A. Vacancies on the general election ballot may be filled as provided in Subsection B of this section if after a primary election there is no nominee of a major political party for a public office to be filled in the general election and if the vacancy was caused by:
(1) the death of a candidate after filing of the declaration of candidacy or after certification as a convention-designated nominee and before the primary election;
(2) the failure of a major political party to nominate a candidate for lieutenant governor; provided that the major political party nominated a candidate for governor; or
(3) the resignation or death of a person holding a public office after the last Friday before the first Tuesday in March, when such office was not included in the general election proclamation and is required by law to be filled at the next succeeding general election after the vacancy is created.
B. The vacancy may be filled subsequent to the primary election by the central committee of the state or county political party, as the case may be, as provided by Subsection A of Section 1-8-8 NMSA 1978.
C. The name of the person to fill the vacancy on the general election ballot shall be filed with the proper filing officer on a form approved by the secretary of state on the twenty-third day after the primary election, along with a declaration of candidacy subscribed and sworn by the selected nominee and the required form for candidates pursuant to the Campaign Reporting Act [1-19-25 to 1-19-36 NMSA 1978].
D. When the name of a nominee is filed as provided in this section, the name shall be placed on the general election ballot as the party's candidate for that office.
History: 1953 Comp., § 3-8-7, enacted by Laws 1969, ch. 240, § 157; 1975, ch. 295, § 2; 197 9, ch. 378, § 5; 2015, ch. 145, § 50; 2017, ch. 101, § 7; 2019, ch. 212, § 88.
ANNOTATIONSCross references. — For vacancy on primary ballot, see 1-8-6 NMSA 1978.
For vacancy occurring after primary, see 1-8-8 NMSA 1978.
The 2019 amendment, effective April 3, 2019, revised the provisions related to vacancies on a general election ballot; in Subsection A, added new Paragraph A(2) and redesignated former Paragraph A(2) as Paragraph A(3), and in Paragraph A(3), after "included in", deleted "governor's" and added "general election"; in Subsection C, after "secretary of state", deleted "within fifteen days" and added "on the twenty-third day", after "primary election", deleted "and when so filed, it shall be placed on the general election ballot as the political party's nominee for such office" and added "along with a declaration of candidacy subscribed and sworn by the selected nominee and the required form for candidates pursuant to the Campaign Reporting Act"; and added Subsection D.
The 2017 amendment, effective June 16, 2017, provided for the secretary of state to approve the form to be filed when filling vacancies on a general election ballot when such vacancies occur before the primary election; and in Subsection B, after "the proper filing officer", added "on a form approved by the secretary of state".
The 2015 amendment, effective July 1, 2015, amended the date for filling vacancies on a general election ballot when the vacancy was caused by the resignation or death of a person holding a public office; in Paragraph (2) of Subsection A, after "public office after the", deleted "date for filing a declaration of candidacy or after the date required for certification as a convention designated nominee, and before the primary election" and added "last Friday before the first Tuesday in March".
Section only authorizes filling vacancies after primary. — This section and 1-8-8 NMSA 1978 only authorize the filling of vacancies on the party tickets for elective offices after the holding of the primary election. State ex rel. Robinson v. King, 1974-NMSC-028, 86 N.M. 231, 522 P.2d 83.
Duty of the secretary of state to place state central committee's nominee on the ballot. — Where petitioners filed a petition for writ of mandamus, injunction, and declaratory relief seeking a declaration that the secretary of state acted arbitrarily, capriciously, and in violation of law by placing the republican party state central committee's nominee on the November 2016 general election ballot, the petition for writ of mandamus was denied because the secretary of state had a clear and indisputable duty under 1-8-8 NMSA 1978 to place the nominee on the general election ballot after a vacancy was created by a district judge who resigned, the vacancy was of an office required by the New Mexico constitution to be filled at the next general election, and sixty days prior to the general election, the state central committee submitted the name of its nominee to be placed on the November 2016 general election ballot for the judicial office. Hand v. Winter, 2017-NMSC-005.
Filling vacancy when deceased candidate received highest vote. — When candidate for justice of the peace (now magistrate) died shortly before a primary election, but received highest number of votes, the vacancy should have been filled by the county central committee of the political party of the deceased by certification to the county clerk and the secretary of state. 1950 Op. Att'y Gen. No. 50-5305 (opinion rendered under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 217 et seq.
29 C.J.S. Elections §§ 93, 136.