Yvette Herrell asks district court to impound absentee ballots in Doña Ana County

Algernon D'Ammassa | Las Cruces Sun-News

LAS CRUCES - Republican state Representative and congressional candidate Yvette Herrell wants New Mexico State Police to impound all absentee ballots cast in Doña Ana County in the Nov. 6 general election.

The 8,517 ballots determined the winner of New Mexico's second congressional district race between Herrell and Democrat Xochitl Torres Small for an open U.S. House seat. On election night, Herrell led by nearly 2,000 votes, but when all the votes were counted, including provisional ballots, unofficial results left Torres Small ahead by about 3,500 votes, or 50.9 percent of the vote.

In a petition filed in New Mexico's Third Judicial District on Tuesday evening, Herrell cited the New Mexico statute granting candidates the right to petition for a court order impounding ballots in one or more election precincts where they are a candidate.

The petitions must be submitted along with a $25 deposit per precinct requested. Herrell's petition targets just one precinct: the absentee ballots cast in Doña Ana County, which delivered a majority of votes for Herrell's opponent in the U.S. House election for New Mexico second congressional district.

If the petition is granted, the district court could order state police to assume custody of all tally sheets, registration certificates, paper ballots, absentee ballots, statements of canvass, absentee ballot applications and registers, according to the statute.

The petition follows a television appearance during which Herrell claimed to have received "over 100 documented complaints" about the election,and told Fox news host Jeanine Pirro, "I think that maybe we need to look into it a little bit more."

'Contact our office with any irregularities'

In a news release sent Wednesday, Republican Party of New Mexico Chairman Ryan Cangiolosi said, "In response to concerns raised by voters, the Yvette Herrell campaign made the decision yesterday to file a petition in Doña Ana County District Court to allow for a review of the absentee ballot process. We hold a responsibility to look into these matters so we can provide voters the answers they deserve, and believe this is a common sense step to ensure the integrity of this election.”

Herrell's petition states that she wishes to preserve the ballots and "investigate reports of chain-of-custody issues and other improprieties."

The Secretary of State's office told the Sun-News Wednesday afternoon it had received no official complaints regarding the county or the congressional election.

The Sun-News has made repeated attempts to reach Herrell and her campaign senior advisor, Rob Burgess, as well as state and local Republican Party officials, but none have responded.

On Tuesday night, the Doña Ana Republican Party stated on its Facebook page: "The Lawsuit has been filed and now is the time to contact our office with any irregularities you witnessed while voting or while trying to vote."

A surge in absentee voting

Tabulation of absentee ballots extended into Wednesday because the seven-member Absent Voter Board appointed by the county in 2017 to handle absentee ballots had to count 8,517 ballots in this year's election, compared to 2,500 in 2014 and 2,900 in 2016.

At about 1:30 a.m. on Nov. 7, the New Mexico Secretary of State’s office announced that roughly half of Doña Ana County's absentee ballots remained to be counted and an additional 4,000 absentee ballots had not yet been added to the vote tally. A partial count was not available because absentee ballots must be tabulated in one batch, similar to a polling location.

The timing fueled speculation by Herrell, in her single media appearance since the election, that Secretary of State Maggie Toulouse Oliver had "magically found 4,000 ballots that had not been counted."

The claim follows a tumultuous election night during which several media outlets, including the Sun-News, had projected that Herrell would win based on her 1,975-vote lead. Hours later, the Secretary of State reported that the number of absentee ballots remaining to be tabulated far exceeded that number.

The following day, Doña Ana County Clerk Amanda Lopez Askin supplemented the seven Absent Voter Board members with 10 additional poll workers with an even number of Democrats and Republicans. Among the Republicans was Doña Ana Republican Party chairwoman Betty Bishop.

Media were also permitted to observe the ballot count from a perimeter at the county Bureau of Elections warehouse.

In her television interview and the court petition, Herrell expressed her disappointment over the reversal of initial speculation that she had won. The court document complains that Herrell "was declared the winner by roughly 2,000 votes on election night, only to be stripped of that title the day after."

It also complains the reversal came "upon the late counting of a historically unprecedented number of absentee ballots that went overwhelmingly and disproportionately for her opponent."

Doña Ana County is the home county of her opponent, Torres Small.

Algernon D'Ammassa can be reached at 575-541-5451, adammassa@lcsun-news.com or @AlgernonActor on Twitter.