Voter fraud claims lead to fight over legal fees

Copyright © 2016 Albuquerque Journal

Just months into her stint as New Mexico secretary of state, Dianna Duran made Fox News, The Washington Post, and the Los Angeles Times after announcing her office had discovered more than three dozen foreign nationals had fraudulently voted in New Mexico elections.

“This culture of corruption that has given all New Mexicans a black eye is unacceptable,” Duran was quoted as saying in a March 2011 press release.

But a protracted public records lawsuit filed by the ACLU of New Mexico revealed no voter fraud lists existed, although other records were produced.

And now taxpayers may be on the hook for more than $90,000 in attorney fees and costs awarded to ACLU lawyers who won the case.

Duran resigned last October after pleading guilty to felony charges related to her embezzlement of campaign contributions to fuel a gambling habit. She is serving five years of probation after spending 30 days in jail.

The public records case was settled, but an appeal by the Secretary of State’s Office over how much ACLU attorneys should be paid for pursuing the lawsuit lives on.

Last week, an attorney for the Secretary of State’s Office urged a panel of the New Mexico Court of Appeals to undo a ruling by an Albuquerque district judge, who in 2014 found that nearly all the legal fees and costs sought by the ACLU were reasonable and “necessary to (the) successful prosecution of this IPRA (Inspection of Public Records Act) lawsuit.”

In March 2011, Duran testified before a legislative committee and issued a press release titled, “Secretary of State Announces Findings.” Duran, the first Republican elected to the office since 1928, had made elimination of voter fraud a priority during her election campaign.

“The Secretary of State’s Office has so far been able to match 117 voter registrations to names and dates of birth in the MVD Foreign National database.” the press release said in part. “… The records make it clear that at least 37 of those identified have voted in New Mexico elections.”

Those statements spurred the ACLU to file public records requests seeking the documents Duran used to substantiate her claims.

But Duran’s agency over the course of the litigation had an “ever-changing story” about what records existed, ACLU lawyers say.

ACLU attorney Philip B. Davis told the appeals court panel the ACLU learned there was reason to be skeptical “when the SOS is saying ‘trust me.’ ”

The Albuquerque judge who presided over the three-year legal battle said that evasiveness by Duran and her agency prolonged resolution of the lawsuit.

“I don’t disagree that what it was revealed in the end was a burned-out matchstick, you know, rather than some spotlight or some glaring smoking gun,” District Judge Clay Campbell said during a hearing in 2014. “But most of the litigation as it related to revealing that matchstick was necessary, was reasonable, because the answers that were being provided (by the SOS) just … were not on point to the question that was being asked.”

Scott Fuqua, a former assistant attorney general who defended the IPRA case for Duran’s office, was retained to pursue the appeal by state Attorney General Hector Balderas.

Fuqua told the appeals panel Feb. 2 that all the records supporting Duran’s statements were turned over to the ACLU in 2012, and he maintains the ACLU’s final tab should be tens of thousands of dollars less.

“IPRA’s fee provision is not a blank check,” Fuqua wrote in a brief filed with the appeals court. “It does not permit an IPRA litigant to chase its tail for 13 months and then force reimbursement from the State for doing so.”

The appeals panel, after hearing arguments from both sides, didn’t issue an immediate ruling.

No documents existed

The ACLU contended that the Secretary of State’s Office was to blame for the amount of legal fees incurred.

Court records show the SOS initially refused to produce most of the documents requested, citing executive privilege and the New Mexico Driver Privacy Protection Act. Emails that were produced were redacted to the point that they were meaningless, said Edwin Macy, the now-retired ACLU attorney on the case.

On a log of withheld records, the secretary of state mentioned the lists of the 117 and the 37 foreign nationals, ACLU lawyers said.

Yet when the ACLU asked for the number of foreign nationals who illegally voted in New Mexico elections from 2000 to 2010, the SOS responded that it did “not have sufficient information to answer.”

“Based on this sworn response, it appeared that, contrary to Secretary Duran’s legislative testimony and the SOS’ press release … there were no documents supporting the SOS’s claims,” one ACLU court filing said.

The ACLU offered to end the lawsuit in September 2011 if Duran acknowledged there was no proof that anyone illegally voted in New Mexico elections or illegally registered to vote. Duran refused.

Fuqua said in court records that the ACLU “was seeking to extract a political statement from the secretary of state, not to obtain public records.”

The litigation continued and in February 2012, Fuqua informed the ACLU the two requested lists “did not, in fact, exist and never have.”

Fuqua told the ACLU that Duran’s office instead relied on a side-by-side comparison of motor vehicle database records and voter records to look for people who “at least appeared to have registered” to vote illegally.

It took a court order in May 2012 to compel the secretary of state to produce 111 pages of previously withheld documents.

Fuqua said that before that, the agency didn’t want to violate the motor vehicle privacy law by illegally releasing the names.

Fuqua told the appeals panel the data also showed that some voters were “potentially” noncitizens, but the ACLU argued that the records failed to support Duran’s assertions of actual voter fraud.

In 2011, Duran referred the voter fraud issue to the State Police, asking the agency to investigate “irregularities” in 64,000 voter registration records.

Last week, a spokesman for the state Department of Public Safety said, “The materials provided by the Office of the Secretary of State … were reviewed to determine whether they provided an adequate basis on which to commence criminal voter fraud investigations. After review, DPS concluded that the materials were insufficient for that purpose, particularly given DPS’ inability to cross-check them against federal immigration records. In the end, DPS was not able to confirm the presence or absence of any voter fraud and returned all materials to the Secretary of State’s Office. No criminal cases were filed.”

Macy of the ACLU told the Journal the legal battle was worthwhile, “in the sense that the records that we saw did not show that New Mexico’s electoral system is a culture of corruption.”

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