Cobb v. N.M. State Canvassing Board

• Decision Date: 16 May 2006
• Docket Number: No. 29,095.,29,095.
• Citation: Cobb v. N.M. State Canvassing Board, 2006 NMSC 34, 140 P.3d 498, 2006 NMSC 34, 140 N.M. 77 (N.M. 2006)
• Parties: David COBB and Michael Badnarik, Petitioners-Appellants, v. STATE CANVASSING BOARD of the State of New Mexico, Rebecca Vigil-Giron, in her capacity as Secretary of State, Bill Richardson, in his capacity as Governor, Petra Jimenez Maes, in her capacity as Chief Justice, Respondents-Appellees.
• Court: New Mexico Supreme Court

Page 498

140 P.3d 498

2006 NMSC 034

David COBB and Michael Badnarik, Petitioners-Appellants, v.STATE CANVASSING BOARD of the State of New Mexico, Rebecca Vigil-Giron, in her capacity as Secretary of State, Bill Richardson, in his capacity as Governor, Petra Jimenez Maes, in her capacity as Chief Justice, Respondents-Appellees.

No. 29,095.

Supreme Court of New Mexico.

May 16, 2006.

COPYRIGHT MATERIAL OMITTED

Freedman Boyd Daniels, Hollander & Goldberg, P.A., John W. Boyd, Theresa M. Duncan, Albuquerque, NM, Garcia & Vargas, L.L.P., David P. Garcia, Santa Fe, NM, Law Offices of Lowell Finley, Lowell Finley Berkeley, CA, for Petitioners.

Patricia A. Madrid, Attorney General, David K. Thomson, Assistant Attorney General, Zachary Shandler, Assistant Attorney General, Santa Fe, NM, for Respondents.

OPINION

SERNA, Justice.

{1}Petitioners, two candidates in the 2004 presidential election, applied to the State Canvassing Board for a recount and recheck of certain ballots and deposited $114,400 for both procedures as required by NMSA 1978, Section 1-14-15(A), (B)(2001)(amended 2005).The State Canvassing Board conditioned beginning the recount and recheck procedures on Petitioners first depositing $1.4 million, the entire estimated cost, in advance.A lawsuit ensued challenging whether the State Canvassing Board had such authority.While this case was on appeal, the Legislature amended Section 1-14-15(B) to authorize the State Canvassing Board to condition any recount on a deposit of the full estimated costs of the recount or any portion thereof.

{2} The State Canvassing Board argues that the 2005amendment to Section 1-14-15 makes this case moot for two reasons.First, because the Legislature amended Section 1-14-15(B), this case is incapable of repetition.Second, two years after the election a recount under NMSA 1978, Section 1-14-14(1977) would have no effect on the winner of the 2004 presidential election.Petitioners contend that the Section 1-14-15(B)amendment is an unconstitutional delegation of legislative power, and as a result the 2001 version of Section 1-14-15(B) is still effective.Furthermore, Petitioners concede that a recount would not have an effect on who is President, but urge this Court to reach the merits of their claim because it is an issue of substantial public interest and the State Canvassing Board's requirement of an advance payment of the recount and recheck costs is capable of repetition yet evading review.

{3}We agree with Petitioners that the 2005amendment to Section 1-14-15 is an unconstitutional delegation of legislative authority; consequently, the 2001 version of the statute is still effective.Under this earlier version of the statute, we hold that the State Canvassing Board had no authority to require a deposit of the full estimated costs of the recount and recheck before starting the procedures.However, we do not remand and order a recount and recheck because a recount and recheck are no longer possible, and any change in New Mexico's 2004 presidential election results cannot change the ultimate result of the presidential election, which makes the remedy moot.

I.FACTS AND PROCEDURAL HISTORY

{4} The 2004 presidential election was conducted on November 2, 2004.New Mexico's candidates for President were incumbent President George W. Bush, Republican party; Senator John Kerry, Democratic party; Ralph Nader, Independent; Michael Badnarik, Libertarian party; David Cobb, Green party; and Michael Peroutka, Constitutional party.David Miles, Results Certified at Last: Bush Beat Kerry in N.M., Albuquerque J., Nov. 24, 2004, at A1, A2.George W. Bush won reelection, id., and New Mexico's five electoral college votes, Andy Lenderman, Electoral College Members Cast Votes, Albuquerque J., Dec. 14, 2004, at D3.President Bush edged out Senator Kerry by a margin of 5,988 votes.Miles, supra, at A1.Petitioners, David Cobb and Michael Badnarik, received 3,608 votes combined, 0.48 percent of the 756,304 total votes cast.Id. at A2.

{5} Due to the small margin between President Bush and Senator Kerry, Petitioners filed a request for a recount and recheck on November 29, 2004, with the Secretary of State under Section 1-14-14(A), which states:

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 committed¹ 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.

(Footnote added.).On the same day, Petitioners made a deposit of $114,400 for a recount and recheck with the Secretary of State, more than statutorily required by Section 1-14-15(A).Section 1-14-15(A) provides:

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.

Petitioners requested a recount of 1,500 precincts and a recheck of 3,367 voting machines, requiring a cash deposit or surety bond of $108,670 under the language of Section 1-14-15(A).

{6}Petitioners filed a petition for a writ of mandamus in the district court, seeNMSA 1978, § 1-14-21(1977), on December 10, 2004, to require the State Canvassing Board to issue summonses directing the precinct boards to appear and conduct the recount and recheck of all the precincts stated in Petitioners' application, seeNMSA 1978, § 1-14-16(1977).Each summons is forwarded to the county clerk of each county where the stated precincts are situated.Section 1-14-16(A).The county clerk (1) delivers the summons to the sheriff, who serves it on each precinct board member, and (2) sends notices by registered mail to the district judge of the county and the county chairperson of each political party that participated in the election in each precinct.Section 1-14-16(B).Section 1-14-16(C) commands the precinct board members, the district judge, and the county clerk to appear and conduct the recount and recheck no later than ten days after the filing of the application.On December 10, 2004, eleven days had already passed from Petitioners' original request with no action from the State Canvassing Board.At a December 13, 2004, hearing, the district court denied Petitioners' writ as premature because the State Canvassing Board was to meet and address Petitioners' request the following day, but the district court maintained jurisdiction over the case.

{7} On December 14, 2004, the State Canvassing Board issued an order granting Petitioners' application conditioned on Petitioners submitting an additional $1.4 million, far exceeding the $114,000 deposited by Petitioners.The $1.4 million reflected both the costs mentioned in Section 1-14-15(A) and the additional statutory costs associated with the recount and recheck.SeeNMSA 1978, § 1-14-15(D)(2005)("Costs shall consist of any docket fees, mileage of the sheriff in serving summons [to members of the precinct board(s) named in the application] and fees and mileage of precinct board members, at the same rates allowed witnesses in civil actions.").The State Canvassing Board based its decision on statutory language stating "[t]he 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."Section 1-14-15(B)(2001)(emphasis added).If the fraud or error alleged by Petitioners was not sufficient to change the result of the election, Petitioners would be responsible for the entire $1.4 million.Section 1-14-15(D).However, if the fraud or error was sufficient to change the winner, the State would pay the costs of the recount and recheck.Section 1-14-15(C).The State Canvassing Board found that "security" required the entire estimated cost of the recount and recheck to be paid up front to protect New Mexico taxpayers because the total cost of the recount and recheck far exceeded the amount Petitioners deposited.Additionally, in the Order Granting Application Conditioned on Additional Funds, the State Canvassing Board stated that Petitioners admitted that the error or fraud would not likely change the winner of the presidential election which meant that Petitioners would ultimately be financially responsible for the additional costs.

{8} Returning before the district court on December 15, 2004, Petitioners noted that the deposit they made was more than required under the plain language of Section 1-14-15(A) and that the State Canvassing Board had no statutory authority to condition a recount or recheck on an upfront payment of all estimated costs.Petitioners also contested the State Canvassing Board's finding in the Order Granting Application Conditioned on Additional Funds that Petitioners admitted the error or fraud would not change the winner of the...