Can the rules or bylaws of a state political party (Democratic, Republican, or other) override New Mexico state law or federal law?

Plain-English summary

Representative Anthony Allison asked whether the bylaws of a state political party (the opinion specifically names the Democratic Party of New Mexico and the Republican Party of New Mexico) sit above state or federal law. The AG answered no, and walked through three separate legal frameworks that each independently produce that result.

First, party bylaws are typically contractual in nature. Yedidag v. Roswell Clinic and similar cases treat organizational bylaws as enforceable contracts. A contract term that is illegal or against public policy is unenforceable, citing Fiser v. Dell. So bylaws that conflict with state or federal law cannot be enforced by a court.

Second, state political parties often organize as nonprofit corporations, and the Nonprofit Corporation Act explicitly limits their bylaws. NMSA § 53-8-12(A) says a nonprofit's bylaws must not be "inconsistent with law or the articles of incorporation," and § 53-8-5(M) repeats the same limit on amendments. So even at the corporate-formation level, bylaws cannot override state law.

Third, the Election Code lays out specific requirements for political party rules. NMSA § 1-7-2 requires every "qualified political party" to file its rules with the Secretary of State and to have uniform rules adopted by county party organizations. Section 1-7-3 mandates the substantive content of those rules (methods for nominating candidates, calling conventions, selecting delegates, etc.). And § 1-7-2(B) lets county organizations adopt supplementary rules only if they do not conflict with the state party's uniform rules or "abridge the lawful political rights of any person."

The AG also touches on the Campaign Reporting Act for organizations registered as political committees. The CRA governs campaign finance disclosure but does not itself authorize bylaw provisions that override law.

The AG was careful to clarify that this opinion does not say any specific bylaw is unlawful. It only confirms the legal hierarchy: no party rule can sit above state or federal law.

What this means for you

If you serve in a state political party leadership role

The opinion is a clear caution: any rule or bylaw your party has adopted is subject to challenge if it conflicts with state law (the Nonprofit Corporation Act and Election Code), federal law (e.g., the Voting Rights Act, federal campaign finance laws), or general public-policy limits. Audit your bylaws for provisions that potentially conflict with statutory requirements like § 1-7-3's mandatory components of party rules.

If you serve in a county party organization

Section 1-7-2(B) is your statute. You can adopt supplementary rules, but only if they (a) do not conflict with the uniform state party rules and (b) do not "abridge the lawful political rights of any person." If state party leadership is enforcing rules against your county committee that you believe go beyond what state law allows, this opinion is a useful cite for pushing back. If your county committee has rules a member is challenging, expect the same kind of analysis applied to you.

If you're a candidate or campaign affected by a party rule

If a party bylaw is being applied against your candidacy in a way you believe conflicts with state law (eligibility, ballot access, convention procedures) or federal law (voting rights, campaign finance), you have at least three potential angles for challenge: contract theory under Yedidag, ultra vires under the Nonprofit Corporation Act under Swinney v. Deming Board of Education, and Election Code compliance under §§ 1-7-2 and 1-7-3.

If you're a voter or citizen interested in party governance

The opinion emphasizes that political parties operate within a legal framework, not as private clubs free to write any rules they want. Federal voting-rights protections, state election laws, and corporate-law fiduciary duties all apply. If you have a concern about how your party is governed, that concern is potentially legally cognizable.

If you're an election administrator or Secretary of State staffer

The opinion confirms the framework you already work within: party rules must be filed with you under § 1-7-2(A), county supplementary rules must be filed under § 1-7-2(B), and any rule that conflicts with state law is "unlawful" in the AG's view. The opinion does not give you new enforcement authority but does provide useful reasoning for any administrative dispute about whether a filed rule is compliant.

Common questions

Can a party rule trump a state election law?

No. The Election Code (NMSA §§ 1-7-2 and 1-7-3) sets mandatory minimum content for party rules and explicitly prohibits county supplementary rules that conflict with state party rules or abridge lawful political rights. The Nonprofit Corporation Act independently bars nonprofit bylaws "inconsistent with law." General contract-law principles (Fiser v. Dell, Swinney v. Deming) reach the same result.

Does the AG opinion say any specific party bylaw is unlawful?

No. The AG was explicit: "this opinion should not be construed as opining that certain party bylaws are unlawful. The purpose of this opinion is to answer only the legal question of whether a state political party's bylaws are superior to state or federal law." AG opinions under NMSA § 8-5-2(D) only address questions of law, not factual or as-applied questions.

What is a "qualified political party" in New Mexico?

Under NMSA §§ 1-1-10 and 1-7-2, an organization can become a qualified political party only by complying with specific Election Code provisions, including filing organizing rules with the Secretary of State and adopting uniform rules across county organizations.

What kind of content do party rules have to include?

NMSA § 1-7-3 requires party rules to address: methods for nominating candidates for general elections, calling and conducting conventions, selecting delegates, selecting state officers, the powers and duties of governing bodies, holding meetings, and amending the rules.

Can a party operate outside the Nonprofit Corporation Act?

In theory yes, since not every party is incorporated as a nonprofit (the opinion notes the Republican Party of New Mexico is registered as a domestic nonprofit, and the Democratic Party is registered as a political committee). But all parties operating in New Mexico are subject to the Election Code regardless of corporate form, and the contract-law principles apply to bylaws regardless of corporate status.

What about political committees that are not formally parties?

The Campaign Reporting Act, NMSA §§ 1-19-25 to -36, governs registration and disclosure for political committees, but it does not authorize bylaws that override law. The AG concluded that "the principles elucidated above control in the context of political committee bylaws: they cannot conflict with state law, and where they do, they are unlawful."

Can I challenge a party bylaw in court?

Maybe. The most likely doctrinal vehicles are breach of contract (treating the bylaw as a contract among members or between the organization and members), ultra vires action under the Nonprofit Corporation Act, or declaratory judgment that a bylaw conflicts with the Election Code. Each route has its own standing, ripeness, and standard-of-review issues. Consult an attorney experienced in election law and nonprofit governance.

Background and statutory framework

Three separate statutory schemes intersect in this opinion. The Nonprofit Corporation Act (NMSA §§ 53-8-1 to -99) governs the formation and bylaws of nonprofit corporations, which include many state political parties. Section 53-8-12(A) requires bylaws to be adopted by the board of directors and forbids them from being "inconsistent with law or the articles of incorporation." Section 53-8-5(M) extends the same limit to bylaw amendments.

The Election Code, especially NMSA §§ 1-1-10, 1-7-2, and 1-7-3, controls political-party recognition. Section 1-7-2(A) requires every qualified party to adopt rules and file them with the Secretary of State, with uniform application across county organizations. Section 1-7-2(B) lets county organizations adopt supplementary rules only if they do not conflict with state party rules and do not "abridge the lawful political rights of any person." Section 1-7-3 lists the required substantive content of party rules.

The Campaign Reporting Act (NMSA §§ 1-19-25 to -36) requires political committees to register, pay filing fees, and disclose contributions and expenditures. The 10th Circuit's decision in N.M. Youth Organized v. Herrera (2010) discusses the CRA framework. The CRA does not authorize bylaws above state law.

The doctrinal hooks for treating bylaws as contracts come from Yedidag v. Roswell Clinic Corp. (2015) (medical staff bylaws), Star v. Sierra Los Pinos Property Owners Association (2019, unpublished) (HOA bylaws as contracts), and the Restatement (Second) of Contracts §§ 178 and 184. Fiser v. Dell Computer Corp. (2008) is the leading New Mexico case on unenforceability of unlawful contract terms. Swinney v. Deming Board of Education (1994) is the canonical cite for ultra vires invalidation of contracts that violate statutes.

Citations

The Nonprofit Corporation Act provisions are at NMSA § 53-8-12(A) and § 53-8-5(M). The Election Code framework is at §§ 1-1-10, 1-7-2, and 1-7-3. The Campaign Reporting Act is at §§ 1-19-25 to -36, with the 10th Circuit's interpretive decision at N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010). The contract-as-bylaws doctrine rests on Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, and the unenforceability of unlawful contract terms on Fiser v. Dell, 2008-NMSC-046, and Swinney v. Deming Board of Education, 1994-NMSC-039.

Source

• Landing page: https://nmdoj.gov/publication/opinion/2024-09-opinion-whether-state-political-party-bylaws-are-superior-to-state-or-federal-law/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-No.-2024-09.pdf

Original opinion text

August 14, 2024
OPINION
OF
RAÚL TORREZ
Attorney General

Opinion No. 2024-09

To:

Honorable Anthony Allison, New Mexico House of Representatives, 4th District

Re:

Attorney General Opinion – Whether state political party bylaws are superior to state or federal law

Question
Are the bylaws of a political party such as the Democratic Party of New Mexico or the Republican Party of New Mexico superior to federal or state law?

Answer
No. New Mexico law provides that the bylaws of a political party such as the Democratic Party of New Mexico or the Republican Party of New Mexico may not be inconsistent with prevailing law. Party bylaws that are inconsistent with law are generally unenforceable.

Analysis

I. Unlawful Contract Terms Are Generally Unenforceable

The law recognizes that bylaws are often contractual in nature. See, e.g., Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, ¶ 7 (recognizing that medical staff bylaws are enforceable contracts between the hospital and medical staff); Star v. Sierra Los Pinos Prop. Owners Assoc., A-1-CA-36136, mem. op. ¶ 9 (N.M. Ct. App. Jul. 2, 2019) (nonprecedential) (resolving alleged breaches of bylaw terms as breach of contract claims); Restatement (Second) of Contracts §§ 178, 184 (1981) (acknowledging cases where bylaw terms were treated as contract terms).

A contract term is generally unenforceable when it is illegal or against public policy. See Fiser v. Dell Comput. Corp., 2008-NMSC-046, ¶¶ 20, 22; Restatement (Second) of Contracts §§ 178, 184 (1981). It follows that organizational bylaws that are unlawful or against public policy are invalid and unenforceable. See also Swinney v. Deming Bd. of Educ., 1994-NMSC-039, ¶ 8, 117 N.M. 492 (noting that a contract which violates the specific statutory provisions governing it is ultra vires and void).

We apply these general principles to political party bylaws below.

II. Nonprofit Corporation Bylaws

Political parties often organized as nonprofit corporations. For example, the Republican Party of New Mexico is registered as a domestic nonprofit corporation.

The Nonprofit Corporation Act (NCA), NMSA 1978, §§ 53-8-1 to -99 (1975, as amended through 2021), governs nonprofit corporations. The NCA allows organizations to form for socially beneficial purposes such as political, charitable, educational, civic, athletic, or cultural purposes, among others. Section 53-8-4.

Nonprofit corporations have specific, enumerated powers, including but not limited to, entering into contracts; buying, leasing, or selling real property; lending or receiving loans for money; electing and appointing officers; and making and altering bylaws. Section 53-8-5.

Section 53-8-12(A) provides that a nonprofit corporation's bylaws must be adopted by its board of directors, who thereafter can alter or amend the bylaws. Id. Section 53-8-12(A) further states that "[t]he bylaws may contain any provisions for the regulation and management of the affairs of a corporation not inconsistent with law or the articles of incorporation." Id. Additionally, Section 53-8-5(M), which provides a nonprofit corporation's authority to enact and amend bylaws, states that any bylaws must not be "inconsistent with [the nonprofit corporation's] articles of incorporation or with the laws of New Mexico[.]" Id. It is apparent from the plain language of these statutes that a nonprofit corporation has power to pass bylaws governing their operations, but those bylaws cannot conflict with state law.

III. Political Party Rules

A state political party is made up of smaller county organizations of that party. See NMSA 1978, § 1-7-2 (2011). Here, the Opinion Request appears to raise concerns regarding the authority of a state political party's bylaws to dictate certain practices of subsidiary county organizations. Thus, to the extent the Opinion Request implicates authority governing a political party's rules, rather than authority governing a nonprofit corporation's bylaws, we address that authority.

In New Mexico, an organization cannot become a "qualified political party" unless they comply with specific provisions of the Election Code. See generally NMSA 1978, §§ 1-1-10 (1989), 1-7-2. The requirements to become a "qualified political party" are, among others:

[E]ach political party through its governing body shall adopt rules providing for the organization and government of that party and shall file the rules with the secretary of state. Uniform rules shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks.

Section 1-7-2(A). Thus, the Election Code requires that a political party adopt rules governing the organization, and that those rules be adopted by affiliated county organizations.

The Election Code also sets substantive parameters for a political party's rules. It requires that a political party's rules contain a method for nominating candidates for the general election, a method for calling and conducting conventions, a method for selection of delegates, a method for selection of state officers, the powers and duties of other governing bodies, a method for publishing and holding meetings, and a method for amending party rules and regulations. NMSA 1978, § 1-7-3 (1969).

The authority for a county organization to promulgate its own additional or supplemental rules is set forth in Section 1-7-2(B), which states:

Each county political party organization may adopt supplementary rules insofar as they do not conflict with the uniform state rules or do not abridge the lawful political rights of any person. Such supplementary rules shall be filed with the county clerk and the secretary of state in the same manner as other rules are filed.

It is clear from this plain language that a county organization may not adopt rules that conflict with the state party's uniform rules, nor may they adopt rules that "abridge the lawful political rights of any person." Id. In other words, a county organization's rules are not compliant with the Election Code if they contradict the uniform state rules of the political party, or if they unlawfully violate the political rights of a person.

IV. Political Committees

We also address, to the extent implicated by the Opinion Request, the statutory authority regarding political committees. This is because the Democratic Party of New Mexico is a registered political committee, at least for the purpose of fundraising.

The New Mexico Campaign Reporting Act (CRA), NMSA 1978, §§ 1-19-25 to -36 (1979, as amended through 2024), requires organizations operating primarily for the purpose of influencing or attempting to influence an election register with the Secretary of State as political committees, pay a filing fee, and file reports disclosing their activities and contributors. See N.M. Youth Organized v. Herrera, 611 F.3d 669, 677 (10th Cir. 2010) (discussing CRA requirements). A "political committee" includes:

(1) a political party;
(2) a legislative caucus committee;
(3) an association that consists of two or more persons whose primary purpose is to make contributions to candidates, campaign committees or political committees or make coordinated expenditures or any combination thereof; or
(4) an association that consists of two or more persons whose primary purpose is to make independent expenditures and that has received more than five thousand dollars ($5,000) in contributions or made independent expenditures of more than five thousand dollars ($5,000) in the election cycle[.]

Section 1-19-26(U).

Political committees include organizations at the federal, state, and local levels. And while political committee operations are governed by the CRA, neither that Act nor its regulations appear to contain any authority specifically governing bylaws. Thus, we read the CRA as governing campaign financing, but not necessarily a political party's bylaws themselves. It follows, therefore, that the principles elucidated above control in the context of political committee bylaws: they cannot conflict with state law, and where they do, they are unlawful.

Conclusion

The bylaws of a political party such as the Democratic Party of New Mexico or the Republican Party of New Mexico may not be inconsistent with prevailing law. Bylaws that are inconsistent with law are generally unenforceable.

Please note that this opinion should not be construed as opining that certain party bylaws are unlawful. The purpose of this opinion is to answer only the legal question of whether a state political party's bylaws are superior to state or federal law. We do not provide factual analysis in Attorney General opinions. See NMSA 1978, § 8-5-2(D) (1975) (providing that the Attorney General shall answer "questions of law" submitted by the particular individuals or entities therein). To the extent the Opinion Request asks us to do so, we decline pursuant to Section 8-5-2(D).

This opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL
/s/ Alexander W. Tucker
Alexander W. Tucker
Assistant Solicitor General