As Ned highlights, the Otero County Commission saga in New Mexico that began this week is over (for now). Back in February, I blogged about “election subversion and writs of mandamus.” We don’t have many disputes like this (although I highlighted examples in Michigan and Ohio), but here’s another. Note that we needed no change any existing statute. The mechanism is a bit clunky, sure, and it takes time. But existing state mandamus works.
It’s a reason, in my judgment, that headlines like this one from the Associated Press, “County’s refusal to certify the vote hints at election chaos,” aren’t the most responsible (including the focus of the piece). We have legal structures in place to address weaknesses in the system like this, and they played out pursuant to the law and without incident here.
Three other things to emphasize.
First, some worried, “What if the commissioners ignore mandamus?” But it’s apparent that a board that went from 3-0 against certification to 2-1 in favor in a few days because they realized they had little place else to go. Defying mandamus may result in fines, imprisonment until they comply, removal from office and replacement with other officers, and potential court order of someone else to perform the task anyway. Face with these prospects (especially loss of office), the commissioners gave in.
Second, what if commissioners actually have legitimate concerns about the election? It’s just worth emphasizing that different agents have different responsibility for exploring different concerns. Some pre-election decisions (about voting machine vendor contracts, for instance) won’t be revisited after the election. State officials in New Mexico direct recounts, not county officials. The local canvassers from each precinct do their due diligence to verify the substantive vote totals. In short? Not every government official gets to revisit every decision.
Third, if the job is just ministerial, why have the county commissioners do it? Well, it’s not always ministerial. Sometimes, they do have substantive duties. Here, however, the commissioners didn’t have any of those substantive concerns and simply wanted to revisit decisions made by or whose responsibility resides in other state officials. It would be possible, of course, to let a district court judge “certify” the results, but that would include taking on these other tasks, too, and there are some downsides in moving the execution of the law to the judiciary.