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Legality of Actions Questioned: Duran grilled over voter file examination (UPDATED)

By Matthew Reichbach

Secretary of State Dianna Duran

Secretary of State Dianna Duran was grilled by lawmakers at an interim Courts, Corrections and Justice hearing Friday morning. The main topic of discussion was Duran’s decision to send tens of thousands of names that her office says are potentially fraudulent to the Department of Public Safety (DPS), or state police.

Duran repeatedly denied that she was looking for voter fraud throughout the hearing and said numerous times that she is merely trying to ensure “accuracy in the voter files.” Duran blamed the media for stoking the flames of people believing she is looking for voter fraud.

Rep. Gail Chasey, D-Albuquerque, questioned the legality of sending over 60,000 names on the voter file to the Department of Public Safety instead of referring it to the Attorney General or District Attorneys with jurisdiction in the area.

Chasey quoted section 1-2-1(3) of state election code which says the Secretary of State should “through the attorney general or the district attorney having jurisdiction, bring such actions as deemed necessary and proper for the enforcement of the provisions of the Election Code.”

Chasey also said, “It doesn’t appear to me that DPS should be allowed [under the law] to have social security numbers. That’s my issue on transparency and I don’t think that we want to invade people’s privacy.” Chasey cited 1-4-5(E) in the election code which says:

“It is unlawful for the qualified elector’s date of birth or any portion of the qualified elector’s social security number required on the certificate of registration to be copied, conveyed or used by anyone other than the person registering to vote, either before or after it is filed with the county clerk, and by elections administrators in their official capacity.”

Other legislators wondered why Duran did not send the information to county clerks. Duran said that it was a lot of information and that they are not yet at the step in the process where county clerks will be involved. “We are working closely with them,” Duran said, but added that the clerks will receive the information when the names have been categorized.

When asked, Bernalillo County Clerk Maggie Toulouse Oliver, who oversees the elections in the state’s most populous county, whether it would have been overly burdensome if the Secretary of State’s office had come to her before sending the information to the DPS, Toulouse Oliver told Clearly New Mexico, “Absolutely not.” However, it could prove to be a problem if the county clerks are not involved before next year.

“What’s starting to concern me is at what point is she planning to involve us in the process. That was our question from day one,” Toulouse Oliver told Clearly New Mexico. “She said she doesn’t have a timeline and as we get closer to next year,we have elections preparations to start with. I’m concerned with having the resources to be able to help her.”

Other legislators asked about allegations of voter fraud, something that Duran vehemently denied a number of times throughout the meeting that she alleged voter fraud and blamed the media for stoking such claims. “I never said voter fraud,” Duran told the committee at one point. Later in the hearing she told the committee, “I have never alleged that all 64,000 records were turned over for criminal action.”

This came after legislators said that sending the names to the Department of Public Safety seemed to imply that there was possible criminal activity.

“This is about simply, and it is very simple, assuring the accuracy of the voter file going into the next election,” Duran said. “To my knowledge, this has never been done in the state of New Mexico before.”

Previously, in a House Elections and Voters Committee hearing, Duran said there were 37 votes that were cast by illegal immigrants. This was brought up a number of times in the hearing but was never followed up on by members of the committee or by Duran herself.

Duran also said that her office does “not have a definitive timeline on when this will be completed yet.”

Another key line of questioning came regarding transparency from the Secretary of State’s office. Duran was criticized by some legislators for not disclosing what, exactly, she was looking for in the 64,000 cases.

“My ultimate intent and purpose is exactly what I have said to the electorate the entire year that I was campaigning last year,” Duran said.

Duran said that her intention is to show that “we have integrity and accuracy in the voter files.”

Duran and members of her staff described the process in which her office used to flag the potentially inaccurate voter files a number of times throughout the hearing. Her office compared the names, dates of births and social security numbers of those on the voter file to the names on the motor vehicle database. Then those that did not match up were compared to data at the Social Security Administration. The data was all based on social security numbers and date of birth, not names or addresses, Duran and her staff told the committee.

Duran said she had the power to use this process through the Help America Vote Act, or HAVA. She also said that 43 other states use the same process to investigate the voter files, though those states are mandated by state law to do so. The other seven states, including New Mexico, can do so because of HAVA. Other points of interest:

  • Duran said, “No one in the secretary of state’s office will be removing anyone from the voter file.”
  • Cheryl Nichols, representing the state’s county clerks, said, “there are certainly errors in the voter file” but attributed it to human error and not any widespread voter fraud.
  • Nichols said as an affiliate, the state county clerks do not think that there is a widespread problem in the voter files.
  • Duran agreed that that the current online campaign finance system is “terrible” and said that her office is working at making it better. The system was broken when they came in, Duran and her general counsel Ken Ortiz said. Sen. Richard Martinez, D-Espanola, said she was changing it back to a paper system right when he finally learned how to use the system.
  • Duran said that that former Secretary of State Mary Herrera did not do National Change of Address Mailings and so the voter rolls cannot be purged until 2013.
  • Sen. Rod Adair, R-Roswell, characterized calls for transparency by groups like the League of Women Voters and the American Civil Liberties Union of New Mexico as a reason to open up New Mexicans to harassment and embarrassment by having their names published.
  • Adair said that the ACLU wants to violate people’s privacy by publishing the names and that the media would “be running” to the homes of people on the list to see if they are eligible vote. This brings to mind when Pat Rogers hired private investigators for a PAC associated with the Republican Party of New Mexico to research voters Rogers believed to be ineligible. None were found to be ineligible to vote.
  • Toulouse Oliver told Clearly New Mexico that she tried to get the information through an Inspection of Public Records Request, or IPRA, and was denied.”We received a response that she could not grant our request,” Toulouse Oliver said.

UPDATE (7/17/11): Duran’s actions have been raising questions on editorial pages from both ends end of the Rio Grande corridor.  For example, her office’s lack of transparency, highlighted by her invoking executive privilege, has raised concerns at the Albuquerque Journal:

Secretary of State Does A Disappointing 180

And Walt Rubel, the managing editor of the Las Cruces Sun-News who initially supported Duran’s crusade against “voter fraud”, now seems to be having second thoughts:

All this just to clean up voter rolls?

If I were cynical, I’d suggest that with the investigation several weeks old, Duran now realizes there will be no voter fraud uncovered, and is walking back her original allegations. Of course, I’ve got no evidence of that. But when it comes to the issue of voter fraud, who needs evidence?

…But if you want to allege crime and change state law, you’re going to need some proof, not just anecdotes and conviction.

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