United States Court of Appeals, Tenth Circuit

632 F.
2d 116
John B. ANDERSON, Jane Evans, and Gerald M. Eisenstat,

Plaintiffs,
and
Dorothy F. Runnels, Richard Buffington, Rudy Gutierrez,
Merle Garcia, Individually, and on behalf of all
others similarly situated,
Plaintiffs-In-Intervention-Appellants,
v.
Shirley HOOPER, Secretary of State of the State of New
Mexico, Defendant- Appellee.
Dorothy F. RUNNELS, Richard Buffington, James Michael,
and
Susan Crutchfield, Individually, and on behalf of
all others similarly situated,
Plaintiffs- Appellants,
v.
Shirley HOOPER, Secretary of State of the State of New
Mexico, Defendant- Appellee.
Nos. 80-2014, 80-2015.
United States Court of Appeals,

Tenth Circuit.
Argued Oct. 6, 1980.
Decided Oct. 8, 1980.
Jill Z. Cooper, Deputy Atty. Gen., Santa Fe, N.M. (Jeff Bingaman, Atty.
Gen., Santa Fe, N.M., with her on brief), for defendant-appellee.
James R. Toulouse of Toulouse, Toulouse & Garcia, P.A., Albuquerque,
N.M., and C. Barry Crutchfield, of Templeman & Crutchfield, Lovington,
N.M., for plaintiffs-in-intervention-appellants and plaintiffs-appellants.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
McWILLIAMS, Circuit Judge.
These two appeals have been consolidated in this Court for briefing and oral
argument, and both will be disposed of in this opinion. These appeals are
related to Skeen v. Hooper, 631 F.2d 707 (10th Cir.), and our opinion in that
case has been filed simultaneously with the filing of this opinion. The general
background facts set forth in Skeen will not be repeated here.
Dorothy Runnels, the widow of Congressman Harold Runnels, determined to

run for Congress for New Mexico's Second Congressional District as an
Independent Candidate. On the morning of September 3, 1980, in her home
county, Lea County, New Mexico, Mrs. Runnels changed her party affiliation
from Democrat to Independent. At about 2:00 p. m. on that same date, Mrs.
Runnels presented to Shirley Hooper, New Mexico's Secretary of State, her
declaration of candidacy and nominating petitions. The Secretary of State
rejected Mrs. Runnels' declaration and petitions. The ground for the Secretary's
refusal was that such declaration and petitions were untimely tendered.1
In response to the rejection by the Secretary of State of her declaration and

petitions, Mrs. Runnels instituted two legal proceedings in the United States
District Court for the District of New Mexico. First, on September 4, 1980, she
filed a motion to intervene in No. 80-432-M, Anderson v. Hooper. That motion
was denied, and Case No. 80-2014, Anderson v. Hooper, represents an appeal
from the order denying intervention.
Mrs. Runnels also instituted on September 10, 1980, an independent action

against the Secretary of State, Shirley Hooper. She sought declaratory judgment
and an injunctive order commanding the Secretary of State to certify her as an
Independent Candidate for Congress from the Second District. More
specifically, Mrs. Runnels claimed that the provisions of N.M.Stat.Ann. 1-848 (1978) could not be constitutionally applied to her, and that the time
requirements of N.M.Stat.Ann. 1-8-52 (1978), which had been extended by
Judge Mechem in Anderson v. Hooper to August 20, 1980, should in her case
be extended through September 5, 1980.
By answer, the Secretary of State alleged that Mrs. Runnels' tendered

declaration did not, and could not, comply with the provisions of N.M.Stat.Ann.
1-8-48 (1978), and that the declaration and petitions did not meet the time
requirements of N.M.Stat.Ann. 1-8-52 (1978), as modified by Judge
Mechem's order in the Anderson v. Hooper case.
Upon trial of this matter, the Honorable Santiago E. Campos, a United States
District Judge for the District of New Mexico, ruled in favor of the Secretary of
State, and dismissed the action. Mrs. Runnels appeals the dismissal order, and
that particular appeal is No. 80-2015.
In dismissing Mrs. Runnels' claim for declaratory judgment and injunctive

relief, the trial court advised counsel that he had conferred with Judge Mechem
about his (Mechem's) decision in the Anderson v. Hooper case, and that Judge
Mechem had advised him that the ruling in Anderson v. Hooper extending the
time to file as an Independent Candidate applied only to the office of
Presidency, and did not apply to the office of United States Congressman. With
this assurance from Judge Mechem, Judge Campos ruled that Mrs. Runnels'
claim that she was lawfully entitled to be certified as an Independent Candidate
for Congress by the Secretary of State was "flawed" in two respects: (1) her
declaration and petitions were not timely filed with the Secretary of State as
required by N.M.Stat.Ann. 1-8-52 (1978) and (2) Mrs. Runnels could not
meet the requirement of N.M.Stat.Ann. 1-8-48 (1978), regarding disaffiliation
with a political party.
N.M.Stat.Ann. 1-8-48 (1978) provides that nomination as an Independent

Candidate shall be made by filing a Declaration of Independent Candidacy and
a nominating petition with the proper filing officer, and that, in making a
declaration of independent candidacy, the candidate for an office other than that
of President or Vice President shall submit a sworn statement in the following
form:
DECLARATION OF INDEPENDENT CANDIDACY

9
I, __________ (candidate's name on affidavit of registration) being first duly

sworn, say that I am a voter of precinct no. ____ of the county of ______, state
of New Mexico;
10
I have declined to designate my party affiliation as shown by my affidavit of

registration and I have not changed such declination subsequent to January 1 of
the year of the general election at which I seek to be a candidate; ...
11
As indicated, then, the form set out in the statute required Mrs. Runnels to
swear that she had declined to designate her party affiliation and that she had
"not changed such declination" subsequent to January 1, 1980. In her
declaration Mrs. Runnels altered the printed form and affirmatively stated that
she had changed her party affiliation after January 1, 1980. The fact of the
matter of course is, as above indicated, that Mrs. Runnels changed her party
affiliation on September 3, 1980.
12
Under the admitted facts, we are of the firm view that the disaffiliation
provision of N.M.Stat.Ann. 1-8-48 (1978) bars Mrs. Runnels from being
certified by the Secretary of State as an Independent Candidate for Congress
from the Second District, and we reject the suggestion that N.M.Stat.Ann. 18-48 (1978) is unconstitutional. In thus holding, we rely on Storer v. Brown,
415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974).
13
In Storer, the Supreme Court upheld a California statute which forbids a ballot
position on the general election ballot to an Independent Candidate for elective
public office if he had a registered affiliation with a qualified political party
within one year prior to the immediately preceding primary election. The
California statute, in Storer, was upheld, and enforced, against two would-be
Independent Candidates for United States Congressman who had changed their
party affiliation from Democrat to Independent in January and March of the
year involved. N.M.Stat.Ann. 1-8-48 (1978) is quite similar to the statute
under consideration in Storer, and is indeed a bit less restrictive. The New
Mexico statute requires that there be no party affiliation for a period of slightly
less than one year prior to the general election, whereas the California statute
requires no party affiliation for something more than one year prior to the
general election.
14
Mrs. Runnels would escape the rule of Storer by contrasting the provisions of
N.M.Stat.Ann. 1-8-48 (1978) with the provisions of N.M.Stat.Ann. 1-8-18
(Supp. 1979). The former, as indicated, requires, in effect, that a would-be
Independent Candidate for office at the general election have no party
affiliation after January 1 of the year in question, with such status continuing
throughout the year.2 N.M.Stat.Ann. 1-8-18(A)(1) (Supp. 1979) requires a
person desiring to become a candidate for nomination by a political party to
demonstrate his affiliation with such party on the date of the governor's
proclamation for the primary election, which proclamation is, under
N.M.Stat.Ann. 1-8-12 (1978), to be issued on the first Monday in February of
each even-numbered year.3 This difference is not such as would render
N.M.Stat.Ann. 1-8-48 (1978) unconstitutional. The "difference" relied on is a
relatively slight one. Any decision as to which election laws are valid and
which are invidious under the Equal Protection Clause is very much a "matter
of degree." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39
L.Ed.2d 714 (1974) (quoting from Dunn v. Blumstein, 405 U.S. 330, 348, 92
S.Ct. 995, 1006, 31 L.Ed.2d 274 (1972)). The difference in the time
requirements of N.M.Stat.Ann. 1-8-48 (1978) and 1-8-18 (Supp. 1979) is
minor, and is not in our view "invidious" in its nature or practical effect.
15
If we understand it correctly, the "difference" which counsel perceives in the

New Mexico statutes was in reality also present in the California statutes under
consideration in Storer. As mentioned, the California statute forbids ballot
position to an Independent Candidate for elective public office if he had a
registered affiliation with a qualified political party within one year prior to the
immediately preceding primary election. Nomination papers for a would-be
Independent Candidate are required to be filed with the Secretary of State not
more than seventy nine days nor less than fifty four days before the date of the
election. As concerns candidates for party nomination, the California statutes
provide that a declaration of candidacy should be made not less than eighty
three nor more than 113 days prior to the direct primary, which in California is
held on the first Tuesday after the first Monday in June. And the California
statutes also provide that no declaration of candidacy shall be filed unless the
candidate is shown by his affidavit of registration to have been affiliated with
the political party, the nomination of which he seeks, for not less than three
months immediately preceding the time he presents his declaration, or for so
long as he has been eligible to register to vote. The same California statute also
provides that the candidate must show that he has not been registered with a
political party, other than the political party the nomination of which he seeks,
within twelve months immediately prior to the filing of the declaration. It is at
once apparent from Storer that the applicable time periods prescribed for an
Independent Candidate are no where near the same as the time periods
prescribed for one who goes the party route.
16
In sum, we feel that Storer v. Brown disposes of the argument that

N.M.Stat.Ann. 1-8-48 (1978) is unconstitutional. That statute effectively bars
Mrs. Runnels from obtaining the relief which she sought, and she is, under the
circumstances, limited to campaigning as a write-in candidate, and not as an
Independent Candidate with her name on the ballot.
17
In disposing of this controversy on the basis of N.M.Stat.Ann. 1-8-48 (1978),

we need not here consider the alternative ground relied on by the trial court,
namely the failure by Mrs. Runnels to file her declaration and nominating
petitions within the time prescribed by N.M.Stat.Ann. 1-8-52 (1978). Also,
the appeal taken from the order denying intervention is moot. The relief sought
in the complaint in intervention is essentially the same as sought by Mrs.
Runnels in her suit against the Secretary of State.
18
In No. 80-2015, the judgment is affirmed. In No. 80-2014, the appeal is

dismissed as moot.
Judge Edwin L. Mechem, a United States District Judge for the District of New
Mexico, ruled on August 12, 1980, Anderson v. Hooper, 498 F.Supp. 905, that,
notwithstanding the provisions of N.M.Stat.Ann. 1-8-52 (1978), John B.
Anderson had until August 20, 1980, to file as an Independent Candidate for
President
Declarations of independent candidacy and nominating petitions shall be filed

with the proper filing officer on the first Tuesday of March each evennumbered year. N.M.Stat.Ann. 1-8-52(B) (1978)
Statements of candidacy for convention designation for the office of United

States Representative shall also be filed on the first Tuesday of March of each
even-numbered year. N.M.Stat.Ann. 1-8-26 (1978)

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632 F.

John B. ANDERSON, Jane Evans, and Gerald M. Eisenstat,

United States Court of Appeals,

McWILLIAMS, Circuit Judge.

Dorothy Runnels, the widow of Congressman Harold Runnels, determined to

In response to the rejection by the Secretary of State of her declaration and

Mrs. Runnels also instituted on September 10, 1980, an independent action

By answer, the Secretary of State alleged that Mrs. Runnels' tendered

In dismissing Mrs. Runnels' claim for declaratory judgment and injunctive

N.M.Stat.Ann. 1-8-48 (1978) provides that nomination as an Independent

DECLARATION OF INDEPENDENT CANDIDACY

I, __________ (candidate's name on affidavit of registration) being first duly

I have declined to designate my party affiliation as shown by my affidavit of

If we understand it correctly, the "difference" which counsel perceives in the

In sum, we feel that Storer v. Brown disposes of the argument that

In disposing of this controversy on the basis of N.M.Stat.Ann. 1-8-48 (1978),

In No. 80-2015, the judgment is affirmed. In No. 80-2014, the appeal is

Declarations of independent candidacy and nominating petitions shall be filed

Statements of candidacy for convention designation for the office of United

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