June 16, 2022

State Supreme Court orders Otero County Commission to certify primary election results

Kit Leong/Shutterstock

New Mexico State Supreme Court

The New Mexico Supreme Court ordered three county commissioners in southern New Mexico to comply with state law by certifying the county’s primary election results. 

After the three-member Otero County Commission refused to certify election results during a meeting on Monday, New Mexico Secretary of State Maggie Toulouse Oliver filed a petition with the state’s high court asking justices to compel the county commission to follow state law and to do their ministerial duty. On Wednesday, the state supreme court granted the writ of mandamus and ordered the commissioners to “comply with the requirements set forth in [state law].”

The commission has until Friday to meet and certify the election or presumably face a contempt of court charge. 

Otero County Commission Chair Vickie Marquardt could not be reached for comment, but Commissioner Couy Griffin told NM Political Report that he plans to “hold the line.”

“What the state is trying to do to us by leveraging us, and taking control, essentially, of our commission board through the courts, I believe, is very unconstitutional and it’s an absolute disgrace.”

Griffin was found guilty earlier this year of illegally entering a restricted area during the Jan. 6, 2021 insurrection at the U.S. Capitol. 

State law requires that local governments certify election results within 10 days of an election and then send the results to state election officials for further certification. Until that process is completed, the election results are deemed unofficial and the winners of the primary election are not officially candidates. Holding up the certification process also means that Griffin’s colleague, Commissioner Gerald Matherly, who won his Republican primary race by 32 percentage points, is still not considered a general election candidate. But Griffin said the commission refusing to certify the election is based more on principle and not on any specific race. 

“This is just about transparency,” Griffin said. “It’s not a Republican or a Democrat issue, it should be a nonpartisan issue. I mean, everybody should want to be able to sleep at night, knowing that all the questions have been answered in regards to our electoral process. And as county commissioners, we’ve sworn an oath to protect the vote. And, and that’s what I plan to continue doing.”

During the commission’s meeting on Monday, none of the commissioners mentioned specific concerns about the election results but said they wanted to be able to independently inspect the voting tabulators. On Wednesday Griffin said one of his main concerns is that the voting tabulators might have the capability to connect to the internet, something that Otero County Clerk Robyn Holmes told commissioners is not true. 

“There’s been rumor that these machines have technology inside of them that would allow them to hook to the internet, and all we want is for an outside expert to look to see if they can or they can’t be,” Griffin said. 

In addition to filing a petition with the state supreme court, Toulouse Oliver confirmed that she also referred the matter to New Mexico Attorney General Hector Balderas for possible criminal charges against the commission. 

Not one to hold back, Griffin said he is not concerned about the criminal referral.

“I’ve been dealing with Maggie Toulouse [Oliver] and Hector Balderas and [New Mexico Auditor] Brian Colón and the rest of the progressive Democrats in New Mexico for a long time,” Griffin said. “Their threats and intimidation don’t affect me any, so to put it candidly, they can kiss my butt.”

Toulouse Oliver said the state is already in “uncharted waters” after the commission refused to follow state law, but that she is not sure what would happen if the commission does not follow the court’s order. 

“At this point, the presumption, of course, is that the board of canvas, aka, the county commission will convene to certify by the deadline,” Toulouse said. “I have no doubt that their attorney is advising them of their mandatory, non-discriminate, non-discretionary duty and the supreme court order. If they don’t, to be very frank, I don’t know what will happen.”

Toulouse Oliver said there’s also a possibility that the primary candidates who won their respective races may not make it on the general election ballot. 

Toulouse Oliver said the “vast majority” of the state-owned voting tabulators were purchased under the administration of former Secretary of State Dianna Duran, a Republican. 

David Levine, a former elections director and current elections integrity fellow at the Alliance for Securing Democracy said the Otero County Commission’s refusal to certify the elections is part of a widespread and national movement to falsely discredit elections. 

“What’s going on in Otero County certainly should be considered as part of a broader effort to uproot nonexisting fraud, and that poses a real, present and ongoing risk to free, fair, safe and secure elections,” Levine said. 

Levine said election experts across the country have been waiting for “the other shoe to drop” in regard to what is often called “the big lie,” or the idea that the 2020 presidential election was rigged. 

“I think this was only a matter of time, but that doesn’t make it any less disappointing. And it doesn’t make it any less scary,” Levine said. 

During the commission’s Monday meeting, it was not just elected officials who grilled the county clerk about the process of certifying elections. While there did not seem to be any planned public comment during the meeting, at one point Griffin called on a member of the public who said he had questions for the clerk. 

The man, who identified himself as Todd Hathorne with an Albuquerque-based law firm, which he said was representing a Republican candidate for county commissioner Amy Barela. Hathorne began his line of questioning by acknowledging the meeting was not a court of law and that the clerk was not under oath. But Hathorne quizzed Holmes on which statutes allowed the county commission to meet simultaneously as the county canvassing board and how well she understood the commission’s ability to “address discrepancies and irregularities” in elections. 

New Mexico Foundation for Open Government Director Shannon Kunkel said by letting Hawthorne essentially take over the meeting unannounced, the commission may have violated the state’s Open Meetings Act. 

“Should they want to do something like this, we don’t think that this is the appropriate forum for this line of questioning,” Kunkel said. Additionally, it was not stated on the agenda, which could be a direct violation of OMA.”

Levine said he thinks many “bad faith actors” will be watching Otero County to see how successful the commissioners are in holding up the election. 

“There was a concern that either state or local boards might not choose to certify election results, based on baseless allegations of voter fraud or election rigging,” Devine said. 

Levine added that many election officials, both Republicans and Democrats, have faced threats of violence or death for dismissing those baseless claims. Toulouse Oliver said she’s no exception.  

“I started getting some threats of violence in my office yesterday,” Toulouse said. 

She said she will not let intimidation and threats of violence stop her from doing her job though. 

“What choice do I have?” Toulouse Oliver said. 

Correction: A previous version of this story incorrectly identified Todd Hathorne as an attorney