STATE OF NEW MEXICO COUNTY OF SANTA FE IN THE FIRST JUDICIAL DISTRICT COURT JOHN M. ONSTAD, Plaintiff, v.

VALERIE ESPINOZA, in her capacity as Santa Fe County Clerk, and LUCIANO LUCKY VARELA, a real party in interest, Defendants. COMPLAINT CHALLENGING NOMINATING PETITION AND REQUEST FOR HEARING COMES NOW, John M. Onstad, pursuant to NMSA 1978, 1-8-31(D), 1-835(A), and Rule 1-096 NMRA brings this action to challenge the nominating petitions filed by Defendant, Luciano Lucky Varela (Varela) for the office of New Mexico House of Representatives District 48 and seeking an Order of this Court declaring Varelas declaration of candidacy void and barring the name of Luciano Lucky Varela from being placed on the Primary Election ballot of the Democratic Party for the office of New Mexico House of Representatives District 48. Parties and Procedure
1. This action is filed timely in accordance with NMSA 1978, 1-8-35 and Rule 1-

Case No. _________________________

096 NMRA.
2. Plaintiff John M. Onstad (Onstad) is a resident of Santa Fe County and a

registered Republican voter in New Mexico House of Representatives District

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48.
3. Defendant Varela is a resident of Santa Fe County, New Mexico and seeks to be

a candidate for New Mexico House of Representatives District 48 for the Democratic Primary Election in June 2012.
4. Defendant Valerie Espinoza is the duly elected and qualified Santa Fe County

Clerk with an office in Albuquerque, New Mexico.

In this capacity, Ms.

Espinoza serves as the filing officer for those legislative districts located entirely located in Santa Fe County, serves as agent for service of process for nominating petition challenges, and has the authority for placing names on the primary election ballot for those legislative districts entirely located within Santa Fe County. 5. Venue is proper in Santa Fe County because Onstad and Varela are residents of Santa Fe County and the position being challenged is located in Santa Fe County. Allegations Supporting Challenge
6. Pursuant to NMSA 1978, 1-8-33, in order to appear as a candidate for New

Mexico House of Representatives District 48 for the Democratic Primary to be held on June 5, 2012, Varela was required to file nominating petition containing the valid signatures of at least ninety (90) qualified Democratic registered voters in New Mexico House of Representatives District 48.
7. Varela submitted fifteen (15) Nominating Petitions to Ms. Espinoza containing a

total of one hundred and eighty-one (181) signatures.1

8. As required by Rule 1-096 NMRA, copies of Varelas Nominating Petitions are

attached hereto as Exhibit 1.

9. NMSA 1978, 1-8-31(D) provides that a nominating petition, including the

signatures contained thereon, are invalid if the district or division of the office sought is not listed on the nominating petition. Specifically, NMSA 1978, 1-831(D) states: The following information shall be listed in the appropriate space at the top of the nominating petition before the petition has been signed by any voter: the party affiliation of voters signing the petition, the candidates name, the candidates address, the candidates county of residence and the office sought by the candidate, which shall include the district or division of the office sought, if applicable. A nominating petition, including all signatures on the petition page, shall be invalid if any of the preceding information is not listed before the petition is signed by a voter or if any of the preceding information is altered. (emphasis added).
10. Pages 2, 3, 5, 8, 9, 12, and 15 of Varelas nominating petitions do not contain the

required House of Representatives district number in which he seeks to run as required by NMSA 1978, 1-8-31(D).
11. The New Mexico Supreme Court recently affirmed this requirement. Given

that only those persons residing within the particular magistrate judgeship division may nominate a candidate for that office, we conclude that the
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On page 3 of the Varela nominating petitions, two of the entries on line 1 and 2 are deleted; and on page 9, no signature is contained on line 9.

Legislature intended that the nominating petition state the division number associated with the magistrate judgeship position that is up for election If the identity of the division had no bearing on whether those asked to sign the petition are in fact qualified to sign it, failure to state the division would not be as troublesome. However, because the petition must state the candidates party affiliation and the county of the office in question so that those asked to sign the petition know whether they are qualified to do so, the petition must also state the division of the judgeship. see Charley v. Johnson, 2010-NMSC-24, 26, 148 N.M. 246, 233 P.3d 775.
12. Moreover, the Secretary of States 2012 Candidate Guide also makes clear the

requirement that a district number must be included in a nominating petition. Signatures on a page will not be counted by the filing office at the time the petition is filed if all general information and candidate information in the top one-third of each page has not been completely filled in prior to circulation. See New Mexico Secretary of States 2012 Candidate Guide, p. 23 and 24.
13. Because Varela did not include a geographic boundary in pages 2, 3, 5, 8, 9, 12,

and 15 of his nominating petitions, all of those nomination petitions as well as the signatures contained thereon are invalid as a matter of law. Pursuant to Rule 1-096 NMRA and NMSA 1978, 1-8-31, Plaintiff challenges pages 2, 3, 5, 8, 9, 12, and 15 of Varelas nominating petitions. 14. It is necessary to address the Memorandum issued by the Attorney General on March 23, 2012 issued at the request of the Secretary of State
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(Memorandum). In the Memorandum, the Attorney General concluded that the candidates for state legislative office who did not include the legislative district number on their nominating petitions were nonetheless eligible to have their names placed on the ballot.
15. It is important to note that, in his Memorandum the AG acknowledges that under

both Charley v. Johnson, 2010-NMSC-024 and NMSA 1978, 1-8-31, a nominating petition that does not include a district number is invalid. The AG then goes on to argue that the Secretary of State may nonetheless accept the nominating petitions because of extenuating circumstances that include absence of notice or knowledge about the new requirements.
16. Varela had ample notice of the new requirement. Indeed, as a member of the

New Mexico House of Representatives, he heard testimony on and voted in favor of the bill during the 2011 regular legislative session that added the requirement that the nominating petition contain the legislative district number. See SB403, 2011 Regular Legislative Session. As such, as assertion that this new requirement was somehow imposed without his knowledge lacks merit. 17. Because pages 2, 3, 5, 8, 9, 12, and 15 of Varelas nominating petitions are invalid, only eight (8) pages of nominating petitions include the required district number. This results in only one hundred and twelve (112) petition signatures. 18. However, many of the remaining petition signatures on those remaining eight (8) pages are invalid.
19. Pursuant to NMSA 1978, 1-8-31(C)(3), a signature shall not be counted if that person 5

is not a registered voter within ten (10) days prior to the filing of the nominating petition. The voter registrations records used to determine these deficiencies were provided by the Secretary of States Office on March 30, 2012; the records were reviewed by Rod Adair whose address is Box 1796, Roswell, NM 88202; the search was made on March 30, 2012; and no search of variations in the names, spelling, or addresses were made because the names or corresponding addresses were contained in the House District 48 voter file.
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See Rule 1-096 NMSA. Plaintiff challenges the

following 53 signatures on Varelas nominating petition because they do not meet the requirements of NMSA 1978, 1-8-31(C)(3): Page 13 Page 1 Page 1 Page 1 Page 44 Page 65 Page 6 Page 6 Page 6 Page 76 Page 7 Page 7 Page 7 Page 7 Page 107 Page 10 Page 10 Page 10 Page 10 Page 10
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Line 1 Line 2 Line 3 Line 4 Line 5 Line 1 Line 2 Line 4 Line 7 Line 1 Line 6 Line 11 Line 12 Line 14 Line 3 Line 4 Line 6 Line 7 Line 8 Line 9

Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48

Because no date is provided for each of the nominating petitions, the plaintiff is unable to determine when each of the signatures was made. However, on March 30, 2012, the identified signers were not registered voters in House District 48. 3 Page No. 1, beginning with the name John Hooper 4 Page No. 4, beginning with the name Robert Nathanson 5 Page No. 6, beginning with the name Bernard Nuanez 6 Page No. 7, beginning with illegible name 7 Page No. 10, beginning with the name Phil Carter 6

Page 10 Page 10 Page 10 Page 10 Page 10 Page 10 Page 10 Page 10 Page 118 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 11 Page 139 Page 13 Page 13 Page 13 Page 1410 Page 14 Page 14 Page 14 Page 14 Page 14 Page 14 Page 14

Line 10 Line 12 Line 13 Line 16 Line 17 Line 18 Line 19 Line 20 Line 1 Line 2 Line 3 Line 5 Line 6 Line 7 Line 8 Line 10 Line 11 Line 12 Line 14 Line 15 Line 16 Line 17 Line 18 Line 19 Line 20 Line 3 Line 4 Line 15 Line 17 Line 3 Line 4 Line 5 Line 6 Line 7 Line 11 Line 14 Line 15

Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48 Not Registered in House District 48

20. Because the foregoing petition signatures do not meet the requirement of NMSA 1978, 1-8-31 (C)(3), only fifty-nine (59) valid signatures, at most, remain. This number is far short of the ninety (90) petition signatures required.
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Page No. 11, beginning with the name Melanie Montoya Page No. 13, beginning with the name Mark Valdez 10 Page No. 14, beginning with the name Ronald E. Gaines. 7

WHEREFORE, Plaintiff respectfully requests that the Court invalidate the nominating petition signatures challenged herein and find that the declaration of candidacy filed by Luciano Lucky Varela is void, thereby preventing the Santa Fe County Clerk, as chief election officer from placing Varelas name on the June 5, 2012 Democratic primary election ballot for the office of New Mexico House of Representatives District 48; grant a hearing in this matter within ten (10) days as required by Rule 1-096 NMSA; and grant such further relief as the Court deems proper and just. Respectfully submitted,

__________________________ FRED T. VAN SOELEN HARMON LAW OFFICE 812 MITCHELL STREET CLOVIS, NEW MEXICO 88101 (575) 763-0077 (TELEPHONE) (575) 742-0077 (TELECOPIER) fredvansoelen @ gmail.com (EMAIL) ATTORNEY FOR PLAINTIFF