November 1, 2022

From counting to consequences: Your guide to how ballots are counted and what happens if a county refuses to certify an election

"Vote Here" signs in front of the Otero County Administration Building on New York Avenue in Alamogordo.

"Vote Here" signs in front of the Otero County Administration Building on New York Avenue in Alamogordo.

After a year that included a southern New Mexico county commission refusing to certify a primary election, misinformation about New Mexico’s election security and how it has affected voter turnout, the Secretary of State’s Office and county clerks are ready for Election Day next week.

“(The New Mexico Secretary of State’s Office) is feeling good about it, no reports of anything bad happening as far as we know,” New Mexico Secretary of State spokesman Alex Curtas said. “It seems people are voting easily and without disruption we’re getting pretty good turnout numbers… I wouldn’t be surprised if we got upwards of 60 percent for total turnout when all is said and done.”

On election night on Nov. 8, votes will be counted after the polls close at 7 p.m.

These include the absentee ballots which begin being processed (separated from the envelopes and shuffled to preserve voter anonymity) prior to election night. The absentee ballots are not run through machines until after polls close on Nov. 8.

“No ballots are actually tallied before 7 p.m. on election night,” Curtas said. 

Absentee ballots go through a chain of custody  beginning with each county clerk’s office workers picking up ballots from drop boxes. Then the worker signs a form when the ballot is scanned into the clerk’s office computer and kept in a locked ballot box. 

Ballot processing is done to ensure that ballot envelopes are filled out correctly including signatures and barcodes.

Absentee ballots cannot be counted without a signature or the barcode assigned to the voter.

County clerks work to get the signatures by calling, and in some cases visiting the voter, to get the required signature.

Absentee ballots are virtually impossible to submit fraudulently as they have a barcode specific to the voter on them, as well as a double envelope setup. 

Plus, when a voter requests an absentee ballot, the voter’s name is flagged in the county clerk’s office computer system in the event someone tries to vote in their name or if the voter attempts to submit a second ballot.

Prior to election night, the county absentee boards convene to begin processing ballots. In counties where voters requested fewer than 150,000 absentee ballots, the board can convene up to five days before Election Day.

Whereas, in counties where 150,000 or more absentee ballots were requested, the absentee board can convene two weeks prior to Election Day to process ballots.

Bernalillo County has had about 13 percent voter turnout rate for early and absentee voting as of Oct. 27, Deputy Bernalillo County Clerk Jaime Diaz told NM Political Report in an interview last week.

Bernalillo County had 40,727 early voting ballots and has mailed out 20,770 absentee ballots as of Oct. 27, Diaz said. 

“(Voter turnout) looks like it’s going to be above average the way it’s trending,” Diaz said. “We’ll probably have more voters casting in this midterm than they did four years ago.”

But, elections are about more than just the numbers and the candidates. Elections are also a community effort.

“We really appreciate all the community involvement from the poll officials,” Diaz said. “It is a citizens’ election and the other ones that run it and they do a good job.”

Otero County, an ‘audit’ and a writ of mandamus

Otero County Clerk Robyn Holmes reports that voters in Otero County have been “friendly.”

“Knock on wood everything is going well,” Holmes said. “Our workers have not reported anybody being ugly or mean or threatening. They’ve just been doing a great job. We have at least 200 voters a day at early voting sites.”

In Otero County, a group known as New Mexico Audit Force, led by disgraced New Mexico State University professor David Clements and his wife Erin Clements sought to discredit the 2020 election.

The Clements’ were called “grifters” in a House Committee on Oversight and Reform report from August entitled “”Exhausting and Dangerous’: The Dire Problem of Election Misinformation and Disinformation.

New Mexico Audit Force attacked Holmes and her office claiming there was fraud in the 2020 general election.

The Otero County Commission approved a contract with EchoMail to perform a forensic audit for $49,750.

Although the contract was with EchoMail and not New Mexico Audit Force, the Audit Force was named in the EchoMail contract’s cover letter which states that the Audit Force will perform a canvass of Otero County voters.

On April 28, Otero County and EchoMail came to a settlement agreement in which EchoMail declared there was no fraud in Otero County in the 2020 election.

After a dispute over a $24,875 payment from the county, EchoMail agreed to pay the $15,125 refund.

Prior to the settlement, the House Committee on Oversight and Reform began an investigation into EchoMail and New Mexico Audit Force.

The investigation involved letters sent between the Committee and EchoMail head D.A. Shiva Ayyadurai.

In a letter to the Committee dated March 18, Ayyadurai claimed EchoMail “has no canvassers be it in Otero County or any other part of the country or world.” 

“EchoMail did not, however, contract NMAF or direct that group to knock on doors,” the letter continued. “EchoMail is not associated in any way with any alleged actions by NMAF – and certainly not a contractual relationship. EchoMail has no oversight of NMAF, and provides no guidance to NMAF.”

New Mexico Audit Force continued to canvass Otero County and claim that former President Donald Trump won the 2020 Election.

Public commenters who said they were from Sandoval County spoke on behalf of the Clements’ at the Oct. 25  Bernalillo County Commission meeting.

According to New Mexico Secretary of State data, Trump won 62 percent of the Otero County vote with 36 percent going to President Joe Biden, in line with voter registration which favors Republicans.

Otero County had another election fiasco when the Otero County Commission refused to certify the 2022 Primary Election in June.

Per state statute, if a county commission acting as the county canvass board does not certify an election, then the next step is for the New Mexico Secretary of State to file a writ of mandamus to get the county to certify the election.

In a state statute that dates back at least to 1953 yet has not been activated in that time until June 2022, 

A writ of mandamus is “an extraordinary writ issued from a court to an official compelling performance of a ministerial act that the law recognizes as an absolute duty,” according to Barron’s Law Dictionary.

Following the writ of mandamus filing, the Otero County Commission held an emergency meeting when it approved the canvass on a two-to-one vote with deposed Otero County Commissioner Couy Griffin being the sole vote against.

Griffin was later removed from office and disqualified to hold further elected office on Sept 6 based on the U.S. Constitution’s 14th Amendment Disqualification Clause which states that elected officials may be removed from office for acts against the government such as insurrection.

Griffin was convicted of a misdemeanor after participating in the January 6, 2021 Capitol riots which was labeled an insurrection by New Mexico State District Court Judge Francis Mathew.

Griffin was found guilty of the federal charge on March 22 and sentenced on June 17 to 14 days time served. He was ordered to pay $500 in restitution and was fined $3,000. Griffin was also sentenced to community service and one year of supervised release.