Otero County votes to continue with its decision to eliminate drop boxes, hand count ballots despite NMAG complaint

At the end of more than five hours of discussion that featured the final report from New Mexico Audit Force's audit of the 2020 General Election in Otero County and public comment on both sides of the issue, the Otero County Commission voted on a 2-to-1 margin to sue the New Mexico Secretary of State.

"It's disconcerting that the Commission is considering spending taxpayer dollars arguing against a Supreme Court order that had to be ordered by the court because the Commission initially refused to do their legal duty and almost disenfranchised every Otero County voter who participated in the 2022 Primary Election," New Mexico Secretary of State spokesman Alex Curtas said.

"It's unclear what they'd be trying to accomplish with such a lawsuit — a lawsuit, again, that would theoretically need to be against the N.M. Supreme Court because it was the court that ordered them to do their legal duty and certify the 2022 Primary Election."

The approximate cost of the lawsuit would be around $100,000 according to Otero County Attorney R.B. Nichols.

At the Otero County Commission special meeting held at 6 p.m. Aug. 11 at the Flickinger Center for Performing Arts, the Commission also voted on a two-to-one margin to uphold a previous vote in favor of a resolution calling for the removal of drop boxes and voting machines, and to hand count ballots in addition to the lawsuit against New Mexico Secretary of State Maggie Toulouse Oliver.

Otero County Commissioner Gerald Matherly was the sole vote against.

Matherly said he feared the repercussions of not changing or reneging on the June 9 decision based on his interpretation of a letter and opinion sent to the Otero County Commission on July 25 by the New Mexico Attorney General's Office.

Neither the letter nor the opinion mention possible repercussions nor does it warn that commissioners may be removed from office, despite Commissioners saying their positions were threatened.

The commission votes came after several hours of public comment and presentations by New Mexico Audit Force statistician Cynthia Butler and consultant Jeff Lenberg.

New Mexico Audit Force prepared a 500-page report on its findings in an eight-month investigation that included a full county canvass of the election rolls that Erin Clements of New Mexico Audit Force claims came from the New Mexico Secretary of State's Office.

The New Mexico Audit Force report on the 2020 General Election in Otero County alleged issues with the way some ballots were tabulated and concluded that there was election "fraudulent" in the eyes of New Mexico Audit Force. The Secretary of State's office and Otero County Clerk Robyn Holmes have repeatedly denied the claims as false, pointing to audits of the election which found no issues.

The report by New Mexico Audit Force has not been made public.

The public meeting became heated at times with audience members, speakers, Otero County staff and the Commissioners themselves at times speaking over each other with occasionally raised voices.

The discussion included notice of a letter sent to the Otero County Commission from the New Mexico Attorney General's Office notifying the County of a complaint it received about the commission's "actions as the commission and policy makers of Otero County. The allegations stem from your recent elimination of voting machines, dropboxes, and mail in ballots."

The letter was dated July 25 and the Commission was given 10 business days to respond to the allegations in the complaint.

The complaint was submitted by Otero County resident Lori Emerzian.

"I am retired, as well as my husband," Emerzian's complaiont states. "We are 67 and 70 respectively. Mail in ballots have always been essential for both of us. To see this, or the drop boxes removed would be a deterrent to our vote!"

Emerzian's complaint continued alleged the decision was a partisan vote by the all-Republican Otero County Commission and references the Clements' as Republicans "with no Democratic representation at all. I firmly believe that our clerk Robyn Holmes conducted the election by the letter of the law! It's obvious to me that this decision is to affect what these people feel may be future elections that may not go their way," Emerzian's complaint states.

The letter included the June 2 New Mexico Attorney General's opinion concerning secured containers for mailed ballots, also known as drop boxes.

"Looking at Section 1-6-9 (of the New Mexico Election Code) as a whole, the evident purpose of Subsections (B) through (E) is to provide all voters who use a mailed ballot several alternative means for returning the ballot to county clerk," the opinion states.

The New Mexico Attorney General's opinion concludes that New Mexico counties are "required to make secured containers available."

The opinion continues by stating that the New Mexico Secretary of State's Office has a rule that each county should have a minimum of two secured ballot drop boxes.

"County clerks shall provide one ballot box per 25,000 registered voters in the county with a minimum of two secured containers required per county," the rule states. "County clerks may request a waiver from the secretary of state to the minimum requirement set by the formula with consideration given for special geographic or security constraints."

The New Mexico Attorney General's Office opinion states that the two-box rule is "a reasonable exercise of the SOS’s authority under Section 1-2-1(B)(2) to make rules necessary to implement the Election Code," and that "The rule’s requirements for a minimum of two secured containers per county is intended to give voters in each county adequate access to a secured container for returning their mailed ballots."

Nicole Maxwell can be contacted by email at nmaxwell@alamogordonews.com, by phone at 575-415-6605 or on Twitter at @nicmaxreporter.

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This article originally appeared on Alamogordo Daily News: Otero County votes keep its voter regulations decision