional, and this is because the Legislature itself has expanded the franchise. E. Even Ignoring This Legislative History, The Two Possible Ways To Read Sub-section 31-13-1(E) To Make It Constitutional, However Untenable, Both Mean Sub-section 31-13-1(E) Cannot Apply To Limit the Civil Rights of People Like Mr. Reese. There are two possible ways to read 31-13-1(E) that, however strained, cause it to not conflict with the state constitution. One is to read into 31-13-1(E) the words appointed public officials or employees, but not elective offices. Article VII clearly authorized the Legislature to set qualifications for appointed public officials and - 39 -

employees, and just as clearly as it forbid the Legislature from adding qualifications for elective offices. Sub-section 31-13-1(E) would be a valid Legislative pronouncement if it hewed the same limits. However there are reasons to seriously doubt this is what the legislature was up to with 31-13-1(E). For one, the Legislature did not use any such words. Secondly, Subsection (E) amounts to the Legislature requiring people to go to the Executive to plead for permission to meet the qualifications the Legislature is charged by Article VII to set. Surely the complete abdication of authority to the executive branchs unbounded discretion does not comport with Article III. Third, in the context of the other sub-sections of 31-13-1, Sub-section (E) makes no sense. The Legislature in the previous four sub-sections, (A) through (D), clearly facilitated restoration of the right to vote, in most cases automatically and by operation of law, to these same people (felons who had completed their sentences). Why would the Legislature, after facilitating the restoration of rights, impose a nearly-impossible redundant12 burden on only people seeking to serve as appointed officers and employees? Surely the only possible purpose of the (E) pardon requirement, if it were to apply to appointments, would be to greatly annoy the Governor.

12

Indeed it is difficult to see why 31-13-1(E) is needed at all, given it is somewhat redundant with one of the options for restoration of rights in Sub-section (A). 3113-1(A)(4) (providing that one of four ways former felons can restore the right to vote is executive pardon or clemency). - 40 -

The second way to read 31-13-1(E) as constitutional is to limit it to only applicable to duly elected or appointed sitting officers who, while serving in office, incur a felony, as happened in this Courts recent case of State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33 (per curiam). When a sitting public official is newly disenfranchised by a felony conviction, the conviction removes the right to hold any elective public office under Article VII Sections 1 and 2(A), and causes any such sitting official to be not qualified to hold any elective public office under Article VII Section 2(A). Thus the Legislatures (E) requirement that such an officer obtain executive clemency to restore civil rights in this situation does not offend or infringe on the state constitution. Alas, while (E) would not offend the constitution if read this way, it would also be uselessly redundant, as this Court made clear in its Sloan analysis. See State ex rel. King v. Sloan, 2011-NMSC-020, 2-3, 7, 14. Sloan was duly elected commissioner on the New Mexico Public Regulation Commission, but during her term she was convicted of two felonies and the Attorney General sought her removal because she was no longer qualified to serve under Article VII and 31-13-1(E). This Court reasoned she should be removed, automatically, under Article VII: { 2} The office of PRC Commissioner is a constitutionally created elective public office. See N.M. Const. art. XI, 1. The qualifications for holding elective public office are set forth in Article VII, Section 2(A) of the New Mexico Constitution, which provides that [e]very citizen of the - 41 -

United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution. Of relevance to this case is who is considered a qualified elector under our state constitution, or, more specifically, who is not. { 3} If Ms. Sloan is not a qualified elector, she is not qualified to hold the office of PRC Commissioner. Article VII, Section 1 provides that anyone convicted of a felonious or infamous crime is not a qualified elector unless restored to political rights. King v. Sloan, 2011-NMSC-020, 2-3. Granted this Court then went on to also cite Sub-section (E) as additional support, but by all appearances it had no need to. This Court reasoned that Sloan had forfeited the office she once lawfully held by losing her status as as qualified elector under Article VII Section 1, a status required to hold any elective public office under Article VII Section 2(A). Id. 6-7. Because Ms. Sloan is a convicted felon she is no longer a qualified elector and cannot continue to hold public office. Id. 7. So, while cited, it is difficult to see that 3113-1(E) added anything to this Courts analysis at all. In either case, 31-13-1(E) construed in these ways would not apply to Mr. Reese or people in his situation. Mr. Reese had his status as a qualified elector restored by action of law under 31-13-1(A)(1) and (B). He has had his political rights restored under Section 10-1-2, and Article VII Section 2(A) provides he has the right to hold public elected office. So he is neither Ms. Sloan, nor is he required to annoy the Governor with an unnecessary clemency request. At the end of the - 42 -

day, each of these constitutional constructions of Sub-section (E) is strained and unsatisfying, suggesting perhaps 31-13-1(E) is not salvageable. CONCLUSION This origin story does not change the answer to the certified question---if 3113-1(E) is an obstacle to elective office, is it unconstitutional, regardless of how it began. But the history of how the language that is now 31-13-1(E) went from path to civil rights to burden on civil rights is of the history of felon disenfranchisement reform in New Mexico, and it is important. It is important because it shows that the federal circuit cases like Valerio and Molina were incorrect interpretations of New Mexico law, even granting that neither case presented the constitutional question presented here.

___________________ TRACE L. RABERN, ESQ.

Attorney for Amici New Mexico Criminal Defense Lawyers Association 1626 Ben Hur Dr. Santa Fe, New Mexico 87501 505-690-7969 - 43 -

Certificate of Service I hereby certify that (1) on Wednesday March 13 I caused to be deposited in the United States mail, with First Class Postage prepaid, a true and correct copy of the foregoing Brief together with a copy of this Certificate of Service, addressed to Louis Valencia and Jennifer Rozzoni, Assistant United States Attorneys, and Kenneth J. Gonzalez, United States Attorney, , Post Office Box 607, Albuquerque, New Mexico 87103; (2) Parties in interest including Jason Bowles, B.J. Crow and Monnica L. Garcia, Bowles and Crow, PO Box 25186, Albuquerque, N.M. 87125, and William Marchiando, Marchiondo Law Offices, PC, 315 5th Street NW Albuquerque, N.M. 87102-2105; (3) all required privacy redactions have been

made, and, with the exception of those redactions, this document is an exact copy of the written document filed with the Clerk; and (4) this submission has been scanned for viruses with the most recent version of OS X disk utility (Ver. 10.5), and, according to that utility, this digital submission is free of viruses.

TRACE L. RABERN, ESQ.

Attorney for Amici - 44 -

New Mexico Criminal Defense Lawyers Association 1626 Ben Hur Dr. Santa Fe, New Mexico 87501 505-690-7969

- 45 -