On July 21, attorneys for the New Mexico Secretary of State filed this 15-page brief in Parker v Duran, 1:14cv-617. This is the federal lawsuit over the state’s 3% petition requirement for independent candidates. The plaintiff, an incumbent member of the State Public Education Commission, wants to run for re-election this year as an independent candidate. He submitted a petition that has fewer signatures than the legal requirement, but he did submit more than enough signatures to meet the 1% requirement if he had been the nominee of a minor party.

The state’s brief says the 3% petition requirement is needed to keep the ballot from being too crowded, even though, if the plaintiff, James T. Parker, fails to get on the ballot, there will be only one candidate on the November ballot for his race. The author of the brief seems slightly embarrassed to argue that the state is in danger of having a crowded ballot if the requirement is struck down. The brief says, on page 10, “Plaintiff would have this Court ignore that interest here because the ballot for Public Education Commission District 4 is hardly crowded; to the contrary, it has been empty until this year. But as tempting as it may be to adopt that reasoning, it is legally flawed. The question is not whether there is any historical risk to crowding this specific ballot. The question is whether the legislature may constitutionally require independent candidates to demonstrate a modicum of support.”

The brief also says on page 14 that voters “do not have the right to elect” Parker if he doesn’t show a modicum of support, ignoring the fact that New Mexico permits write-in candidates in the general election. In November 1980 New Mexico voters elected a write-in candidate to Congress.