Calkins v. Stearley

• Decision Date: 07 November 2006
• Docket Number: No. 25,790.,25,790.
• Citation: 149 P.3d 118,2006 NMCA 153
• Parties: Howard CALKINS, Contestant-Appellee/Cross-Appellant, v. Robert STEARLEY, Contestee-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 118

149 P.3d 118

2006 NMCA 153

Howard CALKINS, Contestant-Appellee/Cross-Appellant, v. Robert STEARLEY, Contestee-Appellant/Cross-Appellee.

No. 25,790.

Court of Appeals of New Mexico.

November 7, 2006.

Dennis K. Wallin, The Law Offices of Dennis K. Wallin, P.C., Moriarty, NM, for Appellee/Cross-Appellant.

Robert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, NM, for Appellant/Cross-Appellee.

OPINION

WECHSLER, Judge.

{1} This case is an election contest of the Town of Edgewood mayoralty election in 2004. The canvassing board certified that Contestee Robert Stearley won by one vote. He was awarded the certificate of election. Contestant Howard Calkins timely contested the election. The Town of Edgewood intervened as a party. After trial, the district court determined that three Stearley voters and two Calkins voters were ineligible to vote because they did not reside within the Town of Edgewood. The district court also determined that a voter whose name did not appear on the voter registration list and who voted on a "required challenge" ballot for Calkins did not cast a vote that should be counted, and further, that a voter who entered the voting machine but did not activate the indicator to cast a vote should not have her vote counted for Stearley, for whom she testified she voted. The district court, therefore, concluded that the election resulted in a tie vote, necessitating a decision by impartial lot under NMSA 1978, § 3-8-60 (1985).

{2} The issues on appeal are framed by Stearley's appeal and Calkins' cross-appeal. Stearley argues that Calkins could not challenge the legality of non-resident voters in an election contest in district court unless he first exercised a challenge before or during the election. He also argues that the vote of the voter who did not activate the vote cast indicator, Dorothy Brown, should be counted. Calkins argues that the vote of the voter who voted by required challenge ballot, Madelyn Hastings, should be counted. Neither contends that the non-resident voters were qualified to vote. Because all issues raised are matters of statutory interpretation, we afford them de novo review, after considering factual findings for substantial evidence. See Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 7, 129 N.M. 698, 12 P.3d 960. We hold that the Municipal Election Code, NMSA 1978, § 3-8-64 (1985), permits a candidate to challenge the legality of voters in district court without challenge prior to or during the election. We additionally hold that the district court properly addressed the votes at issue. We affirm the judgment of the district court.

TIMING OF CHALLENGES

{3} Election statutes provide various means to challenge the legality of a registered voter. Under NMSA 1978, § 1-4-22(A) (1995), the secretary of state, county chairs of major political parties, and twenty county voters may petition prior to an election to cancel the voter registration of persons improperly registered. Under NMSA 1978, § 3-8-31(A)(1) (1999), candidates may appoint challengers for polling places in a municipal election. These challengers, as well as election officials, may challenge the qualifications of a voter at the polls or the reading of absentee ballots. NMSA 1978, § 3-8-43(A) (2003); NMSA 1978, § 3-9-15 (1999). If a challenge at the polls is affirmed by election judges in a municipal election, the vote of the challenged voter is collected in a sealed envelope with the voter's name and labeled as rejected. Section 3-8-43(B)(1)(c).

{4} This case poses the question of whether these statutes are the exclusive means to challenge a non-resident voter in a municipal election. The question raises the tension between efficiency and finality on the one hand and completeness in the purity of the electorate on the other.

{5} Both sides of this question stake claim to the high ground. In arguing exclusivity, Stearley states that prohibiting post-election challenges eliminates the desire for political advantage from the challenge process, thereby protecting the fairness of the process and the purity of the election. He further states that requiring candidates to exercise the statutory challenge procedures and limiting post-election challenges to discrepancies that could not be reasonably discovered before or during the election promotes the interest of the electorate in finality without unduly burdening the process with post-election disputes concerning voter qualifications. The procedure Stearley promotes is described in the context of a collective bargaining election under the National Labor Relations Act in NLRB v. A.J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946).

One of the commonest protective devices is to require that challenges to the eligibility of voters be made prior to the actual casting of ballots, so that all uncontested votes are given absolute finality. In political elections, this device often involves registration lists which are closed some time prior to election day; all challenges as to registrants must be made during the intervening period or at the polls. Thereafter it is too late. The fact that cutting off the right to challenge conceivably may result in the counting of some ineligible votes is thought to be far outweighed by the dangers attendant upon the allowance of indiscriminate challenges after the election. To permit such challenges, it is said, would invade the secrecy of the ballot, destroy the finality of the election result, invite unwarranted and dilatory claims by defeated candidates and keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with the close of the polls.

Id. at 331-32, 67 S.Ct. 324 (internal quotation marks and citation omitted).

{6} The opposite position pursues the purity of the election by continuing the purging process through post-election review. With such a goal, every opportunity is afforded to purge unqualified voters in order to give full effect to the will of the majority of qualified voters. See Kiehne v. Atwood, 93 N.M. 657, 661-62, 604 P.2d 123, 127-28 (1979). This policy, by extending the process, more fully embraces completeness at the expense of efficiency. The policy proposed by Stearley embraces finality, to some extent sacrificing completeness, but, as argued by Stearley, removes the motives necessarily contained in a post-election challenge to change the victor in the process.

{7} Stearley brought this contest under Section 3-8-64(A), which addresses an election contest in a municipal election. See also NMSA 1978, § 1-14-4 (1969) (addressing election contests in non-municipal elections). Section 3-8-64(A) provides:

Judgment shall be rendered in favor of the person legally qualified to take office for whom a plurality of the legal votes shall be proven to have been cast in accordance with 3-8-32 NMSA 1978, and shall be to the effect that the person is entitled to the office in controversy with all the privileges, powers and emoluments belonging thereto and for his costs. If the contestant prevails, then that person shall have judgment placing the contestant in possession of the contested office and for the emoluments thereof from the beginning of the term for which the contestant was elected and for costs.

{8} We have previously discussed Section 3-8-64(A) in Darr v. Village of Tularosa, 1998-NMCA-104, 125 N.M. 394, 962 P.2d 640. In that case, also a municipal election contest, there were irregularities in the election process involving non-resident voters and voters who received absentee ballots but voted in person. Id. ¶¶ 3, 5. The district court rejected the results of the election based on NMSA 1978, § 3-8-67 (1985), which permits such a result if election officials fail to substantially comply with their responsibilities under the Municipal Election Code. Darr, 1998-NMCA-104, ¶ 6, 125 N.M. 394, 962 P.2d 640. We held that the district court erred because, despite the "impurity" of the process, the district court could have determined the "lawful winner" of the election by identifying the persons who voted unlawfully and, through the testimony of those persons or other circumstantial evidence, excluding their votes. Id. ¶¶ 13-16, 18. Through Section 3-8-64(A), we avoided disenfranchising the lawful voters and accomplished "the essential principle of the elective system . . . that the will of the majority of the qualified voters shall determine the right to an elective office." Darr, 1998-NMCA-104, ¶ 17, 125 N.M. 394, 962 P.2d 640 (alterations in original omitted) (internal quotation marks and citation omitted).

{9} We note that, in Darr, we mentioned the exclusivity of the statutory means of challenging unqualified voters in passing. Id. ¶ 4. The district court had stated that it ordinarily would have considered the failure to challenge on the election day as a waiver, but would not because of confusion concerning voter eligibility caused by statements of officials. Id. Apparently, this issue was not raised in the case because we did not otherwise discuss it. Id. We nevertheless held that the district court could have entertained the challenges as part of a Section 3-8-64(A) analysis. Darr, 1998-NMCA-104, ¶ 20, 125 N.M. 394, 962 P.2d 640. We believe that Darr counsels that such an analysis is not improper in appropriate circumstances, in the effort, under Section 3-8-64(A), to determine the lawful winner in a municipal election contest. We do not believe that the circumstances of this case, in which the electorate is discrete and the number of challenges is small, justifies a different result.

{10} Stearley relies on A.J. Tower Co., in which the United States Supreme Court upheld the NLRB's policy prohibiting post-election challenges on an abuse-of-discretion standard. A.J. Tower Co., 329 U.S. at 332-33, 67 S.Ct....