IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-002

Filing Date: December 19, 2019

No. S-1-SC-37723

STATE OF NEW MEXICO ex rel.,

JOHN P. SUGG, DIANNA LUCE,

FRANCESCA MARTINEZ-ESTEVEZ,

CLINT WELLBORN, DONALD

GALLEGOS, ANDREA REEB,

PAULA PAKKALA, and 

LEMUEL L. MARTINEZ,

Petitioners,

v.

MAGGIE TOULOUSE OLIVER,

Secretary of State for the

State of New Mexico,

Respondent.

ORIGINAL PROCEEDING

Released for Publication February 11, 2020.

John P. Sugg, District Attorney

Alamogordo, NM

for Petitioners

Hector H. Balderas, Attorney General

Olga Serafimova, Assistant Attorney General

Santa Fe, NM

for Respondent

InAccord, P.C.

Daniel A. Ivey-Soto

Albuquerque, NM
Walsh Gallegos Trevino Russo & Kyle, P.C.

Linda May Trujillo

Albuquerque, NM

for Amicus Curiae Legislative Sponsors

and

No. S-1-SC-37785

STATE OF NEW MEXICO ex rel.,

HON. MARY MARLOWE SOMMER,

HON. NANCY JEAN FRANCHINI,

HON. CONRAD FREDERICK PEREA,

HON. ABIGAIL ARAGON,

HON. WILLIAM G.W. SHOOBRIDGE,

HON. JENNIFER E. DELANEY,

HON. SHANNON MURDOCK,

HON. JEFF MCELROY,

HON. FRED TRAVIS VAN SOELEN,

HON. ALBERT J. MITCHELL, JR.,

HON. DAYLENE MARSH,

HON. DANIEL A. BRYANT,

HON. CINDY M. MERCER,

As New Mexico State District Court Judges

and Citizens of New Mexico,

DISTRICT METROPOLITAN COURT

JUDGES’ ASSOCIATION, INC.,

HON. VICTOR EDMUND VALDEZ, As a

Metropolitan Court Judge and

Citizen of the State of New Mexico,

Petitioners,

v.

MAGGIE TOULOUSE OLIVER,

Secretary of State for the

State of New Mexico,

Respondent.

ORIGINAL PROCEEDING
The Vargas Law Firm, LLC

Ray M. Vargas, II

Albuquerque, NM

for Petitioners

Hector H. Balderas, Attorney General

Olga Serafimova, Assistant Attorney General

Santa Fe, NM

for Respondent

InAccord, P.C.

Daniel A. Ivey-Soto

Albuquerque, NM

Walsh Gallegos Trevino Russo & Kyle, P.C.

Linda May Trujillo

Albuquerque, NM

for Amicus Curiae Legislative Sponsors

and

No. S-1-SC-37789

STATE OF NEW MEXICO ex. rel.,

NEW MEXICO ASSOCIATION OF 

COUNTIES, MARK CAGE and

BOARD OF COUNTY COMMISSIONERS OF

THE COUNTY OF OTERO,

Petitioners,

v.

MAGGIE TOULOUSE OLIVER,

Secretary of State for the

State of New Mexico,

Respondent.

ORIGINAL PROCEEDING

New Mexico Association of Counties

Steven Kopelman
Grace Philips

Patrick F. Trujillo

Santa Fe, NM

for Petitioners

Hector H. Balderas, Attorney General

Olga Serafimova, Assistant Attorney General

Santa Fe, NM

for Respondent

InAccord, P.C.

Daniel A. Ivey-Soto

Albuquerque, NM

Walsh Gallegos Trevino Russo & Kyle, P.C.

Linda May Trujillo

Albuquerque, NM

for Amicus Curiae Legislative Sponsors

OPINION

VIGIL, Justice.

{1} These separate, but related mandamus proceedings challenge the 

constitutionality of House Bill 407 (HB 407), 54th Leg., 1st Sess. (N.M. 2019), to the 

extent it postpones the times of election and extends the terms of certain public offices. 

2019 N.M. Laws, ch. 212. Petitioners are among the class of public officers who would 

be affected by the election deferral provisions of HB 407; the petitioning groups 

represent district attorneys, district and metropolitan court judges, and county public 

officers. Petitioners’ arguments, though variously framed, each turn in part upon the 

premise that HB 407 is unconstitutional insofar as it purports to extend their 

constitutionally mandated terms of office. This Court assumed original jurisdiction over 

the petitions under Article VI, Section 3 of the New Mexico Constitution. Concluding that 

the application of HB 407 would result in an unconstitutional alteration to the terms of 

office of all three petitioning groups, we issued writs of mandamus in each case 

directing Respondent, as Secretary of State (the Secretary), to refrain from 

implementing the affected provisions. In this opinion, we explain the reasoning and 

rationale underlying our issuance of writs of mandamus.

I. STATUTORY BACKDROP

{2} The enactment of HB 407 accomplished a major overhaul of this state’s Election 

Code, NMSA 1978 §§ 1-1-1 to -26 (1969, as amended through 2019). The challenged 
provisions of HB 407 were motivated by what its legislative sponsors (the Sponsors) 

describe in their amicus briefs as an intent “to standardize the election dates for certain 

[county] offices[,]” “level” or “balance out the number of county officers on the ballot in 

any given election year,” and “stagger the retention [elections]” of district and 

metropolitan court judges. To this end, the Legislature brought about what the Sponsors 

characterize as a “one-time realignment” of the ballot and term provisions governing 

certain elected offices. 

{3} With respect to the petitioning judges and county officers, the Legislature devised 

different two-tiered frameworks to effectuate its intended “staggered” election and 

“leveled” ballot goals. As to the county offices, the Legislature repealed the then existing 

version of NMSA 1978, Section 1-10-8 (2015), in favor of a new version of the statute. 

Subsection (A) of the amended version of Section 1-10-8 (2019) specifies the county 

clerk, county treasurer, and “county commission districts and positions with oddnumbered designations” as among the elected offices to be voted on in presidential 

election years, 2019 N.M. Laws, ch. 212, § 103(A)(13)-(15), while subsection (B) 

specifies the county sheriff, county assessor, probate judge, and “county commission 

districts and positions with even-numbered designations” as among the elected offices 

required to be on the ballot in gubernatorial election years. Id. § 103(B)(20)-(23). In 

tandem with the amendments made to NMSA 1978, Section 1-10-8, the Legislature also 

enacted a temporary provision designed to extend the terms of county offices as 

follows: 

The secretary of state shall provide a process to renumber district 

numbers so that offices are aligned with the offices listed for election in 

Section 1-10-8 NMSA 1978 and, where necessary, shall provide for an 

extended term to the general election in 2022 or 2024 only as required to 

align offices and positions to the offices listed for election in Section 1-10-

8 NMSA 1978; provided that where one member of a local governing body 

must receive an extended term pursuant to this section, the secretary of 

state shall have the members whose terms expire the same year draw lots 

to make the determination.

2019 N.M. Laws, ch. 212, § 281 (emphasis added). Thus, HB 407, by express terms, 

calls for the postponement of elections for certain county offices in 2020, while 

expressly “extend[ing]” the terms of the incumbent office holders. See id. It appears that 

the practical impact of these provisions, if enforced, would extend the terms of office of 

nineteen county commissioners, three probate judges, two county clerks and sheriffs, 

one county treasurer, and either one or two county assessors. 

{4} The Legislature enacted a similarly intricate set of amendments to accomplish its 

stated goal of staggering the retention elections of district and metropolitan court 

judges. In this regard, the Legislature began by creating a new chapter of the Election 

Code, denominated as the Nonpartisan Judicial Retention Act, NMSA 1978, §§ 1-26-1 

to -6 (2019). 2019 N.M. Laws, ch. 212, §§ 172 to -77. As here relevant, Chapter 212 

Section 176(A) of the New Mexico Laws of 2019 calls for a retention election to be held 
for each eligible district court judge “at the general election in the last year of the sixyear term of office for the position in which the judge is serving[,]” while Section 

176(B)(2)-(3) provides that the terms of office for district court positions “shall be 

staggered” so that “the term of office for division 2 and for every third division number 

thereafter shall expire in 2022 and every six years thereafter[,]” and that “the term of 

office for division 3 and for every third division number thereafter shall expire in 2024 

and every six years thereafter.” The term-staggering provision covering metropolitan 

court judgeships is laid out in Section 177. Subsection (A) of that section requires 

eligible metropolitan court judges to face a retention election “in the last year of the fouryear term of office for the position in which the judge is serving[,]” and Subsection (B)(2) 

provides that “the term of office for division 2 and for every second division number 

thereafter shall expire in 2024 and every four years thereafter.”

{5} Mirroring the approach it used in connection with county offices, the Legislature 

enacted temporary provisions addressed to district and metropolitan court judges, 

extending their terms of office so as to phase-in a new staggered election system. By 

these provisions, the terms of incumbent metropolitan court judges that were set to 

expire at the end of 2022 were extended for a two-year period, 2019 N.M. Laws, ch. 

212, § 280, while the terms of incumbent district judges, each set to expire at the end of 

2020, were extended for a two-year or four-year period depending on the particular 

judicial division involved. 2019 N.M. Laws, ch. 212, § 279(A)-(B). These term extensions 

were made “subject to the provisions of the Nonpartisan Judicial Retention Act and 

Article 6 of the [C]onstitution of New Mexico.” Id. §§ 279(A)- (B), 280. Again, HB 407, by 

its terms, changes the election cycle for certain offices, this time district and 

metropolitan court judgeships, while expressly pushing back the expiration of sitting 

incumbents’ terms. 

{6} A different legislative landscape is presented with respect to HB 407’s treatment 

of the election cycle for district attorneys. Even though district attorneys have appeared 

on the ballot in presidential election years since the dawn of New Mexico’s statehood, 

these state officers were included among the list of officials slated to face election in 

gubernatorial election years. 2019 N.M. Laws, ch. 212, § 103(B)(17). This is so 

notwithstanding the absence from the house bill of any separate transitional provision 

addressing any change in election cycles. As the Sponsors now acknowledge, this 

situation was created by a scrivener’s error stemming from the “inadvertent[ ] 

place[ment]” of the district attorneys “in the incorrect column” of Section 103 during the 

legislative drafting process. Accepting the Sponsors’ representation that this change in 

election cycles was unintentional, its practical effect was nonetheless to remove the 

district attorneys from the 2020 ballot and place them instead on the 2022 ballot. 

II. DISCUSSION

A. Mandamus Jurisdiction is Proper

{7} Before addressing Petitioners’ constitutional claims, we explain the basis of our 

exercise of original mandamus jurisdiction in these matters. In determining whether to 
exercise our original jurisdiction in mandamus, this Court applies a multi-factor test 

under which we will assume jurisdiction

when the petitioner presents a purely legal issue concerning the nondiscretionary duty of a government official that (1) implicates fundamental 

constitutional questions of great public importance, (2) can be answered 

on the basis of virtually undisputed facts, and (3) calls for an expeditious 

resolution that cannot be obtained through other channels such as a direct 

appeal.

State ex rel. King v. Lyons, 2011-NMSC-004, ¶ 21, 149 N.M. 330, 248 P.3d 878 

(internal quotation marks and citation omitted); see also N.M. Const. art. VI, § 3 (“The 

supreme court shall have original jurisdiction in quo warranto and mandamus against all 

state officers, boards and commissions . . . .”); NMSA 1978, § 44-2-5 (1884) (“The writ 

shall not issue in any case where there is a plain, speedy and adequate remedy in the 

ordinary course of law.”). Although relief by mandamus is most often applied “to compel 

the performance of an affirmative act by another where the duty to perform the act is 

clearly enjoined by law,” Rainaldi v. Pub. Emps. Ret. Bd., 1993-NMSC-028, ¶ 6, 115 

N.M. 650, 857 P.2d 761 (internal quotation marks and citation omitted), the writ may 

also be used in appropriate circumstances “in a prohibitory manner to prohibit 

unconstitutional official action.” AFSCME. v. Martinez, 2011-NMSC-018, ¶ 4, 150 N.M. 

132, 257 P.3d 952. For example, prohibitory mandamus has been invoked to enjoin a 

secretary of state from undertaking a ballot-related action that is beyond her authority, 

see Unite N.M. v. Oliver, 2019-NMSC-009, ¶ 1, 438 P.3d 343, or submitting to the 

voters an unconstitutional initiative proposal, see McFadden v. Jordan, 196 P.2d 787 

(Cal. 1948) (in bank) (cited approvingly in State ex rel. Clark v. Johnson, 1995-NMSC048, ¶ 19, 120 N.M. 562, 904 P.2d 11). 

{8} In view of the legal nature and public importance of the election issues raised 

herein, the need for an expeditious resolution of those issues in the face of stringent 

ballot access requirements, and the unavailability of an adequate alternate remedy, we 

conclude that Petitioners’ claims call for the use of prohibitory mandamus. Notably, the 

Secretary, far from objecting to the exercise of our original jurisdiction, seemingly 

endorses it, urging us to provide an “early resolution” of the constitutional questions 

raised in the petitions. As a general rule, this would preclude the Sponsors, in their role 

as amici curiae, from raising any such objection on their own behalf. See St. Vincent 

Hosp. v. Salazar, 1980-NMSC-124, ¶ 9, 95 N.M. 147, 619 P.2d 823 (“Amicus must 

accept the case on the issues as raised by the parties, and cannot assume the 

functions of a party.” (internal quotation marks and citation omitted)). That rule is not 

absolute, however, and may give way in circumstances where, as here, a case presents 

issues of a purely legal nature that are of widespread impact and importance. See 

Reichert v. State ex rel. McCulloch, 2012 MT 111, ¶¶ 24-27, 365 Mont. 92, 278 P.3d 

455 (reaffirming but departing from the general rule in considering a judicial recusal 

question of significant importance that was raised in a legislative amicus brief but not by 

the parties themselves); Fisher v. City of Berkeley, 693 P.2d 264, 270-72 (Cal. 1984) (in 
bank) (considering an amicus argument in support of invalidating a rent control 

ordinance).

{9} In addressing the Sponsors’ arguments opposing mandamus review, we remain 

convinced that mandamus is the appropriate remedy in these cases. It is clear that the 

electoral timing and term of office provisions of HB 407—postponing the elections for 

and extending the terms of a number of vital public offices—present issues of the 

utmost public importance. These issues implicate our citizens’ fundamental right to vote, 

see State ex rel. League of Woman Voters v. Herrera, 2009-NMSC-003, ¶ 8, 145 N.M. 

563, 203 P.3d 94 (reiterating “the longstanding and fundamental principle that the right 

to vote is of paramount importance[,]” and encouraging courts to “guard against voter 

disenfranchisement whenever possible”), and bear on the accountability of our elected 

officials. See Christopher R. Berry & Jacob E. Gersen, The Timing of Elections, 77 U. 

Chi. L. Rev. 37, 40 & n.9 (“[T]he frequency of elections or, equivalently, the duration for 

which a selected politician is able to stay in office without reelection may effect 

government accountability and the legitimacy of public policy.”). That being so, the 

satellite issue addressed by the parties as to whether Petitioners would be subject to 

removal by way of a writ of quo warranto during their extended terms is not 

determinative of our decision to entertain Petitioners’ writ applications. We note, 

nonetheless, that the Sponsors’ stated position on the issue—that quo warranto will lie 

only where the party proceeded against has committed an act that works a forfeiture of 

his or her office—too narrowly states the parameters of the writ. To the contrary, quo 

warranto has long been recognized under New Mexico law as an appropriate vehicle to 

“ascertain whether one is constitutionally authorized to hold the office he claims, 

whether by election or appointment,” State ex rel. Anaya v. McBride, 1975-NMSC-032, 

¶ 16, 88 N.M. 244, 539 P.2d 1006, and this irrespective of any active fault or 

wrongdoing on the office holder’s part. See Clark v. Mitchell, 2016-NMSC-005, ¶¶ 8-9, 

363 P.3d 1213 (stating the above-quoted principle in entertaining but rejecting a private 

petitioner’s claim that the respondent district judge was not constitutionally authorized to 

be appointed to the district court following his nonretention in the previous general 

election); see NMSA 1978, § 44-3-4(A) (1919) (authorizing an action for a writ of quo 

warranto “when any person shall usurp, intrude into or unlawfully hold or exercise any 

public office . . . within this state” (emphasis added)).

{10} We turn next to the Sponsors’ contention, directed solely to the district attorneys’ 

petition, that issuance of a writ of mandamus is unnecessary at this juncture given the 

Sponsors’ stated “motivat[ion]” to remedy the drafting “misplacement” error at the 

upcoming legislative session, a remedy which they characterize as “a doable 

proposition.” The Sponsors’ assurances about the potential passage of an amendment 

to HB 407 at the next legislative session remain subject to the uncertainties of the 

political process. As such, these assurances, while no doubt sincere, provide an 

insufficient basis for us to withhold exercise of original jurisdiction over the district 

attorneys’ writ petition. See Howell v. McAuliffe, 788 S.E.2d 706, 724 n.17 (Va. 2016) 

(stating that an alternate remedy is sufficient to displace the need for mandamus relief 

where, among other things, it “secure[s] the whole right of the party in a perfect manner, 

at the present time and in the future” (emphasis added) (internal quotation marks and 
citation omitted)). But see Denish v. Johnson, 1996-NMSC-005, ¶ 57, 121 N.M. 280, 

910 P.2d 914 (concluding that a writ of mandamus was unnecessary where the 

respondent Governor had “agreed to the act in question—appointing the successors to 

[the petitioners] in accordance with the State Constitution”). Having determined that 

prohibitory mandamus is an appropriate means of addressing Petitioners’ constitutional 

claims, we proceed to analyze those claims.

B. The Constitutionality of Election Deferral Statutes 

{11} The challenged portions of HB 407, whether by design or oversight, all share a 

common feature, i.e., they postpone the time of election of certain public offices by 

either two or four years, thus extending their terms of office. The election deferral aspect 

of HB 407 is raised in each of the underlying mandamus proceedings, with Petitioners 

questioning the constitutionality of HB 407 to the extent it alters the term duration 

requirements of their respective offices. See N. M. Const. art. X, § 2(A) (mandating that 

the ordinary term for a county official is four years); id. art. VI, § 24 (providing that a 

district attorney “shall be elected for a term of four years”); id. art. VI, § 33(C)-(D) 

(stating that each district and metropolitan court judge “shall be subject to retention or 

rejection in like manner at the general election” every sixth and fourth year, 

respectively). The narrow but important question we need address, then, is whether the 

challenged provisions of HB 407, in delaying Petitioners’ election cycles and 

extending—either expressly or, in the case of the office of the district attorney, by 

necessary implication—their term limits, exceeded the Legislature’s authority. See 

generally State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, ¶ 11, 127 

N.M. 272, 980 P.2d 55 (limiting the issues presented by the parties in exercising our 

mandamus authority). For reasons that follow, we answer that question in the 

affirmative and thus abide by our decision striking down the offending provisions, i.e., 

2019 N.M. Laws, ch. 212, Sections 103(A)(13)-(15), 103(B)(17), 103(B)(20)-(23), 

176(B), 177(B), and 279 to -81.

1. The proper “level of scrutiny” to be applied in evaluating Petitioners’ 

constitutional challenges to HB 407

{12} As a preliminary matter, the Sponsors raise concerns over the appropriate “level 

of scrutiny” that we should apply in evaluating Petitioners’ constitutional challenges to 

HB 407. They cite as guideposts this Court’s decisions in Crum v. Duran, 2017-NMSC013, ¶ 10, 390 P.3d 971 (applying the balancing test articulated in Burdick v. Takushi, 

504 U.S. 428, 433-34 (1992), in determining whether the state’s interests outweighed 

the burdens imposed on voters by certain preelection registration requirements), and 

Kane v. City of Albuquerque, 2015-NMSC-027, ¶ 9, 358 P.3d 249 (recognizing that 

governmental restrictions on the “right to candidacy and the right to vote are subjected 

to differing levels of scrutiny”). The cited portions of these two cases, however, focus on 

the merits of challenges to restrictions on access to the electoral process and not, as 

involved here, threshold claims addressing the Legislature’s constitutional authority to 

act in the first instance. The controlling inquiry in these latter circumstances poses the 

more elemental question of whether the reviewing court is “satisfied beyond all 
reasonable doubt that the Legislature went outside the Constitution in enacting the 

challenged legislation.” Espanola Hous. Auth. v. Atencio, 1977-NMSC-074, ¶ 3, 90 N.M. 

787, 568 P.2d 1233. In determining this discrete issue, the Court does not “inquire into 

the wisdom, the policy or the justness” of the legislative act under review. Id.

2. The relevant authorities

{13} We begin our substantive analysis by affirming the time-worn principle that a 

legislative body cannot generally “extend the term of the incumbent of an elective office 

where the term is fixed by the constitution[,]” and the corollary that the altering of a 

constitutional term of office may be accomplished only by “the vote of the people 

ratifying a constitutional amendment[.]” 63C Am. Jur. 2d Public Officers and Employees 

§ 138 (2009). These precepts have been widely applied by courts nationwide. See, e.g., 

In re Advisory Op. to the Governor—Terms of Cty. Court Judges, 750 So.2d 610, 613-

14 (Fla. 1999) (recognizing that “the right of selecting officers for fixed terms belongs to 

the people, and the legislature is not permitted to defeat this right by changing the 

length of term of office after an officer has been elected” (internal quotation marks and 

citation omitted)); In re Munnelly v. Newkirk, 692 N.Y.S.2d 195, 198 (N.Y. App. Div. 

1999) (per curiam) (concluding that “the statutory provision for biennial, odd-numberedyear town elections for town officers [and] the common practice of staggering the terms 

of town justices” were insufficient to “override[] the constitutional four-year term” of 

those justices found in the “plain language” of the state constitution. (citation omitted), 

aff’d 716 N.E.2d 182 (N.Y. 1999)); People ex rel. Bua v. Powell, 234 N.E.2d 801, 804 

(Ill. 1968) (stating that the General Assembly “had no more power to continue the 

judges in office by . . . means [inconsistent with the state constitution] than [it] would 

have had to provide that no election should be thereafter held, so as to continue the 

incumbents of the offices therein during their lives” (internal quotation marks and citation 

omitted)). Notably, neither the Secretary nor the Sponsors directly question the efficacy 

or application of these precepts here.

{14} The constitutional waters become muddied, however, in situations where the 

terms of public officers are impliedly extended as a result of statutes which serve to 

defer the time of an election. See R.P. Davis, Annotation, Power of Legislature to 

Extend Term of Public Office, 97 A.L.R. 1428, § VI, at 1448 (1935) (“[I]t is impossible to 

state any general rule governing the question whether the legislature may, incidentally 

to postponing the time for an election, extend the term of an incumbent of an office.”). 

Constitutional review of such statutes often turns on the proper interpretation of a 

constitutional or statutory provision allowing public officers to hold office until their 

successors have been qualified, a so-called holdover provision of the type found in 

Article XX, Section 2 of the New Mexico Constitution. No New Mexico case has dealt 

with this type of statute, and the out-of-state decisions on the subject yield no firm rule, 

a circumstance due in part to the dependence of those decisions on the particular 

language of the constitutional and statutory provisions there under review. See Davis, 

Annotation, 97 A.L.R. 1428, § VI, at 1448-57.
{15} Broadly speaking, the jurisdictions that have weighed in on the constitutionality of 

election deferral statutes are divided into two camps. Courts that uphold legislative acts 

which delay elections for offices with constitutionally mandated term lengths generally 

draw a distinction between an impermissible extension of terms and what has been 

described variously as an interim, hiatus, interval, or interregnum separating terms. In 

urging us to uphold the constitutionality of HB 407, the Sponsors rely on two such 

cases, State ex rel. Martin v. Preston, 385 S.E.2d 473 (N.C. 1989), and Murray v. 

Payne, 21 P.2d 333 (Kan. 1933). In Preston, the North Carolina Supreme Court

explained and upheld the statutory election regime there under review as follows:

[T]he legislature eliminated staggered terms within multi-seat judicial 

districts by creating a one-time interim or hiatus between certain terms of 

office. The current terms were not extended; they expire at the end of their 

eight-year duration. The next eight-year terms do not commence 

immediately upon the expiration of the old terms, however, but are instead 

made to commence two years, or in one case four years, later. Since no 

successors will be elected and qualified at the expiration of the old terms, 

the incumbent judges will continue to serve. Our [c]onstitution anticipates 

such “hold over” situations by providing that elected judges remain in 

office “until their successors are elected and qualified.” N.C. Const. art. IV, 

§ 16.

Preston, 385 S.E.2d at 480 (emphasis added). While acknowledging that the “distinction 

between extended terms and an interim or hiatus separating terms may appear artificial 

at first,” the Preston Court ultimately adhered to this distinction, placing strong reliance 

on the premise that it was the state constitutional “hold over” provision, not the 

legislative act, that allowed the judges to remain in office. Id. at 480, 482. See id. at 482 

(“Where, as here, the incumbents’ terms end without successors having been elected 

and qualified, and new terms of office have not begun, the [c]onstitution’s ‘hold over’ 

provision operates and allows the incumbents to continue serving in the interim.”).

{16} Of a similar mind was the majority of the Kansas Supreme Court in Murray, 

whose views on the issue the Preston Court adopted as “persuasive.” Preston, 385 

S.E.2d at 481. The Depression-era special legislation under consideration in Murray, 

largely intended as a cost-saving measure to “avoid[] expense of unnecessary 

elections,” dispensed with biennial elections in cities of a certain population for, among 

other offices, the commissioner of parks and public property whose regular term was 

four years, and provided for quadrennial elections in the future. Murray, 21 P.2d at 333-

34. The court in Murray easily and unanimously rejected the plaintiff’s narrow challenge 

to the election deferral aspect of the statute based on the legislature’s “undoubted 

power” to determine the frequency of elections in order to serve “the public interest and 

welfare.” Id. at 335. Although that limited holding disposed of the plaintiff’s central claim, 

the Murray majority, in dicta specifically intended to forestall future lawsuits, and over a 

two-member dissent, went on to address the “incidental and collateral” issue of whether 

any incumbent officers could legally hold over beyond their four-year term limits during 

the “interval” created by the statute. Id. at 335-36. Endorsing such a “provisional” 
holdover arrangement so long as the postponement of elections is “reasonable” in 

duration, id. at 336, the majority in Murray stated as follows, in language quoted 

approvingly in Preston, 385 S.E2d at 481:

When there is an interval between the end of a term and the beginning of 

another, the public business must go on without interruption. Some one 

must do the business in the capacity of a public officer . . . The prevailing 

rule in the United States is that in the absence of a constitutional or 

statutory provision to the contrary, express or implied, an officer is entitled 

to hold until his successor is chosen and has qualified.

Murray, 21 P.2d at 335.

{17} Other courts view the issue differently, taking the position that “the legislature 

cannot, by an act postponing the election to an office, the term of which is limited by the 

[c]onstitution, extend the incumbent’s term beyond the period so limited.” Davis, 

Annotation, 97 A.L.R. 1428, § VI, at 1448. Illustrative of this approach are two Indiana 

cases, Robinson v. Moser, 179 N.E. 270 (Ind. 1931), and Gemmer v. State ex rel. 

Stephens, 71 N.E. 478 (Ind. 1904). In each case, the Indiana Supreme Court struck 

down the election deferral statute under review as unconstitutional. In Robinson, the 

court concluded that the legislature was “without power to dispense with the election of 

prosecuting attorneys” for a two-year period extending beyond their two-year 

constitutional term of office. 179 N.E. at 274. In Gemmer, the court similarly determined

that the legislature “cannot arbitrarily delay” the election of successors to the county 

treasurer office and “thereby render the incumbents of the offices eligible to hold over” 

past the expiration of their constitutionally prescribed two-year term. 71 N.E. at 483. 

Significantly, in both Robinson and Gemmer, Indiana’s high court rejected the use of the 

state’s constitutional holdover provision as a means to extend constitutional offices 

beyond the term for which they were elected. Robinson, 179 N.E. at 276 (Myers, J., 

concurring); Gemmer, 71 N.E. at 482-83. Other aspects of these two cases also cast 

doubt on the viability of the Preston/Murray doctrine in New Mexico, as will be 

addressed in Section II (B)(4), infra.

3. The plain terms of HB 407 establish that the Legislature exceeded its 

authority in extending the terms of office of the petitioning judges and 

county officers

{18} HB 407, as written, appears to mix apples and oranges in combining two 

divergent elements: the election deferral provisions at the center of the 

Preston/Robinson judicial divide, alongside express term extension language of the kind 

typically struck down as unconstitutional. This approach—readily acknowledged by the 

Sponsors to be “novel”—precludes our adoption of the Preston/Murray line of cases in 

assessing the constitutionality of HB 407. 

{19} As previously indicated, the Legislature, in enacting HB 407, expressly extended 

the terms of office of certain district and metropolitan court judgeships, see 2019 N.M. 
Laws, ch. 212, §§ 279 to -80, and authorized the Secretary to “provide for an extended 

term to the general election in 2022 or 2024” of certain county offices. Id. § 281. It is 

these explicit term extension provisions that are a dominant feature of HB 407 and that 

markedly differentiate the house bill from the election deferral statute upheld as 

constitutional by the North Carolina Supreme Court in Preston, under which “[t]he 

current terms [of certain superior court judges] were not extended[,]” 385 S.E.2d at 480 

(emphasis added), and the similar statute upheld by the Kansas Supreme Court in 

Murray, whose provisions created “an interval between the end of a term and the 

beginning of another[.]” 21 P.2d at 335 (emphasis added). Given these major 

conceptual differences, it is difficult, if not impossible, to reconcile our Legislature’s clear 

statutory intent to extend the terms of certain judgeships and county offices, as 

expressed by the plain language it chose in HB 407, with the “hiatus” and “interval” 

concepts applied in Preston and Murray, concepts premised on the ending of an 

incumbent’s term of office. To adopt the Preston/Murray approach in reviewing and 

upholding the constitutionality of HB 407, as the Sponsors now ask us to do, would 

require this Court, under the guise of judicial interpretation, to rewrite the provisions of 

HB 407 by excising its unambiguous term extension provisions. This we cannot do. See 

State v. Frawley, 2007-NMSC-057, ¶ 30, 143 N.M. 7, 172 P.3d 144, superseded by 

statute, NMSA 1978, § 31-18-15.1 (as amended 2009) (“It is a fundamental principle

that we cannot rewrite or add language to a statute in order to make it constitutional.” 

(citing United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 479 & n.26 (1995)); 

see also In re Gach, 889 N.W.2d 707, 717 (Mich. Ct. App. 2016) (refusing to “judicially 

effect a substantial revision of [a] statute to salvage its constitutionality”).

4. The Preston/Murray approach is incompatible with our state constitution

{20} Even had HB 407 been devised and drawn as a pure election deferral statute, 

unencumbered by any express term extension provisions, the end result would be the 

same, for the “hiatus” and “interval” constructs underlying the Preston/Murray line of 

cases are inconsistent with the purpose and effect of the relevant provisions of our state 

constitution. Put differently, had the Legislature omitted from HB 407 any explicit 

references to term extensions, it is not altogether clear by what mechanism it could 

create an election deferral statute sufficient to both accomplish its stated goals and pass 

constitutional muster. As indicated, examination of the constitutional provisions at play 

in a particular case generally provides the point of departure in evaluating the 

constitutionality of an election deferral statute. See, e.g., Preston, 385 S.E.2d at 481

(distinguishing and declining to follow Gemmer, 71 N.E. 478, based on the differences 

between the constitutional provisions governing those cases). As to the petitioning 

judges and district attorneys, the Legislature’s attempts to modify their election cycles 

contravened clear and unambiguous constitutional mandates. Specifically, in requiring 

district and metropolitan court judges to face “retention or rejection” at general elections 

every sixth and fourth year, respectively, see N.M. Const. art. VI, § 33(C)-(D), the 

framers of our Constitution evinced a clear intent to establish outer time limits by which 

retention elections for these classes of judges must be held. Compare Gemmer, 71 N.E. 

at 482 (invalidating legislation intended to modify a constitutional election schedule 

which, among other provisions, required elections for the county office in dispute every 
two years), with Preston, 385 S.E.2d at 481 (noting the absence from North Carolina’s 

constitution of an election schedule for judges and the inclusion into its constitution of 

election schedules for other public offices, and concluding that the disparity “evidences 

a constitutional intent for flexibility in setting the times for holding judicial elections”). 

Because eligible district and metropolitan court judges most recently faced retention 

elections at the 2014 and 2018 general elections, respectively, our constitution 

demands that they again face the voters at the 2020 and 2022 general elections, 

respectively. 

{21} The situation presented by HB 407’s inadvertent postponement of the anticipated 

2020 elections for district attorneys also involves the modification of a constitutionally 

prescribed election schedule, one established by the combined effect of two provisions 

of our state constitution, i.e., Article VI, Section 24 (creating the office of district attorney 

in each judicial district and requiring that a district attorney “be elected for a term of four 

years”), and Article XXII, Section 22 (providing that the term of office of all state officers 

elected at the initial statewide election “shall commence on the date of their qualification 

and shall expire at the same time as if they had been elected on the Tuesday next after 

the first Monday of November in the year nineteen hundred and twelve”). See also State 

ex rel. Ward v. Romero, 1912-NMSC-011, ¶ 35, 17 N.M. 88, 125 P. 617 (recognizing 

that “the district attorney under the [c]onstitution[] is a [s]tate officer”). In Robinson, the 

Indiana Supreme Court was presented with analogous circumstances and similar 

constitutional language, including provisions that a prosecuting attorney “shall be 

elected in each judicial circuit by the voters thereof . . . [and] shall hold his office for two 

years[,]” and that the first election for prosecuting attorney was to be held “at the 

general election in the year one thousand eight hundred and fifty-two . . . .” 179 N.E. at 

271. The majority in Robinson invalidated the election deferral statute there under 

review, with the principal opinion concluding that “the mandate” of its state constitution 

was to elect prosecuting attorneys biennially, consistent with the office’s constitutionally 

prescribed two-year term of office. Id. at 272. The concurring opinion added that this 

was so even in the absence of any “express constitutional provision requiring that 

prosecuting attorneys be elected at any fixed time,” reasoning that the constitutional 

requirement that prosecuting attorneys hold office for two years itself “serves to inhibit 

the [l]egislature from passing any law that would prevent the voters [from] electing 

prosecuting attorneys at each biennial general election, thereby avoiding extending a 

constitutionally fixed term or the creating of a vacancy.” Id. at 275-76 (Myers, J., 

concurring). Applying these principles, and considering that district attorneys last 

appeared on the ballot in New Mexico in 2016, our Legislature was without authority to 

dispense with their elections in 2020, and thereby extend their constitutional four-year 

terms of office.

{22} Finally, we reject the notion that the holdover provision set out in Article XX, 

Section 2 of the New Mexico Constitution—requiring public officers, unless removed, to 

hold office until successors are “duly qualified”—can properly be construed to furnish a 

constitutional safe haven for election deferral statutes of the type endorsed in the 

Preston/Murray line of authority. First, as the Secretary appropriately acknowledges, it 

cannot be said that the term of office “hiatus” and “interval” constructs applied in those 
cases fit, neatly or otherwise, within the contours of our constitutional holdover provision 

as interpreted by this Court. See Denish, 1996-NMSC-005, ¶ 51 (recognizing in a 

different but related context that, with respect to electoral systems involving staggered 

terms, our constitutional holdover provision “is not a simple extension of the expired 

term[, but] . . . an intrusion of the term following”). Our stated view in Denish of a 

holdover period as an “intrusion” into the ensuing term leaves little room to adopt the 

“interval between terms” theory embraced in Preston and Murray, at least with respect 

to staggered election systems. Even putting aside the analytic differences, there is an 

inconsistency from a policy perspective as well. It appears plain that the purpose of 

Article XX, Section 2 is to ensure continuity in governmental operations during 

unexpected times of transition when there is no successor to fill a vacancy in office, and 

not to facilitate a delay in election cycles—even for well-intended reasons—in the 

normal course of affairs. See generally N.M. Att’y Gen. Op. 23-3687, at *35 (1923) 

(recognizing that holdover provisions of the type set forth in Article XX, Section 2 are not 

designed to give an incumbent office holder “two terms in case his successor die[s] 

before qualifying[,]” but rather “simply to prevent a hiatus in the office in case the new 

officer for any reasons fail[s] to qualify” (internal quotation marks and citation omitted)). 

The language used by the Indiana Supreme Court in Gemmer in explaining the purpose 

of that state’s counterpart holdover provision rings true and carries the day here:

The [holdover] provision was intended to prevent vacancies in the public 

offices to which it applies. It cannot be understood to confer on the 

[l]egislature the power to unnecessarily postpone the election of a 

successor to the office, and thereby create a condition authorizing the 

incumbent to hold over after the expiration of his term. The mischiefs 

which would result from this construction of the [c]onstitution and the 

recognition of this authority in the [l]egislature are too evident to require 

discussion. By the adoption of measures of this character the legislative 

department could appropriate to itself an extensive and dangerous power

and influence over a great number of offices and officers.

71 N.E. at 483.

III. CONCLUSION

{23} We hold that the challenged provisions of HB 407 impermissibly alter the 

constitutionally prescribed terms of office of the three petitioning groups. In reaching this 

conclusion, we are of course mindful that the Legislature is vested with broad authority 

to regulate the timing, process, and conduct of elections. See N.M. Const. art. VII, § 

1(B). That authority, despite its breadth, must be exercised within constitutional limits, 

Unite N.M., 2019-NMSC-009, ¶ 6, a requirement clearly not met here. Assuming, as 

appears to be the case, that the Legislature wishes to pursue the election-related policy 

goals sought to be effectuated through the portions of HB 407 that we strike down 

today, it is its prerogative to propose, and the voters to adopt, a constitutional 

amendment to that end. 
{24} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

MICHAEL E. VIGIL, Justice