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NM: Court Says State Should Have Allowed Recount

Belated Victory for Greens and Libertarians Leaves Flawed Election Results Unexamined

By Warren Stewart, VoteTrustUSA
May 28, 2006

Election integrity activists in New Mexcio were justifiably heartened by a state court decision this month that invalidated a clause in a 2005 omnibus election reform bill that allowed the state canvassing board to require candidates to pay the estimated full cost of a recount up front as a deposit. The decision was a victory for all those involved in the effort to recount the 2004 New Mexico presidential election results. Analysis of the certified results revealed troubling anomalies including 2,087 phantom votes and an alarmingly high undervote rate (2.78% statewide, 21,084 in all), particularly from polling places using Sequoia Advantage and Shouptronic 1242 direct record electronic (DRE) voting machines.

Shortly after the state certified the results of the November 2004 election, presidential candidates from the Green Party (David Cobb) and Libertarian Party (Michael Badnarik) requested a recount. The candidates had submitted a deposit of $114,400 and argued that was the proper amount for a recount based on a formula in state election law. Help America Recount coordinated the recruitment and training of hundreds of citizen observers. But the state canvassing board, which consisted of Governor Bill Richardson, Secretary of State Rebecca Vigil-Giron, and Supreme Court Chief Justice Petra Maes decided in mid-December 2004 that the candidates could have a recount only if they paid a security deposit of $1.4 million, which was an estimate of the full cost of a statewide recount.

Attorneys for the candidates argued at the time that the convassing board’s demands were in violation of state law but their complaint was dismissed by state courts and the recount never took place. Subsequently the Governor had a provision inserted in an omnibus election bill passed in the 2005 legislative session that allowed the canvassing board to require a deposit of either part or the full estimated cost of a recount. While an agreement to strike the provision was reached with the legislative sponsors of the bill, in the hectic final days of the legislative session, it remained in the bill that was passed and signed into law in May of 2005.

As reported in the Albuquerque Journal:

In Tuesday's ruling, the court said the 2005 change in law was an unconstitutional delegation of legislative power because there were no standards to guide the board in deciding how large a deposit to require.

The court said the board was wrong in 2004 and had no authority to condition a recount on the estimated full cost of rechecking votes. Once Cobb and Badnarik paid the deposit based on the statutory formula, a recount should have moved forward, according to the court.

However, the paper went on to explain that:

…the justices declined to order a recount of presidential ballots, saying a new vote tabulation wouldn't change the national outcome of the election because President Bush had enough electoral votes to win even if he hadn't carried New Mexico.

As a result, the canvass report of the New Mexico general election, with its thousands of “impossible” phantom votes and uncounted votes, will remain unexamined.


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