In the most recent stifling of voters actually getting to see their votes counted accurately in New Mexico, local powers that be are claiming in court that a recount must be paid for entirely in advance – that is, that all the money must be handed over to the powers that be, before the recount can even begin.

This stance jibes not at all with state law in New Mexico.   

Here is 1.1.14, New Mexico state code, on “Recounts, Rechecks, Application”:

A.        Whenever any candidate for any office for which the state canvassing board or county canvassing board issues a certificate of nomination or election believes that any error or fraud has been committed by any precinct board in counting or tallying the emergency paper ballots or absentee ballots, in the verification of the votes cast on the voting machines or in the certifying of the results of any election whereby the results of the election in the precinct have not been correctly determined, declared or certified, the candidate, within six days after completion of the canvass by the proper canvassing board, may have a recount of the emergency paper ballots or absentee ballots, or a recheck of the votes shown on the voting machines, that were cast in the precinct.   

B.     In the case of any office for which the state canvassing board issues a certificate of nomination or election, application for recount or recheck shall be filed with the secretary of state.   

C.        In the case of any office for which the county canvassing board issues a certificate of nomination or election, application for recount or recheck shall be filed with the district judge for the county in which the applicant resides. 

Seems pretty clear to me; when a recount or recheck (checking the voting machines themselves) is requested, it is applied for and a deposit is paid.

Here’s the next section, on “Recounts, Rechecks, Cost of Proceedings”:

A.        An applicant for a recount shall deposit with the proper canvassing board or, in the case of an office for which the state canvassing board issues a certificate of nomination or election, with the secretary of state fifty dollars ($50.00) in cash, or a sufficient surety bond in an amount equal to fifty dollars ($50.00), for each precinct for which a recount is demanded. An applicant for a recheck shall deposit with the proper canvassing board or, in the case of an office for which the state canvassing board issues a certificate of nomination or election, with the secretary of state ten dollars ($10.00) in cash, or a sufficient surety bond in an amount equal to ten dollars ($10.00), for each voting machine to be rechecked.

B.         The deposit or surety bond shall be security for the payment of the costs and expenses of the recount or recheck in case the results of the recount or recheck are not sufficient to change the results of the election.   

C.        If it appears that error or fraud sufficient to change the winner of the election has been committed, the costs and expenses of the recount or recheck shall be paid by the state upon warrant issued by the secretary of finance and administration supported by a voucher of the secretary of state, or shall be paid by the county upon warrant of the county clerk from the general fund of the county, as the case may be.  

D.        If no error or fraud appears to be sufficient to change the winner, the costs and expenses for the recount or recheck shall be paid by the applicant. Costs shall consist of any docket fees, mileage of the sheriff in serving summons and fees and mileage of precinct board members, at the same rates allowed witnesses in civil actions. If error or fraud has been committed by a precinct board, they shall not be entitled to such mileage or fees. 

Again, seems fairly simple. The costs are supposed to be paid, but there is not one iota of law saying that 100 percent of the cost is to be paid up front.  Indeed, the over-all effect of every article pertaining to elections seems to be that vote counting, including recount and recheck, is to be facilitated.

So now two third-party candidates are back in court, in New Mexico, appealing a lower court ruling that they must come with the price beforehand.  http://www.commondreams.org/news2004/1228-20.htm

The statement from Green Party candidate David Cobb:  “We believe the law is on our side and look forward to a full recount of the presidential vote. There are still many unanswered questions about provisional ballots, missing votes and the integrity of voting machines which don't produce a paper trail. The people of New Mexico deserve to know that their votes will be counted fairly and accurately."

Sounds like the right call.  One of my aunts lives in Albuquerque, by the way.  For her sake and others’, I hope the state and national Democratic party will step up to the plate here.  Wanting to prevent a recount doesn’t look good in the first place – I mean, there is literally no reason to assume that it comes from some good motive.  Add to that a willingness to invent law, and you have a pretty strong X-marks-the-spot for abuses.