2020 New Mexico Statutes
Chapter 1 - Elections
Article 8 - Nominations and Primary Elections
Section 1-8-8 - Vacancy on general election ballot; occurring after primary.

A. If after a primary election, but seventy or more days before the general election, a vacancy occurs, for any cause, in the list of the nominees of a qualified political party for any public office to be filled in the general election, or a vacancy occurs because of the resignation or death of a person holding a public office not included in the secretary of state's general election proclamation and which office is required by law to be filled at the next succeeding general election, or a vacancy occurs because a new public office is created and was not included in the secretary of state's general election proclamation but is capable by law of being filled at the next succeeding general election, the vacancy on the general election ballot may be filled by:

(1) the central committee of the state political party filing the name of its nominee for the office with the proper filing officer when the office is a federal office, state office, district office or multicounty legislative district office; and

(2) the central committee of the county political party filing the name of its nominee for the office with the proper filing officer when the office is a magistrate office, county office or legislative district office where the district is entirely within the boundaries of a single county.

B. Appointments made pursuant to Subsection A of this section shall qualify pursuant to Section 1-8-18 NMSA 1978.

C. The county or state central committee members making the appointment pursuant to Subsection A of this section shall be as provided for in the rules of the respective party; provided that, at a minimum, the committee shall include those members residing within the boundaries of the area to be represented by the public office.

D. Appointments to fill vacancies in the list of a party's nominees shall be made and filed with the proper filing officer using a form approved by the secretary of state at least sixty-three days prior to the general election, along with a declaration of candidacy subscribed and sworn by the selected nominee and the required form for candidates pursuant to the Campaign Reporting Act [1-19-25 to 1-19-36 NMSA 1978].

E. When the name of a nominee is filed as provided in this section, the name shall be placed on the general election ballot as the party's candidate for that office.

History: 1953 Comp., § 3-8-8, enacted by Laws 1969, ch. 240, § 158; 1975, ch. 255, § 103; 1979, ch. 378, § 6; 1995, ch. 124, § 11; 2011, ch. 137, § 51; 2015, ch. 145, § 51; 2017, ch. 101, § 8; 2019, ch. 212, § 89.

Cross references. — For printing of ballots, time of, see 1-10-4 and 1-10-5 NMSA 1978.

The 2019 amendment, effective April 3, 2019, required additional documents be included with the form for filling vacancies, and replaced "governor" with "secretary of state" with regard to issuing the general election proclamation; in Subsection A, in the introductory clause, replaced each occurrence of "governor" with "secretary of state's general election"; and in Subsection D, after "general election,", added "along with a declaration of candidacy subscribed and sworn by the selected nominee and the required form for candidates pursuant to the Campaign Reporting Act."

The 2017 amendment, effective June 16, 2017, changed the deadline for filling a vacancy on a general election ballot when a vacancy occurs after the primary, changed the deadline by which appointments to fill such vacancies are made, and provided for the secretary of state to approve the form on which appointments to fill such vacancies are made and filed; in Subsection A, in the introductory paragraph, after "after a primary election", added "but seventy or more days before the general election"; and in Subsection D, after "shall be made and filed", added "with the proper filing officer using a form approved by the secretary of state", and after "at least", deleted "fifty-six" and added "sixty-three".

The 2015 amendment, effective July 1, 2015, required that the county or state central committee making an appointment to fill a vacancy on a general election ballot, occurring after the primary, include members residing within the boundaries of the area to be represented by the public office; and added a new Subsection C and redesignated the succeeding subsections accordingly.

The 2011 amendment, effective July 1, 2011, provided for filling the vacancy in a new public office that was not included in the governor's proclamation; required that appointments to vacancies qualify pursuant to Section 1-8-18 NMSA 1978; eliminated the five day deadline for filling a vacancy caused by the death of a nominee; and eliminated the requirement that a nominee's name be pasted over the name of the initial candidate when the nominee is appointed after the ballot has been printed.

The 1995 amendment, effective January 1, 1996, added Subsection B and redesignated former Subsections B and C as Subsections C and D.

Nomination for a district court judicial position, which is a state position, not a county position, must be filled by a state central committee and not by a county central committee. Johnson v. Vigil-Giron, 2006-NMSC-051, 140 N.M. 667, 146 P.3d 312.

No vacancy occurs if there is no primary candidate. — Where the Republican Party did not run a primary election candidate for the position of state representative, a vacancy did not exist on the general election ballot for the Republican Party to fill. Johnson v. Vigil-Giron, 2006-NMSC-051, 140 N.M. 667, 146 P.3d 312.

Notice of withdrawal as candidate. — There are no formal requirements for the withdrawal of candidates from a general election and the secretary of state may rely on a candidate's press release that the candidate has withdrawn from the general election. Johnson v. Vigil-Giron, 2006-NMSC-051, 140 N.M. 667, 146 P.3d 312.

Fifty-six day rule of Subsection B (now C) invalid. — The fifty-six day restriction placed upon political party central committees by Subsection B (now C) is inconsistent with the panoply of rights provided in the remainder of Chapter 1, the Election Code; because its enforcement would result in unjust, absurd or unreasonable consequences, it cannot stand. Thompson v. Robinson, 1984-NMSC-096, 101 N.M. 703, 688 P.2d 21.

Section only authorizes filling of vacancies after primary. — Section 1-8-7 NMSA 1978 and this section only authorize the filling of vacancies on the party tickets for elective offices after the holding of the primary election. State ex rel. Robinson v. King, 1974-NMSC-028, 86 N.M. 231, 522 P.2d 83.

Vacancies for county offices. — Since no candidate appeared on democratic primary ballot for county superintendent of schools because candidate who filed for office was declared ineligible prior to election, the party's county executive committee did not have right to designate a successor candidate to appear on general election ticket. Granito v. Grace, 1952-NMSC-088, 56 N.M. 652, 248 P.2d 210 (decided under former law).

Section as exception to nominating candidates at primary. — Former provision for filling of vacancy after primary by party committee operated as an exception to statute requiring candidates to be nominated at primary election and required strict construction. State ex rel. Van Schoyck v. Board of Cnty. Comm'rs, 1942-NMSC-061, 46 N.M. 472, 131 P.2d 278.

Vacancy cannot be filled if no candidate nominated at primary. — Former statute did not permit selection of candidate after primary when there was no candidate for nomination in the primary. State ex rel. Van Schoyck v. Board of Cnty. Comm'rs, 1942-NMSC-061, 46 N.M. 472, 131 P.2d 278.

Constitutionality. — This section meets the strict scrutiny test and serves a compelling state interest. Skeen v. Hooper, 631 F.2d 707 (10th Cir. 1980).

Nominations after death of unopposed candidate. — When an unopposed candidate died before general election, only his political party may select a nominee for the general election. Skeen v. Hooper, 631 F.2d 707 (10th Cir. 1980).

Resignation of appeals judge after primary. — The office of any court of appeals judge who resigns after the 1988 primary election is not subject to the central committee nomination procedures in this section; the governor must appoint someone to fill the unexpired term. 1988 Op. Att'y Gen. No. 88-52.

Fifty-six day time limit applicable to resignations after primary. — While the fifty-six day limit of Subsection B (now C) is "impossible of performance" or "impractical" in the case of vacancies in nominations created by successful election contests, there is no reason why it would be unreasonable, unjust or absurd to require the appropriate central committees to conform to that time period in filling vacancies created by resignations after the June, 1988 primary election. 1988 Op. Att'y Gen. No. 88-52.

A prospective, unconditional resignation that takes effect within the fifty-six day time limit but before the general election, creates a present vacancy in the ballot that the appropriate party central committee may fill in accordance with this section. 1988 Op. Att'y Gen. No. 88-52.

Committee authority exercisable only in event of vacancy. — The authority of a state central committee of a political party to select a nominee for an office, to be voted upon at a general election, exists only in the event that there is a vacancy in the list of the party's nominees for that office. 1980 Op. Att'y Gen. No. 80-31.

When there has been no party nominee for an office, there is no vacancy in the list of nominees to be filled by the committee. 1980 Op. Att'y Gen. No. 80-31.

Congressional nominations. — When a political party's state central committee is performing the function of choosing a nominee for the office of United States representative under this section, only the members from the congressional district to be represented by the nominee are eligible to vote. 1980 Op. Att'y Gen. No. 80-30.

Section only authorizes filling of vacancies after primary. — This section applies in the case in which the position to be voted upon in the general election does not become "vacant" until after the primary. 1978 Op. Att'y Gen. No. 78-05.

When vacancy occurs in position that could not have been subject to primary procedure, the responsibility for selecting the nominees falls to the political parties. 1978 Op. Att'y Gen. No. 78-05.

Vacancies in single county and multicounty districts. — The intent of this section was to allow the county central committee to fill all candidate vacancies that occur in a district that is entirely within the county. Where the district involved is composed of a multicounty district, the intent is to allow the state central committee to fill any vacancies that may occur. 1974 Op. Att'y Gen. No. 74-33.

In the case of a judicial district which is a multicounty one, the state central committee names the nominees. If the judicial district is composed of a single county, then the nominee is to be selected by the county central committee. 1972 Op. Att'y Gen. No. 72-49.

Party committee may not nominate candidate if no primary candidate. — If a political party to which the primary election laws apply did not have a candidate for a particular office at the primary election, its committee could not select a nominee for the office after the primary election. 1964 Op. Att'y Gen. No. 64-64 (opinion rendered under former law).

No filing fee necessary for filling vacancy after primary. — Persons selected to fill in vacancies occurring after the primary election need not pay a filing fee in order to have their names appear on the general election ballot. 1948 Op. Att'y Gen. No. 48-5173 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 217 et seq.

29 C.J.S. Elections §§ 93, 136.