New election law clouds length of DA’s term
Serna could lose Congress race, still hold office
There’s a chance that no matter whether Marco Serna wins the 3rd Congressional District seat in 2020, he’ll still hold public office.
It turns out that, for now, Serna’s term as district
attorney might not expire until the end of 2022 — or six years after he was elected to a fouryear term in 2016.
In a move that flew under the radar during this year’s legislative session, part of House Bill 407 — dubbed the “Elections Laws 50-year Tune Up,” and which made several scheduling and other changes to various parts New Mexico’s election system — altered the election cycle for district attorneys.
Currently, district attorney elections coincide with presidential elections, meaning they would normally be included on the 2020 ballot. But House Bill 407 moved their elections onto the gubernatorial cycle, meaning district attorney races would next be included on the ballot in 2022. Incumbents like Serna could, therefore, get two-year bonuses added to their terms.
Serna has filed to run for Congress next year. The
Journal recently asked him for comment on whether House Bill 407, which if it stands could give him a free shot at the CD3 seat — if he lost, he would still be DA and could run for re-election in 2022 — had any impact on his decision to run for the U.S. House.
His response: “No, I am running for Congress to expand my fight against the Opioid Epidemic that is plaguing our communities; to protect and expand our small businesses which are the backbone of our rural communities; to prioritize protecting our environment for future generations to come; and to be a fierce advocate for all New Mexico families.”
The change in the election cycle for district attorneys wasn’t widely publicized until eight district attorneys from around New Mexico recently asked the state Supreme Court to invalidate that portion of the HB 407.
Alamogordo District Attorney John Sugg petitioned the court to find the bill unconstitutional, since the state constitution set a four-year term for DAs, which has been standard since statehood in 1912, and to direct the secretary of state to include the office on the 2020 primary and general election ballots.
The petition doesn’t assume that incumbents would get another two years if the election change stands. Sugg wrote that district attorneys’ legal status would become uncertain for the time period after their current four-year terms expire next year and the next gubernatorial election cycle in 2022.
The petition says the new law would “result in present office holders either serving a six-year term of office or being ousted from office after four years without an election in violation of the New Mexico’s democratic form of government.”
The bill is silent on exactly what should happen during the two-year period after 2020, the petition says, something that is described as “an apparent oversight.”
One interpretation is that instead of incumbent DAs staying over for another two years, their terms would run out at the end of next year and the governor could appoint 14 new DA’s in every state judicial district, the petition says. The governor is empowered to appoint district attorneys when a vacancy occurs, such as by death or resignation.
The situation between 2020 and 2022 could also provide grounds for legal challenges to any convictions in criminal cases achieved by DA’s during that period, says the petition.
“By purporting to alter the district attorneys’ term of office, HB 407 creates a substantial public crisis of constitutional magnitude that warrants this court’s exercise of original mandamus jurisdiction,” Sugg says in the petition.
“Ultimately, our goal is to make sure voters are able to exercise their constitutional right to elect the chief law officer of their respective judicial district and this action is the best avenue to achieve that goal,” Sugg said in announcing the June 8 court filing.
Serna has jumped into the 2020 race for the northern New Mexico congressional seat being vacated by U.S. Rep. Ben Ray Luján, who is running for U.S. senator next year. The district attorney part of a crowded Democratic primary field, in the heavily Democratic district, including former CIA operative Valerie Plame, Santa Fe attorney Teresa Leger Fernandez, state Rep. Joseph Sanchez of Alcalde, consultant and former government employee Rob Apodaca, and Gavin Kaiser of Santa Cruz.
The uncertainty about when the next district attorney election will be held may be one reason there’s been no flood of candidates to run for the chief prosecutor’s job in the 1st Judicial District — Santa Fe, Rio Arriba and Los Alamos counties — since Serna announced and filed to run for Congress.
But there is one candidate who says he will run, no matter if the election is next year or 2022.
Scott Fuqua, 43, an attorney now in private practice in Santa Fe and formerly with the state Attorney General’s Office for more than seven years, recently told the Journal he will be a candidate for district attorney whenever the next election is held. Under former Attorney General Gary King, Fuqua was head of the AG’s Office Litigation Division.