District 6 Voiceless as Legislative Session Begins
Editor’s Note: Minutes before print deadline, the Cibola Citizen learned that Governor Michelle Lujan Grisham has sent the nomination back to Cibola and McKinley County. They will each need to select a new person to fill the vacancy.
SANTA FE, N.M. – New Mexico Attorney General Raul Torrez has delivered a letter confirming that Cibola and McKinley County’s nominee for the House of Representatives District 6 vacancy does not actually live in District 6 and cannot represent the district.
Due to a vacancy which appeared after the 2024 election, the New Mexico State Constitution called on every county impacted by HD6’s representation to send a nominee to the governor who would then select one of those nominees to fill the seat. Cibola and McKinley County are both impacted by HD6, and both nominated Harry Garcia, who at the time was the sitting representative for District 69, to fill the vacancy.
Controversy about the constitutional requirement of residency – having to live in the area you represent – immediately erupted.
Governor Michelle Lujan Grisham sent a letter on December 31 to Secretary of State Maggie Toulouse Oliver, asking her to verify Garcia’s residency. This came after Garcia told both county commissions in Cibola and McKinley that the secretary personally assured him that he can serve in District 6 thanks to “dual residencies.” The secretary responded in a January 2 letter, arguing that her office does not and cannot investigate voter registration addresses, writing, “The Secretary of State’s office is neither authorized nor equipped to investigate the veracity of the address stated as ‘where you live now’ on the registration form.”
On January 6, Lujan Grisham sent a letter to the New Mexico Department of Justice, asking for their help in determining if Garcia meets the constitutional requirements to serve in District 6 After a lengthy investigation, NMDOJ sent a letter, dated January 17 with the results of their investigation. The report concludes that Garcia does not meet the constitutional residency requirements to represent HD6.
What the DOJ Found The investigation conducted by the NMDOJ into Garcia’s residency brought to light critical findings that challenge his eligibility to represent House District 6. NMDOJ’s report is public information and directly lists Garcia’s addresses.
The address Garcia is using to justify his residence in District 6 is 252 Mountain Road. On January 14, at 6 a.m., investigators from NMDOJ met at Loves Gas Station in the Village of Milan and drove to Garcia’s property. Investigators found the house empty, no cars were outside, there was a notable lack of curtains and there was no visible lighting inside or outside the property.
Investigators determined that Garcia’s primary residence is located at 31 Garcia Blvd, a property within House District 69, this is the residency he used when serving as the representative for HD69.
Garcia was caught off guard by the inquiry, according to the NMDOJ report. Garcia told investigators “that he spoke to the NM Secretary of State and explained what he was doing … she sent him a text that everything was fine.”
During their visit to this House District 69 address, investigators not only observed it to be fully furnished, containing personal effects, and actively lived in, but when they went there, they found Garcia had only just woken up, not yet ready for the day.
According to the NMDOJ report, “The exterior of the District 69 Property appears to be well maintained and contains several motor vehicles. The interior was fully furnished and indicative of habitation.” Two dogs were also present at the home, further supporting this conclusion.
By contrast, Garcia’s property at 252 Mountain Road, located within House District 6, presented a starkly different picture.
The District 6 property, part of the “Sierra Vista Trailer Court,” was found to be under renovation. It lacked furniture, personal belongings, or any other evidence of regular habitation. Investigators reported encountering a single worker on-site who stated, “No one lives here.”
Investigators asked tenants at the Sierra Vista Trailer Court the following questions about Garcia: “Have you seen Mr. Harry Garcia here?
“How often do you see him here?
“Do you know if he stays here overnight?
“Do you see his vehicles?
“Do you see his family members here?
“Do they stay here? “Does Mr. Garcia live here?”
NMDOJ investigators interviewed tenants and neighbors near District 6 property. Their accounts were consistent: Garcia was recognized as the property owner and landlord but was not observed living on-site. Several tenants reported seeing Garcia visit occasionally, typically to collect rent or oversee property management tasks. One tenant told NMDOJ that Garcia and his wife go to collect rent, but they do not stay the night.
Photographs from the investigation show the unfinished state of the property, which Garcia claimed he intended to make his permanent residence once renovations were complete. However, according to NMDOJ’s findings, Garcia admitted he had not yet stayed at the property overnight.
Garcia continued to tell investigators that the secretary of state had personally assured him that “he would be fine.” Investigators took photographs of the messages Garcia had with that number, but investigators did not determine whether that number belongs to the secretary of state. The report states, “[Garcia] allowed me to photograph the text message from the NM Secretary of State, which read, December 4, 2024, ‘No, you are fine. Again, this is the kind of stuff that could be expected if they do not know of your dual residency. Again, all good as far as an appointment is concerned.’” A supplemental NMDOJ report states, “The text message was from [redacted] speaks about dual residency. Note checking the number through Law Enforcement Data Bases had negative results. I also checked the SOS website and was unable to find that number listed. At the time of writing this report there is no way for me to confirm or deny that this is the SOS phone number.”
Legal Analysis
Applying New Mexico’s legal standards for residency, the NMDOJ concluded that Garcia does not meet the requirements to claim the District 6 property as his permanent residence for candidacy purposes.
Under the New Mexico Election Code (NMSA 1978, Section 1-1-7.1), a candidate must “reside on the premises” listed as their permanent residence. Investigators found no evidence to substantiate such a claim.
The Election Code
The New Mexico Election Code has four specific requirements to establish residency, they are listed below, followed by NMDOJ’s answer to whether Garcia meets it:
A. the residence of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return.
- Mr. Garcia has no intention to return or otherwise reside at the District 6 Property since there was no evidence that he lives, sleeps, or otherwise stays at the District 6 Property.
B. the place where a person's family resides is presumed to be his place of residence, but a person who takes up or continues his abode with the intention of remaining at a place other than where his family resides is a resident where he abides.
- There was no evidence that Mr. Garcia’s family resides at District 6 Property. There was no evidence that Mr. Garcia showed an intention to remain at District 6 Property since no furniture, clothing, bedding, or personal effects were observed.
C. a change of residence is made only by the act of removal joined with the intent to remain in another place. There can be only one residence.
- Aside from changing his voter registration, there is no evidence of removal from District 69 property to District 6 property.
G. a person does not gain a residence in a place to which he comes for temporary purposes only.
- Mr. Garcia appears to frequent the District 6 Property for temporary purposes as a landlord and landowner.
The Apodaca Problem
To be sure he does not have constitutional authority to represent HD6, the NMDOJ also applied a legal precedent established in the New Mexico Supreme Court case Apodaca v. Chavez, which considers both intent and significant physical presence when evaluating residency.
“Applying a strict reading of the law, it would appear that a determination of Mr. Garcia’s residency is straightforward. However, our Supreme Court has opted for a more nuanced analysis that creates ambiguity,” NMDOJ wrote in their report.
The secretary of state’s office cited a section of the opinion in case Robinson v. Lint that cited Apodaca v. Chavez for their justification and constitutional argument in support of Garcia’s residency. The Secretary of State’s office did not cite Apodaca v. Chavez directly. The citation in their January 2 letter to Lujan Grisham was: “…has the person actually resided at the place where the candidate registers to vote? In that sense, the court stated in Williams that a person may have only one place of residence for voting purposes, even if there are other properties owned or occupied elsewhere. A voter who has the burden of showing their true place of residence in the context of satisfying residence is a sham, e.g., ‘nothing less than an attempt by construction and artifice to circumvent the Constitution and the law…’ Robinson v. Lint, 93 N.M. 708, 705, 608 P.2d 111, 2-3 (1984) (citing Apodaca at 13).”
NMDOJ worked to clear up this confusion, writing in their report, “Even comparing the Court’s generous interpretation of residency in Apodaca to this investigation, there is insufficient evidence to suggest that Mr. Garcia resides at the District 6 Property. Mr. Garcia changed his voting registration to the District 6 Property address on November 25, 2024, which shows only a somewhat recent intention to reside there. There is also no evidence that he or his family have ever resided at the District 6 Property, and residents and tenants onsite stated to investigators that neither Mr. Garcia nor Mr. Garcia’s wife resided at the property. Mr. Garcia could only demonstrate that he owns the District 6 Property and has a future intention to live there. Applying Apodaca, there is not substantial evidence that Mr. Garcia maintains a significant physical presence at the District 6 Property.”
Residing in District 69
In their letter to Lujan Grisham, the NMDOJ says that Apodaca has created “unnecessary ambiguity” they would like to eliminate when it comes to New Mexico’s representation. Ending their letter, and putting the ball once again in Lujan Grisham’s court, NMDOJ wrote: “We conclude that there is not substantial evidence to show that Mr. Garcia resides at the District 6 Property for the purpose of establishing candidate residency under the Election Code. In totality, it appears that Mr. Garcia actually resides at the District 69 Property.”
The Cibola Citizen emailed Cibola County Commission Chair Christine Lowery and Cibola County Manager Kate Fletcher to ask if there will be a new nomination, they did not meet our 12 p.m. deadline for comment.
The New Mexico Legislative Session began January 21 at noon, this seat remains unfilled, days into the legislative session.