Provisional ballots allowed in recount in land commissioner race

SANTA FE – State elections officials say rejected provisional ballots cast by New Mexicans who registered to vote at the Motor Vehicle Division should be counted in the recount of the land commissioner race that begins today.

The State Canvassing Board’s recount procedures say those MVD registrants, whose names didn’t show up on voter rolls, should have their ballots counted if they’re otherwise qualified.

The recount of the race between Republican Aubrey Dunn, who won by just over 700 votes, and Democratic Land Commissioner Ray Powell is required by law because it was so close.

The state Supreme Court cleared the way for the recount after a hearing Wednesday.

Powell’s camp told the court it’s concerned that counties wouldn’t get the necessary information from state officials to determine who the MVD voters were. Powell claims he has been stonewalled in his own efforts to get documentation about those voters from the secretary of state and MVD.

Late Wednesday, however, Rod Adair, a spokesman for Secretary of State Dianna Duran, told the Journal his office planned to send county clerks a list of 74,555 people statewide who conducted transactions at MVD in the past two years and said they wanted to register to vote.

Those names could be compared to names on rejected provisional ballots, in order to identify the MVD registrants.

There are 873 provisional ballots statewide that were rejected when the Nov. 4 race was tallied; it’s not known how many of those were cast by voters who registered at MVD.

Democratic Party lawyer Gretchen Elsner, representing Powell, told the court that “provisional voters … can change an election.”

But the court refused Powell’s request to order the State Canvassing Board to make sure county clerks, who will conduct the recount, get what they need.

The justices basically said it isn’t the Canvassing Board’s duty to ride herd on the recount. If there are disputes once the recount is under way that can’t be resolved, Powell can go to court again, with the secretary of state as a defendant, they suggested during the hearing.

Justice Charles Daniels likened the Powell campaign’s request to asking the court to “nail Jell-O to a wall in advance.”

The MVD registrants’ votes would be counted – even though they are not on the voter rolls – because of guarantees in the federal “Motor Voter” law. It requires states to offer such registrations and requires states to forward them to local elections officials.

The state Elections Bureau was told by its lawyers in a Nov. 7 letter that court decisions have held that voters can’t be disenfranchised because of government agencies’ errors or failures to follow proper procedures.

Voters “who properly submitted a voter registration, and whose form was lost, through no fault of their own, should not be prevented from voting” if they’re otherwise qualified, according to the letter from the law firm of Albuquerque attorney Rob Doughty.

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