Supreme Court denies New Mexico Republican Party's absentee ballot lawsuit

This story was updated at 5:28 p.m.

ALBUQUERQUE — The state Supreme Court denied a legal request from the Republican Party of New Mexico to issue rules for how county clerks process absentee ballots this election, in response to what the party portrayed as inconsistences in how clerk's offices have implemented special election legislation passed this summer. 

The high court denied the request Tuesday after the New Mexico Secretary of State's Office responded to the complaint.

Doña Ana County was one of the counties being targeted, along with Grant and Sandoval counties.

The party, elected leaders and county clerks from Lea, Chaves, Catron and Lincoln counties filed a writ petition this past weekend in the New Mexico Supreme Court and requested an emergency hearing to decide how county clerks should implement the law regarding absentee ballot processes.

The legal action revolves around Senate Bill 4, which set forth how the election will be administered under the COVID-19 pandemic. The law was passed during the June Special Session.

The complaint said the petitioners "have observed alarming disparities among counties — and sometimes even within a single county — in the interpretation and implementation of S.B. 4."

Specifically, the party alleged legally appointed poll challengers have been barred from part of the ballot qualification process in the counties mentioned above. The counties aren't explicitly mentioned in the suit.

Grant County Clerk Marisa Castrillo said Republican poll challengers have and continue to be present during the initial ballot processing and that no one has been barred from their office. Castrillo said one challenger had attempted to be hands-on but was told that wasn't allowed.

The complaint claimed that while the secretary of state has recently issued guidance on how clerks should implement policy and act according to SB4, “these efforts have failed to meaningfully unify the differing approaches of county clerks in implementing” the law.

The Secretary of State's Office, in its response Tuesday, said the writ should be denied because it's too close to the election, challengers are prohibited from being present during ballot processing and the petition misstates and misunderstands other facets of election law.

"The Petition should be denied because the Secretary’s rulemaking and guidance rest on reasonable — indeed, correct — interpretations of the Election Code," the SOS response reads.

The petition argued that getting clear, across-the-board rules ahead of Election Day is crucial to maintaining the integrity of the election and instilling voter's trust in the process.

The petition called on the high court to issue clear guidance on several key issues.

First, it asked whether lawfully appointed challengers and observers are entitled to be, allowed to be or prohibited from being present during the "pre-qualification" step of the absentee ballot process. That's when clerk's office staff timestamp the envelopes and scan their unique barcodes to make sure the last four digits of the voter's Social Security number matches what's written on the outer envelope.

The barcodes are what allow voters to track their ballots online. During this part of the process, if a signature doesn't match the voter's printed name in the system or the SSN digits are incorrect, the ballot is rejected until a voter can rectify it.

Republican Party of New Mexico Chairman Steve Pearce alleged challengers have recently been barred from the pre-qualification process when they were initially allowed to participate in some counties.

The SOS guidance prohibits challengers, watchers and observers from viewing a voter's full birth date and any portion of their SSN. The petition conceded this could be why some counties recently expelled challengers.

Pearce said preventing challengers, an "independent set of eyes," from being present for the entire process leads the party to question what's happening "behind closed doors."

The petition asked how challengers, present at the second level of qualification in front of the absent voter precinct board, can effectively raise questions about the validity of voter information without being able to match the voter's SSN digits for themselves.

“The SOS Guidance fails to explain how challengers can possible (sic) present a challenge for failure to ‘contain the required voter identification’ if challengers are prohibited from ever viewing that information,” the petition read.

It later said “are these individuals effectively limited to scanning the face of the ballot to see if something is written there?”

The petition called for challengers to be present during pre-qualification to ensure the clerk’s office is actually “at least attempting to conduct a check of the SSN digits” required on the ballot.

Without this, Pearce argued there's no way to tell if the clerk's office is following the election code.

Alex Curtas, a spokesperson for the Secretary of State's Office, said the allegations weren't true and procedures were being followed properly.

"Partisan lawsuits questioning the integrity of our elections mere days before November 3rd only serve to confuse voters and undermine voter confidence. We’re thankful the New Mexico Supreme Court quickly denied this petition today so the state’s election administrators can get back to focusing on the vital work of running the 2020 General Election," Curtas said in a statement following the denial.

On Tuesday, Pearce said in a statement the denial was politically motivated.

"It’s sad that the Justices will not take up a lawsuit that’s so critically important to ensure everyone’s ballot is accurately identified and verified," Pearce said.

MORE:The 2020 race: Your election integrity questions answered

The petition called for new rules regarding how voters who need to cure their ballots are contacted, but the SOS said in its response their argument is based off an apparent misunderstanding of election law.

Clerk's offices are already required to contact voters at least twice, by email if possible, and using other methods at their discretion.

The petitioners were asking election judges and challengers to be allowed to contact voters "by whatever means, and using whatever criteria they see fit," provided they don't harass or intimidate voters. The secretary argued this could lead to unethical behavior.

The secretary also argued the petition seems to misunderstand how the ballot rejection process works in its call for clarification over rules related to that.

Sandoval County Clerk Eileen Garbagni said she wasn't aware of the petition's claims and declined to comment further.

Doña Ana Chief Deputy County Clerk Lindsey Bachman didn't respond to requests for comment.

Read the complaint and response below.

Michael McDevitt is a city and county government reporter for the Sun-News. He can be reached at 575-202-3205, mmcdevitt@lcsun-news.com or @MikeMcDTweets on Twitter.