Is New Mexico ready for Election Day?
County clerks say "disturbing' flaws in voting system threaten Election Day disaster
New Mexico Independent 8/21/08. By Trip Jennings

New Mexico, a battleground state already known for problem-plagued elections, may not be ready for this year's grandaddy of electoral contests.

On Election Day, hundreds of thousands of New Mexicans will go to the polls to pick between Barack Obama and John McCain in addition to ing a U.S. Senator, three congressmen and numerous state and local officials. Heading into November, "few states, if any, will get more attention than New Mexico," according to Reid Wilson, editor of RealClearPolitics.

But more than half a dozen county clerks and local election officials contacted by New Mexico Independent fear an Election Day mess that could have big implications in a close presidential vote in which the state's vote is crucial to the outcome but subject to dispute, a la Florida in 2000.

Two sources of the anxiety prevail: voting tabulators bought in 2006 that could break down due to lack of maintenance and memory cards the brains of the machines that have shut off without notice in the past.

To make matters worse, the Secretary of State's Office has been without a state elections director since March of this year.

"To a lot of us, it's disturbing where we are at," says Eddie Gutierrez, elections director for Sandoval County, home to Rio Rancho, the third-largest city in the state.

Who's to blame?

Most elections officials reserve their venom for Nebraska-based ES&S, which sold New Mexico $18 million worth of ballot tabulators in 2006 but has so far refused to provide maintenance and training for local voting machine technicians. That's because many counties have refused to sign an agreement with the company that they say is way too expensive for what they get in return.

Bernalillo County, the state's largest county, would have to pay $287,000 a year for maintenance. The bill for Doña Ana County home to Las Cruces, the state's second largest county would cost $79,000 a year, slightly higher than Santa Fe County's price of $69,000.

The bills went out last year, but the issue has been left unresolved for almost a full year because most counties don't want to pay that kind of money. To add to the confusion it's unclear who owns the machines the state or the counties. The state says the counties do. Some counties say the state does.

County clerks, clearly fed up with the situation, and Secretary of State Mary Herrera met with representatives of ES&S two weeks ago in Santa Fe to try to find a compromise that would ensure the machines are maintained for the big election day.

"We laid it out all the issues," said Bernalillo County Clerk Maggie Toulouse Oliver. "We need our techs to do some things (to the machines)."

A response from ES&S went out Wednesday, which includes a new option that would call for ES&S to train county employees to work on the machines for some associated cost, ES&S spokesman Ken Fields says.

The details of the costs or where the training will occur have not been finalized, however.

"We are doing what we can to help in this situation, but again the costs associated with maintenance were established as part of the original agreemnt with the state," Fields says of the 2006 agreement.

That development doesn't soothe anxious elections officials.

"The thing that is of most concern is that this issue has been going on for two years," Denise Lamb says of the unmaintained machines. Lamb is a former state elections director and now the chief deputy Santa Fe County clerk. "All of the sudden here we are 60 days out from the general election and we're no better than we were."

For San Juan County Clerk Fran Hanhardt, there is one agency that deserves most of the culpability, she says.

"I would have to say if I were pointing fingers it would be at Secretary of State's Office," she says.

Herrera says her office is doing as much as it can.

"I'm telling you, we are responding so quickly," she said in an interview with the Independent. "I've kept every email in case they say we are not serving the county clerks."

Herrera adds, "We will test every machine before we even send them to polling places. We are going to recertify, retest. There's not going to be no problems."

Herrera, however,refused to respond to specific complaints lodged by county clerks and local elections officials.

"Please have them to contact our office with their concerns," her spokesman, James Flores, says. "We would definitely like to work with anybody who has these concerns."

'Vulnerable on Election Day'

The concern among some county clerks and local elections officials is that voting tabulators the state bought two years ago when New Mexico converted to a statewide paper ballot system might malfunction on election day.

The tabulators read the paper ballots, logging each voter's ions in its software.

"The biggest worry is that these machines will stop working and we won't know why," says Otero County Deputy Clerk Mary Quintana. "If something goes wrong, we may not have enough (replacement) machines to go around. It wouldn't stop people from voting. They could vote on paper ballots. But that would take longer."

Adds Sheryl Nichols, president of the state County Clerk affliate and chief deputy Los Alamos County clerk: "It puts us in a bad position beause we don't know how to fix these machines. We always have known how to fix the (previous) machines. It puts us out of compliance of state law and makes us vulnerable on Election Day."

Even those who say malfunctioning machines won't by itself mar Election Day acknowledge that having to deal with uncooperative equipment on Nov. 4 could be the tipping point between controlled chaos and just chaos.

"It ups the anxiety level," Hanhardt says.

A clear sense of ownership at least would remove one layer of confusion and settle who needs to pay the maintenance costs the state or the counties, official say.

Gov. Bill Richardson vetoed a bill in March that could have taken care of the maintenance issue, at least for the 2008 election cycle. The bill would have paid roughly $1.3 million a year in costs to maintain the machines. But Richardson killed the bill, saying in his veto message that the requirement for the state to assume maintenance costs was left unfunded by the Legislature

"I think the counties have to assume some responsibility," he said at the time. "But I will make sure the counties ... can sustain the expenses."

That monetary help has failed to materialize, county clerks and local elections officials say.

Malfunctioning memory cards

As big a concern as malfunctioning machines is, equally scary for some is malfunctioning memory cards, the brains of the voting tabulators. The cards' batteries have been known to stop working without notice, according to Len Ellins, Doña Ana County's elections director.

When machines were certified leading up to New Mexico's June 3 primary, there was a 25 percent failure rate, mostly of memory cards, Nichols says.

The cards were fixed, but that has left some local elections officials shaken about what could happen come Nov. 4.

"Some of them have been working fine and all of a sudden they don't work anymore," says Quintana.

If the memory cards don't work, the tabulator is unable to read ballots.

Toulouse Oliver says that because the failure rate for the cards is greater than for the machines, she'd like to have a greater supply of backup cards than she does. Now she has 30 percent more cards than she needs.

"In a perfect world I'd like to have twice as many cards as we need," Toulouse Oliver says, adding that she feels prepared anyway.

In San Juan County every voting precinct has an extra memory card because "I feel strongly enough about" the possibility of memory cards failing, Hanhardt says.

A related issue to memory card failure is that one company, Automated Election Services in Rio Rancho, is re-programming cards for many counties in time for the general election. That one company is responsible for such a workload is is leading to some angst among elections officials.

"We're a little uneasy," says Chaves County Clerk Rhoda Coakley. "We only have one company programming all cards. We would have liked to be able to be more independent.

Says Nichols: "Everybody is concerned about the cards. It's just computer equipment. How many times has your computer frozen up on you? Anything can happen."

And if anything can happen on Election Day in New Mexico, the results of the presidential election could be in jeopardy.