Judge's Ruling Allows County Clerks To Clear Voting Machines for Upcoming Elections

By Andy Lenderman and Jeff Jones
Albuquerque Journal Staff Writers   20 January 2005

    New Mexico's 33 county clerks can clear 2004 general election ballot data from electronic voting machines after a state District Court judge ruled against an attempt to preserve the information.
    That allows county clerks preparing for school board elections this winter to use machines they used for the state general election in November 2004.
    However, county clerks appear split on whether they will do so.
    Santa Fe County's clerk has decided to preserve information on that county's voting machines and use paper ballots for the school board election. Bernalillo County, the state's largest, cleared its machines after Saturday's ruling.
    A group of voters critical of electronic voting machines had sued Secretary of State Rebecca Vigil-Giron and 11 county clerks in an effort to stop the use of certain machines in future elections.
    Plaintiff's attorney Lowell Finley said Wednesday the lawsuit can prove that some New Mexico voting machines produced inaccurate and unreliable results in November's election.
    The voters sought a temporary restraining order in an effort to preserve the voting machine data as evidence in their lawsuit.
    District Judge William Lang of Albuquerque denied that request at a Saturday hearing, Finley said.
    "We're considering our options," Finley said. "But the case remains on file and very much alive," he said, referring to the ongoing lawsuit in the 2nd Judicial District in Albuquerque.
    The state District Court lawsuit over the use of electronic voting machines is separate from another legal case seeking a recount of 2004 presidential election results.
    Finley, an attorney from Berkeley, Calif., also is representing presidential candidates David Cobb of the Green Party and Libertarian Michael Badnarik, who are seeking a recount of the Nov. 2 election.
    The recount case is pending before the state Court of Appeals. The appeal challenges a state Canvassing Board decision requiring the Green and Libertarian parties to put up $1.4 million for a recount of the presidential election.
    "Both the recount and this lawsuit would depend, in part, on being able to analyze electronic voting machines," Finley said.
    Finley said there is "compelling proof" that some voting machines are unreliable.
    He said there is a different "undervote" rate in some New Mexico precincts, depending on what kind of voting machine was used? either an electronic, paperless machine, or an optical scanner that reads paper ballots.
    An undervote means the voter made choices in local races but failed to cast a vote in the presidential race. The undervoting was especially high in precincts with many Hispanic and Indian voters, the plaintiffs contend.
    At least one county clerk has decided to preserve the electronic voting machine totals.
    Santa Fe County Clerk Valerie Espinoza said she made the decision to preserve the data before Lang's order Saturday.
    "I think Santa Fe County will be fine using the antiquated method of . .. paper ballots," Espinoza said, referring to Feb. 1 school board and school bond elections.
    A spokeswoman for Attorney General Patricia Madrid said Lang's ruling means county clerks are free to go ahead and clear the machines.
    Espinoza said she understood that other county clerks are "split 50-50" on whether to clear their machines or preserve the general election data.
    But machines have already been cleared in Bernalillo County in preparation for its Feb. 1 school board elections.
    Bernalillo County Clerk Mary Herrera said workers have put in long hours since Saturday to prepare 300 machines for next month's election. They cleared 2004 general election results from the machines and reprogrammed them, she said.
    "We should be OK," Herrera said in an interview.