Court Rules in Dispute Over 2004 Presidential Recount
By Barry Massey/
Associated Press
SANTA FE — New Mexico's highest court on Tuesday invalidated a 2005 law that allows the state canvassing board to require candidates to pay the estimated full cost of a recount upfront as a deposit.
The ruling came in a dispute over the razor-close 2004 presidential election in New Mexico.
The state Supreme Court's unanimous decision represented a victory for Green Party presidential candidate David Cobb and Libertarian candidate Michael Badnarik, who had challenged the state's handling of their request for a recount in 2004.
However, the justices declined to order a recount of presidential ballots, saying a new vote tabulation wouldn't change the national outcome of the election because President Bush had enough electoral votes to win even if he hadn't carried New Mexico.
The 2004 presidential race in New Mexico was among the closest in the country. The Republican president won the general election with 49.8 percent of the vote — a 5,988-vote margin over Democratic Sen. John Kerry.
John Boyd, an Albuquerque lawyer for Cobb and Badnarik, described the court's ruling as a "clean sweep'' for the candidates.
"I think the canvassing board is going to have to apply the letter of the law in the future and that's important,'' said Boyd.
The court's ruling, he said, is "recognition that there needs to be certainty and regularity in the conduct of the elections and that people need to understand what the rules are.''
Cobb and Badnarik filed a lawsuit over the 2004 election, contending they were wrongly required to pay more than $1 million as a security deposit for a recount. No recount of presidential ballots occurred because of the legal dispute over the cost.
The candidates had submitted a deposit of $114,400 and argued that was the proper amount for a recount based on a formula in state election law. But the state canvassing board decided in mid-December 2004 that the Green and Libertarian presidential candidates could have a recount only if they paid a security deposit of $1.4 million, which was an estimate of the full cost of a statewide recount.
The board was made up of Gov. Bill Richardson, Secretary of State Rebecca Vigil-Giron and then-Supreme Court Chief Justice Petra Maes. All of them are Democrats. Maes removed herself from the court case involving the board's recount decision.
The Legislature, in response to the election flap, changed the law to make clear that the canvassing board may require a deposit of either part or the full estimated cost of a recount.
In Tuesday's ruling, the court said the 2005 change in law was an unconstitutional delegation of legislative power because there were no standards to guide the board in deciding how large a deposit to require.
"The Legislature cannot give the state canvassing board unfettered discretion in determining which petitioners seeking a recount or recheck must pay for the full cost, and which must pay only a percentage of that cost,'' the court said in an opinion written by Justice Patricio Serna.
Under a provision of the law in place in 2004 — and still in effect under the court's ruling — a candidate seeking a recount had to pay a deposit of $50 for each precinct for which a recount is demanded and a deposit of $10 for each voting machine for which a recheck is sought. There were nearly 1,500 precincts statewide.
The court said the board was wrong in 2004 and had no authority to condition a recount on the estimated full cost of rechecking votes. Once Cobb and Badnarik paid the deposit based on the statutory formula, a recount should have moved forward, according to the court.
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