Powell claims the State Canvassing Board has ordered the wrong procedures for ensuring the accuracy of voting tabulators in the recount, in violation of state law.
Powell, a Democrat, appears to have lost his bid for re-election to Dunn, a Republican rancher.
But the race was so close – 704 votes out of nearly 500,000 – that it triggered an automatic recount under state law. The recount is scheduled to begin Dec. 8.
At issue is how many ballots are recounted to test the accuracy of the tabulating machines before the actual recount gets underway.
After it met last week, the State Canvassing Board ordered that 100 ballots be recounted for each tabulator. Powell argues the law requires a different standard: Tabulators must be tested with at least 2 percent of the votes cast in each county.
The State Canvassing Board is made up of Gov. Susana Martinez, Secretary of State Dianna Duran and Supreme Court Acting Chief Justice Richard Bosson.
Martinez and Duran signed the order; Bosson did not. He said in a letter to the other two that he had reviewed the applicable laws and “reluctantly” concluded he could not sign it.
Powell is asking the high court to order the Canvassing Board to rewrite its order and require that tabulators be tested with 2 percent of votes cast.
He also wants the court to order the Canvassing Board to count provisional ballots cast by voters who swear they registered to vote at the Motor Vehicle Division.
According to Powell, many voters were forced to cast provisional ballots because they registered at MVD but their registration information was never transferred to voter rosters. He says there are 873 rejected provisional ballots, but it’s not known how many of those voters registered at MVD.