What you should know about the 2020 New Mexico constitutional amendments
This article was updated at 1 p.m. on Oct. 15 to reflect Public Regulation Commission Chair Steve Fischmann's recent change in support for Constitutional Amendment 1; Fischmann now opposes the amendment, following a "change of heart."
LAS CRUCES - When New Mexico voters cast their ballots in the Nov. 3 general election, who to vote for won’t be the only decisions they’ll face. In addition to elected offices, five issues will also be on the ballot — two constitutional amendments and three bond questions.
Here is what you need to know about the constitutional amendments when you cast your ballot. Each would go into effect if a majority of voters approve.
Constitutional Amendment 1
This constitutional amendment would affect the way the state’s Public Regulatory Commission operates. Created through a constitutional amendment in 1996, the commission is tasked with overseeing the regulation of public utilities — including rates and services related to transportation, pipelines, electric companies, sewers, and telecom.
The PRC is comprised of five members, elected by constituents in five districts. Constitutional Amendment 1, if passed, would change that. The five-member commission would be reduced to three members, as of Jan. 1, 2023. The amendment would also create a nominating committee to develop a list of qualified candidates; the governor would then appoint three members from the list, who would have to be approved by the state Senate.
Of the three commissioners, no more than two could be members of the same political party. Commissioners would serve six-year terms and be limited to two terms.
All races:Doña Ana County voters guide
The amendment would also narrow the scope of the PRC's regulatory powers to public utilities, though it would still allow the state Legislature to assign responsibility for the regulation of other public service companies to the commission, should it choose to do so.
According to a voter guide prepared by the Office of the Secretary of State, those in favor of the change say it:
- May allow for an increased focus on ratepayer interests. By making commissioners appointed rather than elected, proponents hope commissioners will be insulated from electoral politics and geographic interests specific to their districts.
- Could restore public trust in the PRC. The PRC has experienced controversy and diminished public trust — in part because of the nature of electoral politics. By depoliticizing the process, appointees would more likely be selected based on professional qualifications rather than name recognition or political advertising.
- Would make New Mexico more like most other states, which regulate utilities through governor-appointed commissions. These include 38 other states — including the neighboring states of Colorado, Utah and Texas. Because commissioners are required to deal with highly complex and technical matters, it makes sense to select commissioners based on their knowledge and expertise, rather than political considerations. The double-vetting and staggered six-year terms would prevent governors from packing the commission with political appointees.
- Promotes a better understanding of the legal complexities inherent in regulating utilities. Commissioners must understand the laws governing the subject areas they regulate. PRC decisions have too often been overturned by the New Mexico Supreme Court, calling into question the body’s understanding of the legal complexities.
Those opposed to the amendment say:
- It fails to address recommended changes from a 2017 study to improve the PRC’s efficiency. That report, conducted by the National Regulatory Research Institute and commissioned by the Legislature, recommended establishing more stable funding, paying staff more to attract and retain highly skilled employees, and providing more training and professional development.
- It doesn’t change how the commission functions. Instead, it relies heavily on the assumption that the PRC’s problems are because it’s an elected body. The current law, they argue, allows for the Legislature to set qualifications and continuing education requirements for commissioners.
- It negates the electorate’s ability to hold individual commissioners accountable for their actions. The electoral process gives members of the public more direct oversight of their commissioners. Appointing commissioners may also result in reduced geographical representation, since appointed commissioners could reside anywhere in the state.
- It would change the removal process for commissioners, which could delay proceedings. Currently, the New Mexico Supreme Court can remove a sitting commissioner for cause. Under the proposed amendment, a commissioner accused of malfeasance could only be removed by impeachment — requiring a majority of the members of the House of Representatives, followed by a trial in the Senate. That means impeachment could only occur when the Legislature is convened, possibly delaying the process to respond to serious allegations.
Doña Ana County is in District 5, which covers the southwest corner of the state. District 5 Commissioner Stephen Fischmann, who chairs the commission, voiced support for the amendment in March. However, he has since changed his mind and now opposes it.
In a news release issued Wednesday, Oct. 14, Fischmann stated the constituents he'd spoken to about the amendment "almost universally oppose it," and that he would join commissioners Theresa Becenti-Aguilar and Jefferson Byrd in opposing it.
"As a sitting commissioner, I supported the Legislature's decision," Fischmann stated. "Appointing commissioners appeared to be a plausible step toward addressing the expertise gap we often see at the Commission. Constituent discussions and recent developments have caused me to have a change of heart."
- Tom Manning: Voters should elect PRC commissioners, not governor
- Kenneth Costello: The governor should appoint PRC commissioners
- Theresa Becenti-Aguilar and Jefferson L. Byrd: The PRC should represent all New Mexicans
- Cynthia Hall and Steve Fischmann: Why PRC commissioners should be appointed
- Fischmann: PRC amendment trying to fake out voters
Constitutional Amendment 2
This amendment, if passed, would give the state Legislature the authority to adjust the term of a state, county or district officer to align or stagger the election of officers throughout the state. The amendment also clarifies that officers elected to fill a vacancy in office would take office on Jan. 1 following their election. The proposed changes would not apply to municipal elections.
The intent of the amendment is to allow the Legislature to pass laws that adjust the terms and elections of non-statewide officeholders as a means to balance the number of offices appearing on ballots during presidential and gubernatorial election years. Before any changes would take effect, they would have to be supported by a legislative finding that altering the terms would promote consistency or would balance the number of elected offices appearing on the ballot.
According to the Secretary of State’s voter guide, supporters believe the amendment would:
- Give the Legislature the authority to balance the number of offices on the ballot. In a recent New Mexico Supreme Court case, the court held that if the Legislature wanted to alter the election dates of officers whose terms are enumerated in the constitution, voters must first authorize an amendment granting them that authority.
- Give the Legislature a way to address multiple election-cycle concerns without requiring individual constitutional amendments for each one. Currently, the Legislature is prohibited from extending or shortening the terms of constitutional officers to stagger or align them on the same ballot in the same election year. Individual constitutional amendments for each office would clutter ballots for years to come — while cluttering the state constitution with countless amendments. Supporters say this amendment provides efficiency and expediency.
- Protect against legislative overreach in amending the terms of officers. The amendment would require the Legislature to adopt specific findings supporting any adjustment — either that the adjustment is necessary for consistency in the timing of elections for that office or to balance the number of offices appearing on the ballot. It would also limit a one-time adjustment to two years. Persons holding affected offices are protected, not penalized. In running for a second term, if the officeholder’s first term is extended, it is only counted as one term; a shortened term is not considered a term for the purposes of term-limits.
- Address election-cycle issues while increasing efficiency. By balancing election cycles — and, in turn, the number of contests appearing on a ballot — supporters believe the amendment could help avoid long or overloaded ballots. Overloaded ballots, they feel, can lead to longer lines at the ballot box and voter fatigue when there are too many contests on the ballot.
Those opposing Amendment 2 are concerned:
- It expands the Legislature’s constitutional power over election policy. Opponents feel the “legislative findings” requirements are too vague and could lead to future legal challenges.
- It may not be narrowly tailored to address the problem it’s trying to solve. The proposed amendment may be overly broad. Rather than addressing only those offices in need of alignment or staggering, the amendment would give the Legislature broad authority to change or adjust election cycles.
- The shortening or lengthening of terms during alignment may be inequitable. Some incumbent officeholders will gain and extra two years in office, while others’ terms will expire two years early for reasons unrelated to their performance. When elected, voters cast their ballots with the expectation that the winner would serve a four-year term; whether the incumbent’s term is lengthened or shortened, either would betray the expectation of voters and undermine the democratic process.
- The benefits to voters are unclear. The amendment, opponents say, doesn’t provide any clear benefit to voters. Voters can only vote for the offices in their own county or district; they are unaffected by the outcomes of corresponding races held in other parts of the state. Without providing evidence that voters are overwhelmed by the current election cycles, the amendment lacks justification.
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