IN THE SUPREME COURT OF NEW MEXICO

STATE OF NEW MEXICO, ex rel.,

M. KEITH RIDDLE, et at.,
in their official capacities as County Clerks,

Petitioners,

v. No. S-1-SC-38228

MAGGIE TOULOUSE OLIVER,

in her official capacity as Secretary of State,

Respondent,

and

THE REPUBLICAN PARTY OF NEW MEXICO,

DAVE KUNKO, et al.,
SENATOR STUART INGLE, et al.
REPRESENTATIVE JIM TOWNSEND, et al.

Intervenors.

BRIEF IN SUPPORT OF VOTERS’

MOTION TO INTERVENE
Melanie J. Rhodes James Bopp, Jr.
And Justice Legal dba And Justice Law General Counsel,
5600 Eubank Blvd., NE Suite 195 True the Vote, Inc.
Albuquerque, NM 87111 Corrine L. Youngs
Telephone: (505) 350-7674 Amanda Narog
Email: [email protected] THE BOPP LAW FIRM, PC
Local Counsel for Proposed Intervenors 1 South Sixth St.
Terre Haute, IN 47807-3510
Telephone: (812) 232-2434
E-mails: [email protected],
[email protected]
[email protected]
Counsel for Proposed Intervenors

* Pro Hac Vice Pending

 Table of Contents
Page

Certificate of Compliance.......................................................................................... ii

Table of Authorities ................................................................................................. iii

Introduction .............................................................................................................. 2

Background on Registered Voters ............................................................................. 3

Argument ................................................................................................................... 4

I. The Voters Are Intervenors by Right .......................................................... 5

II. In the Alternative, If this Court Decides That the Voters Cannot
Intervene as of Right, the Voters Meet All the Requirements for
Permissive Intervention................................................................................ 7

A. The Voters Intervention Is Timely ......................................................... 7

B. The Voters Have an Substantial Interest in the Outcome of this

Petition Sufficient to Warrant Intervention. .......................................... 8

1. The Voters Have a Well-Established Interest in Opposing the

Unlawful Appropriation of the Constitutional Authority Granted
Their Representatives in the New Mexico Legislature ................... 8

2. The Voters Have a Personal Interest in Protecting and Preserving

Their Fundamental Right to Vote for the Protection of the Right
for All Registered Voters in This State ......................................... 10

C. The Voters Interests Will Be Jeopardized If Intervention

Is Not Permitted .................................................................................... 14

Conclusion .............................................................................................................. 15

Certificate of Service .............................................................................................. 16

i
 Certificate of Compliance with Rule 12-318(F) NMRA

I certify that, according to Rule 12-318(F), NMRA, that this brief complies

with the type-volume, size, and word limitations of the New Mexico Rules of Ap-

pellate Procedure because it contains less than 35 pages of substantive text, ex-

cluding all text excluded by that rule, and was prepare in size 14 Times New Ro-

man font, which a proportionally-spaced type face, using WordPerfect as part of

WordPerfect Office X9.

/s/ Melanie J. Rhodes

Melanie J. Rhodes
Attorney for Proposed Intervenors

ii
 Table of Authorities

Page
New Mexico Cases

Apodaca v. Tome Land Grant, 1974-NMSC-026, 86 N.M. 132,

520 P.2d 552 ................................................................................................ 8

Best v. Marino, 2017-NMCA-073, ¶ 56, 404 P.3d 450...................................... 6

Chase v. Lujan, 1944-NMSC-027, 48 N.M. 261, 149 P.2d 1003 N.M. ........... 8

Doe ex rel. Doe v. Roman Catholic Church of the Archdiocese of

Santa Fe, Inc., 1996-NMCA-094, 122 N.M. 307, 924 P.2d 273 ............... 6

Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66. ............................................ 12, 13

Murken v. Solv-Ex Corp., 2005-NMCA-137, 138 N.M. 653,

124 P.3d 1192 .............................................................................................. 7

State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11 .. 10

State ex rel. League of Women Voters v. Advisory Comm. To The N.M.

Compilation Com., 2017-NMSC-025, ¶ 1, 401 P.3d 734. .......................... 6

Thriftway Mktg. Corp. v. State, 1990-NMCA-115, 111 N.M. 763,

810 P.2d 349 ................................................................................................ 7

Varney v. City of Albuquerque, 1936-NMSC-010, 40 N.M. 90, 55 P.2d 40 .... 12

Other Cases

Bush v. Gore, 531 U.S. 98 (2000) ..................................................................... 14

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) ............................... 14

Morrison v. Olsen, 487 U.S. 654 (1988) ........................................................... 10

iii
Nev. Comm'n on Ethics v. Carrigan, 564 U.S. 117 (2011) ....................................... 9

Nevilles v. EEOC, 511 F.2d 303 (8th Cir. 1975) ....................................................... 8

Nixon v. Administrator of General Servs., 433 U.S. 425 (1977) ............................ 10

New Mexico Constitution, Statutes, and Rules

Const. Art VII, § 1(B) ................................................................................................ 8

Const. Art. II § 1 ........................................................................................................ 9

Rule 1-024(A)(2), NMRA .......................................................................................... 5

Rule 1-024(B) ............................................................................................................ 7

Other Authorities

Federalist Paper No. 47 .......................................................................................... 15

iv
 Introduction

On March 30, 2020, Petitioners 27 county clerks and the Secretary of State

filed their Stipulated Verified Emergency Petition Seeking Extraordinary Writ Re-

lief for the 2020 Primary Election and Presidential Primary Election. Petitioners

and Respondent (collectively hereinafter “the Parties”) jointly seek an order from

this Court allowing the June 2, 2020 Primary election to be conducted by mail bal-

lot in lieu of in-person and absentee ballot voting.

The Parties seek a remedy that conflicts with both New Mexico’s Constitution

and New Mexico election laws, but nonetheless beseech this Court to step outside

of its properly delegated authority to “fashion a constitutional solution to proceed

with the 2020 Primary election in a manner” that is neither equitable nor constitu-

tional. What the Parties request this Court to do here is tantamount to engaging in

pure anarchy that robs both the New Mexico Legislature and the registered voters

of New Mexico, such as proposed intervenors herein, of the protections afforded

each under both the New Mexico and the United States Constitutions.

On March 31, 2020, the New Mexico Republican Party, 29 New Mexico Leg-

islators, and certain county clerks moved to intervene in this matter. That Motion

was granted April 1, 2020.

Ronnie Cisneros, Darryl Dunlap, Stacie Ewing, Lynn Lewis, Jessica

2
Sanders, Joe Delk, Dan Banks, Carolyn Banks, and David Cheek (collectively

hereinafter “the Voters”) also request to intervene in this extraordinary action to

protect their fundamental Constitutional right to vote as registered voters in New

Mexico elections.

Background on Proposed Intervenors

1. Ronnie Cisneros is a resident and registered voter of Dona Ana County, State

of New Mexico. Ronnie Cisneros votes in person and by absentee ballot. He

is a grandfather.

2. Darryl Dunlap is a resident and registered voter of San Juan County, State of

New Mexico. Darryl Dunlap served in the military, is medically retired, and

votes in person. He counts on being able to deliver his ballot to the vote tabu-

lator to ensure his vote is counted. Darryl Dunlap is the President of the

Farmington Visitors Bureau.

3. Stacie Ewing is a resident and registered voter of Colfax County, State of New

Mexico. She runs three businesses in northern New Mexico. Ms. Ewing al-

ways votes in person.

4. Lynn Lewis is a resident and registered voter of Sandoval County, State of

New Mexico. She is retired from the furniture industry and votes in person.

5. Jessica Sanders is a resident and registered voter of Sandoval County, State of

3
 New Mexico. Ms. Sanders is a teacher who was awarded Teacher of the Year.

She votes in person.

6. Joe Delk is a resident and registered voter of Grant County, State of New

Mexico. Mr. Delk is a rancher who votes early in person.

7. Dan Banks is a resident and registered voter of Eddy County, State of New

Mexico. Mr. Banks votes in-person.

8. Carolyn Banks is a resident and registered voter of Eddy County, State of New

Mexico. She is a retired attorney who votes in person.

9. David Cheek is a resident and registered voter of Dona Ana County, State of

New Mexico.

Each Voter listed is registered to vote with a political party in New Mexico

and intend to vote in their Party’s upcoming primary.

Argument

Ronnie Cisneros, Darryl Dunlap, Stacie Ewing, Lynn Lewis, Jessica Sanders,

Joe Delk, Dan Banks, Carolyn Banks, and David Cheek are registered voters in

New Mexico with a fundamental right to vote established by both this State’s and

the Federal Constitution, but that right is imperiled by the Petitioner’s requested

relief in the instant action.

The Parties here attempt to entice this Court to utilize the national emergency

4
created by the Covid-19 virus as a guise to usurp the constitutionally-delegated

authority of the New Mexico legislature to protect the state’s primary elections

from voter fraud, jeopardizing the constitutional right to vote of every voter in this

State. This Court should reject the Parties’ unlawful invitation.

I. The Voters Are Intervenors by Right.

Intervention by right must be allowed “when the applicant claims an interest.

which is the subject of the action and the applicant is so situated that the

disposition of the action may as a practical matter impair or impede the applicant’s

ability to protect that interest, unless the applicant’s interest is adequately

represented by existing parties.” Rule 1-024(A)(2), NMRA. As discussed in detail

below, infra II.B., the Voters must intervene to not only protect their interest in

confining the branches of the New Mexico government to the lawful exercise of

their authority and no more; but, far beyond mere interest, the Voters seek to

protect their fundamental right to vote.

Moreover, this Court granted intervention for the New Mexico Republican

Party, several State legislators, and County clerks. And this Court requested

responses from the Governor, the Legislature, the Democratic Party, the

Libertarian Party, the League of Women Voters (as amicus). But the Voters, as of

right, must be allowed to respond to the Petition because none of the named

5
parties nor the amicus adequately represent the Voters interests.

The Parties assert standing in this matter under the great public importance

doctrine, which by its very terms evinces the very interest of the Voters in this

action and who by right should be allowed to intervene. To wit, the elective

franchise “is among the most precious rights in a democracy.” State ex rel.

League of Women Voters v. Advisory Comm. To The N.M. Compilation Com.,

2017-NMSC-025, ¶ 1, 401 P.3d 734. And, of course, the right to vote is a

fundamental personal right to each, individual voter. Best v. Marino, 2017-

NMCA-073, ¶ 56, 404 P.3d 450; (see also Doe ex rel. Doe v. Roman Catholic

Church of the Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 34, 122

N.M. 307, 924 P.2d 273 (“the fact that a person does not choose to litigate a

personal right does not mean that any officious third party should be granted

standing to litigate that right.”)).

Here, these Voters seek to prevent the Parties from infringing upon their

personal, fundamental right to vote. None of the Parties or the additional entities

listed above, can vindicate that personal right more effectively than can the Voters

to whom the right belongs. That superior interest requires intervention of the

Voters by right in this case.

6
II. In the Alternative, If this Court Decides That the Voters Cannot Intervene
as of Right, the Voters Meet All the Requirements for Permissive
Intervention.

Permissive intervention is granted “upon timely application . . . when an

applicant’s claim or defense and the main action have a question of law or fact in

common.” Rule 1-024(B). This rule requires an intervenor to show: 1) “a timely

application”; 2) “an interest in the outcome of the action to warrant intervention”;

and 3) “its interests will be jeopardized if intervention is not allowed.” Thriftway

Mktg. Corp. v. State, 1990-NMCA-115, ¶ 2, 111 N.M. 763, 764, 810 P.2d 349,

350. These Voters meet all of requirements and will address each in turn.

A. The Voters Intervention Is Timely.

“Timeliness is a threshold requirement for intervention” that “depends upon the

circumstances of each case.” Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14,

138 N.M. 653, 657, 124 P.3d 1192, 1196 (citing Apodaca v. Tome Land Grant,

1974-NMSC-026, ¶ 6, 86 N.M. 132, 133, 520 P.2d 552, 553.) Where this threshold

requirement is at issue, the burden is on the intervening party to establish the

timeliness of the motion to intervene. See Nevilles v. Equal Employment

Opportunity Comm’n, 511 F.2d 303, 305 (8th Cir. 1975).

The Voter’s learned of this action when the Parties filed their Stipulated

Verified Emergency Petition Seeking Extraordinary Writ Relief for the 2020

7
Primary Election and Presidential Primary Election on Monday, March 30. The
Voters now file this intervention on Thursday, April 2–just 3 days later. Given that
only a few days have passed since initiation of this suit, it is timely.

B. The Voters Have a Substantial Interest in the Outcome of this

Petition Sufficient to Warrant Intervention.

1. The Voters Have a Well-Established Interest in Opposing the

Unlawful Appropriation of the Constitutional Authority Granted
to Their Representatives in the New Mexico Legislature.

Under the New Mexico Constitution, the Legislature is granted “the sole power

to regulate the ‘manner, time and places of voting.’” Chase v. Lujan, 1944-NMSC-

027, ¶ 58, 48 N.M. 261, 149 P.2d 1003 N.M., (quoting Const. Art VII, § 1(B).) That

power, however, is not personal to the legislator, as the Supreme Court recently

explained:

How can it be that restrictions upon legislators’ voting are not restrictions
upon legislators’ protected speech? The answer is that a legislator's vote is
the commitment of his apportioned share of the legislature's power to the
passage or defeat of a particular proposal. The legislative power thus
committed is not personal to the legislator but belongs to the people; the
legislator has no personal right to it. The legislator casts his vote as trustee
for his constituents, not as a prerogative of personal power. In this respect,
voting by a legislator is different from voting by a citizen. While a voter's
franchise is a personal right, the procedures for voting in legislative
assemblies pertain to legislators not as individuals but as political
representatives executing the legislative process.

Nev. Comm'n on Ethics v. Carrigan, 564 U.S. 117, 117 (2011) (emphasis added).

In accordance with that principle, the Constitution of New Mexico expressly

8
provides that “All political power is inherent in the people; and government is
instituted for their protection, security, and benefit, and to promote their general
welfare.” Const. Art. II § 1.

The Parties requests relief that will unquestionably upset the proper balance of

power between New Mexico’s co-equal branches of government. To determine if

that balance has been upended, the United States Supreme Court has stated that :

In determining whether the Act disrupts the proper balance between the
coordinate branches, the proper inquiry focuses on the extent to which the
action by one branch prevents another branch from accomplishing its
constitutionally assigned functions. Only where the potential for disruption
is present must we then determine whether that impact is justified by an
overriding need to promote objectives within the constitutional authority of
Congress.

State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶ 34, 120 N.M. 562, 904 P.2d 11;

(quoting Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977)

(internal citations omitted)). Under this framework, this Court has held that “one

mark of undue disruption would be an attempt to foreclose legislative action in

areas where legislative authority is undisputed.” State ex rel. Clark, 1995-NMSC-

048, ¶ 34. Undue disruption unqualifiedly exists here.

Should the balance of powers be so tipped here, the Separation of Powers

Doctrine would become a nullity in New Mexico. This doctrine has survived for

over two centuries because it recognizes the simple fact that, applied here,

9
members of the Legislature act as the representatives of the People, while judges

perform a much different role. “It is a truism that constitutional protections have

costs. While the separation of powers may prevent [the Court] from righting every

wrong, it does so in order to ensure that we do not lose liberty.” Morrison v.

Olsen, 487 U.S. 654, 710 (1988) (Scalia, A., dissenting). If the Parties’ requested

relief is granted here, the legislative power will be stripped from all New

Mexicans, if stripped from the Legislature, divesting the People of their lawful

representation at the seat of government.

But again, the Parties seek to wrest from New Mexico’s Legislature the power

to regulate elections and place it squarely into the hands of this Court. That power,

however, is the People’s power, delegated in trust only to the Legislature as the

duly elected representatives of the People.

While many Representatives have intervened to protect the legislative power,

those Representatives have no personal right to it, for that power and ultimately

“All political power is inherent in the people.” As each of the Voters has devised

that power to their chosen representative, and only to them, the Voters have a

concrete interest in advocating for its protection.

2. The Voters Have a Personal Interest in Protecting and Preserving

Their Fundamental Right to Vote for the Protection of the Right
for All Registered Voters in This State.

10
 Every New Mexican enjoys a fundamental right to vote under both the State and

Federal Constitutions, but that right is imperiled by the Parties’ obvious attempt to

strip all authority from their state representatives to regulate the election by filing

this extraordinary writ. The relief requested would require the State of New Mexico

to forego almost all in-person voting and instead conduct the 2020 Primary Election

by mailed ballot. (Pet. at 26.) The county clerk would send each voter in the county

a ballot, without the individual first having to submit an application for an absentee

ballot. That ballot, then, is to be completed by the voter and returned by mail. An

election conducted by mail ballot only, as proposed here, would all but ensure an

election replete with both ballot fraud and vote harvesting.

New Mexico has long recognized that

The “one person, one vote” doctrine is grounded in the Equal Protection
Clause of U.S. Const. amend. XIV, § 1. This doctrine prohibits the dilution
of individual voting power by means of state districting plans that allocate
legislative seats to districts of unequal populations, thereby diminishing the
relative voting strength of each voter in overpopulated districts.

Maestas v. Hall, 2012-NMSC-006 ¶ 1, 274 P.3d 66. And this Court has further

acknowledged that “[p]robably no Constitution was ever drafted that refers to the

people so much power to be exercised by direct vote.” Varney v. City of

Albuquerque, 1936-NMSC-010, ¶ 20, 40 N.M. 90, 55 P.2d 40.

Mailed ballots of the type proposed here will completely eradicate all election

11
protections currently codified in law by the New Mexico Legislature for the

protection of the voter and to ensure the integrity of New Mexico’s elections

through statutory provisions for in person voting and for voting by absentee ballot.

These protections have been enacted to prevent the kind of voter fraud the Parties’

“relief” would all but ensure. It is all but certain that, without these measures,

many ballots will be unlawfully procured and counted in the June 2, 2020 Primary.

Those individuals who vote illegally will unlawfully nullify and dilute the votes

made by the registered voters of this State—voters the Legislature has carefully

and methodically taken great care to protect. This is a profound injury to the Voters

right to vote. Maestas v. Hall, 2012-NMSC-006, ¶ 17 (acknowledging that vote

dilution can create a concrete injury).

Furthermore, the Parties “relief” will violate the equal protection of the law

under both the State and Federal Constitutions because that “relief” will create

disparate classes of voters. Specifically, under their proposed plan, lawfully

registered voters placed on an inactive list will not receive a mailed ballot. In

order to receive a ballot, then, these persons will have to request a ballot in the

event they ever receive notice of the Parties’ “relief” scheme. Their right to vote

will be thereby burdened and often forfeited.

Similarly, the county clerks will mail ballots to voters properly registered but

12
no longer eligible to vote– i.e., recently deceased voters or those who have moved

out of state–to the address provided to the election board at the time of

registration. These ballots will then be available to unscrupulous persons to

fraudulently cast that ballot and thereby diluting the vote of legitimate voters,

such as the Voters requesting intervention here. Under the election laws enacted

by the Legislature, however, both in person and absentee ballot voting have

statutory protections to ensure the equal treatment of all voters and to prevent or

deter illegal voting.

The State, having protected the right to vote on equal terms, “may not, by later

arbitrary and disparate treatment, value one person’s vote over that of another.

Bush v. Gore, 531 U.S. 98, 109 (2000); see Harper v. Virginia Bd. of Elections,

383 U.S. 663, 665 (1966) (“Once the franchise is granted to the electorate, lines

may not be drawn which are inconsistent with the Equal Protection Clause of the

Fourteenth Amendment”)). If this Court were to grant the “relief” the Parties

request, “there must be at least some assurance that the rudimentary requirements

of equal treatment and fundamental fairness are satisfied.” Bush, 531 U.S. at 109.

But that cannot be done here because the plan advocated by the Parties’ is

completely bereft of any protections whatsoever to ensure the equal treatment of

New Mexico’s registered voters.

13
 Crucially, a mailed ballot election, such as the type proposed here, will

unquestionably degrade the integrity of the election, enhance voter fraud, and

dilute the vote of lawfully registered voters. A bedrock principle of our

representative democracy is that elections should be free and fair. The Voters have

a sincere interest in the outcome of the petition as it will impair and dilute their

fundamental right to vote.

C. The Voters Interests Will Be Jeopardized If Intervention Is Not

Permitted.

As has been amply demonstrated, the Voters have more than an interest in the

outcome of this matter–they each seek to safeguard a fundamental right, personal

to them, and to secure that right from unconstitutional deprivation. No party or

entity herein named can claim such personal right in the capacity in which they

appear before this Court, nor can they properly advocate for or protect the Voter’s

right to vote more effectively than can the individual Voter.

Additionally, the Voters also seek to secure the authority delegated by the

People solely to the New Mexico Legislature, and to that body alone, and to

defend against the blatant attack advance against that authority by the Parties. As

these registered Voters exercise their fundamental right to vote to delegate that

power, they also have a substantial interest in preventing any conspiracy devised

to seize that power from their elected representatives.

14
 Conclusion

As James Madison explained in Federalist Paper No. 47, “[w]ere the power of

judging joined with the legislative, the life and liberty of the subject would be

exposed to arbitrary control, for THE JUDGE would then be THE

LEGISLATOR.” It is for that reason the Voters respectfully request that this Court

grant the instant Motion and allow them to intervene in this action.1

Respectfully Submitted,

/s/ Melanie J. Rhodes James Bopp, Jr. *

Melanie J. Rhodes IN Atty. No. 2838-84
And Justice Legal, LLC dba General Counsel, True the Vote, Inc.
And Justice Law Corrine L. Youngs*
5600 Eubank Blvd., NE Suite 195 IN Atty. No. 32725-49
Albuquerque, NM 87111 Amanda Narog*
Telephone: (505) 350-7674 IN Atty. No. 35118-84
Email: [email protected] THE BOPP LAW FIRM, PC
Local Counsel for Proposed 1 South Sixth St.
Intervenors Terre Haute, IN 47807-3510
Telephone: (812) 232-2434
E-mails: [email protected],
[email protected]
[email protected]
Lead Counsel for Proposed
Intervenors

* Pro Hac Vice Pending

1
Voters also ask leave to file a brief on the merits of the Petition on or before April 8th,
in accordance with the Court’s recent scheduling Order.

15
 Certificate of Service

I hereby certify that on Thursday, April 2, 2020 the foregoing Motion to

Intervene was filed with the State of New Mexico’s Tyler/Odyssey E-File & Serve
System, causing service upon all parties through counsel of record.

/s/ Melanie J. Rhodes

Melanie J. Rhodes
Attorney for Proposed Intervenors

16