Gunaji v. Macias

Citation31 P.3d 1008,130 N.M. 734,2001 NMSC 28
Decision Date12 September 2001
Docket NumberNo. 25,896.,25,896.
PartiesNarendra GUNAJI and Maria S. Sutton, Plaintiffs-Appellants-Contestants, v. Fernando MACIAS, Gilbert Apodaca, and Rita Torres, County Clerk, Defendants-Appellees-Contestees.
CourtSupreme Court of New Mexico

Martin, Lutz, Roggow & Brower, P.C., William Lutz, Las Cruces, NM, for Appellants.

Law Offices of Xavier Acosta, Xavier E. Acosta, Hubert & Hernandez, P.A., Lee Peters, Sandenaw, Carrillo & Piazza, P.C., Raul A. Carrillo, Jr., Las Cruces, NM, for Appellees.


MAES, Justice.

{1} This election contest raises the issue whether a new election must be held where in a given precinct, an error by the County Clerk caused a number of invalid votes to be cast greater than the margin of victory in that precinct. We hold that while the election was not "free and open" under article II, § 8 of the New Mexico Constitution, the proper remedy is to draw an analogy from a section of the Election Code covering cases closely related to the instant one, meaning the votes in the precinct in issue are to be rejected.


{2} This is an election contest involving the November 5, 1996 general elections in State Senate District No. 38 and Dona Ana County Commissioner District No. 5. In the Senate District, the Democratic candidate was Contestee Fernando R. Macias and the Republican candidate was Contestant Narendra N. Gunaji. For County Commissioner, the Democratic candidate was Contestee Gilbert T. Apodaca and the Republican candidate was Contestant Maria S. Sutton. On election day, an incorrect ballot face was discovered on machine number 4719 at Precinct 31 in Dona Ana County. The ballot face contained two errors. First, it showed the State Senate race as between Mary Jane Garcia as the Democrat and Thomas Bulger as the Republican. Second, instead of listing the candidates for County Commissioner in District No. 5, it incorrectly listed the race for Dona Ana County Clerk (Rita Torres, unopposed).

{3} Sixty-six voters cast their votes using the wrong ballot face on machine number 4719. If any of the sixty-six voters who used the incorrect ballot face voted for the Democratic candidate for State Senate listed on the ballot face, Mary Jane Garcia, the votes were credited to Macias even though his name was not on the ballot face. The same held true for Gunaji if any votes among those initial sixty-six voted for the Republican candidate for State Senate listed on the ballot face. A similar situation was occurring in the race for County Commissioner. The error was discovered on election day, but the response of the election officials only compounded the problem. Although they replaced the flawed ballot face with a correct ballot face, machine 4719 remained in use, and 112 more people cast votes after the flawed ballots were replaced. The votes of the sixty-six persons using the wrong ballot face were commingled with the votes of the persons using the correct ballot face.

{4} The official results for the race for Senate District No. 38 were 5,297 votes for Contestee Macias and 5,286 votes for Contestant Gunaji, a difference of eleven votes. The official results for the race of County Commissioner District No. 5 were 4,507 votes for Contestee Apodaca and 4,409 votes for Contestant Sutton, a difference of ninety-eight votes. Therefore, it appears for both races that a swing vote of sixty-six (or fewer) votes away from the winner and in favor of the loser could have turned the election around. That is, it is possible that all sixty-six voters voted for the winner but would have voted for the opposite candidate had the ballot face been correct throughout the election.

{5} The final official vote total from Precinct 31 for the Senate race was 205 for Gunaji and 159 for Macias. The final official vote total from Precinct 31 for County Commissioner was 185 for Apodaca and 160 votes for Sutton. Thus, if the votes in Precinct 31 were omitted as a whole from the overall totals, the results would be unchanged.

{6} There was also an issue concerning absentee ballots. Four absentee precincts included voters in Senate District No. 38 and County Commissioner District No. 5. There were twenty-four more votes than there were voters in the absentee precincts that affected this race, as well as thirty incorrect ballots. Because the parties have abandoned any issues of absentee ballots in their briefs, we do not discuss them.

{7} Count I of Contestants' complaint was an election contest. Count II sought a declaratory judgment as to whether the elections were valid in view of the irregularities. Count III alleged a civil rights violation against the County Clerk, who removed the matter to federal court pursuant to 28 U.S.C. § 1441 (1991). The United States District Court dismissed Count III and remanded the action to state court. The trial court granted summary judgment on Count I. Contestees' motion to dismiss was granted on Count II, the court holding, "Contestants are not entitled to the equitable relief sought in the context of an election contest as a matter of law." RP 532.

{8} The standard of review is de novo. We said in Hasse Contracting Co., Inc. v. KBK Financial, Inc., 1999-NMSC-023, ¶ 9, 127 N.M. 316, 980 P.2d 641: "Summary judgment is appropriate when ... the parties do not dispute the facts, but only the legal effect of those facts ... In such cases, the district court determines as a matter of law which movant is entitled to summary judgment ... Appellate courts review matters of law de novo." The same reasoning applies to review of the grant of a motion to dismiss where all that is before the court are pleadings and affidavits. CABA Ltd. Liability Co. v. Mustang Software, Inc., 1999-NMCA-089, ¶ 9, 127 N.M. 556, 984 P.2d 803.


{9} Noting that the terms of the offices in issue have expired, Contestees argue that the case is moot and that this Court should therefore dismiss the appeal. As a general rule, this Court does not decide moot cases. Mowrer v. Rusk, 95 N.M. 48, 51, 618 P.2d 886, 889 (1980). A case is moot when "no actual controversy exists," id., and the court cannot grant "actual relief." Atchison, Topeka & Santa Fe Ry. Co. v. State Corp. Comm'n, 79 N.M. 793, 794, 450 P.2d 431, 432 (1969). Accordingly, an election contest becomes moot when the term for the corresponding office expires. See Arellano v. Chacon, 1 N.M. 269, 270 (Gild.1859). See also State v. Vogel, 39 N.M. 122, 123-24, 41 P.2d 1107, 1108-09 (1935) (holding judgment of removal from office is moot if official's term of office would expire shortly after removal); State ex rel. Hughes v. McNabb, 38 N.M. 92, 92, 28 P.2d 521, 522 (1933) (holding mandamus proceeding is moot where, among other factors, official against whom mandamus was sought is no longer in office). The terms of office in this case have expired, so the case is moot.

{10} However, this Court may review moot cases that present issues of substantial public interest or which are capable of repetition yet evade review. Johnson v. Francke, 105 N.M. 564, 564 n. 1, 734 P.2d 804, 804 n. 1 (Ct.App.1987); Mowrer, 95 N.M. at 51, 618 P.2d at 889. This case presents such issues. Contestants argue that the mistakes on the ballot face resulted in an election that was not "free and open" as required by article II, § 8 of the New Mexico Constitution and that the proper remedy is a new election. This argument raises issues of substantial public interest. First, does the Election Code provide the exclusive means of contesting an election in New Mexico or are there other means of contesting an election? Second, what is the proper remedy when the number of votes cast on an incorrect ballot face is high enough to have potentially changed the outcome of the election? These issues are also capable of repetition. Human error cannot be eliminated from the election process, so election contests based on incorrect ballot faces are likely to arise again in New Mexico. Moreover, these issues may evade review because terms of office may expire before this Court decides them.

{11} Contestees argue that in order for an issue to be capable of repetition, the specific contests must be likely to occur again. Although this is a requirement under federal law, see Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975),

there is no such requirement in New Mexico. Therefore, contrary to Contestee's contentions, an issue can be capable of repetition under our mootness doctrine even though the parties are unlikely to litigate the same issue again. It is sufficient that the issue be capable of repetition in some future lawsuit; the identity of the parties is irrelevant. Although Contestants and Contestees are unlikely to ever litigate these issues again, the issues are still capable of repetition in future election contests.


{12} The thrust of the contest and this appeal is that when eligible voters are provided invalid ballots omitting candidates required to be on the ballot and the number of votes is sufficient to effect the outcome of the election, a new election must be held to comply with article II, § 8 which provides, "All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." Also central to this case is NMSA 1978, § 1-14-13 (1969), which provides:

A. In any election contest a prima facie showing that the precinct board of any precinct has failed to substantially comply with the provisions of the Election Code... that protect the secrecy and sanctity of the ballot and prescribe duties of the precinct board during the conduct of election, shall cast upon the candidates of the political party having majority representation on the precinct board the burden of proving that no fraud, intimidation, coercion or undue influence was exerted by such members of the precinct

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