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No money available for ACLU settlement, secretary of state says

SANTA FE, N.M. — There’s a new snag in the long-running legal saga over disputed allegations of voter fraud by then-Secretary of State Dianna Duran: the Secretary of State’s Office now says it can’t afford to pay the $124,636 in legal fees it owes in a related public records lawsuit.

The American Civil Liberties Union filed a complaint under the Inspection of Public Records Act in 2011 after Duran’s office refused to turn over records related to her assertions that an internal inquiry found proof that undocumented immigrants had voted in New Mexico elections.

Even after the IPRA case was settled in 2013, the office fought all the way to the state Court of Appeals to dispute the amount of attorney fees the ACLU had been awarded for prevailing.

The legal tab was nearly $90,000 before the Secretary of State’s Office decided to appeal a district judge’s order approving the ACLU fees as “reasonable.” Now the bill has jumped by more than $36,000 to account for ACLU fees and costs incurred in the appeal. The final amount was approved by a state district judge on Aug. 17.

Meanwhile, Duran is out of office, convicted of crimes related to a gambling habit. And her temporary successor is effectively asking the ACLU to take an IOU.

Secretary of State Brad Winter, who was appointed by Gov. Susana Martinez to fill the seat until Duran’s term expires Dec. 31, said his agency doesn’t have the money, especially with costs of the November general election coming up.

“We understand what our obligation is,” Winter told the Journal, “and what we are looking at is to try to find some alternative funding to pay that.”

He said his agency planned to ask the Legislature for a special appropriation next year.

“It’s tough because that’s a significant amount of money,” Winter said.

ACLU attorney Philip B. Davis said, “It’s really frustrating. It’s an incredible waste of taxpayers’ money.”

Not covered

The agency in fiscal year 2015 paid nearly $370,000 for insurance coverage through the state Risk Management Division, or RMD. But the division won’t pay the fee award in the ACLU case, Director Lara White Davis said in an email to the Journal .

Attorney fees awarded in IPRA suits are considered “fines, sanctions, assessments, penalties, restitution … or punitive damages,” which are excluded from coverage, she said.

Duran announced shortly after taking office in 2011 that an internal investigation revealed 117 instances in which foreign nationals registered to vote in New Mexico, of whom 37 had actually cast votes.

Public records suit

The ACLU filed a public records request asking for the supporting documentation. After initially refusing to turn over information, citing privacy concerns, Duran’s office provided data that included motor vehicle information. She also withheld emails showing that her office had been contacted beforehand by the Secretary of State’s Office in Colorado, which planned a similar announcement of voter fraud in early 2011.

In 2011, she referred the voter fraud issue to State Police, citing irregularities in 64,000 voter registration records.

The state Department of Public Safety, which oversees State Police, told the Journal in February that investigators weren’t able to confirm the presence or absence of any voter fraud based on the materials provided.

Duran resigned in October 2015 after pleading guilty to felony charges related to her embezzlement of campaign contributions. She served 30 days in jail and is serving a sentence of five years’ probation.

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