October 28, 2020

NM GOP files two legal actions a week before election, state Supreme Court rejects one

Joe Gratz


A week before Election Day and days before the end of early in-person voting, the Republican Party of New Mexico filed two different legal actions against the New Mexico Secretary of State and two separate county clerk’s offices, regarding poll watching and ballot drop-boxes. 

On Monday, the Republican Party of New Mexico filed a petition with the New Mexico Supreme Court asking for an emergency hearing for clarification on what personal identifiers poll watchers are allowed to review, compared to county clerk employees. That petition was denied by the high court Tuesday afternoon. 

And on Tuesday morning, the state’s Republican Party filed a lawsuit against Secretary of State Maggie Toulouse Oliver and the Taos and Guadalupe County Clerks’ offices, claiming that absentee ballot dropboxes in those two counties are not being monitored according to state election law.    

The two legal challenges are the latest in a series of lawsuits filed by the Republican Party across the U.S., many involving absentee voting.

Absentee Ballot clarification denied

The petition filed with the New Mexico Supreme Court sought clarification from the high court and to challenge practices the state GOP said some counties were taking part in. 

The petition alleges that at least some county clerks’ offices were not allowing volunteer poll watchers to adequately verify voter identifiers, in this case the voters’ last four digits of their respective Social Security number and their signatures. 

According to the petition, volunteer poll watchers were only being allowed to verify ballots that were missing those two personal identifiers and not verify those identifiers “against a database for accuracy.” 

Without naming them, the petition cites two “large counties” that initially allowed poll challengers to take part in the initial identification verification, but recently stopped “presumably in response to [Toulouse Oliver’s] directives.”

“In order to give effect to all these provisions without creating conflicts or nullities, presiding and election judges and challengers must be permitted to compare ballots with a roster containing the correct SSN digits, and they must be allowed to reject ballots and interpose challenges on the basis of incorrect voter identification information — not merely the complete absence of any numbers in the appropriate field,” the petition argued.

The petition argued that the issue is “compounded” partially because of a new wave of younger poll workers, which was encouraged by Gov. Lujan Grisham and other elected officials in order to protect older poll workers who might be at higher risk of contracting COVID-19. 

After the petition was filed, New Mexico Republican Party Chairman Steve Pearce released a statement hinting that county clerks who have not been allowing poll challengers to cross check Social Security numbers may be hiding something. 

“County Clerks are elected by the people to work for the people – and now some are working in the shadows, denying the public access to ensuring we have an honest election,” Pearce said in a statement. 

On Tuesday afternoon the New Mexico Supreme Court issued an order denying the Republican Party’s petition, with three of the five justices concurring, including the lone Republican justice Judith Nakamura. The denial did not offer any explanation for denying the petition. Justices David Thomson and Shannon Bacon recused themselves because they are both running for election this year. 

After the denial, New Mexico Secretary of State’s Office spokesman Alex Curtas praised the court’s decision, adding that county clerks have to consider the privacy of voters. 

“These laws are in place to protect the identifying information of voters while also ensuring the integrity of the election,” Curtas said in a statement. “Voters in New Mexico should have confidence that their vote will count no matter if they are voting in person or by mail ballot and they should not be deterred by partisan legal maneuvering.”

Using the last four digits of a voter’s Social Security number and their signature was a new provision signed into law earlier this summer during a special legislative session called, in part to address voting law changes to accommodate for the COVID-19 pandemic.  

The New Mexico Republican Party issued a press release Tuesday evening, calling the denial a “slap in the face to the minority party.”

Pearce issued a statement saying the decision by the high court not to hear the case was “very disappointing and, in fact, dangerous.”

“It appears that politics continues to play a role in our courts,” Pearce said. “It’s sad that the justices will not take up a lawsuit that’s so critically important to ensure everyone’s ballot is accurately identified and verified.”

Dropbox Lawsuit

The lawsuit filed in state district court on Tuesday accused Toulouse Oliver and the county clerks of Taos and Guadalupe counties of not properly monitoring absentee ballot boxes. 

In 2019, the Legislature passed, and Lujan Grisham signed, a law allowing alternative measures for absentee voting, including a provision allowing county clerks to set up secure drop boxes.

According to state election law, those secured drop boxes must be under video surveillance and considered an official voting location, meaning electioneering is illegal within 100 feet of the secured drop box. 

The Republican Party lawsuit alleges, in part, that the Guadalupe County Clerk’s office allowed an unstated number of drop boxes “left open (as in open to individuals placing items into the box) and unattended, not only during hours that the polls are open, but when the polls are closed as well.”

The lawsuit alleges the same against the Taos County Clerk’s Office. 

In both instances, the Republican Party said it was “voters” in those counties that “informed the RPNM” of those instances of which the party said in the suit that it has video evidence of such. 

The suit asks the court to issue a temporary restraining order, followed by a permanent injunction to both county clerks’ offices “to either immediately discontinue the use of drop boxes or ensure that they are made inaccessible to the public during non-polling hours and kept continuously, directly monitored by at least two bipartisan election officials during polling hours, in keeping with the Secretary’s Standards & Guidance.”

After the suit was filed, Pearce released a statement saying the suit highlighted “examples of where election integrity can be in peril.”

“The Republican Party wants fair and honest elections for everyone,” Pearce said. “This isn’t about Democrats or Republicans. It’s about making sure that the law is followed and that there’s ballot integrity, and it’s imperative that we all have safe and secure elections.”

Both the Taos and Guadalupe county offices were closed on Tuesday because of inclimate weather and no one was available for comment. 

Curtas said Toulouse Oliver offered guidance to county clerks who chose to set up secure drop boxes in order to comply with state election laws as well as public health orders that were issued in response to the COVID-19 pandemic. 

“While we are confident that all New Mexico’s election administrators are committed to protecting the integrity of every vote, as the state’s chief election officer, we do expect the uniform guidance we issue to be followed by all county clerks,” Curtas said. “If county clerks chose to implement drop boxes in their community then they must follow the security standards outlined in our guidance.”

The secured drop boxes outlined in the 2019 law change are separate from other ballot drop off locations also mentioned in that law change. The law also allows for early voting locations and county clerks’ offices to receive absentee ballots.