AGO IAL071706.

Case DateApril 17, 2006
CourtNew Mexico
New Mexico Attorney General Opinions 2006. AGO IAL071706. April 17, 2006Honorable Rebecca Vigil-GironSecretary of State 325 Don GasparSuite 300Santa Fe, NM 87503 Re: City of Española Voting Procedures--Opinion RequestDear Madam Secretary Vigil-Giron: You have requested our opinion whether the City of Española's "ward" system of electing city councilors is legal. The system, described in greater detail below, appears to be a hybrid between a single district voting system and an at-large voting system. New Mexico municipalities have employed a variety of voting systems since statehood. Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us, we believe that there is no clear answer whether Española's system is legal. We believe, however, that without further authorization from the Legislature respecting the permissible use of its procedures, the City of Española may have difficulty, as a non-home rule municipality, establishing the requisite statutory authority for its procedures in the event of litigation. According to our information, these are the facts pertinent to the question: The City of Española is not a "home rule" municipality. The City of Española is organized under a mayor-council form of government provided for in NMSA 1978, § 3-11-1 to -7 (1965). Because the city's population is less than 10,000, the city's council members are not required to reside in and be elected from districts. There are eight city councilors in the City of Española. The city elects its council members by a "ward" system. Under this system, the city is divided into four election wards for purposes of electing members to the city council. Each ward is served by two city councilors. During each election cycle, one seat from each ward is open for election. When a candidate declares his/her intention to run for a seat, that candidate must file a declaration of candidacy form declaring the particular ward for which the candidate is running. There is no requirement, however, that the candidate reside in that particular ward. Election ballots group candidates according to the wards from which they have chosen to run. The public votes for candidates "at large," meaning that all city voters may vote for one candidate from each of the four wards, regardless of the residence of the voter. Winners are determined by ward. In each ward, the candidate who receives the most votes wins a seat on the council. Thus, the winners are not necessarily those four candidates, in descending order, who received the greatest number of votes overall. Since the City of Española is not a home rule municipality, the city requires express or implied authority in state law to regulate and conduct its elections in the manner it has done. See State ex. rel Haynes v. Bonem, 114 N.M. 627, 630, 845 P.2d 150, 153 (1992) (Observing that, before the advent of "home rule," which is now constitutionally authorized by N.M. Const. art. X, § 6 by adoption of a charter, "all municipalities in the state depended on the state legislature for their power to act. They looked to state statutes for express or implied grants of authority, and if they did not find such authority, they could not act"). Single member districts for city governing body elections are provided for at NMSA 1978, Section 3-12-1.1 (1992). The City of Española is not required to, but may, provide for single-member district elections. That section provides, in part:
Except as provided in Section 3-12-2 NMSA 1978, members of governing bodies, excluding mayors, of municipalities having a population in excess of ten thousand shall reside in and be elected from single-member districts. If any member of the governing body permanently removes his residence from or maintains no residence in the district from which
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