Judge rules state Senate candidate can stay on the ballot

A technical error will not keep a high-profile candidate off of the ballot for the Democratic primary election in June after a judge ruled April 2 that Cindy Nava can run for state Senate in District 9.

Nava, the first Dreamer (DACA recipient) in the country to be appointed by the White House, where she served as senior policy advisor to the U.S. Department of Housing and Urban Development, filed to run for the District 9 seat in the New Mexico State Senate on March 12.

However, two lawsuits were filed claiming that Nava should not be allowed to run because the petition forms used to qualify Nava for the ballot listed her address in the town of Bernalillo as being in Bernalillo County, not Sandoval County.

The lawsuits were consolidated and heard Tuesday at the Sandoval County Judicial Complex with Judge Allison Martinez dismissing both complaints after a nearly three-hour hearing.

Democratic County Commissioner Katherine Bruch and former District 9 State Sen. John Sapien, also a Democrat, were named as plaintiffs in a lawsuit that asked Martinez to invalidate all of the signatures nominating Nava. Audrey Trujillo, a Republican candidate for District 9, also filed a similar lawsuit. Sandoval County Clerk Anne Brady-Romero was named as a defendant, and Nava was named as an interested party.

“The two Democrats bringing the lawsuit show that they also want transparency and fairness in the election. The rules should apply to all parties equally,” Trujillo said before the hearing. “I hope the judge rules fairly in this matter because there must be integrity in the electoral process, and the rule of law should apply fairly regardless of the circumstances. Voters want transparency and fairness in the process.”

Nava’s campaign team gave the Observer a statement before the hearing at the Sandoval County Judicial Complex.

“Cindy submitted over 250 signatures from Senate District 9 voters, and every single one of those voters deserves a voice. Those voters feel inspired and empowered by Cindy's experience and story and know that she is a needed voice in the state Senate. To seek to take Cindy off of the ballot, as her opponents have chosen to do, is an act of disenfranchisement of Senate District 9 voters.”

Brenda McKenna, the current state Senator in District 9 who has announced she will not run again, sent an email Monday morning backing Nava and encouraging voters to elect her to the seat McKenna is vacating.

“Two hundred seventy valid voters in SD 9 signed to put Cindy on the ballot, and the Sandoval County Clerk certified her as a candidate. However, two Democrats — including my predecessor — and a Republican are seeking to kick her off the ballot and disenfranchise SD 9 voters for a typo,” McKenna wrote. “I am really disappointed about these shenanigans — especially by these two fellow Democrats.

"We've all been through a lot of twists and turns over the last four years in politics. I sincerely hope that the will of the voters is respected and their desire to have Cindy on the ballot prevails. I’m confident Cindy's campaign will persevere and this distraction will pass — and I’ll always have her back every step of the way.”

Nava was required to get 127 signatures, 3% of registered Democrat voters in District 9, to be placed on the ballot for the primary in June. Nava delivered 270 to Brady-Romero on candidate filing day in March. The petitions used by Nava’s campaign listed “Bernalillo” as Nava’s county of residence. Nava lives in Bernalillo, which is in Sandoval County.

“This was not a typo; this is just incompetence. Cindy Nava's campaign did not do their due diligence and file her paperwork correctly,” Trujillo said. “Her campaign is claiming that her not being allowed on the ballot is disenfranchising the voters who signed her petition. In reality, Cindy Nava's campaign is disenfranchising voters of the other candidates who did follow the rules in order to qualify.”

After Tuesday’s ruling, Nava is cleared to take on Heather Balas in the Democratic primary. Trujillo will face Susana Vasquez in the Republican primary.

Nava’s campaign team sent the following statement Wednesday:

“The judge knew, as we did, that it is deliberately wrong to disenfranchise voters — voters who believe in my mission, experience and voice. There’s a couple of things you should know about me. First, I am not afraid of challenges. In fact, I’ve faced challenges my entire life, and I’ve overcome every one of them to get to where I am today. Second, I believe strongly in the power of democracy, representation and ensuring that people’s voices are heard. Yesterday, the voters won, and I’m both reassured and energized to share that — without question — I will be a candidate on the ballot in the June primary. This is a victory for all of us.”

There is a history of a candidate being removed from the ballot in District 9.

According to a Corrales Comment report, Democrat Jodilynn Ortiz withdrew from the 2020 race for the Senate seat in District 9, saying in a statement that “Brenda McKenna and her team challenged some of the signatures in my nomination petition form, and because of that, a judge decided that I did not meet the minimum requirement to have my name appear on the ballot.”

McKenna said at the time that her campaign team looked at Ortiz’s 180 signatures, four more than the required amount of signatures, there were several registered Republicans and people who signed from outside of District 9.

“All candidates for office have to abide by the same rules, and the judge agreed,” McKenna said in 2020.

Trujillo’s campaign team sent the following the statement Wednesday: “Audrey is disheartened by the dismissal. While all other candidates adhered to the rules, we sought to ensure equitable and consistent application of these rules to everyone. It is our belief that the judge should have maintained impartiality and objectivity throughout this process. Unfortunately, she repeatedly interjected her personal opinions, disregarded the presented evidence and failed to base her statements on legal principles.

"Audrey remains committed to fostering fair and transparent competition, grounded in the principles of equal opportunity and adherence to the rule of law.”

Judge Martinez struggled with her decision Tuesday after two seemingly contradictory statutes were cited.

Statutes 1-1-26 and 1-8-30 from the New Mexico Election Code were each cited multiple times.

1-1-26, which deals with petitions; nominations; requirements before signed by voters; and invalidated petitions, requires the following information to be listed in the appropriate space at the top of a nominating petition before the petition has been signed by a voter:

(1) the candidate's name as it appears on the candidate's certificate of registration;

(2) the address where the candidate resides;

(3) the office sought by the candidate;

(4) if the office sought is a districted office or a division within a judicial district or has been assigned a position number for purposes of the election, the district, division or position number of the office sought;

(5) if the office sought will be on the general election ballot, the party affiliation of the candidate or that the candidate is unaffiliated with any qualified political party;

and (6) if the office sought will be nominated at a political party primary, the party affiliation of voters permitted to sign the petition. B. With or without a showing of fraud or a reasonable opportunity for fraud, a nominating petition page, including all signatures on the petition page, shall be invalid if any of the information required by Subsection A of this section is not listed on the petition before the petition page is signed by a voter or if any of the required information is subsequently changed in any way.

The discussion here was what exactly constitutes “the address where the candidate resides” and whether county of residence is required to be a part of that address.

1-8-30 covers primary election law; declaration of candidacy; nominating petition; filing and form, and requires the nominating petition to be in the following format:

" I, the undersigned, a registered voter of New Mexico, and a member of the ______ party, hereby nominate _______, who resides at ________ in the county of _______, New Mexico, for the party nomination for the office of ______, to be voted for at the primary election to be held on _____, and I declare that I am a registered voter of the state, district, county or area to be represented by the office for which the person being nominated is a candidate. I also declare that I have not signed, and will not sign, any nominating petition for more persons than the number of candidates necessary to fill such office at the next ensuing general election."

Bruch’s, Sapien’s and Trujillo’s lawyers argued that since the county of residence was filled out incorrectly, this statute was violated by Nava’s team.

“I don't know that I've found the answer that I was hoping I would get today. I came in thinking this is clear. If she doesn't live in (Bernalillo) County, it's wrong. Everybody agrees it's wrong. This is wrong and it should be thrown out,” Martinez said. “But then I started looking and reading very carefully the statute that's relevant here. I realized the county is not on that list.

"Everybody knows the rules ahead of time and knows what needs to get done so they can get on the ballot. I don't think any branch of our government ultimately benefits if we're playing a game of 'gotcha' and trying to hide the ball from people," she added. "Now, should everybody follow the rules? Absolutely. I also am one to hold everybody to the same rules. So no matter what your last name is, or what your party is or what you look like, the only way to have a fair and civil society is for everybody to follow the same set of rules.

"I don't want anyone to think that I'm dismissing the fact that the statutes are there for a reason and should be followed as closely as possible. In this case, elevating the representative form to the letter above the voters right to vote, rights of New Mexico citizens to vote for a candidate of their choosing is hard.”