Commentary on Doña Ana County Absentee Ballot Review Report

By Dr. Gavin Clarkson, Esq.

After reviewing the audit report of Doña Ana County absentee ballots from the 2018 general
election authored by attorney Carter B. Harrison, IV, I concur with the author’s conclusion that
there “were not enough irregularities in Dona Ana County alone to alter [the 2nd Congressional
District] race.” (#NM02 or CD-02)
Carter Harrison is an excellent attorney, and he and I collaborated on the Straight Ticket Voting
mandamus action before the New Mexico Supreme Court. (Michael Hendricks and I co-authored
the amicus brief that helped deliver a 5-0 victory against Maggie Oliver.)
The irregularities Harrison identifies, while troubling, would be difficult to prove and were not
responsible for the dramatic underperformance of the Republican Congressional candidate in
New Mexico’s Second Congressional District. Given Harrison’s legal acumen, however, I am
not surprised that his team did not recommend filing suit, although I found it problematic that the
losing candidate maintained a narrative that the election was somehow “stolen,” which strung the
voters along with false hope that there would be a substantive challenge that never materialized.
As the Republican nominee for New Mexico Secretary of State in 2018, I also spent substantial
time researching voter fraud in New Mexico, and I am positive that ineligible voters cast ballots
in 2018 because our voter registration system is fundamentally broken. There was even a poem
written about how Maggie Oliver would “register Zombies, Aliens, and Canines that Drool [to]
suppress the power of voters that followed the rules.”
As for absentee voting irregularities, it is undisputed that Maggie Oliver allowed absentee ballots
to be requested online without the signature required under § 1-6-4(B) -- potentially thousands of
fourth-degree felonies on her part, although I doubt Attorney General Balderas will ever
investigate. Because only 968 absentee ballots were requested online in Doña Ana County, even
if every one of those ballots had been cast for candidate Small, it would not have changed the
outcome.
So what really happened? I’m still doing a deep dive into the precinct data, but at a 30,000-foot
level, 2018 voter turnout in CD-02 was approximately 13% less than in 2016, but turnout is
generally lower in mid-term elections.
In 2018 Steve Pearce outperformed Donald Trump’s 2016 statewide performance by 2.8%, but
the 2018 Republican CD-02 candidate under-performed Pearce’s 2016 CD-02 showing by an
average of 33% on a county-by-county basis (27.3% district-wide). That abysmal performance
cannot be explained by voter fraud.
The Republican congressional candidate lost a race that was very winnable, which says more
about that particular candidate than anything else. In comparison, although I ran statewide, was
nominated with less than four months left in the election, and was outspent nearly 10:1, I beat
incumbent Maggie Oliver straight-up among voters who cast a ballot in CD-02. If you add back
the Libertarian vote (a reasonable assumption), I beat her by 11,300 votes or 6% (a landslide in
today's politics). In all of the models of a simulated 2018 2-way race that I've seen, I beat Rep.
Small by a wider margin than she defeated the Republican candidate. Although I would have to
look at the details again, I recall that my lead over Maggie Oliver increased in CD-02 after the
absentee ballots were fully tabulated in Doña Ana County, which is the opposite of what you
would expect if there were systematic absentee ballot fraud based on party affiliation.
In terms of the candidates running county-wide or statewide, here are the Doña Ana results:
Todd Garrison for Sheriff 25,632
Gavin Clarkson* for Secretary of State 25,273
Michael Hendricks* for Attorney General 24,776
Arthur Castillo for State Treasurer 24,253
Wayne Johnson for State Auditor 24,216
Steve Pearce for Governor 23,985
Christopher Schoonover for County Assessor 23,235
Yvette Herrell for CD-02 21,461
Matthew Anciaux for Probate Judge 21,421
* Republican in 3-way races with Libertarian votes added to the vote total

November 2018 County-wide Totals

26,000
25,000
24,000
23,000
22,000
21,000

* Republican totals for 3-way races include Libertarian votes

Note that both Matt Anciaux and I entered our respective races several weeks after the 2018
Primary, and thus neither of us had the same opportunity to fundraise or campaign as either our
opponents or the other Republican candidates did. Although Anciaux entered very late, spent no
money at all, and didn’t really have the chance to mount a substantial campaign, the Republican
CD-02 candidate only earned 40 more votes than he did in Doña Ana County.
The only minor disagreement I have with the report pertains to Issue 7, and it is a minor point. I
believe there is, unfortunately, a wider opportunity for ballot harvesting than the author indicates.
My reading of §1-6-9’s statement is that “Voters shall either deliver or mail the official mailing
envelope to the county clerk of their county of residence” could also include using a delivery
service, which could have been a ballot harvesting entity. Given Democrat reliance on ballot
harvesting, I doubt the New Mexico Legislature will eliminate ballot harvesting.
To summarize, while there was almost certainly some degree of voter fraud in the 2018 General
Election, that fraud was insufficient to explain the woeful underperformance of the Republican
Congressional candidate. Her failure to debate her opponent, lack of substantive message, refusal
to credibly address allegations of ethics violations and inability to motivate the Republican base
were far more likely reasons for the Democrat win in CD-02.