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Clerks Given Discretion To Clear Voting Machines

The Associated Press
   SANTA FE   —   County clerks may clear November election data from their voting machines to free them up for school district elections despite a pending dispute over the accuracy of results in the presidential race.
    Secretary of State Rebecca Vigil-Giron sent a memo to clerks Wednesday telling them they have three days to notify a district judge and political party officials in their respective counties if they plan to clear the machines and reprogram them for the Feb. 1 election.
    "I'm very sorry but this election is going to have to go on," Vigil-Giron said late Wednesday, explaining that negotiations between her office and attorneys for Green and Libertarian presidential candidates had failed. The candidates are seeking a recount.
    Ordinarily, clerks would have cleared the Nov. 2 general election data from voting machines by now, giving them time to reprogram the machines' cartridges for the school balloting.
    But because of a pending lawsuit over the recount request, Vigil-Giron's office had initially advised clerks to hold off on erasing any data on the machines.
    Green and Libertarian presidential candidates are in a legal dispute with the state canvassing board over its requirement that they pay $1.4 million in advance for a statewide recount.
    A state district court upheld the canvassing board's ruling, and the third party candidates are appealing to the state Court of Appeals.
    The candidates had proposed a settlement under which they would pay in advance for a recount in 10 percent of precincts. It would include not just retallying votes, but examining voting machine operations and how so-called provisional ballots were handled.
    Vigil-Giron said the candidates had failed to provide her with a list of those precincts in which they sought a recount.
    "After formal negotiations, that was the only thing I could do. . . . For me to have held them (the clerks) up for no reason, that would have been the most ridiculous thing that I could have done," she said after citing the district court ruling.
    On Wednesday, the state attorney general's office sent a letter to John Boyd, a lawyer for Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik. It outlined the state's position, saying clerks "have custody of the voting machines" and that it is "the clerks' discretion as to whether or not they need to clear the voting machines."
    Lowell Finley, an attorney for the candidates, said late Wednesday that he had not seen the secretary of state's memo.
    "It's certainly something that we will oppose vigorously because it undermines the whole pending appeal of the decision in the recount lawsuit," he said.