September 7, 2016

SOS says office can’t pay open records penalty

Joe Gratz


The Secretary of State’s office can’t pay the penalty after being unable to comply with an open records law related to allegations of voter fraud.

Now, after another appeal lost by the Secretary of State, the tab is nearly $125,000 and Secretary of State Brad Winter says they can’t pay up.

That news comes from a report in the Albuquerque Journal. The penalty for violating the state law dates back to Dianna Duran’s time as Secretary of State and a 2011 assertion that voter fraud was rampant in New Mexico.

The American Civil Liberties Union of New Mexico sought the documents from Duran’s office to back up the allegations but never received any. Instead, the civil rights organization found itself in a legal battle with the Secretary of State’s office. The case was settled in 2013, but the Secretary of State’s office balked at paying the nearly-$90,000 bill in legal fees.

The Secretary of State’s office soon lost another appeal, this one saying the $90,000 tab was unreasonable. Now, with an election just two months away, the Secretary of State’s office says they can’t pay up.

From the Journal:

“We understand what our obligation is,” Winter told the Journal, “and what we are looking at is to try to find some alternative funding to pay that.”

He said his agency planned to ask the Legislature for a special appropriation next year.

“It’s tough because that’s a significant amount of money,” Winter said.

ACLU attorney Philip B. Davis said, “It’s really frustrating. It’s an incredible waste of taxpayers’ money.”

A special appropriation may be tough to obtain; the state legislature is currently looking at cutting spending across the state to deal with declining revenue.

Sen. John Arthur Smith, D-Deming, has noted that any increased state budget spending for anyone, including special appropriations, could be tough to come by.

The state’s Risk Management Division, which insures state agencies, won’t be any help. The division’s director said these kind of penalties are excluded from coverage provided by the division.

Still, the money owed from the Secretary of State is a judgement ordered by a court.

In other words, it has to happen.

“We fully expect the state to pay the judgement,” Phil Davis, an attorney representing the ACLU, told NM Political Report in an interview. “We expect the Secretary of State to make the request to finance the settlement because it’s a court order. And we expect the [state] legislature to respond to the request because it’s a court order.”

If the Secretary of State fails to pay up, a court could find him in contempt and issue further sanctions.

Searching for voter fraud

The start of it all came when Duran looked for evidence of voter fraud within the state.

In 2011, shortly after taking office, Duran said that 117 people registered to vote did so illegally and that 37 illegally voted in elections.

Duran later sent the names of 64,000 individuals she felt potentially fraudulently registered to vote or even voted to the Department of Public Safety.

At this time, the ACLU sought documentation to support Duran’s claims of voter fraud, under the state’s Inspection of Public Records Act. Duran’s office never turned over all the requested documents, though did release some redacted documents, and a district court judge found Duran’s office violated the law. This prompted the original order of attorney’s fees.

Also, the Secretary of State’s office admitted that the list of 117 who allegedly were registered and 37 who allegedly voted “did not, in fact, exist and never have.

They said they instead just checked the Motor Vehicle Division Foreign National Database against the voter rolls to make the determination.

Duran herself is no longer in office despite winning reelection less than two years ago. Duran resigned last year shortly before pleading guilty to felony charges related to misuse of campaign contributions. Duran spent large amounts of money, including some campaign funds, at local casinos.

Duran eventually spent 30 days in Santa Fe County jail.

Correction: This story originally referred to the Motor Vehicle Division as the Motor Vehicle Department.