New Mexico Law Suit Delves Inside Voting Machines

Thursday, 3 November 2005, 12:30 am
Article: Michael Collins

Patricia Rosas Lopategui et al… “wishes to have her vote properly counted and weighted in any forthcoming elections.”

New Mexico rarely generates much national news. When it does, as in the Wen Ho Lee nuclear espionage investigation, it can be explosive.

Now a little-known lawsuit before New Mexico District Court Judge Eugenio S. Mathis has the potential to alter the face of American elections.

Lopategui et al versus the State of New Mexico is proceeding at a surprising pace, with the litigants currently in the “discovery” phase of the trial, the point at which lawyers are allowed to question key witnesses and dig for facts and opinions with wide latitude. The targets of discovery right now include Sequoia Elections, two of the big three voting machine companies; Rebecca Vigil-Giron, New Mexico Secretary of State; state and local election officials; and officials of the state’s voting systems support vendor.

Highly disturbing facts and allegations have already emerged in this well-run but under publicized case. For example, in one majority Hispanic precinct, the voting machines produced exactly zero votes for John Kerry. More issues will arise as the Plaintiffs’ legal team digs deeper into the highly irregular events of Election Day 2004. Remarkably, these events occurred at a much higher rate in predominantly Hispanic and Native American precincts.

The Case

A number of cases are pending as a result of Election 2004, mostly in Ohio. Unlike those cases, Lopategui et al is about future elections. It is based on the unacceptable performance of voting machines, state and local election officials, employees of the voting machine vendor, Sequoia, and others.

The suit describes each of the eight parties as a “duly qualified New Mexico voter who cast a ballot in the 2004 general election and who wishes to have her vote properly counted and weighted in any forthcoming elections.”

Patricia Rosas Lopategui and the seven other parties are everyday Americans who have reason for concern about any future elections based on the 2004 performance of New Mexico voting machines, according to an array of evidence gathered already.

Election Day Fiasco for Some

If you were a Hispanic American or Native American voting in New Mexico on November 4, 2004, you may have experienced some of the following:

The most likely problem was simply to find out that your vote for president or other offices was not counted. Ballots with missing votes are called “under votes.” In New Mexico there were around 23,000 under votes out of a total of about 750 thousand votes cast. That is a rate of 3.0% for the state, or six times the expected rate of under votes in a presidential election. In Hispanic and Native American precincts under votes range from 6% to as high as 49%. One poll worker described watching 141 voters come to the precinct, enter the polling booth where a voting machine awaited, stay for a short period, and leave. At the end of the day, there was only one vote counted for president. That’s a 99% plus rate of under votes for that precinct.

In another scenario, called election machine “vote switching,” one voter describes a scene that occurred throughout the state. The voter was choosing between Republican Heather Wilson and Democrat Richard Romero in the 1st Congressional District, near Albuquerque, NM. She recounts the frustrating story as follows:

I voted for Richard Romero. The check did not appear in the box. I tried three more times to vote for Richard Romero, making sure that I was not touching the screen in any other place. The vote never registered. The fourth time that I tried to vote for Richard Romero, a check appeared in the box by Heather Wilson's name.

For the next 45 minutes, the voter sought help from an election official. None one was available. When help finally arrived, “The monitor came and cleared the machine and stood watching me as I voted again.” It finally seemed to take her vote for Democrat Romero. Describing the one hour ordeal to cast just one vote in one race, the voter said, “I have no idea if my vote was processed correctly.”

John Boyd, a member of the Lopatigui legal team, states that the essence of the suit is to determine “whether voters in New Mexico, and the United States for that matter, have the right to have their vote counted faithfully and properly.”

The problems with faithful and proper counting may be linked to the new voting technology introduced since the passage of the 2002 Help America Vote Act (HAVA). This Bush-administration-supported act provides a pool of billions of dollars for states and local governments to purchase new voting machines, often the touch screen devices called Direct Recording Electronic (DRE) voting machines.

Disturbing Signs of Bias by Voting Machines

The State of New Mexico saw 245,000 ballots cast on electronic voting machines. Optical scanner voting machines accounted for nearly 100,000 ballots counted. These machines require that the voter fill in an optical scan paper ballot with a pen. The ballots are then fed through an optical scanner at the precinct, which records and totals the votes. For New Mexico optical scanners, the average presidential under vote rate was less than 1% of all votes counted. Of every 100 voters using an optical scan, 99 showed a vote for president. In general, optical scanner voting machines showed no apparent racial bias in under voting, as indicated by a study based on the 2004 canvass data from the New Mexico Secretary of State (there were notable exceptions). The study was conducted by nationally recognized election system and analysis experts Ellen Theisen, executive director of Voters Unite! www.votersunite.org and Warren Stewart of Vote Trust USA and reviewed by John Skelly PhD.

When the other 150,000 voting machine results are examined, a troubling trend emerges, one which seems to indicate systematic under votes by voter ethnicity. These machines are either push button or touch screen DRE’s.

Of optical scanner voting machine precincts, Native American precincts have the lowest under vote rate followed by Anglo and Hispanic precincts. All optical scanner precincts have under vote rates below 1.0%. The DRE precincts with Sequoia and Danaher equipment show a constant Anglo rate of 3% under votes. Remarkably, Hispanic and Native American precincts show rates two and three times that high.

While optical scanning voting machines performed better in general, there were exceptions that show the inability of voters to have their ballots cast for president. Each under vote represents the failure of a vote to be counted.

There is no comforting explanation for this.

The final count for New Mexico 2004 had Bush over Kerry by 376,930 to 370,942 votes, a difference of 5,988 votes. The under votes in just the Sequoia and Danaher precincts may have made the difference in the outcome of the presidential race. They certainly made a difference in the outcome of each voter who lost his or her vote on that day.

The Vigorous Pursuit of Election Integrity

Lopategui et al vs. Vigil-Giron, et al (New Mexico) was preceded by a law suit to secure a recount in the state after the 2004 election. That effort failed, but those who fought the legal and political battle began amassing evidence of widespread voter disenfranchisement.

A nonprofit organization, Voter Action, www.voteraction.org, was formed. The organization is dedicated to providing financial, legal, research, and logistical support for grassroots efforts, with the goal of ensuring the integrity of elections in the United States. Its main project now is the Lopategui suit to insure that future elections result in the intention of voters, namely that their votes are counted regardless of the method of voting. Holly Morris Jacobson is co director of Voter Action. She is a former project manager and marketing communications professional who now devotes her time to election reform and voting rights causes. Ms. Jacobson resides in Seattle but grew up in New Mexico.

The Voter Action legal team includes San Francisco Bay area attorney Lowell Finley, an experienced litigator in civil and election rights cases. Mr. Finley is co director of Voter Action. He is also one of the very few lawyers to win a victory over a voting machine vendor when his client, Alameda County, CA, received a refund from Diebold Inc. for problems with their voting machines. Finley also successfully blocked California Governor Schwarzenegger from using campaign contributions to repay a $4 million personal loan to his campaign. Two distinguished New Mexico attorneys, John Boyd and David Garcia, complete the Voter Action litigation team. Boyd has extensive experience in civil rights, first amendment, constitutional, and election law. He is currently litigating a religious freedom case before the U.S. Supreme Court. Garcia has extensive experience in election law and served as co-counsel in the 2002 redistricting trials in New Mexico. Garcia is active in New Mexico politics and bar activities.

Will My Vote Count?

The problem of vote switching, losing your vote based on the type of machine you use and, perhaps, your ethnic identity and location, is troubling in a nation where universal access to voting was once thought to be the political gold standard. In this case, the more things change, the more they seem to come undone.

The Help America Vote Act was heralded as the solution to the problems that emerged in the Florida 2000 presidential contest. Hanging chads and endless recounts of flawed punch card ballots would never occur again, we were promised. In point of fact, the real scandal of Florida 2000 was not the hanging chads; it was the racially based “felon purge” conducted by Secretary of State Katherine Harris’ office. This resulted in the denial of voting rights to 57,000 black Floridians, Floridians who had committed no crime but were wrongly identified as felons. That “purge” was a race crime, denying one ethnic group its right to vote.

The problems in New Mexico represent the automated version of ethnically based voter disenfranchisement. Now, instead of tens of thousands losing their rights all at once, the votes are being denied to tens of thousands of minority voters’ one precinct at a time.

The voter who took 45 minutes to make sure her vote was cast in the New Mexico 1st Congressional District summed it up nicely:

If I were an elderly person, or a young first time voter, I might not have known what to do, or how to take the actions that I took. I might have simply gone forward with the voting process, and thought to just let that one vote for Heather Wilson go unnoticed as well as the malfunctioning machine.

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