Political campaign supporters greet voters as they enter a polling place in Santa Fe on Tuesday, June 4. Morgan Lee/AP File Photo
The Washington-based organization Citizens for Responsibility and Ethics, known as CREW, released a report last week naming three New Mexico elected officials in connection with the election certification.
They are Otero County Commission Chairwoman Vickie Marquardt, Otero County Commission Vice Chairwoman Gerald Matherly and Sandoval County Commissioner Jay Block.
NM Political Report reached out to all three county commissioners as well as Otero County Commissioner Amy Barela, who was the only one to respond to requests for comment.
Barela served as chair of the Otero County Republican Party in 2020 and 2022. She gave up that position to run for the seat held by then-Otero County Commissioner Couy Griffin.
“As County Commissioner, I want to emphasize that I take ensuring secure and transparent elections very seriously. The election process, including certification, is critical to maintaining public confidence in our democracy,” Barela said in an emailed statement to NM Political Report. “The 2020 election undeniably shattered many citizens’ faith in our election system. This loss of confidence is reflected in voter turnout and general skepticism about the integrity of the process. In order to restore confidence in our elections, it is imperative that every possible oversight measure is thoroughly implemented. I want to assure you and the public that as Commissioner, I am committed to supporting and enforcing every process and oversight mechanism at our disposal. This will ensure that election certification is conducted without issue and the integrity of our democratic process is maintained.”
Election denial is not a thing of the past. The specter of the 2021 Capitol riots continues to loom over the 2024 election and its potential consequences.
One of the problems in 2020 was election boards in counties, particularly in New Mexico, refusing to certify elections based on the so-called “Big Lie,” in which former President Donald Trump misrepresented the facts about the legitimacy of the 2020 presidential election he lost. Trump’s supporters took Trump’s version of events so seriously that they attempted to organize an insurrection that included attacking police officers outside the U.S. Capitol to prevent the election from being formalized by Congress. This led to hundreds of arrests and convictions of those involved in the January 6, 2021 insurrection.
Some county commissioners who serve as county election boards here in New Mexico and who refused to certify the 2022 general election are still in office.
The county administration offices responsible for conducting the elections are in charge, while the county commissions are responsible for “monitoring the recommendations of the electoral commission and ensuring that all procedures are followed correctly and transparently,” said Barela.
Barela was not mentioned in the report, but she currently holds Griffin’s former seat on the Commission.
Griffin was impeached and barred from holding elected office in 2022 following a conviction under the Disqualification Clause of the 14th Amendment to the U.S. Constitution, which prohibits people who have participated in an insurrection from holding office. Griffin was present at the Capitol riots and was convicted on charges of entering a restricted area.
CREW was the organization behind Griffin’s 14th Amendment case.
Marquardt and Matherly declined to comment, while Block did not respond to requests for comment on the matter.
Block is running for the state’s 12th Senate District, which was redrawn following redistricting.
Marquardt is running unopposed for re-election to her seat on the Otero County Commission.
Processes and procedures for election certification and registration of election complaints
The New Mexico State Constitution provides a built-in safeguard in the event that county commissions acting as county election boards refuse to certify election results.
This safeguard was built into the state constitution in 1953. As of 2020, these procedures have never been used.
“What was once a routine government process has been weaponized by supporters of the Stop the Steal movement and supporters of former President Trump’s lie that the 2020 election was stolen. We saw some isolated examples in 2020, but in 2022 we have seen a much more concerted effort, including in New Mexico, to refuse to certify the election results,” Nikhel Sus, deputy chief counsel at CREW, told the NM Political Report.
These processes begin when a county commission refuses to certify the election for any reason. Under state law, the New Mexico Secretary of State or any voter can file an administrative writ in a county court.
An administrative order obliges a public body to fulfil its task.
It is up to the court to decide what happens if the district election committee decides not to confirm the election certificate.
The district election committees may conduct their canvassing campaigns no earlier than six days and no later than ten days after the election.
In the Otero County case, Secretary of State Maggie Toulouse Oliver filed the administrative order on June 14, 2022. The New Mexico Supreme Court granted the order the next day.
Had the Otero County Commission continued to refuse to certify the county’s voter count, it would have faced criminal charges.
The Otero County Commission approved the county vote count by a vote of 2-1, with Griffin being the only one voting against.
The commissioners were concerned about Trump’s accusation that the election was “stolen.”
However, their refusal to consent to the vote count was more than just a protest vote against the rightful winner of the 2020 election: President Joe Biden.
“You’re potentially silencing all of those voters, and as far as primaries go…that’s a process where you have to have a candidate and then move on to the general election. So you’re potentially weakening your own party if you disavow the votes without any basis in facts, evidence, law or anything like that,” Alex Curtas, spokesman for the New Mexico Secretary of State, told the NM Political Report. “You would essentially be disavowing the votes of your own voters. And so that just doesn’t make a lot of sense, but it also just doesn’t make legal sense.”
Had the vote count not been certified, the winners of the other races, including seats for county commission, state legislature and others, would also not have been certified and would not have been allowed to appear on the general election ballot in November.
Otero County is a Republican-dominated county where Trump received 62% of the vote while Biden received 36%.
In Sandoval County, where Block currently serves as county commissioner, Trump received 45% of the vote to Biden’s 53%.
The New Mexico Secretary of State’s office is not concerned about a county refusing to certify a county election count following this year’s general election.
“We are not concerned because we have gone through this process,” Curtas said. “The Supreme Court has confirmed that the duties of county commissioners or election boards are ministerial in nature. They are not subject to discretion.”
In the legal sense, according to Barron’s Law Dictionary, an official act is one “performed by a subordinate officer in accordance with express instructions, usually embodied in a statute rather than ordered by a court order.”
If there are questions about potential problems related to the election process, there are processes through which people can report those problems.
The State Department’s website has a page with more information about filing complaints, including a Help America Vote Act complaint form.
CREW recommendations
The CREW report includes recommendations for all counties and state officials, including state election boards, secretaries of state, attorneys general and local prosecutors, to clearly communicate that county officials, in their capacity as county election boards, have ministerial duties that are not within the board’s discretion and that they face penalties if they fail to fulfill those duties within the timelines set forth in state law.
If an administrative order for noncompliance is filed against a county counting board, that order should be resolved quickly by the state Supreme Court; states should be allowed to step in and certify the election if county officials choose not to certify the county count; and if county officials “willfully violate the law, state authorities should take appropriate civil and criminal action”; and if the state fails to do so, federal authorities should “take appropriate civil and criminal action to protect federal voting rights,” the report said.
“States have comprehensive processes in place to resolve legitimate disputes over vote counts or voter fraud, but county certification is not part of that process. County certification is not an opportunity for county officials to make a political splash, cast protest votes against election practices they dislike, or investigate suspected voter fraud,” CREW President Noah Bookbinder said in a press release about the report. “Officials across the country must take the threats to election certification seriously and act now to ensure they do not come to fruition. Nothing is more important to our democracy than preserving the integrity of our elections and the peaceful transfer of power.”
The report lists 35 officials across the country who had previously refused to certify elections, including Marquardt, Matherly and Block.
The states where these elected officials are based include Arizona, Colorado, Georgia, Nevada, North Carolina, Pennsylvania and Michigan.
NM Political Report is a nonprofit public news portal that provides in-depth, expert reporting on the people and politics of New Mexico.
