New Mexico Supreme Court issues writ of mandamus against Otero County Commission

Update, 11 a.m. Thursday: Secretary of State Maggie Toulouse Oliver has made a referral to Attorney General Hector Balderas to investigate these matters.

“All county officials take an oath to uphold the constitution and laws of New Mexico,” Toulouse Oliver said. “The Commissioners in Otero County have violated the public’s trust and our state laws through their recent actions and must be held accountable.” 

SANTA FE, N.M. — The New Mexico Supreme Court issued a writ of mandamus Wednesday against the Otero County Commission for certification of 2022 primary election returns.

The Court granted a petition by Secretary of State Maggie Toulouse Oliver for the writ of mandamus.

The Otero County Commission is ordered to comply and “meet to approve the report of the canvass of the returns and declare the results” of the 2022 primary election by this Friday, June 17.

New Mexico Secretary of State Maggie Toulouse Oliver released the following statement in response:

“I applaud the Court for their swift decision in granting my Office’s request to compel the Otero County Commission to follow their constitutional duties and duty under the Election Code to certify the results of the 2022 Primary Election. The voters and candidates of Otero County can now be assured that their voices will be heard in full. 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.” 

Commissioner Couy Griffin has an in-person sentencing hearing for Jan. 6 crimes on Friday afternoon, the deadline to certify the primary results. https://t.co/J1dYcDeRig

— Matt Grubs (@MattGrubs) June 15, 2022

The unprecedented move could throw the state’s overall primary election certification process into disarray, as well as delay recounts in close contests and the placement of candidates on the general election ballot.

Counties in New Mexico double as a canvassing board and must certify those results before they can be sent to a state canvassing board, and winners of the primary can be placed on the November ballot.

The commission at a special meeting Monday opted not to grant the request of their county clerk’s office to certify primary results, citing unsubstantiated claims made by former President Donald Trump and many of his supporters that the machines are vulnerable to hacking and could have changed votes.

Federal and state officials, as well as Dominion, have refuted the claims repeatedly.

County Commissioners Gerald Matherly and Vickie Marquardt did not return calls requesting comments on the decision, and it is not known if they plan to meet before Friday’s deadline.

Couy Griffin, who represents District 3 on the commission, indicated he will not comply. 

“I guess if I had a position, it is just that I am going to hold my ground on this deal,” said Griffin. 

This Friday, the Cowboys for Trump founder is expected to be sentenced on a federal charge related to the Jan. 6, attack on the U.S. Capitol. He maintains that in holding his ground, he is reflecting his constituents in the heavily conservative rural county.

“The people of my county have concerns, as well as I do, and all we are doing is just trying to investigate those concerns,” Griffin said.

Commissioners say they want the county to do a hand tally of each of the 7,371 ballots cast in the primary to ensure they match the number recorded in the machines. At the Monday meeting, they asked the county attorney to request an order from a district judge to access the ballot boxes in order to do so.

Toulouse Oliver said hand counts are not allowed under New Mexico state law and election code, unless there is a specific discrepancy found.

“The bottom line is that the county commission doesn’t have any authority over the voting machines. We have a legal process that has been followed to the letter here in New Mexico,” she said.

In addition to requesting that the state Supreme Court intervene, Toulouse Oliver said her office has also made a criminal referral to the office of the New Mexico Attorney General against the commissioners.  

“The election code is very clear, it is very plain as to what the duties of what the county commission are in this case and they have actively chosen not only to not do them, but also to engage in other official acts which are in violation of the election code,” she said.

Such acts include votes by the commission, on June 9,  to remove the two state mandated ballot drop boxes in the county, discontinue use of the Dominion vote counting machines, and do hand recounts of ballots in their elections, all of which they are not authorized to do under state law.

Should the commissioners not certify the results, Toulouse Oliver said it is unclear what happens next.

“The reality is we are in completely uncharted territory here. We’ve never had a situation like this where a county commission in its function as a county canvassing board has declined to undertake their statutory obligation,” she said.