NM Supreme Court steps in after Otero County refuses to certify primary results

County Commissioners said they won’t convene in time to meet deadline, including Couy Griffin who is slated for sentencing in federal court on charges from Jan. 6

By: - June 16, 2022 5:05 am

The Otero County Commission is required by state law to certify the election results within 10 days of the election. (Stock photo of election envelopes by George Frey / Getty Images)

The New Mexico Supreme Court on Wednesday ordered the Otero County Commission to certify the results of the 2022 primary election, after commissioners voted unanimously Monday against doing so.

The Otero County Commission is required by state law to certify the election results within 10 days of the election, unless it is able to find a specific discrepancy in the results. 

The commission based its refusal to certify the results on vague claims about the supposed unreliability of voting machines, echoing former President Donald Trump’s conspiracies about the 2020 election. 

The New Mexico Secretary of State’s Office petitioned the court Tuesday to order the Otero County Commission to certify the results, arguing that they had no authority to refuse to certify them.

In a statement, Secretary of State Maggie Toulouse Oliver said the court’s decision assured Otero County residents that their votes would be counted.

“Though it was sad to see the commission give in to discredited conspiracy theories and try to halt the legal process of election certification, it’s encouraging to know that the rule of law prevailed and that the checks and balances in our system of government remain strong,” Toulouse Oliver said in the statement.

 The court ordered the three-member Otero County Commission to approve the vote count by the 10-day deadline established by law — that would be Friday, June 17.

It’s unclear whether the commission will do so, as all three members indicated during Tuesday’s meeting that they will not be available to meet again until after the deadline has passed.

Update: Thursday, June 16, at 1 p.m.

The Secretary of State’s Office sent a criminal referral to the attorney general on Thursday, which states the Otero County Commission violated state election code and other New Mexico laws.

According to the referral, the Otero County Commission knowingly violated the law by refusing to certify the primary results, and through previous actions, including voting to remove all voting machines and ballot drop boxes in the county.

The referral notes that violations of the election code are a fourth-degree felony.

Otero County Commissioner Couy Griffin, who participated in the riot at the Capitol on Jan. 6, 2021, said during Tuesday’s meeting that he will not be available to reconvene to certify the vote on Friday because he’s due in federal court for sentencing in a criminal case stemming from his involvement in the riot. 

Griffin was found guilty of one count of entering a restricted building or grounds and federal prosecutors have recommended he receive a sentence of 90 days in jail. Federal court records show that Griffin is indeed scheduled for sentencing on June 17.

Alex Curtas, the communications director for Toulouse Oliver’s office, said the commissioners actions are “putting in limbo” the votes of more than 7,300 people who voted in the Otero County primary. 

“This system’s been in place for years,” he said. “Just for example, every single one of those Otero County commissioners was elected under the same system.”

Curtas blamed the commission’s decision on “totally outlandish, debunked conspiracy theories about 2020.”

The Otero County Commission has pursued a number of election-related conspiracy theories, many related to Dominion Voting Systems, the company that provides voting machines to the county. Dominion was at the center of numerous debunked conspiracy theories promoted by former President Trump.

Earlier this week Trump’s attorney general, William Barr, told Congress that Trump was “detached from reality if he really believes” the theories about Dominion.

This is not the first time that election-related conspiracy theories have led the Otero County Commission into legally-questionable territory. Earlier this year, a congressional committee announced it is pursuing an investigation into an election “audit” ordered by the county commission, and the New Mexico Office of the State Auditor said it has uncovered potential legal violations related to the audit.

David Levine, elections integrity fellow at the Alliance for Securing Democracy and a former election official in Idaho, Virginia and Washington, D.C., said the Otero County Commission’s refusal to certify the results is part of a nationwide assault on the American democratic system.

“The bottom line here is that there was a homegrown domestic campaign to not only undermine the 2020 election effort but to frankly override the will of the voters,” he said. “And what you’re seeing is that effort fueling all kinds of similar activity all over the country, including in Otero County.”

Analysis: No election fraud detected so far in messy Otero County audit

Source New Mexico contacted Otero County Clerk Robyn Holmes and all three of the Otero County Commissioners for comment on this story. None of them responded. 

During Tuesday’s county commission meeting, the commissioners struggled to explain why they were choosing not to certify the results, as Holmes repeatedly explained that the law requires them to.

“I have huge concerns with these voting machines. I just don’t in my heart think that they can’t be manipulated,” Commissioner Vickie Marquardt said. 

Holmes pointed out that the county’s audit had access to the paper ballots and the results from the voting machines, which would have allowed auditors to check whether the machines’ results were accurate. 

Holmes asked whether the auditors had ever actually checked whether the machines’ tally matched the paper ballots. “I don’t know the answer to that, to tell you the truth,” Marquardt responded. 

She later added “My whole concern is with the Dominion voting machine. That’s the whole issue.”

Commissioner Gerald Matherly was the only one to raise a specific concern about the vote count, though he wasn’t able to articulate clear details. According to Matherly, he had heard a report that some number of ballots may have come from an address that is not currently occupied. 

“I don’t even know how many absentee ballots came from that address … is it true or is it not, that’s all I want,” Matherly said. “One ballot, 10 ballots. I don’t know and I don’t care. I just want to know if it was wrong and is it going to be corrected.”

By siding with the commissioners actions, Matherly is not certifying his own primary victory from last week.

Holmes said that just because a particular home is not currently occupied doesn’t necessarily mean an absentee ballot from that address would be invalid, as New Mexico law allows voters to vote from a new address after moving even if they haven’t yet updated their voter registration.

John Block, who won this year’s Republican primary for District 51 state representative in Otero County, questioned the commissioners during the meeting about their opposition to certifying the results. 

Block, who describes himself as an “America-First Republican” and opposes the use of voting machines to count ballots, said that he supported the Otero County audit, and then pointed out that the commissioners certified a municipal election in 2021, despite that election using the same voting machines as the 2022 primaries.

“What changed? Between 2021 and today, what changed? Because we were doing the audit back in 2021 as well, and we had these same concerns?” Block asked.

 “The audit wasn’t complete yet. We learn new information every day,” Griffin responded.

Block responded that concerns about voting machines were raised as far back as 2020. “So this commission certified a potentially fraudulent election in 2021?” Block asked. 

“We could have,” Marquardt responded. 

Asked what would happen if the Commission refused to certify the result, Holmes told the commissioners that a court would order them to do it. 

“And so then, what, they’re going to send us to the pokey?” Marquardt asked.

Curtas from the Secretary of State’s Office said if results aren’t certified after a court order, commissioners could be found in contempt, “and then legal, law enforcement means would have to take place,” Curtas said.

The Torrance County Commission also voted Monday not to immediately certify that county’s election results, though they will meet again Friday and so can still certify the results by the deadline.


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Andrew Beale
Andrew Beale

Andrew Beale has 15 years of reporting experience, starting with the UNM Daily Lobo. He's reported for national and international publications including the New York Times, Vice and al-Jazeera from locations as far-flung as Portland and Palestine. He has a master's degree from the UC Berkeley Graduate School of Journalism, and he resides in Southern California.