Ballot bailout? NM Dems sue to replace candidates after deadline

New Mexico Democrats are asking state judges to rescue two state House races after their original nominees bailed out too late to satisfy a key deadline in state election law — with county clerks arguing the statute simply does not allow the party to substitute new candidates under the circumstances.

The fight centers on House Districts 4 and 23, where Democrat nominees Rep. Joseph Hernandez and Elise Falanga Taylor withdrew well after the date New Mexico law establishes for a post-primary ballot vacancy that a political party may fill.

Democrats nevertheless selected former Rep. Anthony Allison to replace Hernandez in District 4 and Matthew Herman to replace Falanga Taylor in District 23. Both were initially rejected by their respective county clerks, prompting lawsuits seeking court orders putting them on the Nov. 3 ballot.

The statutory language presents Democrats with an obvious hurdle.

Section 1-8-8(A) NMSA 1978 begins: “If after a primary election, but ninety or more days before the general election, a vacancy occurs, for any cause…” the political party may fill that vacancy through the appropriate central committee.

For the Nov. 3 election, the New Mexico Secretary of State’s own 2026 Candidate Guide identifies Aug. 5 as the 90-day deadline for a vacancy on the general-election ballot occurring after the primary. The guide separately identifies Aug. 25 — 70 days before the election — as the final date for filing an appointment to fill an already qualifying vacancy.

That distinction is at the heart of the dispute.

Subsection A determines when a vacancy is eligible to be filled: it must arise at least 90 days before the general election. Subsection D then gives the party until the 70th day before the election to formally make and file its replacement appointment.

The Legislature made that distinction even clearer in 2023. Lawmakers specifically amended Subsection A by changing the vacancy threshold from 70 days to 90 days, while separately retaining a 70-day deadline for the replacement appointment paperwork.

Neither Democrat vacancy arose by Aug. 5.

Falanga Taylor announced Aug. 16 that she was abandoning her challenge to House Minority Whip Alan Martinez (R-Rio Rancho). Hernandez withdrew on Aug. 25 — the absolute final day on which a candidate could withdraw and have his or her name removed from the ballot under Section 1-10-6.

Yet Democrats are arguing that the 70-day appointment deadline should allow their substitutes onto the ballot anyway.

Attorney Kate Ferlic, representing Allison and Herman, told KOAT, “if a candidate files prior to 70 days, that candidate should appear on the ballot.”

County clerks read the statute differently.

San Juan County Clerk Alyssa Kuhn disqualified Allison under Section 1-8-8(A) and has now asked a judge to dismiss his lawsuit. Sandoval County Clerk Anne Brady-Romero likewise concluded Herman could not lawfully replace Falanga Taylor because the underlying vacancy occurred after the statutory deadline.

The Sandoval County fight has already taken an unusual turn. Thirteenth Judicial District Judge James A. Noel ordered Brady-Romero to put Herman on the ballot pending further proceedings. The clerk complied but said the county will defend its original determination at a Sept. 2 hearing, maintaining that “no replacement candidate could be submitted because of statutory deadlines,” according to the county statement reported by Source New Mexico.

The scramble began after two very different Democrat campaigns imploded.

Falanga Taylor quit her District 23 race while accusing Martinez’s campaign of exploiting a decades-old abusive relationship to connect her to crimes allegedly committed by a former partner, which, of course, is not true. Martinez flatly denied that he or anyone affiliated with his campaign was responsible. Reporting at the time noted Falanga Taylor’s campaign did not provide specifics establishing who was behind the alleged attacks when asked — further proof she just cooked up the story to exit from the race.

She explicitly said she wanted to step aside so another Democrat could take her place.

The situation in District 4 was even more explosive.

Hernandez withdrew after reports surfaced about a Chicago hotel incident in which witnesses and a police report described a man identified as Hernandez running naked through a hotel hallway and banging on guests’ doors. Hernandez later apologized and said he was addressing problems involving alcohol.

His withdrawal also came as the Piñon Post reported new questions surrounding his campaign-finance filings, including thousands of dollars in cash-style or self-directed transactions, extensive restaurant, hotel, and retail spending, and repeated filing issues.

Democrats then moved immediately to nominate Allison, a former District 4 representative, as Hernandez’s replacement.

The Democrat legal theory now effectively asks courts to treat the 70-day paperwork deadline as permitting replacements even though the vacancies themselves did not arise within the 90-day window expressly written into Subsection A.

Republicans and the county clerks say that reading would render the Legislature’s 90-day language meaningless.

The stakes are considerable. If the replacements ultimately remain disqualified, Republicans would be left without Democrat opponents in the two races. KOAT political analyst Brian Sanderoff acknowledged that Democrats are fighting because they want to preserve contests in both districts.

House Speaker Javier Martínez (D-Albuquerque) has publicly sided with his party’s effort, saying Democrats expect the courts to side with Democrats, despite the law being crystal clear they can’t place their candidates on the ballot past the required timeline.

But the controversy now puts judges in the position of interpreting two deadlines that the Legislature deliberately wrote differently — a 90-day threshold for the vacancy to occur and a 70-day deadline to file the replacement.

Democrats missed the first one in both races.

Now they are asking the courts to save their candidates anyway.