Plagued by a missing tilde: Name change on candidate’s paperwork knocks him off ballot

Angel Peña

Misspellings of Angel Peña’s last name have been a hassle for him about as long as he can remember.

In school, on driver’s licenses and on business cards, his name has come out as Pena instead of Peña.

Now he is running for Congress, and the case of another missing tilde will keep him off the ballot.

A state district judge on Monday upheld Secretary of State Maggie Toulouse Oliver’s decision to disqualify Peña after tossing out eight pages of nominating petition signatures on the grounds that staff and volunteers had scratched out his name and rewritten it to include the appropriate accent.

The 29-year-old Democrat running for the 2nd Congressional District in the southern end of the state has five days to appeal the decision in what has turned out to be a distinctly New Mexican legal case.

But the Secretary of State’s Office argued it was not so complicated and that it did not have much to do with tildes, instead contending the case is simply a matter of strictly interpreting the law, which says a candidate’s name shall not be altered on his or her nominating petition.

A first-generation American and graduate of New Mexico State University, Peña is a program director at the Conservation Lands Foundation. He only jumped into the race in December.

For a spot on the ballot, Peña had to collect 623 signatures from voters registered as Democrats across the southern New Mexico district, which spans along the Mexican border, from Hobbs through Roswell and Las Cruces to Lordsburg.

On filing day, Feb. 6, Peña turned in 773 lines of signatures.

But the Secretary of State’s Office threw out 11 of his 45 pages of signatures because the header, listing the candidate’s name, address and political party, had been altered.

On eight pages, the problem came down to that tilde in Peña’s last name.

Peña’s lawyer says that when those pages were printed, the printer inexplicably rendered the “ñ” as an “Ó.”

“Angel Peña” appeared as “Angel PeÓa” and “Doña Ana County” appeared as “DoÓa Ana County.”

Volunteers and staff corrected the errors in pen.

But state law says that altering the candidate’s name on any page of a nominating petition invalidates that particular page.

The Secretary of State’s Office disqualified the eight pages as well as another two pages that were apparently garbled by a printer and an 11th page that listed an old address for Pena.

Pena challenged the disqualification, arguing there was never any intent to defraud voters. There was no dispute that these voters meant to support Angel Peña. Instead, his campaign argued, the changes were only meant to clarify typographical errors. Besides, leaving Peña’s name misspelled could have led to his disqualification, too.

“There was no bad faith, no intent to mislead voters,” his lawyer, Erika Anderson, argued in a Santa Fe courtroom on Monday.

Besides, his campaign argued, disqualifying Pena over tildes would be discriminatory.

Someone with the last name Smith, for example, would not face such an issue, Anderson argued.

The Secretary of State’s Office countered that the law is clear and that it must be allowed to enforce it strictly.

Peña was the only candidate for a statewide or congressional office disqualified after filing day earlier this month.

The office’s handbook for candidates expressly cautions against scratching out information on the header of a nominating petition.

And the Secretary of State’s Office noted that other campaigns managed to print accents just fine. Furthermore, other pages of Peña’s petitions listed his name correctly.

“The campaign had a responsibility to conform to the requirements under the statute,” said Sean Cunniff, a lawyer for the Attorney General’s Office representing the Secretary of State’s Office.

After a daylong hearing, Judge David K. Thomson ultimately sided with the Secretary of State’s Office, allowing it to apply the stricter interpretation of what it means to alter the candidate’s information on a nominating petition.

But the judge did reverse the Secretary of State’s Office on its decision to disqualify one page of Peña’s petition signatures that listed what turned out to be an old address for the candidate. A wrong address for a candidate is not grounds for disqualifying a page of petition signatures, unlike if the candidate’s name or political party were wrong, the judge said.

It is unclear whether Peña will appeal the decision. Meanwhile, a voter in the district is challenging the validity of more than 200 of the signatures that Peña turned in.

Without Peña, the Democratic Party primary election for the southern New Mexico congressional seat is a two-way race.

L. Madeline Hildebrandt, a military veteran who is a college instructor from Socorro, and Xochitl Torres Small, a water attorney from Las Cruces, have qualified for spots on the June 5 ballot.

But any Democrat is likely to face an uphill battle in the district, which includes some of New Mexico’s most reliably Republican counties. U.S. Rep. Steve Pearce, now a Republican candidate for governor, has handily carried the district in past elections.

Still, more voters in the district are registered as Democrats than Republicans. Democrats hope for a repeat of 2008, however, when the seat was up for grabs as Pearce ran for U.S. Senate and Democrat Harry Teague rode a blue wave into Congress — if only for a single term.

Contact Andrew Oxford at 505-986-3093 or Follow him on Twitter at @andrewboxford.