Judge Denies Motion To Stop Clerks From Erasing Election Data

The Associated Press   19 January 2005
   A judge has ruled against an attempt to prevent county clerks from erasing general election data from voting machines, clearing the way for clerks to prepare for Feb. 1 school board elections.
    State District Judge William Lang on Saturday denied a request for a restraining order filed last Friday by eight voters who contended certain machines used in the Nov. 2 election malfunctioned and produced inaccurate results.
    Lang's ruling means clerks can clear the machines, said Sam Thompson, spokeswoman for the attorney general's office.
    The plaintiffs sued Secretary of State Rebecca Vigil-Giron and 11 county clerks, seeking to stop the use of some machines in future elections. They wanted those machines to remain locked pending the appeal of a state Canvassing Board decision requiring the Green and Libertarian parties to put up $4.1 million for a recount of the presidential election.
    The lawsuit contended there was a high rate of undervoting   ?   voters not choosing a candidate in the presidential race   ?   in overwhelmingly Indian and Hispanic precincts and a much greater rate among people who voted on electronic machines than among those who used paper ballots.
    "We didn't want the voting machines cleared to protect the integrity of the results of the general election," said David Garcia, one of the attorneys representing the voters.
    He and another attorney in the case, Lowell Finley, said they were assessing their options.
    Finley also represents Green and Libertarian presidential candidates who want a recount in the presidential race.
    That dispute is pending before the state Court of Appeals.
    The Green and Libertarian candidates proposed paying to recount 10 percent of the state's precincts, but the Canvassing Board never voted on the proposal after its attorney said it went beyond what state law provides.
    Vigil-Giron sent a memo to clerks Jan. 12 telling them they could clear voting machines despite the pending dispute. Her memo said clerks had three days to notify a district judge and political party officials in their respective counties if they plan to clear the machines and reprogram them for the Feb. 1 election.
    Ordinarily, clerks would have cleared the general election data earlier, but because of the Green and Libertarian lawsuit, Vigil-Giron's office initially advised them to hold off on erasing any data from machines.
    She said last week, however, that school elections had to go on.