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Judge to impound Doña Ana absentee ballots

Xochitl Torres Small (left) and Yvette Herrell

LAS CRUCES – A state District Court judge said Friday he will issue an order to impound more than 8,000 absentee ballots from Doña Ana County at the request of Republican congressional candidate Yvette Herrell after the state certifies the vote.

Herrell has not conceded the hotly contested 2nd Congressional District race, and her campaign wants to review the Doña Ana County ballots that helped apparent winner Democrat Xochitl Torres Small.

During the hearing in 3rd Judicial District Court, Judge Manuel Arrieta said he would allow the ballots in question impounded but only after the Secretary of State’s Office certifies the results Nov. 27 and all the parties agree on a process for safeguarding voter privacy in compliance with the law.

The judge heard from Herrell’s attorney; the Doña Ana County assistant attorney, representing the county clerk’s office; and the Attorney General’s Office, representing the secretary of state.

The secretary of state objected to impounding the ballots before the canvassing and certification is complete because it would delay the process beyond the Nov. 27 deadline mandated by state statute.

The secretary of state feels “ambushed and blindsided by the lawsuit,” said Assistant Attorney General Sean Cunniff via teleconference from Santa Fe.

Cunniff told the judge the secretary of state had not been properly notified of the lawsuit or the request to impound the ballots.

Carter Harrison, Herrell’s attorney, said he “put in a call to the Doña Ana County clerk and Torres-Small campaign,” and provided them a copy of the petition.

In her lawsuit filed this week, Herrell is seeking to have the judge order State Police to seize the absentee ballots and related voting materials in the state’s second-most populous county so that potential improprieties can be investigated.

Her attorney did not provide any evidence of voting irregularities or fraud at the hearing.

Kate Girard, a representative for Torres Small, told the judge there was no indication that the Doña Ana County clerk responsible for the election “did anything but her job.”

Along with ballots, Herrell wants voter registration certificates reviewed to check signatures. The documents must be handled with care to protect the privacy of voters as required by law, said Assistant County Attorney Fred Kennon.

Some of the registration material may include a voter’s Social Security number and date of birth, Kennon told the judge.

“Voter confidentiality is important to me, and I want to safeguard that,” Arrieta said.

“The parties have made very good headway” in agreeing on a process for reviewing election material, Harrison said.

The judge asked for a specific plan before he signs the order impounding the ballots.

After inspecting the ballots, Herrell could challenge the certified election results by filing a lawsuit and presenting evidence in District Court.

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