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Edward B. Foley
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NM-1: Counting Should End this Week

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November 13, 2006

New Mexico’s close 1st District Congressional race may end in a recount or an election contest.

As of November 13, the Albuquerque Journal-Tribune reports candidate Heather Wilson (R) leads opponent Patricia Madrid (D) by 1,487 votes, with 3,756 ballots outstanding. Of these, the newspaper reports 2,698 are provisional ballots, and the rest absentee. Wilson’s lead represents about seven-tenths of one percent of the total vote.

Representatives of both candidates met with elections officials on Sunday to develop procedures for counting the outstanding provisional ballots (details here). An attorney for the state Democratic Party reportedly filed a lawsuit on November 8 to clarify those procedures, and representatives of both parties have pointed to provisional ballots as a likely area for further dispute. In 2004, less than half of provisional ballots were counted. Moreover, even before Election Day, litigation was pending over voter identification rules, and it is possible that those ID-related claims could be folded into litigation over the review of provisional ballots.

Counting is expected to end sometime this week.

New Mexico law allows an apparent losing candidate to obtain a recount where the candidate “believes that any error or fraud has been committed….” N.M.S.A. 1978, s 1-14-14. The candidate must file a recount petition within six days after “completion of the canvass by the proper canvassing board….” Id.

However, a candidate desiring a recount might also be able to obtain one by filing an election contest lawsuit under N.M.S.A. 1978, s 1-14-1. The wording of New Mexico’s election contest statute is very broad and simply states that an unsuccessful candidate may contest an election after the results are certified. Id. Based on this broad language, the Supreme Court of New Mexico has held that recounts and election contests are not mutually exclusive. Weldon v. Sanders, 655 P.2d 1004, 1007 (1982). In Weldon, the court permitted a candidate to obtain a recount-type examination of write-in votes by bringing an election contest on allegations that “he had received a majority of the votes cast, and that the improper conduct of the election officials in refusing to count certain votes deprived him of victory.” Id. Beyond this narrow situation, it is unclear what recount-type remedies are available in an election contest.

Several election-related controversies emerged in the 1st District, some of which might be pursued in an election contest. Democrats have already sued the state Republican Party in the 2nd District state court for allegedly calling Democratic voters and misdirecting them to incorrect polling places. A Republican Party representative called this lawsuit “junk” and stated that it was designed to stop the Party from conducting legitimate get-out-the-vote efforts. It is unclear at this point whether under New Mexico law allegations of this nature, even if true, could form the basis of overturning the result of an election.

In addition, on Election Day, two precincts ran out of ballots only two hours into voting and began turning voters away. The state Republican Party threatened legal action, but did not follow through. These allegations conceivably could be raised in a contest of the election, although at this point it appears doubtful that they would be large enough by themselves to overcome the 1500-vote margin that presently stands.

The Journal-Tribune also reports that tabulating machines in one county malfunctioned, requiring that ballots be counted by hand. However, representatives of both the Democratic and Republican parties stated they did not think this problem was severe enough to create a dispute. Other problems included one polling place running out of pens, another opening one hour late, and long lines in early voting.

In New Mexico, an election contest must be filed no later than thirty days after the successful candidate is issued a certificate of election. N.M.S.A. 1978, s 1-14-3. Further details about New Mexico recount and election contest procedures may be found in NM ADC 1.10.22.

Nathan Cemenska contributed this article.