Goodman: Could Litigation Be Next In The Las Cruces Recall Election Effort?
Local business interests who hired people to collect signatures to recall City Councilor Gill Sorg failed to collect enough signatures to trigger a recall election; but the recall proponents may file suit.
The bar was low. They needed only 10% of the district's registered voters. Their cause was so unpopular they had to lie about what the petition was for. Voters in District 5 seem quite content with Councilor Sorg. (We'll learn next week whether they got enough signatures for a recall vote on Olga Pedroza.)
Letters and emails from the recall proponents' counsel suggest litigation is likely. On the other hand, the group failed by 168 signatures and scores of other signatures could be invalidated if recall opponents mounted a court challenge.
A lawsuit might raise these legal issues:
What's a registered voter? State law is clear: you're officially registered when the County Clerk Office stamps the Clerk's signature and date on your certificate. An unregistered citizen can't sign a recall petition. (It's a felony.) If I get you to sign a petition and to complete an application to register, you signed the petition when you were unregistered. Days or weeks later, the County Clerk registers you. That doesn't change the fact that you signed when unregistered. Recallers may argue that we should have “same-day registration” in which you're registered the moment you apply, before the Clerk checks whether or not you're a felon, etc. Maybe we should. But we don't. However, it appears that the City Clerk didn't deal with this problem, but rather relied on a list generatedFebruary 11.
Can you sign a petition then withdraw your name? Absolutely, according to the New Mexico Supreme Court. As the Court said long ago, if you signed and changed your mind, or you were defrauded into signing, there's no legally-cognizable reason to keep your signature on a petition against your will. You can withdraw your name. In District 5, hundreds did so. Likely others would have done so if they'd known they could. Voters have that right. Recall proponents seek to impose their will on voters they hoodwinked, and rely on statutory language in 3-1-5. The City considers the flood of withdrawal letters valid. It's hard to imagine New Mexico courts will deny requests by defrauded citizens and allow the recall folks to retain the fruits of their fraud.
Can the City or the Court throw out a circulator's collection of signatures based on fraud and forgery? Many citizens have urged this be done, but the City Attorney says no.
Hundreds of citizens were told flat lies about the petition. Some circulators even denied it was a recall petition. (One quick-minded circulator, when a woman spotted the word “recall” and asked, replied that “recall” meant to call the councilor back into office.) People were told it was to save the PAL Boxing Gym or the Dream Center, or to pave Second Street. One pair of circulators even wore PAL T-shirts and told voters their kids boxed there! They got Michael to sign by saying Pedroza was against minimum wage, and told Clyde the petition was to keep WalMart from coming to McClure and Valley. I've also seen a couple of apparent forgeries.
If a circulator repeatedly violated the law, should all that circulator's signatures be disallowed? If there's litigation, recall opponents could ask the court to take action.
If you witnessed fraud, or your signature was forged, please let me know.
A lawsuit could raise other issues. The Recall operation was sloppy and illegal in a number of ways that could lead to invalidation of additional signatures.
We might see some of these issues litigated this month. I might be litigating them.
Peter Goodman is a local writer, photographer, and sometime lawyer. He initially moved to Las Cruces in 1969, holds two degrees from NMSU, and moved back here in 2011 with his wonderful wife. This is his most recent Sunday column in the Las Cruces Sun-News. His blog Views from Soledad Canyon contains further information on this subject, as well as other comments and photographs, and past newspaper columns.