On September 2, U.S. District Court Judge Margaret Strickland, a Biden appointee, refused to enjoin the New Mexico ballot access laws that prevented the Forward Party from placing its statewide nominees on the 2026 ballot. New Mexico Forward Party v Toulouse Oliver, 1:26cv-2286. Here is the 31-page opinion.
New Mexico is the only state that has a “double petitioning requirement”, which means that it requires one petition to qualify the party itself, and then (after the new party nominates candidates by convention) requires each of the nominees to submit his or her own separate petition. The nominee petition (for parties with a registration under 1% of the statewide total) is 2% of the last gubernatorial vote, or 14,246 signatures. The Forward Party successfully petitioned as a minor party, but was unable to then get 14,246 valid signatures for each of its statewide nominees.
A similar double petition system had been struck down in 2003 by Maryland’s highest state court, so that left New Mexico as the only state with such a requirement. The judge said that the Maryland precedent is not on point because, she wrote, the Maryland party petition required more signatures than the nominee petitions, so the nominee petitions didn’t add anything. She is mistaken in reference to statewide candidates. The Maryland party petition at the time of the 2003 ruling was 10,000 signatures but the nominee petitions were 1% of the number of registered voters, or approximately 27,000 signatures each for statewide office.
The judge said that the current New Mexico system is similar to the Pennsylvania system, but there is no Pennsylvania requirement for a petition to qualify the party itself; Pennsylvania only has candidate petitions. There is no double petitioning requirement. Furthermore, in Pennsylvania, the candidate petitions can all be on a single petition, whereas in New Mexico, every candidate needs a separate petition. Even the gubernatorial candidate and the lieutenant governor candidates in New Mexico need separate petitions, even though they run as a joint ticket team.
The judge said the New Mexico system had been upheld in 2006, but in 2006 the nominee petitions were 1% of the last gubernatorial vote, and now they are at 2%. The 2023 session of the legislature doubled the requirement for minor parties with less than 1% of the registration.
The judge says the requirements are necessary to prevent “ballot overcrowding”, despite the evidence in the cast that New Mexico, for over twenty-five years, has had an average of fewer than two candidates on the general election ballot for all federal and state office.
The judge ignored the U.S. Supreme Court teaching in Storer v Brown (1974) that courts should decide whether a ballot access barrier is too difficult by analyzing how many candidates successfully used it. The judge made much of the fact that three Forward Party nominees for local partisan office did get on the ballot this year, but they only needed a few hundred signatures because their districts are so small.
The judge assumed that because the Forward Party only has 227 registered members, therefore its nominees lack popular support. But in reality, throughout history, a minor party’s registration has virtually no correlation with the support of its nominees. Vermont Progressive Party nominees frequently win general elections to the legislature, and once even to statewide office, yet the party always has a tiny number of voters in its own primary (Vermont doesn’t have registration by party).
Perhaps the decision’s greatest weakness is that it says nothing about the fact that New Mexico doesn’t require nominee petitions for president, and yet New Mexico doesn’t have a crowded presidential ballot. One wonders, if the New Mexico presidential ballot is uncrowded despite the absence of nominee petitions, why is it needed for other office candidates?