Legal Fight Over Recount Could Continue For Weeks

By Barry Massey
The Associated Press   28 December 2004
   SANTA FE   ?   Green and Libertarian presidential candidates are continuing their legal fight for a ballot recount in New Mexico and plan to take their case to the state Court of Appeals.
    Lawyers for Green Party candidate David Cobb and Libertarian candidate Michael Badnarik said they will ask the court to order a recount of presidential ballots in the Nov. 2 general election.
    However, it potentially could take weeks or even months for the Appeals Court to issue a decision.
    The candidates are appealing a decision by District Judge Carol Vigil in Santa Fe, who ruled against them two weeks ago.
    The candidates are fighting a decision by the state canvassing board to charge them in advance the full cost of a statewide recount   ?   an estimated $1.4 million. They have paid the state a deposit of $114,400 and contend that's all state law initially requires to obtain a statewide recount.
    The candidates acknowledge they must later pay the full costs of the recount if it doesn't change the outcome of the presidential race.
    President Bush defeated Democrat John Kerry in New Mexico by nearly 6,000 votes and a recount isn't expected to change Bush's win. However, Cobb and Badnarik want a recount to highlight potential voting problems in New Mexico.
    "There are still many unanswered questions about provisional ballots, missing votes and the integrity of voting machines which don't produce a paper trail," Cobb said in a statement. "The people of New Mexico deserve to know that their votes will be counted fairly and accurately."
    Lowell Finley, a lawyer for the candidates, said Tuesday that the canvassing board has failed to follow the law by demanding full payment in advance.
    He contends the canvassing board   ?   made up of the governor, the secretary of state and the chief justice of the Supreme Court   ?   must order a recount once candidates pay an initial deposit based on the number of voting machines and precincts involved.
    The state Supreme Court last week denied an emergency request from the candidates to order an immediate recount of votes. The high court didn't issue a formal opinion explaining its decision, however.
    The candidates went to the Supreme Court with an expedited lawsuit rather than taking the traditional, but slower approach of going to the Court of Appeals after losing in district court.
    Finley said in a telephone interview that the candidates will ask the Appeals Court to issue a stay to prevent county clerks from clearing election returns from voting machines while the legal challenge is pending in the weeks or months ahead.
    Filing a notice of appeal should be enough to preserve vote tallies statewide for a recount, according to Finley. However, he said a court order will be requested to make certain that voting machines are protected in all 33 counties.
    Under state law, county clerks are to open voting machines and clear the tallies 30 days after the state canvassing board certifies election returns.
    The candidates also are looking at the possibility of filing a case in federal court, but no decision has been made on whether to move ahead with that legal approach, said Blair Bobier, a spokesman for Cobb's campaign.