 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   STEVE SEDERWALL, RANDY RUSSELL,
 3   CAROLYN SEDERWALL, MELODY R.
 4   MCCONNELL, WHITNEY NEWTON,
 5   MICHAEL LEINNEWBER, ESTER OTERO
 6   FLANAGAN, BRANDY FLANAGAN, PATTY
 7   A. GOODWIN, ANN GOODWIN, GREGORY
 8   FLORES, DONNA SIMMONS, GLYNIS
 9   RACINE, GARY GARRETT, TONY
10   PASTORELLO, LINDA PATORELLO,
11   WELDA GRINDER, GAIL J. MAJOR,
12   JAMES BOREN, ELLIE BOREN, JASON
13   O’NEAL, and CINDY O’NEAL,

14         Plaintiffs-Appellants,

15 v.                                                NO. 28,972

16 RICHARD E. (RICK) VIRDEN, TAMMIE
17 MADDOX, MARY HERRERA,

18         Defendants-Appellees.

19 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
20 Jerry H. Ritter, Jr., District Judge

21   Gary K. King, Attorney General
22   Santa Fe, NM
23   Scott Fuqua, Assistant Attorney General
24   Santa Fe, NM

25 for Appellee

26 The Rose Law Firm, P.C.
27 Timothy L. Rose
28 Ruidoso, NM

29 for Appellant
 1                             MEMORANDUM OPINION

 2 KENNEDY, Judge.

 3        Petitioners appeal from the district court’s order dismissing their petition

 4 challenging the voter registration of Richard E.Virden. We affirm.

 5        Petitioners challenged Mr. Virden’s voter registration pursuant to NMSA 1978,

 6 Section 1-4-22(A) (1995), which states:

 7        At any time not less than forty-two days prior to any election held
 8        pursuant to the Election Code [Chapter 1 NMSA 1978], the secretary of
 9        state, the county chairman of any major political party or any twenty
10        petitioners who are voters of the county may file and present to the
11        district court a verified petition alleging either on personal knowledge or
12        on information and belief that certain persons registered, named in the
13        petition, are not qualified electors in the precincts named in the petition.
14        The petition shall contain a brief statement of the facts upon which such
15        allegation is made.

16        Thus, in order to meet their burden under this statute, Petitioners were required

17 to set forth factual allegations demonstrating that Mr. Virden is not a “qualified

18 elector” in the precinct named in the petition. The term “qualified elector” is defined

19 in the election code. “As used in the election code ‘qualified elector’ means any

20 person who is qualified to vote under the provisions of the constitution of New

21 Mexico and the constitution of the United States.” NMSA 1978, § 1-1-4 (1975). The

22 New Mexico constitution sets out the qualifications for voters in Article VII, Section

23 1, which states:


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 1        Every citizen of the United States, who is over the age of twenty-one
 2        years, and has resided in New Mexico twelve months, in the county
 3        ninety days, and in the precinct in which he offers to vote thirty days,
 4        next preceding the election, except idiots, insane persons and persons
 5        convicted of a felonious or infamous crime unless restored to political
 6        rights, shall be qualified to vote at all elections for public officers.

 7        Petitioners have not alleged facts that would show that Mr. Virden does not

 8 meet these constitutional qualifications. Petitioners have not alleged facts to show that

 9 Mr. Virden is not a resident of New Mexico, of Lincoln County, or of the precinct in

10 which he offers to vote. Petitioners conceded below that Mr. Virden is a resident of

11 Lincoln County, New Mexico. Additionally, the petition contains no allegations that

12 Mr. Virden does not reside in the precinct in which he is registered. We therefore

13 affirm the district court’s determination that the allegations in the petition were legally

14 insufficient to cancel Mr. Virden’s voter registration.

15        Petitioners argue that their burden is only to allege facts to show that the

16 residence listed on the voter registration is not the voter’s true residence. [DS 3] We

17 disagree. Section 1-1-4 and Section 1-4-22, governing the process by which voters

18 can challenge a citizen’s voter registration, requires factual allegations to show that

19 the voter does not meet the constitutional requirements for voter eligibility. The New

20 Mexico constitution’s only requirements regarding a voter’s residency are that the

21 voter be a resident of New Mexico and of the county and the precinct in which the

22 person offers to vote. Mere allegations that a voter does not reside at the address

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 1 listed on his voter registration are insufficient.

 2        Petitioners also ask us to determine that a person whose voter registration is

 3 cancelled is not qualified to appear as a candidate. [DS 4] However, as we affirm the

 4 district court’s dismissal of the petition, we do not address this issue. See Insure N.M.,

 5 LLC v. McGonigle, 2000-NMCA-018, ¶ 27, 128 N.M. 611, 995 P.2d 1053 (noting that

 6 the Court of Appeals will not issue an advisory opinion in the absence of a justiciable

 7 issue).

 8        IT IS SO ORDERED.

 9                                          ___________________________________
10                                          RODERICK T. KENNEDY, Judge

11 WE CONCUR:



12 ___________________________
13 JAMES J. WECHSLER, Judge



14 ___________________________
15 ROBERT E. ROBLES, Judge




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