My Amicus Brief On New Mexico Constitution Felon Disenfranchisement

I got the opportunity and privilege to write an amicus brief in behalf of NMCDLA on the question the Tenth Circuit certified to the New Mexico Supreme Court in Reese.  Although the federal case in Reese is all about whether Mr. Reese (and thousands of other people who have fully completed felony sentences in New Mexico) can be sent to prison for violating federal firearms law or not, the question boils down to a different civil right:  the right to seek and hold public office.  Along the way, I got to explore the Jim-Crow ere origins of felony disenfranchisement, and New Mexico's reform away from same.

Here is the remarkable Order by the Tenth Circuit to the New Mexico Supreme Court.

Here is the NMCDLA Amicus Brief we filed.

For the tl;dr crowd, here is the question certified and summary of our answer:  

Certified Question:

If an otherwise-qualified person has completed a deferred sentence for a felony offense, is that person barred from holding public office without a pardon or certificate from the governor, as required by N.M. Stat. Ann. § 31-13-1(E), or is that person’s right to hold office automatically restored by Article VII, §§ 1, 2 of the New Mexico Constitution and N.M. Stat. Ann. § 31-13-1(A)(1)?

(The Tenth Circuit Order added: “Our statement of this question is not intended to limit the New Mexico Supreme Court’s scope of inquiry — we acknowledge the Court may reformulate our question and invite it to do so in any way it finds helpful.”)

Answer:

The latter, to the exclusion of the former.

An otherwise-qualified person who has completed a deferred sentence for a felony offense has the right to hold elective public office automatically restored by  function of law by Article VII, Sections 1 and 2 of the New Mexico Constitution and Sections 31-13-1(A)(1) and (B) of New Mexico Statutes. A person’s right to vote is restored by operation of law  upon successful completing of a deferred sentence by Section 31-13-1(A)(1) and (B).  Article VII of the New Mexico Constitution provides a substantive right to “qualified electors” (people with the right to vote) to hold any elective public office they qualify for, and makes clear that the only qualifications for elective public office are those contained in the New Mexico Constitution.   Therefore, the pardon requirement in Subsection 31-13-1(E) is unconstitutional to the extent that it functions as the Government contends it does: as a barrier to or sets a qualification for a voter to seek and hold elective public office.

 The Legislature may not place barriers on who may seek and hold elective public office because to do so would violate Article VII which sets the state constitution as the exclusive source of qualifications, violates separation or powers, infringes on the rights of qualified voters to seek and hold public office, and the right of the voting public to choose a constitutionally-qualified candidate of their choice.