Judge candidate sues secretary of state over primary
Libertarian alleges votes were incorrectly counted
An Albuquerque attorney who ran as a Libertarian write-in-candidate for a state Court of Appeals post has filed a lawsuit against Secretary of State Maggie Toulouse Oliver, alleging she didn’t count all the votes cast for him in the June primary.
The Libertarian Party of New Mexico, Stephen P. Curtis and a Bernalillo
County woman — who says she voted for Curtis but her vote was not counted — filed a complaint Thursday in U.S. District Court in Albuquerque asking for a recount.
“There is significant and substantial evidence that write-in votes for Mr. Curtis were not correctly tallied,” according to the complaint, which says the secretary’s error cost Curtis the chance to participate in the November general election.
State Libertarian Party Chairman Chris Luchini said Friday the Secretary of State’s Office knew there was an issue with votes for write-in candidates cast by absentee ballot but ignored it to save face.
“Even worse,” the complaint says, “when Mr. Curtis demanded a recount, they demanded that he pay over [$3.4 million] to vindicate the recount of a few libertarian ballots at issue.”
“They screwed up. They know they screwed up,” Luchini said Friday. “But admitting they screwed up would be embarrassing for someone who has political ambitions.”
Secretary of State’s Office spokesman Alex Curtas said in an email Friday the office had not been served with the complaint yet, “and it would not be appropriate to comment on the merits until we have had an opportunity to review any allegations.”
Curtis sought to be listed as the Libertarian candidate in the general election in order to compete against Democrat appointee Shammara Henderson and Republican nominee Gertrude Lee for the state Court of Appeals position vacated by Judge Monica Zamora, who retired.
He needed 230 votes in the primary to get on the general election ballot, but according to official results posted
on the secretary of state’s website, he received 204 votes.
His lawsuit says that’s because the Secretary of State’s Office didn’t count all the votes cast for him.
Luchini, who lives in Los Alamos, says he first noticed something was off when that county reported Curtis had only received four votes. He said he and his family members and other Los Alamos County Libertarians “knew something was wrong” because more than four of them had voted for Curtis.
Luchini said he later learned absentee ballots containing votes for write-in-candidates are counted separately, and some had not been added to the total when Los Alamos County first posted its results.
Los Alamos later reported Curtis had received 18 votes, according to the complaint, which says Los Alamos County detected the error before the state Canvassing Board certified its results but that not every county did.
Toulouse Oliver was aware of the issue, the lawsuit says, but rather than directing county clerks to recount the ballots, she “deliberately ignored these errors statewide, and undercounts for Mr. Curtis permeated the state.”
For example, the lawsuit says, 270 voters in Bernalillo County marked write-in candidates in the Court of Appeals race. Curtis was only credited with 41 of those votes, though he was the only write-in-candidate in the race.
Of those 270 votes, the lawsuit says 170 were absentee, but Curtis was only credited with having received a single vote from the absentee ballots, and that vote was attributed to a ballot that was handcounted — which often happens when a ballot is damaged in the mail.
The fact that Curtis received about 40 percent of the 100 in-person votes makes it improbable that no one who voted absentee voted for him, Luchini said.
Bernalillo County voter Ranota Q. Banks said she believes her ballot — which she knows was not damaged in the mail because she hand-delivered it — was not counted.
Bernalillo County Clerk Linda Stover did not respond to a request for comment Friday.
According to the lawsuit, Luchini and Curtis attempted to contact the Secretary of State’s Office about the issue beginning June 19, but “in an apparent attempt to ‘run out the clock’ the Secretary didn’t respond until 10 days later at 4:46 p.m. on June 29, last day a recount could be requested.”
And the Secretary of State’s Office indicated Curtis would have to pay more than $3.4 million for the recount.
The party wired the office $23,800 July 1, the complaint says, asking that only the seven counties that appeared to have the greatest irregularities in vote totals — Bernalillo, Sandoval, Doña Ana, Santa Fe, San Juan, Chavez and Los Alamos — be recounted.
But on July 2, the Secretary of State’s Office sent a letter denying the application for a recount, asserting the funds were sent too late and were insufficient, according to the lawsuit.
The complaint says Toulouse Oliver is asking Curtis to cover the cost of a complete recount when only 1,570 ballots — those cast for Libertarian candidates in the primary election — are at issue.
“They could have taken the data and retabulated it, but they refused to do so and taxpayers of the state of New Mexico are going to pay hundreds of thousands of dollars in costs associated with what is essentially an ego problem,” Luchini said.
The lawsuit accuses Toulouse Oliver of violating Curtis’ constitutional rights to freedom of speech and due process and asks the court to order a recount.
The lawsuit is the third Toulouse Oliver has faced in relation to the June primary election.
Two Republican candidates won their lawsuits accusing Toulouse Oliver of disqualifying them as candidates on the basis of paperwork technicalities.
Her spokesman said in an email Friday: “This is an election year and it is not unusual for legal issues to be raised. The Secretary of State is confident that even in spite of the pandemic, our office has been able to adhere to the requirements of the Election Code, provide support to county clerks and maintain appropriate access to candidates, campaigns and political parties.”