New Mexico Secretary of State seeks mandamus against county commission that refused to certify primary election results

UPDATE: Late this afternoon, the Court granted the writ.

The Otero County Commission expressed “doubts” about the primary election at its meeting June 13. They have until June 17 to certify the election results, but at the meeting the board unanimously refused to certify the results. It’s really a re-litigation of the 2020 election (although some are also suggesting it’s a “test” for 2022 or 2024)–the voting machines are unreliable, getting emails about people “super concerned,” “ghost voters,” and so on. State law has a process for a recount (which is likely for a couple of the races here), among other avenues, but the Commission opted not to wait for the legal process to play out.

At the meeting, it was raised that a writ of mandamus (as discussed at this point in the meeting video) would give the order to certify the results. One commissioner joked, “And so then what? They’re going to send us to the pokey?” “You’d be in contempt,” an attorney remarked. “And that’s how we get controlled from the top down,” commissioner Couy Griffin remarked, the “Cowboys for Trump” co-founder who was found guilty of entering a restricted area at the Capitol on January 6, 2021. (That comment prompted a long period of silence at the meeting.)

On June 14, the New Mexico Secretary of State filed a mandamus action (UPDATE: here’s the brief) in the state Supreme Court, Oliver v. Otero County Commission (dkt. S-1-SC-39426). I’ve already highlighted the role that mandamus might play, so I’m watching to see how the process plays out. (Existing law already allows district courts to issue mandamus against canvassing boards to certify election results, but it appears the Secretary of State opted for a different writ here.)

That said, I’m also watching to see two other things beyond this formal process. First, what if Commission refuses? Contempt is a serious consequence for refusal to obey. We’ll see if a successful mandamus sways the board. Second, will it create a kind of moral hazard? That is, if election officials simply refuse to certify election results because there’s a judicial backstop that would do the job for them, will cases like this one incentivize more bad behavior and require additional judicial intervention? One hopes not, but it’s wait and see.

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