October 1, 2020

Article: New Mexico Proposed Constitutional Amendments Address Administrative Agencies and Elections

Article: New Mexico Proposed Constitutional Amendments Address Administrative Agencies and Elections

New Mexico has two proposed ballot measures in the coming 2020 election, the first pertaining to Article 11 of the New Mexico Constitution and the second pertaining to Article 20 of the New Mexico Constitution.  The first of these two proposed constitutional amendments has the potential to affect utility rates paid by customers throughout the state.  The second is a response to the New Mexico Supreme Court’s limitation of the legislature’s power to change the timing of elections and the duration an official stays in office.

Changes to Article 11 of the New Mexico Constitution

Article 11 of the New Mexico Constitution addresses the New Mexico Public Regulation Commission (PRC), the administrative agency that regulates public utilities, such as power and water companies, transportation companies, and companies that use New Mexico pipelines, such as telephone and broadband providers.  The proposed change to Article 11 strips away the language in the New Mexico Constition pertaining to all public utilities except for rate-making utilities, such as water, power, and gas companies.  There is no indication in the legislative analysis drafted by the New Mexico Legislative Council Service (LCS) as to whether this reflects a change in the authority of the the PRC.

Additionally, the proposed amendment to Article 11 would reduce the size of the governing commission from five members down to three members over time, and would change their appointment process.  Under the proposed amendment, PRC commissioners would no longer be voted on by the electorate, instead being nominated by a legislative committee and selected by the Governor.  The amendment will not only reduce the number of commissioners, which is currently designed to assign each commissioner to a geographic region of New Mexico, but also will extend the terms of the commissioners from the current two and four year term arrangement to six years.

The LCS commentary to the proposed amendment states that the proposed changes will mean that the PRC will focus more on ratepayer issues (those issues pertaining to the cost of public utilities), although a lack of accountability to the electorate would appear to take away the pressure to make sure the rates the voting public pays for utities are fair.  The LCS also notes that the proposed change to the scope and tenure of the PRC has little to do with the original complaints regarding the PRC, complaints that came from a 2017 study by the National Regulatory Research Institute of the New Mexico PRC.  That study found that the NRC needed to attract more skilled professionals at the staff level, such as engineers, accountants, and lawyers.  The study also found that the NRC needed better staff training.  Neither of these concerns are mentioned in the proposed amendment to the Constitution.

Changes to Article 20 of the New Mexico Constitution

The proposed amendment to Article 20 of the New Mexico Constitution is a direct reaction by the legislature to the New Mexico Supreme Court’s decision in State ex rel. Sugg v. Toulouse Oliver, 456 P.3rd 1065 (NM 2019).  In this case, the New Mexico Supreme Court declared the New Mexico Legislature’s attempts to change the dates of elections and extend the terms of office of incumbents at the county level was unconstitutional under state law.

After the New Mexico Supreme Court’s decision in State ex rel. Sugg, the New Mexico Legislature proposed that that Article 20 of the New Mexico Constitution be changed so the Legislature could change the dates county and municipal officials would take office, either by standardizing the date of entry or by setting up a staggered schedule for county and municipal elections.  In other words, the proposed amendment would undo the New Mexico Supreme Court’s decision in State ex rel. Sugg.  The LCS noted that this proposed amendment would simply be a workaround for the Court’s decision, and that it had the potential to be an overreach by the Legislature on Constitutional matters.  Additionally, the LCS acknowledged that this proposed amendment had the potential for unfair extensions of elected officials’ terms, regardless of the intent of New Mexico voters.

No other state ballot initiatives will be presented on the November 2020 ballot, other than these two proposed constitutional amendments.