High court rules in favor of League of Women Voters

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By Carol A. Clark

The League of Women Voters of New Mexico sued when the secretary of state, on the advice of the attorney general, wasn’t going to allow improperly marked ballots a chance to be counted.

The state Supreme Court issued an order Wednesday in the leagues favor, optimizing the chances for ballots to be counted when voters don’t mark them properly.

Los Alamos resident Katherine Campbell is president of the League of Women Voters of New Mexico.

“We are very pleased the court has accepted our arguments and the maximum number of votes will be counted in the upcoming election,” she said.

Another Los Alamos League member, Voter Services Chair Becky Shankland, said this morning that the is always glad to see that all possible votes are counted.

“We’re very pleased with the comments from the Supreme Court and that the secretary of state’s office is supporting the court’s decision,” Shankland said.  

The high court upheld the constitutionality of a section of state law that says a vote must be counted if election judges in a precinct unanimously agree on what the voter's intent was.

The ruling affects paper ballots that are hand-tallied‚ provisional or absentee ballots, for example‚ on which voters didn’t follow instructions to fill in the oval next to candidates’ names.

It means a vote could be counted no matter what kind of mark was made, as long as the precinct's presiding judge and election judges “unanimously agree that the voter’s intent is clearly discernible,” the wording in state law.

The law also specifically says that ballots must be counted if the voter circles a candidate’s name or uses a cross or check mark.

Secretary of State Mary Herrera had proposed to follow those provisions.

The court ordered Herrera to issue guidelines to help election judges exercise their discretion in deciding whether votes should be counted.

“As long as it is clear to us that we are not contradicting or violating a federal law ... that is what we’re going to do,” said Deputy Secretary of State Don Francisco Trujillo.

“We appreciate the court’s clarification.”

The five Supreme Court justices bristled at the secretary of state’s assertion that the state law violates the federal Help America Vote Act and the equal protection concerns of the U.S. Supreme Court’s decision in Bush vs. Gore, the case in which the U.S. Supreme Court stopped Florida's presidential recount in 2000.

“That’s only according to your opinion,” Justice Richard Bosson told Scott Fuqua of the attorney general’s office, who represented Herrera and was peppered with questions from the justices.

“I have a problem with the secretary of state deciding on her own not to follow the state statute,” Bosson also said.

Justice Patricio Serna suggested that could lead to disenfranchisement “and then we’re treading on sacred ground.”

EDITOR’S NOTE: The Associated Press contributed to this story.