October 29, 2020

State district court judge dismisses NM GOP suit against Secretary of State, two county clerks

A Santa Fe state district court judge dismissed a lawsuit filed by the Republican Party of New Mexico against the New Mexico Secretary of State and two county clerks on Thursday. 

The suit alleged that both the Taos and Guadalupe County clerks’ offices were not adequately monitoring absentee ballot drop boxes and requested that a judge issue a temporary restraining order, followed by a permanent injunction 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.”

On Tuesday, the Republican Party of New Mexico dropped the Guadalupe County clerk from the suit and dropped the Taos County clerk from the suit on Wednesday. The two motions filed by the party’s attorney stated that the two clerks’ offices remedied the situation. The party’s attorney also filed a notice on Thursday, withdrawing the motion for a temporary restraining order for all three defendants. 

Guadalupe County Clerk Patrick Martinez confirmed with NM Political Report in an email that some voters had dropped their ballots in a county drop box that was not for ballots and that the issue was fixed after the county posted a notice on the non-election drop box. Martinez also said the ballots were accounted for and were in the possession of his office. 

During a status conference with First Judicial District Judge T. Glenn Ellington, the Republican Party’s Attorney Carter Harrison IV argued that even though the restraining order motion was withdrawn, the suit against Secretary of State Maggie Toulouse Oliver should move forward. 

Ellington asked Harrison, “If both the county clerk’s have already been dismissed out and the allegations related to the issues you raised have been resolved, how do we have an issue or controversy?”

Harrison said the party still took issue with boxes placed at voting locations that would not meet the legal definition of a secured drop box. 

“If [Toulouse Oliver] believes that putting something into a drop box is quote unquote, in person, why isn’t mailing it? Can I mail something to the local school that serves as a polling place and have that count as a quote unquote, in person?”

A 2019 election law change allows for secured ballot drop boxes, under specific conditions. But in practice, in counties across the state, many early voting centers have used a physical box for voters to drop off their ballots. The initial lawsuit argued that Toulouse Oliver issued guidance to county clerks that contradicted state law by allowing ballot collection boxes at in-person voting centers that were secured or monitored the same way as secured ballot boxes outside of those voting locations. 

Harrison said he was ready to amend the suit and more directly address the concerns of the Republican Party of New Mexico, regarding the legality of collection boxes at in-person voting locations that are not monitored in the same way as official, secured ballot boxes are required.  

Ellington said he reviewed the statute in question and determined “there is no controversy currently pending before the court.” Ellington dismissed the suit without prejudice, meaning the suit can be filed again. 

Still, the Republican Party of New Mexico, in a statement, chalked it up as a win. 

“We are pleased that Taos and Guadalupe Counties have corrected the drop box violations,” Republican Party Chairman Steve Pearce said. “Our legal action was to simply ensure that there’s election integrity everywhere and that all counties follow the law. It’s gratifying to know that the state is also taking action to tell county officials that they must enforce this critical part of our election law. We all want fair and honest elections.”

Republicans have filed lawsuits regarding absentee voting around the country.

Alex Curtas, a spokesman for Toulouse Oliver also called it a win. 

“Before the judge dismissed the case outright, RPNM had already agreed that all Secretary Toulouse Oliver needed to do was reiterate her previously circulated guidance on ballot drop box procedures to New Mexico County Clerks,” Curtas said in a statement. “This was an acknowledgment that RPNM knows these drop boxes are legal under New Mexico law and that it was absolutely appropriate for the Secretary of State to provide this safe and efficient option for voters to make their voice heard in the 2020 General Election.”

Earlier in the week, the New Mexico Supreme Court denied a petition filed by the party, arguing that poll challengers were not being allowed to cross check the last four numbers of voters’ Social Security numbers on absentee ballots. In previous elections, things like the voter’s address were used as personal identifiers. But during a special legislative session earlier this year, lawmakers approved the addition of the last four digits of a voter’s Social Security number and their respective signature as identification. 

In their statement on Thursday, the Republican Party of New Mexico implied that the issue might be brought up in federal court, possibly as a criminal matter. 

“Although the New Mexico Supreme Court declined to hear that case, RPNM has discussed the issue with the Department of Justice,” the statement read. “The violations in that lawsuit are too egregious to ignore.”