Recount Fight Still On; Candidates Plan To File Notice of Appeal

By Barry Massey
The Associated Press   29 December 2004
    SANTA FE? Green and Libertarian presidential candidates are continuing their legal fight for a ballot recount in New Mexico and plan to file a notice of appeal today with the state Court of Appeals.
    Lawyers for Green Party candidate David Cobb and Libertarian candidate Michael Badnarik said they will ask the court to order a recount of presidential ballots in the Nov. 2 general election.
    However, it potentially could take weeks or even months for the Appeals Court to issue a decision.
    They are appealing a ruling against them by state District Judge Carol Vigil in Santa Fe.
    The candidates are fighting a decision by the state Canvassing Board to charge them in advance the full cost of a statewide recount? an estimated $1.4 million. They have paid the state a deposit of $114,400 and contend that's all state law initially requires to obtain a statewide recount.
    The candidates acknowledge they must later pay the full costs of the recount if it doesn't change the outcome of the presidential race.
    President Bush defeated Democrat John Kerry in New Mexico by nearly 6,000 votes and a recount isn't expected to change Bush's win. But Cobb and Badnarik want a recount to focus on potential voting problems in New Mexico.
    Lowell Finley, a lawyer for the candidates, said Tuesday the canvassing board has failed to follow the law by demanding full payment in advance.
    He contends the Canvassing Board? made up of the governor, the secretary of state and the chief justice of the Supreme Court? must order a recount once candidates pay an initial deposit based on the number of voting machines and precincts involved.
    The state Supreme Court last week without explanation denied the candidates' emergency request to order an immediate recount of votes.
    The candidates went to the Supreme Court with an expedited lawsuit rather than taking the traditional but slower approach of going to the Court of Appeals after losing in district court.
    Finley said in a telephone interview the candidates will ask the Appeals Court to issue a stay to prevent county clerks from clearing election returns from voting machines while the legal challenge is pending in the weeks or months ahead.
    Filing a notice of appeal should be enough to preserve vote tallies statewide for a recount, according to Finley.