New Mexico Secretary of State Dianna J. Duran, a Republican, recently removed the Green Party and the Constitution Party from the ballot, even though both parties successfully petitioned in 2012 and even though, for the last seventeen years, New Mexico law has been interpreted to mean that when a party successfully petitions for party status, it gets the next two elections, not just one election.

The Secretary of State found a discredited 1992 Attorney General’s Opinion that says a party should be removed, after just one election, if it runs for either Governor or President and fails to get one-half of 1%. Yet, the Opinion says if a party qualifies by petition and then doesn’t run for either Governor or President, it remains on the ballot for the next election.

The 1992 Opinion appears to disregard the language of the statute itself, and therefore New Mexico Secretaries of State and Attorneys General declined to follow it for the entire period 1996 through 2012. For example, in 2004, the Green Party polled below one-half of 1% for President, and yet on July 12, 2005, then-Secretary of State Rebecca Vigil-Giron ruled that it is still ballot-qualified. The Attorney General agreed with her interpretation, although no formal Opinion was issued. In 2004, the Constitution party also polled less than one-half of 1% for President, and the Secretary of State also ruled that the Constitution Party was ballot-qualified. Again in 2008, the Constitution Party polled less than one-half of 1% for President, but it was left on the ballot for 2010. This can be verified by observing that the Constitution Party was listed on the state income tax forms that were filed during 2010. In New Mexico, ballot-qualified parties are listed on the state income-tax form, so that taxpayers can send a small donation to the qualified party of their choice.

The law itself, written in 1989, says, “Section 1-7-2(c). A qualified party shall cease to be qualified if two successive general elections are held without at least one of the party’s candidates on the ballot or if the total votes cast for the party’s candidates for governor or president, provided that the party has a candidate seeking election to either of those offices, in a general election do not equal at least one-half of 1% of the total votes cast.” The question is whether the phrase “two successive general elections” modifies only the first half of that sentence, or both halves. Most neutral readers will probably assume it applies to both halves of the sentence. It is irrational to eliminate a party that was active enough to place a candidate for President or Governor on the ballot, and yet leave on the ballot a party that simply didn’t run for either of those offices.

It is possible the Constitution Party will file a lawsuit to regain its qualified status. New Mexico continues to recognize the Independent American Party, which petitioned for party status in 2012 and didn’t run a presidential candidate. Yet, the Independent American Party is no longer organized in New Mexico; the founder, Jon Barrie, is now the state chair of the Constitution Party. The Libertarian Party is still recognized because it polled far more than one-half of 1% for President in 2012 (it polled 3.55% for President).