A national elections watchdog group has told Secretary of State Dianna Duran that her referral of 64,000 voter registrations to the state Department of Public Safety for investigation might undermine confidence in the system and violate state law.

In a letter to Duran dated Thursday, Ben Hovland, senior counsel for the Washington, D.C.-based Fair Elections Legal Network, wrote, "We fear that your attempt to ensure 'accuracy and integrity' in the system has had the opposite effect as unsubstantiated claims of large numbers of irregularities on voter registration records do not lead to greater accuracy of records and may, indeed, serve to undermine confidence in the system."

Hovland asked for additional details as to the nature of this investigation, including the methodology used to select and examine the 64,000 registration records, when the investigation might be finished, and information about the steps taken to protect the private data in the registration records being investigated.

Ken Ortiz, chief of staff for the secretary of state, said Thursday that Duran is out of the office until next week and couldn't respond to the letter.

FELN's website says its mission is "to remove barriers to registration and voting for traditionally underrepresented constituencies and improve overall election administration through administrative, legal and legislative reform."

Though it is a nonpartisan organization, FELN is opposed to laws that require voters to show photo identification at the polls, which most contemporary Republicans — including Duran — strongly support.

The first public mention of the SOS cross-checking voter files with MVD records was at a legislative hearing in March on a bill to require photo identification for voting. Duran testified that an initial check showed at least 37 noncitizens have voted here.

In June, Duran said the state voter files had been cross-checked with motor vehicle records. The 64,000 registrations given to the DPS were "questionable" cases in which information such as names, Social Security numbers and dates of birth on the voter list didn't match with information on Motor Vehicle Division files.

"I'm just trying to assure the accuracy of our voter files," Duran said in June. "It's not a fishing expedition. It's not a witch hunt." Duran said she thought the Department of Public Safety's Special Investigations Division was better equipped to handle such an investigation than her office.

Hovland said "database matching is an inherently challenging process and seems to be nearly impossible to perform with any accuracy without utilizing the categories of information that New Mexico law designates as private protected information."

He referred to a 2007 Pew Center on the States study of the federal Help America Vote Act that said, "All large databases contain mistakes — typos or transposed fields, for example, that would prevent records from matching even when they represent the same person. Also, databases record information inconsistently, which makes it even more difficult to find proper matches."

The Pew study referred to research by The Brennan Center for Justice at the New York University School of Law that said, "If the right to vote [in New York City] were conditioned on a proper match, up to 20 percent of new voter registrations would have been rejected solely because of data entry errors. Similar 'matching' error rates of 20-30 percent were discovered in Washington State. And the Social Security Administration has reported a 28.5 percent failed match rate nationwide."

Hovland's letter quoted a New Mexico law that says, "It is unlawful for the qualified elector's month and day of birth or any portion of the qualified elector's social security number required on the certificate of registration to be copied, conveyed or used by anyone other than the person registering to vote, either before or after it is filed with the county clerk, and by elections administrators in their official capacity."

In a telephone interview Thursday, FELN president and co-founder Robert Brandon said that under the state law it might be illegal to give law enforcement such information. "If she is asking the police to help with a purely administrative function of cleaning up the voter lists, it could violate the cited statute unless their was some kind of (memorandum of understanding) asking the police to simply help with the administrative task and a process in place to protect the data and privacy of the registered voters," he said.

Otherwise, Brandon said, the investigation should have been referred to the state attorney or a district attorney.


Contact Steve Terrell at 986-3037 or sterrell@sfnewmexican.com. Read his political blog at roundhouseroundup.com.

UPDATE 9:40 a.m. 9-2-11. The last paragraph was updated to more accurately reflect what Robert Brandon said in the interview