State District Judge rules against call for stricter voter I.D. enforcement
By Tim McGivern
Here's a recipe for some long-winded arguing. Start with concerns over voter fraud and disenfranchisement, mix in some partisanship and accusations of bureaucratic incompetence, add a team of Republican and Democratic lawyers and let cook in a Bernalillo County courtroom.
That was the backdrop last week for two days of legal wrangling that left Judge Robert L. Thompson "thinking out loud" at 5 p.m. on Friday about whether or not to require newly registered voters to show I.D. at the polls this election season.
"This could create a major incident in the orderly conduct of the elections," the judge said before recessing for the three-day Labor Day weekend.
After the court heard closing arguments on Tuesday, Judge Thompson announced he would deny the Republicans' request that all new voters registered by a third party be required to show I.D. at the polls. (The judge's final written ruling was scheduled for release on Wednesday, Sept. 8, after the Alibi's deadline.)
"The process will remain the same," said Democratic Party lead attorney, Jon Boyd, "Voters will not have to prove entitlement to vote if they are properly registered."
In other words, the court ruled that only first-time voters who registered by mail will be required to show identification at the polls. Other first time registrants, including the tens of thousands who have been registered by a third party at concerts, movie theaters and shopping malls, will not have to show a valid I.D. on election day.
"It's mystifying," said Republican state Sen. Rod Adair, while passing out a Republican Party sponsored statewide poll indicating the public overwhelming supports all voters to show I.D. "The key thing going on here is the public wants fair elections."
Free and Open Elections
At the heart of the matter was a state law that went into effect on July 1, 2003, that says: "If (a voter registration) form is not submitted in person by the applicant and the applicant is registering for the first time in New Mexico, the applicant must submit with the form a copy of a current and valid photo identification, utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the applicant; and if the applicant does not submit the required identification, he will be required to do so when he votes in person or absentee."
Seven plaintiffs, including Republican state Rep. Larry Larrañaga and Steve Cabiedes, the Green Party candidate for Bernalillo County Clerk, signed a complaint alleging Bernalillo County Clerk Mary Herrera and Secretary of State Rebecca Vigil-Giron have violated the plaintiffs' rights to a "free and open" election.
Republican attorney Pat Rogers, arguing on behalf of the plaintiffs, said the statute requires all newly registered voters who didn't register in-person at a county clerk's office to show I.D. at the polls or include a photocopied I.D. with an absentee ballot. The law is "crystal clear," Rogers told Judge Thompson.
However, the New Mexico Bureau of Elections, which operates under the secretary of state, notified county clerks across New Mexico months ago that only those residents who registered by mail will be required to show I.D. at the polls this year.
Since July 2003, more than 112,000 newly registered voters have been added to the voter polls in New Mexico, or more than 10 percent of the state electorate. Tens of thousands of these new voters were signed up by a third party organization such as Youth Voters Alliance, New Voters Project and Rock the Vote, whose workers hand delivered the tens of thousands of registration forms to the County Clerk's office this year. These forms were then labeled "walked-in."
Voter registration forms require a birth date, social security number, mailing address (P.O. Box doesn't count) and a signature to be accepted by the County Clerk, said Herrera. No form of photo I.D. is necessary unless the form arrives by mail, which requires a photocopied driver's license.
Once these requirements are met, newly registered voters should receive in the mail a voter registration card from the County Clerk office, which includes the poll location where the voter will cast a ballot on election day. Meanwhile, the registration form is transferred to the secretary of state's office, which crosschecks the social security number with the name listed. If the name and social security number don't match, the form will be invalidated and the registrant will be removed from the voting rolls, which eliminates the need for a photo I.D., said Herrera.
The County Clerk's office makes no distinction between a third party handing over voter registration forms and the actual individual whose name appears on the form. Either way, the form is stamped "walked in"—a procedure the Republicans strongly objected to, if I.D. is not required at the polls.
According to Denise Lamb, director of the state Bureau of Elections, it would have been impossible to review the newly registered voter applications to determine which ones were third party "walked ins" and which ones were not.
Rogers, however, argued that the third party method of registering first-time voters should not qualify as "in-person" and anyone registered by a third party should be required to show one form of documentation listed in the state statute when they go to the polls. He said that the state statute is "plain and unambiguous." Rogers also maintained that any voter required to show I.D., but who failed to do so, could fill out a "provisional ballot" at the polls, which would later be examined by an election official to determine its validity.
The Democratic attorneys, led by Mr. Boyd, said newly registered voters would be disenfranchised if the I.D. requirement was enacted, because many live in rural areas or have had an address change.
Sydney Henning, a recent UNM graduate and organizer with the Young Voters Alliance who protested outside the county courthouse, said she "adamantly opposed" the voter I.D. requirement and cited herself as an example why. She moved three months ago then re-registered to vote, but her driver's license doesn't reflect her new address.
"I could have stayed registered at my parents Northeast Heights residence, but I want to vote in my precinct, that represents my issues and interests," said Henning. "Voting is my passion and I don't want anyone taking that right away from me."
Henning said a voter I.D. requirement would potentially disenfranchise thousands of college students in a similar situation. "It will hit the campus hard," she said. "The voter drive on campus has been extremely successful. Our street canvas has brought in so many young people at concerts, movie theaters, everywhere and anywhere."
Joan Javier, of the New Voters Project, agreed with Henning, saying her organization registered over 14,000 student-aged, first time voters this year.
The Republicans complaint also states "plaintiffs are informed, are aware and are greatly concerned about the widespread prevalence of fraudulent registrations received by the Bernalillo County Clerk in anticipation of the Nov. 2, 2004 election."
The Democrats argued, in the end, that no evidence was submitted during two days of testimony to verify this claim. And at times, the partisan hostilities in the courtroom were palpable.
For example, when Rogers called Vigil-Giron to the stand, her testimony focused more on partisan campaign matters than clean elections. Rogers asked Vigil-Giron if she had given "large sums of money" to the John Kerry campaign, to which Vigil-Giron replied, "How do you define large?"
"Anything more than $3," answered Rogers. "And you're a Republican?" shot back Vigil-Giron, causing laughter in the courtroom. Vigil-Giron said she gave the Kerry campaign $500 this year.
In another exchange, Rogers asked, "Do you recall being called ’highly partisan' in the press?" To which Vigil-Giron replied, "Only by Republicans."
At the close of Friday's hearing, Rogers conceded that a small number of eligible voters would be wrongly turned away at the polls if the I.D. requirement was implemented, but said the number was negligible.
The Democratic Party attorneys argued for dismissal of the complaint on the counter-claim that no voter fraud or threat of voter fraud had been proven by the plaintiffs, and irregularities on voter registration cards submitted as evidence had been caught by the secretary of state's office.
The Democratic Party attorneys seemed to have effectively cast doubt over several examples of voter registration fraud cited by the plaintiffs.
For example, Rogers called Glenn Stout to testify, an APD officer who called the Albuquerque Journal several weeks ago after his 13-year-old son received a voter registration card in the mail. The Republican attorneys then added Stout to their plaintiff list after the media reported the incident.
In his sworn testimony, Stout said his son never filled out a voter registration form. When he checked the social security number on a police computer, it belonged to a 23-year-old man in Alamogordo, Stout said, adding that he was concerned that whoever filled out the form intended to vote fraudulently. Any act of voter fraud, including false registration, is a felony.
In cross-examination, attorney Jim Scarantino noted that the address on the 13-year-old boy's registration card was sent to a residence a block away, but still managed to arrive in Mr. Stout's mailbox. Scarantino then revealed a parent of a 15-year-old boy that lives across the street from Mr. Stout said her son also received a fake voter registration card in the mail.
When asked if the two boys played together, Mr. Stout said yes and then Scarantino said, "Isn't that an odd coincidence?," suggesting that the well-publicized story resulted from a teenage prank. Stout said his son would be in so much trouble if he had committed a prank that the threat alone would be enough of a deterrent.
Nonetheless, it was not clear how the voter registration came about and in the end Mr. Stout reported the problem to the County Clerk's office who removed the boy from the voting rolls. In an interview outside the courtroom, County Clerk Herrera said the boy's name and mismatched social security number would have been caught by the secretary of state's office, before final approval to vote was granted.
Another example of fraud cited by the plaintiffs involved Karlee Hall, who recently moved to Albuquerque from Silver City so her husband could attend UNM. She registered once at a Northeast Heights Albertson's and again a few months later at Hastings on Wyoming after she hadn't received a voter registration card in the mail.
In her testimony, Hall said she knew nothing about the complaint until her two voter registration cards turned up on the evening news two weeks ago. When she called KRQE News 13 to inquire who was behind her 15-minutes of fame (friends had seen her name on the news), the station told her to talk to the Bernalillo County Clerk's office, she said. When she contacted the Clerk's office, she was told only one of her registration forms had been turned in. "Only the media had two of them," said Hall.
Patricia West, another woman whose two, separate voter registration forms were included as evidence of voter fraud on the complaint, had a similar story. She registered at Albertson's and several weeks later again at Hastings. West testified she only received one voter registration card in the mail and was content that she was only registered at the County Clerk's office once.
Interestingly, both West and Hall said they thought the folks signing them up at these retail locations were representatives of the County Clerk's office. And neither could recall what third party group signed them up.
Still, Republican state Rep. Joe Thompson, co-counsel for the plaintiffs with Rogers and attorney David Garcia, said he believes there are far too many duplicates—people registering as much as five and six times—that aren't getting caught by the County Clerk's office, although the Republicans did not produce much evidence.
"When you have overzealous people that are not vigilant about following the law, there is a chance mistakes will be made," said Thompson referring to get-out-the-vote groups operating across the state. "The law addressed that, it was passed by the democratic Legislature and signed by a Democratic governor, and the secretary of state is brazenly ignoring it."
In the end, though, Judge Thompson said the "possible extraordinary and substantial injury to the public" that could arise if the voting process was altered in the weeks before voting begins outweighed the arguments presented by the plaintiffs.
"New Mexico is a very diverse, unique mixture of citizens, all of whom have a right to vote," Thompson said at the close of the hearing.
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