We all know what voting is. But what exactly should count as a vote?

That's the question at the heart of a lawsuit filed against Secretary of State Mary Herrera by the New Mexico League of Women Voters.

The league says Herrera plans to apply too narrow a standard regarding ballots that will be hand-tallied in the Nov. 4 election.

And, the group wants the state Supreme Court as soon as possible to order Herrera to expand the steps that can be taken to determine voter intent.

One section of law says votes on paper ballots that are hand-tallied should count if:

• The ballot is marked in accordance with the instructions for that ballot type. (For the paper ballots used in this year's election, the instructions say to fill in the circle to the left of your choice of candidates or other answer.)

• The preferred candidate's name or answer to a ballot question is circled.

• There is a cross or check within the voting response area for the preferred candidate or answer to the ballot question.

• The presiding judge and election judges for the precinct unanimously agree the voter's intent is clearly discernible.

However, an administrative rule set out by the secretary of state in late September leaves out the fourth point.

Gerald Gonzalez, head of the state's Elections Bureau at the Secretary of State's Office, said the office left out that point on the advice of the Attorney General's Office.

"The AG said that really does not comply with the U.S. Supreme Court decision in Bush v. Gore; it allows too much room to determine voter intent," he said. "She adopted rules and left that out because of advice provided by the AG."

In a letter to Herrera, the AG's Office said the fourth section of the law could be problematic.

"Absent more specific criteria, precincts in New Mexico attempting to implement (the section) could well apply different standards for discerning voter intent and accepting or rejecting votes, Assistant Attorney General Elizabeth Glenn wrote. "This would lead to the unequal treatment of voters found objectionable by the U.S. Supreme Court."

The league worries Herrera's rules mean some votes won't be counted.

"The purpose of this suit is to tie up a loose end in the administration of the statute governing the way votes are tallied by hand," Katherine Campbell, president of the League of Women Voters of New Mexico, said in a statement.

"Our suit, assuming it's successful, will ensure that an overly restrictive interpretation of the statute is not allowed to prevent the counting of a vote where the intent of the voter is clear," she said.

The league also is concerned about what kind of ballot marking Herrera will allow to be counted in the cases where voters don't fill in the circles but rather use a check mark or cross to indicate their choice.

At issue is what constitutes a cross or a check.

In the lawsuit, the league worries that Herrera's regulations are so narrow "that only ballot markings closely conforming to the typographical or pictorial representations of a cross or check shown in the regulation will be counted as votes."

Gonzalez said a speedy decision from the court could help clarify guidelines to be used in dealing with the markings.

"The election code itself has a conflict because in one place it doesn't define "check" or "mark" and in another it does," Gonzalez said. "So there's a conflict in our rules as well as a result of one part of our rules tracking with one section of law and another tracking with another," he said.

"It would probably be a useful thing if the court said 'OK, this is how we are going to get all the conflicting provisions and sections to agree,' " Gonzalez said.

No hearing has been set in the case.

Contact Kate Nash at 986-3036 or knash@sfnewmexican.com. Read her blog, Green Chile Chatter, at www.santafenewmexican.com.