Recount Intervention Request 'Premature,' Judge Rules

By Andy Lenderman
Albuquerque Journal Politics Writer   14 December 2004
    SANTA FE? A judge on Monday denied a request by Green and Libertarian presidential candidates to force state officials to begin a recount of the Nov. 2 presidential election immediately.
    State District Judge Carol Vigil noted that the state Canvassing Board is scheduled to meet at 5 p.m. today to specifically address that matter, and she called the plaintiffs' request "premature."
    But the fight over New Mexico's general election results appears far from over.
    Lawyers representing Green Party candidate David Cobb and Libertarian Michael Badnarik asked the judge to force the state to begin a recount on Friday afternoon. One lawyer argued that the state is obligated by law to begin a recount and that Cobb and Badnarik are willing to spend whatever it costs for a statewide recount.
    "The New Mexico state Canvassing Board has failed to perform the acts it is required to do by law to perform when a candidate requests a recount of paper ballots and recheck of voting machines following an election," lawyers for Cobb and Badnarik wrote.
    Plaintiffs' attorney Lowell Finley of Berkeley, Calif., told Vigil the recount is necessary to ensure the accuracy of New Mexico's many voting technologies such as touch-screen voting machines and optical scanning machines, which count paper ballots.
    And the state Canvassing Board doesn't have a choice in the matter, Finley argued.
    "No discretion is provided in the statute for refusing to move forward," Finley said.
    Assistant Attorney General David Thomson told Vigil that the state Canvassing Board, which certifies election results, should be allowed to meet first and do its job before any court action is warranted.
    And in an interview, Thomson said of Finley's assertion that the board must begin a recount: "I believe it's discretionary, depending on the circumstances."
    The state Canvassing Board is made up of Gov. Bill Richardson, Secretary of State Rebecca Vigil-Giron, and state Supreme Court Justice Petra Maes.
    Finley indicated all parties may be back in court if the recount is not launched at today's meeting.
    "This recount is going to go forward," Finley said. "Money is no object. We are in a situation here where a very important principle is at stake and we are not going to lightly agree to pay what we believe is an unusual amount. At the same time, my clients are committed to coming up with whatever money is required."
    Finley said Cobb and Badnarik gave the Secretary of State's Office about $114,000 as a deposit to pay for any recount efforts, which the state has indicated could cost more than $600,000.