N.M. court rules on vote counting

Deborah Baker | The Associated Press

10/29/2008 -

Less than a week before Election Day in this presidential swing state, the state Supreme Court issued an order optimizing the chances for ballots to be counted when voters don't mark them properly.

The high court upheld the constitutionality of a section of state law that says a vote must be counted if election judges in a precinct unanimously agree what the voter's intent was.

The secretary of state, on the advice of the attorney general, wasn't going to allow that, objecting that the section was unconstitutional. The League of Women Voters sued.

The ruling affects paper ballots that are hand-tallied — provisional or absentee ballots, for example — on which voters didn't follow instructions to fill in the oval next to candidates' names.

It means a vote could be counted no matter what kind of mark was made, as long as the precinct's presiding judge and election judges "unanimously agree that the voter's intent is clearly discernible" — the wording in state law.

"We are very pleased the court has accepted our arguments and the maximum number of votes will be counted in the upcoming election," said Katherine Campbell, president of the League of Women Voters of New Mexico.

The law also specifically says ballots must be counted if the voter circles a candidate's name or uses a cross or check mark.

The court ordered Secretary of State Mary Herrera to issue guidelines to help election judges exercise their discretion in deciding whether votes should be counted.

"As long as it clear to us that we are not contradicting or violating a federal law ... that is what we're going to do," said Deputy Secretary of State Don Francisco Trujillo. "We appreciate the court's clarification."