NM Supreme Court orders Otero County Commission to certify election results (Commission has concern over Dominion vote counting machines)

The Albuquerque Journal ^ | June 15, 2022 | Dan Boyd

[CedarDave]

SANTA FE – The New Mexico Supreme Court on Wednesday ordered Otero County commissioners to certify primary election results by the end of this week, raising the stakes of a dispute over election integrity issues that has generated national attention.

The ruling by the state’s highest court came one day after Secretary of State Maggie Toulouse Oliver filed a petition, arguing the county commission’s refusal to approve the June 7 election results violates state election law and could nullify votes.

The three-member Otero County Commission, in its role as a county canvassing board, voted unanimously Monday against certifying the primary election results, with commissioners raising concerns over Dominion vote-counting machines used by the state. Secretary of State Maggie Toulouse Oliver

But top state election officials have described the concerns as unfounded conspiracy theories, while also accusing the all-Republican county commission of flouting its responsibility.

Mario Jimenez, campaign director for Common Cause New Mexico, said the county commission’s refusal to approve election results is not based on any evidence, but rather on personal bias and conjecture.

“We cannot stand by as we watch dangerous misinformation spread, risking not only the voices of Otero County voters, but something larger,” Jimenez said Wednesday. “If allowed to stand, these actions may embolden other counties around the country and here in New Mexico, to use this same national playbook to disenfranchise the will of the people.”

While Otero County commissioners have not voted to certify the primary election results, they instead voted last week to recount ballots by hand, remove state-mandated ballot drop boxes that facilitate absentee voting and discontinue the use of Dominion vote-tabulation machines in the general election.

[Dr. Franklin]

“I hereby certify these results are bunk, garbage, tampered with”
“thus I am calling for a new election, on paper ballots with serial numbers, ID verification and other measures to make sure the voter is a legal voter”

We the Otero County Commission hereby certify that the New Mexico Supreme Court are a bunch of fascists usurping our authority to conduct elections lawfully.

[SteveH]

prior to this, everywhere dominion machines are used, the courts ruled no standing.

suddenly when (presumably) elected commissioners decline to certify a dominion generated result, a court has a standing?

it seems to me that the law is clear- the commissioners have the final say in the matter (otherwise their function is purely ceremonial, which is to say, no protection against fraud).

if the commissioners have final say, then what? the argument appears to be that the state has no alternative to dominion machine usage. however, that does not seem to be the case, at least at first glance. the state has an alternative, which is to pass an alternative means of counting (such as hand counting) as a way to resolve the impasse.

Thus in this view at least, the state and not the county is being the stick in the mud.

Common sense says that with physical ballots, the use of machines is never a necessity, just a convenience. (I would imagine that the principles of laws of evidence would back this: the principal evidence of voting are the physical ballots themselves, and machine generated tabulations are derivative evidence.) (real evidence versus demonstrative evidence?) At any rate, is it too much to ask, even for the modern court system, that common sense prevail?

[SteveH]

a writ of mandamus applies to situations in which a government official abused his or her discretion, or failed to act in accordance with his or her lawful duties.

i don’t see how this applies to the otero county commissioners.

furthermore, it seems to me that if personal fines are applied by a court, it would impinge on the personal rights of the commissioners. This and possibly other aspects could justify the commissioners filing suit in federal court. Even if they got a liberal judge, the federal jurisdiction appeals could conceivably tie up the election.

[Ancesthntr]

“What’s the point of the commission if their approval is nothing more than a rubber stamp?”

---

Exactly. Why have such a commission if it doesn’t have some power of its own - notably, the power to tell everyone else to piss off after they have made their decision?

[SteveH]

from:

https://www.currentargus.com/story/news/2022/06/15/new-mexico-secretary-of-state-sues-otero-county-over-primary-results/65361120007/

“The Secretary of State’s office said the machines were inspected by a bipartisan voting system certification committee most recently in 2021, though Griffin complained that Commissioners were not permitted to inspect the Dominion machines.”

imho the court interpretation of the relevant laws seems overly biased in favor of the state, leaving the county commissioners no leeway to exercise any independent judgment, thus thwarting the intent of the law.

[Dr. Franklin]

imho the court interpretation of the relevant laws seems overly biased in favor of the state, leaving the county commissioners no leeway to exercise any independent judgment, thus thwarting the intent of the law.

It's very communist. The board is being told it has no authority to actually judge and conduct the election. It is simply required to rubber stamp the results from the preferred vendor.

[curious7]

Apparently the court thinks the judicial and executive branches are one and the same or perhaps the judicial is more important than the executive. At least in NM.

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[SteveH]

It's very communist.

Could it be described as fatalistic? --in the sense that the fate of the "discretion" of the commission is pre-ordained by the court's interpretation of the law.

[Steve Van Doorn]

said, "they should just certify that the election was conducted improperly and the winner cannot be determined consequently"

Yes! it doesn't say how to certify the election.

[SteveH]

Did the county commission act in an arbitrary or capricious manner? Apparently there was no formal procedure for determining the fitness of the counting method at the county level. If there is no formal procedure, then is it the fault of the county commission that it could be construed as arbitrary and capricious? I trust not, since the commission evidently has no inherent power to change the law by itself.

Ordinarily I would then drift towards the questions of who the trier of fact is and who the trier of law is for this particular situation. Again, however, there is no formal procedure, so it is not clear to me if these terms would even apply.

The reason I felt OK bringing up various forms of evidence was because various liberals seem to be claiming that no evidence of fraud exists, thus inviting the question of what constitutes various types of evidence and evidence hierarchies.

Would the reasonable person standard apply to a situation like this?

from:

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-glossary/pages/reasonable-person-standard.aspx#:~:text=What%20is%20the%20reasonable%20person,for%20courts%20to%20assess%20liability.

The reasonable person standard refers to a hypothetical, average person’s reaction to the actual circumstances of alleged illegal activities such as harassment, negligence or discrimination. It serves as a comparative standard for courts to assess liability.

If there is no overt procedure to follow, then perhaps the “reasonable person” standard could be construed to prevail. The commissioners might be able to take some legal shelter from this, especially if the legislature has not performed its duty in enacting enforcable laws and procedures.

[DoodleDawg]

What if they just don’t certify?

The votes don't get counted. It's like they were never cast.

[SteveH]

The real offense here is apparently that the county commission has highlighted a glaring omission in the law which is not their fault. They have exercised their discretion according to law by refusing to rubber stamp a process at their level. The existing law does not seem to preclude them from doing so. However, by doing so, their action resulted in lighting a fire under the state legislature to come up with a missing procedure— how to certify vote results at the county level. The political hacks at the state level apparently pulled some levers with the state supreme court to avoid confronting this problem head on (as a rational governing body might ordinarily do?).

[SteveH]

from

https://www.merriam-webster.com/dictionary/certify

transitive verb

1: to attest authoritatively: such as
a: CONFIRM
b: to present in formal communication
c: to attest as being true or as represented or as meeting a standard
d: to attest officially to the insanity of
2: to inform with certainty : ASSURE
3: to guarantee (a personal check) as to signature and amount by so indicating on the face
4: to recognize as having met special qualifications (as of a governmental agency or professional board) within a field
agencies that certify teachers

A question is what is the value if any of certification if it is effectively no different from rubberstamping?

For example

Person A attests that the moon is made from green cheese

Person B is requested to certify that the moon is made from green cheese on the strength of the testimony of Person A

Person B refuses to certify that the moon is made from green cheese

Person C gets upset with Person B’s refusal and issues a writ of mandamus to force Person B to certify that the moon is made grom green cheese

If Person C prevails in the writ, then of what value is Person B’s certification? it seems to be reduced to zero since Person B’s discretion is entirely removed by the writ.

Going back to the definition, to certify is to attest authoritatively, to confirm. However, there is no real attestation or confirmation in rubberstamping.

The value that remains seems fraudent, that is the only conceivable value of a rubberstamp certification is in support of a claim that is fraudulent to begin with.

[Dr. Franklin]

Could it be described as fatalistic? --in the sense that the fate of the "discretion" of the commission is pre-ordained by the court's interpretation of the law.

Well it certainly isn't "republican", and thus the NM Supreme Court is in violation of the Guarantee Clause Article IV, Section 4 of the United States Constitution, which promises a "Republican form of government". That issue could be appealed to SCOTUS. It can't be denied that the County Commission has standing to refuse to certify illegal results.

[SteveH]

I wonder if also some argument could be made about certification as a form of compelled speech...

[Dr. Franklin]

I wonder if also some argument could be made about certification as a form of compelled speech...

In the American legal system, lawyers make as many arguments as possible to see what sticks. It would be astounding if this County Board continues to do what the state legislatures in all of the 2020 battleground states refused to do: refuse to certify an illegal election.

[LegendHasIt]

Past time for the rest of New Mexico to secede from Bernallilo, Santa Fe and Taos Counties.