Senator sues secretary of state in dispute over campaign donation to student

Mar. 15—A Democratic state senator is taking Secretary of State Maggie Toulouse Oliver to federal court over what he contends is an unconstitutional provision in New Mexico's campaign finance law.

A complaint filed late last week in U.S. District Court on behalf of Sen. Jerry Ortiz y Pino, D-Albuquerque, alleges Toulouse Oliver, a fellow Democrat, "ambushed" the "good senator" last month over a $200 donation from his campaign in January 2021 to a student at Cibola High School in Albuquerque.

The Secretary of State's Office says the contribution violated state law and it has been working to get Ortiz y Pino to comply by replacing the campaign funds with his own money.

He responded to the agency's order last fall by challenging the constitutionality of the New Mexico Campaign Reporting Act and didn't hear back from Toulouse Oliver by a deadline, so he thought the dispute was resolved.

A week after the 30-day legislative session, however, she informed him she had reported him to what is now the New Mexico Department of Justice "for civil enforcement and criminal prosecution."

The Cibola High student, Ariana Alvarado, had asked Ortiz y Pino "to support her academic endeavors so she could participate in a week-long, out-of-state summer workshop" for high school students, according to his complaint.

"As an elected official, Senator Ortiz y Pino frequently receives requests from New Mexico students" for help covering program expenses, the complaint states.

Ortiz y Pino's attorney, neighbor and campaign treasurer, Phillip Baca, said Wednesday the donation was for a pre-law seminar. Alvarado, who graduated from Cibola High in 2022, is now studying pre-law at Arizona State University, he said.

"She's very gracious and really thankful about the contribution," Baca said.

Still, the Campaign Reporting Act says it's prohibited, according to the Secretary of State's Office.

Ortiz y Pino's complaint accuses Toulouse Oliver of "abuse of power," arguing she reported him to the attorney general "even though the statute of limitations for criminal prosecution had already expired."

A spokesman for the Secretary of State's Office described Ortiz y Pino's assertions as deceptive.

"Our office has been in extensive communication with the Senator over the past several months attempting to bring him into voluntary compliance on this issue, so his characterization of our notice to him as an 'ambush' after the session is very misleading," Alex Curtas wrote in an email.

Anastacio Trujillo, a disclosure auditor in the Bureau of Elections, wrote in a letter to Ortiz y Pino on Sept. 15, "Our final determination is that the expenditure to support Ms. Alvarado is not allowable under New Mexico campaign finance law."

The senator was required to replace the campaign funds given to Alvarado, Trujillo wrote, adding Ortiz y Pino had 10 working days to comply.

Baca wrote to Toulouse Oliver on Sept. 25, alleging her "threatened enforcement action against him is unconstitutional." He included a draft of the federal lawsuit "outlining the constitutional defects" in the law, he wrote. "But let me be clear: we have no interest in bringing suit against you, but we will if your office continues with its enforcement action."

The section in the law cited by Baca is "unconstitutional because it constitutes a content-based restriction on speech," the lawsuit states.

It notes contributions are permitted to 501(c)(3) organizations but not to 501(c)(4) advocacy groups.

"Most specific to the case at hand, [the law] does not allow elected officials to use their campaign funds to make political expenditures for charitable purposes to individuals," the lawsuit states.

In his letter to Toulouse Oliver, Baca suggested she "confer with experienced legal counsel on this matter" and not take action against Ortiz y Pino "until we discuss this matter further."

Because Ortiz y Pino never received a response and the 10-day deadline expired without any action taken against the senator, he "naturally concluded that the dispute had been resolved," the lawsuit states.

"But as soon as the New Mexico Legislature adjourned in 2024 ... Toulouse Oliver swooped in" and reported Ortiz y Pino to the State Ethics Commission and the attorney general, the lawsuit states.

It asks the federal court to declare the section of the state campaign finance law unconstitutional and seeks a temporary restraining order requiring Toulouse Oliver to withdraw her complaints against Ortiz y Pino; a preliminary and permanent injunction prohibiting her from enforcing the section's restrictions on political expenditures for charitable purposes; and attorneys' fees, litigation costs and "any other relief."

Curtas indicated Toulouse Oliver wants to put the matter to rest.

"The Senator has previously stated his opinion that the law on this issue is unconstitutional, but without a court ruling we are nonetheless required to enforce the law as written, which is what we are doing," he wrote.

He added, "If the Senator is successful in challenging the constitutionality of this law, we will change our stance accordingly."

Follow Daniel J. Chacón on Twitter @danieljchacon.