#1 New Mexico Law and Politics: State Constitutional Distinctions

Overview of New Mexico Law and Politics

• Course Context: This course focuses on New Mexico Law and Politics, specifically examining what makes New Mexico distinct from the federal government and other states.

• The Framework of Federalism: The course applies the concept of federalism to the specific case study of New Mexico.

• Core Hypotheses: The curriculum is structured around two "grand hypotheses":
    - Hypothesis One: The revenue structure of New Mexico (how the state makes revenue decisions) positions the state differently compared to other states.
    - Hypothesis Two: The New Mexico State Constitution makes the state importantly distinct from both the federal government (and the federal Constitution) and from other states. Use of this hypothesis is the primary focus of Module Three.

The Six Axes of State Constitutional Distinction

• Analytical Model: There are at least six important ways the New Mexico Constitution is distinct. These functions act as "axes" on which New Mexico's governing document can be plotted against the federal and other state constitutions.

• Historical Context: Many of these differences share a common historical root in the early 19th century, specifically following the Great Panics of $1837$ and $1839$. These economic crises inspired constitutional conventions and reforms across the United States, notably in New York, which other states then modeled.

Revenue and Expenditure Provisions

• Constitutional Length and Scope:
    - State constitutions are significantly longer than the federal Constitution.
    - A state constitution is typically on the scale of $100$ pages.
    - The federal Constitution is approximately a dozen (12) pages.
    - The discrepancy in length is largely explained by the extensive regulatory structure at the state level regarding revenues and expenditures.

• Revenue Constraints: State constitutions contain numerous constraints absent from the federal level, including:
    - Specific limits on raising tax revenue.
    - Constraints on bonding.
    - Requirements for democratic participation/voter authorization before a state can take out debt.

• Balanced Budget Requirements: Unlike the federal government, state constitutions—including New Mexico’s—mandate that every year, expenditures must balance with incoming revenue. States cannot run debt in the same manner as the federal government.

The Anti-Donation Clause in New Mexico

• Definition and Function: The Anti-Donation Clause is an exemplar of state-level expenditure control. It is an "anti-subsidy" clause common in state constitutions but absent from the federal Constitution.

• Academic References: This aspect of state law is detailed in Richard Briffault’s The Disfavored Constitution and referenced in Judge Sugarman’s law review article regarding judicial elections.

• The "Public Purpose" Distinction:
    - In many other states, the courts have undermined anti-subsidy clauses by interpreting "public purpose" provisions. These provisions allow legislatures to grant subsidies if they serve a public good, effectively making the clause a permission rather than a limitation.
    - New Mexico’s Anti-Donation Clause does not contain "public purpose" language.

• New Mexico's Enforcement Strategy: Because the text is rigid, the state often resorts to ignoring it rather than interpreting it through the courts. Programs like the Lottery Scholarship and the Opportunity Scholarship are cited as being in "plain violation" of the clause, yet they remain unchallenged.

• The Two Constraints of the Clause:
    - No Credit Pledging: The state cannot guarantee the debt of a private corporation or "cosign" loans (e.g., an auto loan).
    - Anti-Gift/Anti-Subsidy: Prohibits direct gifts or subsidies to private entities. The legislature frequently uses tax credits as a workaround to the Anti-Donation Clause.

• Failed Constitutional Law: These provisions are called part of the "disfavored constitution" because they do not generate the same rich jurisprudence or doctrine as rights-based provisions. Judges tend to read them very formally/literally or ignore them entirely.

The Judicial Branch: Elections versus Appointments

• The Pedigree of the Judiciary: The second axis of distinction is how judges are selected. State systems differ dramatically from the federal system.

• The Federal System:
    - Judges are appointed by the President and confirmed by the Senate.
    - Federal judges serve for life (life tenure).
    - Consequences: This can lead to "strange power dynamics," high-stakes presidential elections focused on Supreme Court appointments, and occasionally, aging judges falling asleep on the bench.

• The State System Philosophy: State constitutions, originating in the 19th-century reforms, sought to make the judiciary accountable to the "democratic people."
    - During the early 1800s, legislatures were viewed as irresponsible with the "public fisc."
    - States moved to elect judges to act as a check on the legislature's hasty or imprudent financial decisions.

The New Mexico Hybrid Selection System

• The Missouri System (Standard Model): Most states use a variation of the Missouri System:
    - A nominations process creates a shortlist of vetted, qualified candidates.
    - The Governor picks a judge from that shortlist.
    - The judge then undergoes a "retention election" (a simple up/down vote) after serving.

• The New Mexico Tweak: New Mexico uses a modified version of the Missouri system that includes a partisan element:
    - Step 1: Judicial Nominations Commissions create a shortlist for vacancies at the District Court, Court of Appeals, and Supreme Court levels.
    - Step 2: The Governor appoints a judge from that list.
    - Step 3: The appointed judge must then win exactly one partisan contested election.
    - Step 4: Once they win a partisan election, the judge moves to the retention election path.
    - Retention Threshold: In New Mexico, a judge must clear a threshold of $57\%$ of the vote to be retained. This is higher than a simple majority.

• Historical Evolution: New Mexico transitioned from straight partisan elections (similar to how legislators are elected) toward this hybrid system over time.

Questions & Discussion

• Professorial Logistics: The professor confirmed that the session was being recorded via a smartwatch, noting that this method worked successfully in previous sessions.

• Audience Interaction (Velas): The professor asked if a student named Velas had a question; the student indicated they did not.