ACLU Sues SOS

The New Mexico branch of the American Civil Liberties Union has filed a lawsuit against Secretary of State Dianna Duran claiming she violated open-records act.

The suit, filed in state district court in Albuquerque, says Duran illegally denied the organization’s public records request for documents related to 37 cases of  foreign nationals voting in the state alleged by Duran during a committee meeting of this year's regular legislative session. Duran improperly claimed executive privilege in denying the requests for documents, the suit alleges.

“These sorts of hit-and-run allegations are reckless and irresponsible,” ACLU-NM Executive Director Peter Simonson said in a news release. “Without offering any proof, the Secretary of State has undermined the public’s confidence in our elections system while hiding the evidence for her claims behind the cloak of executive privilege.”

One of the things claimed in the lawsuit is that the reason Duran turned over approximately 64,000 registered voter records to the state Department of Public Safety was "an effort to convert public records to records not obtainable pursuant to the IPRA."

However, because Duran has since said, in an interview with me, as well as at a recent interim legislative committee hearing, that she wasn't alleging any criminal activity, those records are not exempt from the Inspection of Public Records Act.

The suit also claims the whole SOS/MVD investigation was spurred by an email from Colorado elections director Judd Choate to Duran's office.

The e-mail from Mr. Choate stated that on March 8, 2011, the Colorado Secretary of State would hold a news conference to discuss legislation under consideration in the Colorado House that would allow the Colorado Department of State to spot check and investigate voter registrations for the possibility that non-citizens are 1) currently registered to vote, 2) are being accidentally registered to vote, or 3) are willfully seeking to register in violation of both state and potentially federal law. In addition, simultaneous with this press conference, the Colorado Department of State planned to issue a report outlining the research they had undertaken to determine if there were persons currently registered to vote who may not be U.S. citizens. Mr. Choate concluded by stating that “I wanted to warn you that this report will be issued in case it becomes a national story requiring that you address the issue relative to your state.”

UPDATE 4:20 pm: I just spoke SOS chief of staff Ken Ortiz who told me his office has not yet been served with the suit, so he can't comment. "I just find it interesting that the media got the suit before we did," he said.

Watch this space as well as tomorrow's New Mexican.

Here's the suit:

ACLU v Duran

Roundhouse Roundup: SOS Won't Release Alleged Voter-Fraud Documents

A version of this was published in The Santa Fe New Mexican
April 7, 2011

Secretary of State Dianna Duran made a startling announcement last month during a legislative hearing on whether voters should be required to show photo identification at the polls.

SOS Dianna Duran

Duran said in cross-checking voter registrations with a state Motor Vehicle Division database, her office had found 117 foreign nationals who had registered to vote. All listed Social Security numbers on their voter registrations that didn’t match up with their names. What’s more, Duran said, at least 37 of those people had actually voted in state elections.

So who are these people who might have committed voter fraud?

The secretary of state won’t say.

The day after that hearing, I submitted a request to Duran’s office under the state Inspection of Public Records Act for copies of the 117 voter registrations, plus any records she had that indicated 37 of those people had voted.

After the 15-day response deadline allowed under the law, I was notified last week that my request was denied.

Citing state and federal privacy laws relating to MVD records, Secretary of State’s Office records custodian Christiana Sanchez wrote, “Based upon advisement of our legal counsel, the records are prohibited from release.

“Moreover, the Secretary of State’s Office does not maintain the original voter registration forms for registered voters,” the denial letter stated. “The original forms are maintained by the county clerks in each county. There are approximately 1.16 million registered voters in the state of New Mexico. Therefore, while we anticipate a future comprehensive review of voter registration forms, we cannot provide copies of any voter registration forms that meet your requested criteria at this time.”

Of course I hadn’t asked to see all 1.16 million forms, just the 117 she talked about at the legislative hearing. And I would have settled for only those for the 37 apparently illicit voters.

Out of the FOG: As I often do in such situations, I sought advice from the New Mexico Foundation for Open Government. Executive Director Sarah Welsh told me, “The SOS may not maintain the original voter registration forms, but if they received copies of forms (or the same information in some other format) from the county clerks, those records would now be SOS records subject to IPRA.”

As Welsh explained it, the Inspection of Public Records Act defines “public records” as materials that are “used, created, received, maintained or held by or on behalf of any public body and relate to public business.”
Therefore, Welsh said, if Duran’s office received and is holding voter-registration forms, and the forms aren’t subject to other confidentiality provisions, the documents should be released.

I asked the secretary of state about that but hadn’t gotten a response as of Wednesday evening.

I’m not the Lone Ranger: I’m not the only one who requested documents pertaining to Duran’s voter-fraud allegations. The American Civil Liberties Union made a far more sweeping request for documents from both the Secretary of State’s Office and the Governor’s Office the same day I made my request.

But according to the Clearly New Mexico blog — which is a project of the left-leaning Center for Civic Policy — the ACLU didn’t get much more than I did.

ACLU Executive Director Peter Simonson told the blog that he got a packet of documents from the SOS but nothing so far from the governor. The documents he received from Duran were so heavily redacted, he said, “they don’t allow us to make any determination.”

A March 15 news release from the Secretary of State’s Office about the alleged 37 vote-fraud perpetrators said, “These are still under investigation to verify the accuracy of the information.”

At this point, it’s still unknown whether any of that information has been verified.

State ACLU Weighs in on King's Domestic-Partner Opinion

They like it.

Executive Director Peter Simonson said in a news release that even though the legal opinion does not have the force of law, it's "an important step towards achieving basic relationship fairness here in New Mexico.Recognizing out-of-state same-sex marriages would be a powerful acknowledgement that marriage matters to gay people in similar ways that it matters to everyone. Gay and lesbian couples want to get married in order to make a lifetime commitment to the person they love.”

Referring to the same-sex couples who have been married in other states and countries, the ACLU-NM press release said, "Extending the legal and economic protections of marriage to these couples in this state would significantly increase their families’ security, stability and status in the community."

State Agrees to Pay Domestic Partner Benefits

This in from the American Civil Liberties Union

ALBUQUERQUE – In response to a lawsuit brought by the American Civil Liberties Union, New Mexico has agreed to provide retirement health insurance to the domestic partners of state employees.

“We are very pleased that the state has agreed to settle this litigation and provide the insurance. It wasn’t fair that the state forced lesbian and gay employees to pay the high cost of health care for often inferior health insurance for their families when they worked just as hard as their straight colleagues,” said Peter Simonson of the ACLU of New Mexico. “I’m sure this will be welcome news to all lesbian and gay state employees, but especially to those who have retired or are planning to do so soon.”

The ACLU brought the lawsuit on February 5, 2007 on behalf lesbian and gay state employees and their domestic partners. The lawsuit charged that it was a violation of the state constitution’s equal protection guarantees for the state to treat lesbian and gay employees differently from its straight employees. The settlement will reached with the state will cover both gay and straight employees and their domestic partners.

“This is fantastic news. We can finally start planning our retirement,” said Havens Levitt, who has been a teacher for the Albuquerque public school for 25 years. “Until now, our only option was for me to keep working because my partner’s employment doesn’t provide insurance for her and private insurance was just too expensive. It means a lot that the state has acknowledged I should be treated the same as my straight colleagues.” Levitt and her partner, Rebecca Dakota, have been partners for 13 years. Dakota is a self-employed consultant to non-profits and an independent filmmaker.

Pursuant to the settlement, the state has agreed to develop a process for enrolling those interested during the next open enrollment period, which comes this fall.