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ELECTION DANGERS IN NEW MEXICO:

  Will Our Votes be Counted in the

 Upcoming Nov. 2006 Election?

 An Op-Ed

by 

Henry C. Finney

Los Alamos, NM 

October 7, 2006 

          Enough investigative reporting and analysis of New Mexico’s 2004 election data has been done to show that our own state  generated more than it’s share of “irregularities” in the last presidential election.   As elsewhere, exit polls -- the internationally preferred method of detecting election fraud -- showed Kerry winning over Bush, whereas the final canvas indicated a Bush victory by a small margin.  Generally, evidence of past election rigging in New Mexico must alert us to the danger that it may happen again this year in November and in 2008, unless we take corrective steps.  In this op-ed I review the relevant evidence.  

Some of these problems were similar to those elsewhere –  discriminatory distribution of provisional ballots, use of purge lists, and non-counting of many provisional and absentee ballots.  With respect to the problem of so-called “under-votes,” however, New Mexico led the nation.  (Under-votes are ballots showing no vote for a particular candidate -- I shall focus on the presidential under-vote.)   Also conspicuous were the “phantom” or “ghost” over-votes in about half of New Mexico’s counties.  “Glitches” in the use of paperless voting machines also played a significant role in New Mexico’s 2004 election irregularities, but they are only part of a much broader problem.  

          The scope of New Mexico’s possible election fraud is revealed by various tallies of “uncounted” votes (Palast, p198).  The state’s official under-vote rate was 2.45 percent, although Theissen’s  Help-America-Recount re-analysis puts it higher, at 2.72 percent  -- the highest in the nation.  When one subtracts early and absentee votes, where paper ballots were used, Thiessen found the rate on election day nearly doubled to 4.46 percent.  

A full  21,084 ballots contained no vote for president.  The fact that this is nearly four times the size of Bush’s supposed victory margin of 5,988 votes shows the magnitude of the problem.  In addition, 6,593 provisional ballots were not counted, along with 4,217 uncounted absentee ballots. With these additions, the total number of uncounted ballots becomes over five times the size of Bush’s supposed victory margin. 

If under-votes were proportionately distributed among the various partisan segments of the electorate, one could perhaps argue that no particular candidate was harmed.  However, investigative reporter Greg Palast (in Armed Madhouse) describes a major and very odd tendency among minority voters – overwhelmingly Hispanics and Native Americans – to vote for “nobody for president.”  These “non-votes” or “under-votes” were found on ballots that were included in the final canvas because they contained votes for other races.  Dr. Philip Klinkner, an expert who was consulted by Palast and who “ran stats for the U.S. Civil Rights Commission… discovered that if you’re Hispanic, the chance your vote will not record on the machine was 500% higher than if you are white.  For Natives, it’s off the charts.” 

Thus, New Mexico’s huge “under-vote” problem is strongly correlated with voters’ minority status.   Ellen Theissen analysis of official canvass data ( www.votersunite.org)  revealed that in precincts with predominantly minority populations (i.e., 75 % or more Hispanic or Native American) were many times more likely to generate a high rate of under-voting.  The under-vote rate in predominantly Hispanic precincts was four times, and in mainly Native American counties was more than six times, as high as the rate in predominantly Anglo precincts.   

Since both Hispanics and Native Americans in New Mexico vote overwhelmingly Democratic, you don’t have to be a rocket scientist to see that this pattern deeply eroded Kerry’s chance of victory.   If these non-votes are a result of fraud, which the evidence assembled by Palast suggests they were, then Kerry should have been declared the victor in New Mexico. 

Particular counties and individuals were deeply involved in these ‘”non-vote” patterns.   The counties include McKinley, Cibola, Taos, Dona Ana, Rio Arriba, Quay,  Bernalillo, and most of the counties of so-called “Little Texas,” including Chaves, Eddy, and Curry Counties.  A number of Republican county clerks and their deputies seemed especially involved, but the highest state official with responsibility for voting arrangements was Democratic Secretary of State Rebecca Vigil-Giron.  When asked by Palast how she explained the non-votes, she replied that they occurred mostly in counties where “…people just don’t want to vote for President.”  Palast was astonished, for this was the same “theory” expounded by various Republican county clerks.  Palast dubbed it the “brown boycott theory,” implying its absurdity on the face. 

Pursuing the mystery, Theissen found that “the statewide disparity between the presidential UV (under-vote) rates for different ethnic groups occurred entirely on Danaher Shouptronic and Sequoia Advantage pushbutton paperless electronic voting machines.”  “Although only 41 percent of the state’s voters cast their ballots on push-button electronic voting machines, these … accounted for 77 percent of the under-votes, raising doubts about their accuracy.”  Stated more bluntly, the numbers suggest some kind of discrimination by ethnicity, and therefore, since New Mexico minorities vote mostly Democratic, some kind of discrimination by political party.  Could it be that machines known to have serious undercount problems were disproportionately distributed in minority precincts on purpose?   

This possibility is important to note because, even though in November most N.M. precincts will vote on Automark optical-scanner machines that leave a voter-verified paper ballot, no steps have been taken to correct the dishonesty that may have led to New Mexico’s 2004 undercount debacle. 

While of lesser magnitude, the so-called “over-votes,” or “phantom” votes, also revealed a problem.  These are votes that exceed the total number of registered voters in a precinct – i.e., evidence of ballot-box stuffing.  As shown in Theissen and Stewart’s analysis (www.HelpAmericaRecount.org) of New Mexico election data, the state generated 10,836 of these ghost votes, mostly for the Republican candidate  -- far more than the 2,087 phantom votes reported in the final, official state canvass.   The discrepancy is accounted for by official tallying procedures that allowed over- and under- votes to cancel each other out in a precinct. Thus, the final canvass greatly underestimated both under- and over-votes.   Clearly, such over-votes can only be generated either through machine error, vote-total manipulation or voting more than once – all potential signs of fraud.

Other irregularities came to light later, as illustrated by allegations, currently under investigation by state authorities, of “missing” provisional ballots, with resulting shortages in several Cibola County precincts, including Acoma and Laguna pueblos.  In addition, Cibola County Clerk Eileen Martinez is also under investigation regarding possible post-election ballot shredding.  And let us not forget the republican judge in one precinct of Bernalillo County who “…discarded hundreds of provisional ballots – all of them for Kerry, while all those he accepted were for Bush” (Miller, Fooled Again).  

          Problems for Kerry began well before vote tabulations on election day. Evidence strongly suggests interference with the energetic and extensive voter registration efforts by state democrats.  At clinics of the Indian Health Services (part of the U.S. Department of Health and Human Services) republican operatives succeeded for awhile in shutting down a non-partisan voter registration drive, until Senator Jeff Bingaman interceded.  Overall, republican efforts to suppress registrations in at least three heavily democratic counties (Chaves, Curry and Eddy) were successful enough to drastically reduce (by 10.6 to 13.1 percent, respectively) the percentage of registered democrats in those counties (Palast, 218). 

          Another possible ploy was the use of purge lists to “clean up” the rolls, although a check of skullduggery here was not possible because the state refused to release the lists for inspection.  Evidence also surfaced of “strategic distribution of provisional ballots, which were clearly headed for the trash” (Miller). 

Attempting to discover what went wrong, Palast and others ran into a stone wall when Vigil-Giron expressed little interest in finding explanations for election irregularities.  Faced with New Mexico’s questionable voting returns, Vigil-Giron put an end to further investigation by taking several decisive actions. “…(W)ith still-uncounted and missing ballots far exceeding George Bush’s victory margin, the Democratic Secretary of State …turned down $114,000 from concerned voters who offered to pay for a recount and investigation of the (questionable) machines… (and then)… ordered all machines wiped clean, thereby eliminating crucial evidence regarding the November tallies.” 

Nor was an adequate audit of returns conducted of the 2004 returns.  As pointed out by Verified Voters of New Mexico, the problem here was not that only five percent or so of returns were examined, but that the auditors were denied the opportunity to properly sample them so as to ensure representativeness.    

Authority for the Secretary of State’s actions was greatly strengthened, in part, by Democratic Governor Bill Richardson’s alleged encouragement that she take the actions she did.  In addition, she was supported by the state’s electoral reform legislation of 2005, which requires the posting of an exorbitantly large bond -- of about 1.4 million dollars --  by any party demanding an election recount.  Only in May of this year did a state court rule that a recount should have been allowed on the basis of the plaintiffs’ $114,400 deposit, although in the same decision the court declined to order an actual recount – impossible at that point, anyway, because voting machines had already been erased. 

Subsequently, Vigil-Giron “…was hit with one nasty lawsuit to investigate the poltergeist votes and missing ballots” (Palast).  Several local election officials, including democratic Secretary of State candidate Mary Herrera, put the plaintiffs in this case at a serious disadvantage by refusing to allow inspections of the voting machines involved.  Currently, the case continues. 

Whatever suspicions one may have about Vigil-Giron, they are hardly reduced by learning that she had, on a number of occasions, benefited from a cozy relationship (including large campaign contributions) with the voting machine companies involved.  Barred by law from another term as Secretary of State, a successor will be elected in November.   

Does this mean reform is in the offing?  That is far from clear, since the Democratic candidate for Secretary of State, Mary Herrera, was county clerk in one of the problematic counties (Bernalillo) in the 2004 election.  She was one of those who voiced very strong resistance, supposedly on technical grounds, to passage of New Mexico’s voting act of 2005, which requires a voter-verified paper trail in future state elections.  Nor is it reassuring  that one of her significant campaign contributors, as reported in the July 7, 2006 Santa Fe New Mexican, is one of the voting machine companies involved in the 2004 “non-vote” irregularities, and who earlier provided Vigil-Giron with various forms of support. 

Furthermore, implementation deadlines for New Mexico’s new voting act were deleted before final passage.  Although the state has purchased the machines that will satisfy the paper-ballot requirements of the Act, it is still  possible that replacement of the problematic paperless machines involved in the state’s 2004 election problems might not occur until  after the upcoming November election.   Vigil-Giron has promised her department’s best efforts, but there is no legal guarantee.   

          Passage of New Mexico’s 2005 Election Reform Act, which requires use of machines that leave a paper ballot record, represents huge progress for the State, even if it may not be fully enforceable until 2008.  Most New Mexico voters can now expect to vote on the new ES&S Automark machines that have been purchased to meet the new requirements.   

But there is still  a fly in the  ointment, and a big one at that.  Several recent studies by computer scientists of electronic voting machines, including the machines leaving a paper trail, like the Automark, are highly vulnerable to errors and security breaches.  In particular, a Brennan Center for Justice report has warned against reliance on all types and makes of machine, including the Automark, unless checked by a reliable and well-designed audit.  And herein lies the problem, for it appears that the Secretary of States’ “…office does not presently intend to implement the voting machine audit random voting system check” (Attorney John Boyd, letter to Vigil-Giron).  

If this is true, and if the Secretary of State does not take steps to conduct a properly representative audit (as required by the State’s new election law), then availability of the Automark machines may not do much to assure election integrity, since they are the very kind of machine warned against by the Brennan Center report.  A proper audit is essential! 

Finally, an issue has arisen that could potentially be used to suppress voter registration in a discriminatory way.  This is the question of Voter ID.  A common method of challenging a would-be voter is to insist that they show a photo ID, like a driver’s license, even though a photo ID is required in New Mexico only when registering and voting the very first time.  Particularly at risk are minorities who may well hot have and ID, with or without a photo.   

A so-called “Real ID” bill is currently being considered in the U.S. Congress, but has not yet been passed.  If it is passed, it will require all voters to present a photo ID.  In the meantime, though, as evidently encouraged by the Help America Vote Act (HAVA), the New Mexico Secretary of State’s office has attempted to print and distribute “Voter ID” cards to all New Mexico Residents.  Problem is, the whole project has become something of a fiasco owing to the return of thousands of cards whose addressees did not live where the cards were sent.  One controversial estimate put the number of returned cards of 100,000.  Whatever the number, staff at the Secretary of State’s office did express  frustration, calling the ID card project “a real mess.”   

Why be concerned?  Partly because the Republican Party across the Nation has made presentation of a voter ID card a major issue, claiming that unauthorized persons, and especially, illegal aliens, may try to vote illegally by presenting fake identification.  Yet, virtually no cases of such misrepresentation have been documented in New Mexico, according to Palast.  But the Republican candidate for Secretary of State, Vickie Perea, is making a voter ID requirement central to her campaign. And Herrera is tagging along, warning that the unrequired voter ID cards recently mailed to citizens state-wide could be used fraudulently.   

But commentator Inez Russell notes (S.F. New Mexican, 10/1/06), the vastly greater danger is that any voter ID law or threats based on a potential law will inevitably discriminate against citizens without the right kind (or even any) official ID.  These people are mainly of low-income or minority status people who generally vote democratic.  Thus, the effect would be to suppress democratic registrations and votes.   And mind you, challenges at registration sites or at the polls can be effective even without a voter ID law, so long as the challenger is either ignorant or dishonest, and so long as the challenged citizen believes their challenger.  And even if a challenged brave soul insists of voting, past evidence suggests they will likely be given a provisional ballot, which stands a higher chance of not being counted.  Even though not yet required by law, the voter ID issue is likely to cause considerable confusion this coming November. 

Judging from past evidence, something is rotten in the State of New Mexico.  The big question is, will enough active citizens smell the odors in time to locate and discard the spoiled meat?  Our right to the franchise and to have our votes honestly and accurately tallied is one of our most fundamental rights.  To lose it, as millions did during the last two national elections, is a dire threat to democracy itself.