County clerk’s office missed special election canvass deadline

What should have been an uneventful conclusion to a recent election turned into a nearly 30-minute dressing down of county election officials by Valencia County commissioners.

There was one item on the Aug. 30 special county commission meeting agenda — the canvass of the Aug. 13 all-mail special election for Los Lunas Schools for a 3 mill levy.

The meeting began with Valencia County Clerk Mike Milam announcing the results of the vote — 2,611 in favor, 2,129 against.

The first question came from Commissioner Christian Garcia, asking what the correct deadline for the canvass was. Milam referred the question to Valencia County Chief Deputy Clerk Brenda Green, who was at the meeting.

Green told the commissioners the canvass deadline pertains mostly to state and federal elections.

“This special election has separate requirements. The reports that are required for a normal canvass don’t exist; there are different criteria,” Green said. “Technically, yes, regular election procedure is to canvass within six to 10 days.”

Canvassing happens after an election concludes and is a confirmation process of every valid ballot cast and counted. Typically, after the canvass, the county commission certifies the results and they are sent to the New Mexico Secretary of State’s office for a second canvass.

In the case of special elections, Green said the SOS’s office told her the final results didn’t need to be submitted to the state since there was “nothing uploaded to their system. There’s nothing put on the (SOS) public-facing website. We still haven’t sent the numbers to them. There’s no place for them to report it. We will send the entire file to them for their records once we have the canvass certificates signed.”

Garcia asked if she was aware the school district had advertised the incorrect submission deadline for the ballots. In it’s advertising materials, Los Lunas Schools indicated ballots needed to be postmarked by Aug. 13, when, in reality, the ballots needed to be returned to the county clerk’s office by 7 p.m. that day. The commissioner also asked if the clerk’s office issued a correction.

Green said they saw the incorrect directions “after the fact,” and did not issue a correction because “we didn’t put the information out there.” The deputy clerk said office staff did go to the post office shortly before 5 p.m. on election day to check for last-minute ballots and there were none.

“My concern lies in the tardiness of the canvass,” Garcia said. “How will this effect the school district?”

Green said whether the results were canvassed or not would have no effect on the validity of the election.

Valencia County Attorney Dave Pato said he spoke with the Secretary of State’s Office and while statute requires a canvass of an election six to 10 days after its conclusion, there are no remedies in statute if it’s done late.

Green said in hindsight, a special meeting for the canvass should have been scheduled for Aug. 23, due to the timing.

After the Tuesday, Aug. 13, special election, the clerk’s office had to wait for possible “cures” from voters who didn’t submit their mail-in ballots correctly.

During the 2023 legislative session, a law was passed that allows voters who made a mistake on an absentee ballot — such as not signing it or omitting the last four digits of their Social Security number as required — to “cure” the mistake. Voters had until 5 p.m. the Friday after the election — Aug. 16 — to return the correct information needed for their ballot to be counted.

There was a regular commission meeting scheduled for Aug. 21, but Green said she was told by Valencia County Deputy County Manager Johnathan Aragon that it was too late to add the canvass to the agenda. The canvass was initially put on the Sept. 4 agenda but then pulled and set for a special meeting on Aug. 30, which was still past the 10-day limit to canvass.

“There are requirements that all materials need to be submitted the Wednesday prior (to a commission meeting),” Green said, to which Commissioner Morris Sparkman responded agendas have to be finalized 72 hours prior to a meeting, as per the state Open Meetings Act.

“We’ve been told seven days, and at that time, we didn’t have firm numbers due to the curing process,” Green said.

Commissioner Joseph Bizzell was critical of Green, saying the clerk’s office should have reached out directly to a commissioner when they had difficulty getting the canvass on the agenda.

“We are always hearing about election integrity — and I’m not saying this election is fraudulent — but there are time frames in which this needs to happen,” Bizzell said. “If you couldn’t get it on the agenda, you could have made some phone calls.

“I don’t want anyone to say this commission or the county is not doing elections properly. This puts a big black eye on all of us when we didn’t know about it. We should have known so we could have taken steps to get it on the agenda.”

The deputy clerk said she takes full responsibility for not knowing the process.

“I was tied up making this election happen through that Friday,” she said. “That was my focus. Not technicalities, if you will, of getting on the agenda.”

She continued, saying the canvass for the November General Election was already on the agenda for the Wednesday following the election, since the same timeline applies.

“We will have until the Friday after the election to cure any mailed ballots. We won’t have firm numbers until after 5 p.m. on that Friday,” Green said. “It is already on the agenda and moving forward, we will get (the canvass) on months in advance.”

Milam said he spoke to the county attorneys, County Manager Danny Monette and Aragon asking for a special meeting on the Tuesday after the election. Pato said he recalled being asked about an emergency meeting, not a special meeting.

“Pursuant to the OMA, it doesn’t meet the criteria (for an emergency meeting). Canvassing is not an unforeseen circumstance,” the attorney said.

Milam said he took “some responsibility” in the situation, saying he asked staff to get the canvass on the agenda.

“I’m very sorry we’re dealing with this now. It didn’t get done in a timely fashion because I was told ‘no,’” he said.

Green said she hoped to “gain some confidence back” from the commission in her ability to administer elections.

“I’ve been doing this for 10 years and take election integrity and administration very seriously,” she said. “I wish I could guarantee no more mistakes. I’m giving it my best shot to make sure there are no other mistakes.

“I am very familiar with election code and have helped work on legislation. There are areas I am very familiar with and work with on a daily basis,” she said. “Special elections was not one I was highly versed in when I came here. I stepped right into this election when I started. There was also a post-system check and recount on my first day. It was a lot to tackle and, unfortunately, this was one of the things I didn’t stay on top of. That’s not an excuse, just stating fact.”

In a phone interview Tuesday afternoon, Milam said the clerks office would follow all state statutes and regulations to accomplish everything necessary for the November General Election.

“What happened with the school election, technically we couldn’t be put on the agenda until after 5 p.m. on Friday (Aug. 16), and we had to submit the request by (the Wednesday before),” Milam said. “We had the canvass done by 5:15 p.m. (Friday). We just couldn’t make the time frame. Lesson learned. I apologize to all the voters out there.”

In November, the clerk’s office will have to wait again for any ballot cures until 5 p.m., the Friday after Election Day. Milam said preliminary numbers for the General Election will be reported to the Secretary of State’s Office and posted to the SOS website as usual.

“And nothing is a done deal until the secretary of state canvasses the results,” he added.