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Doña Ana County Judge Gets the Statute Wrong—Denies Yvette Herrell her Petition for Ballot Impoundment till After the Statewide Canvass. Meanwhile, Who exactly is watching the Ballots? What’s with not Reading and Applying the Law as it is Written? Does it Have Anything to do with Absentee Ballots Obtained Without a Signature?

11/18/2018

Earlier this week, Republican congressional candidate Yvette Herrell filed a petition to impound the ballots in Doña Ana County. On this particular question, New Mexico election law is pretty plain. It says in Article 14, paragraph 9:

”Any candidate in an election may petition the district court for an order impounding ballots in one or more precincts within which he is a candidate. The action shall be brought in the district court for the county in which the precincts are located. The petition shall state what specific items of ballots are requested to be impounded. Upon receipt of the petition, along with a cash deposit of twenty-five dollars ($25.00) per precinct, the court shall issue an order of impoundment.”

Note that it doesn’t say “may,” “might,” or “a judge can think about it and make stuff up as he goes along.” It says “shall” issue an order of impoundment.

Oddly enough, the Secretary of State and the Attorney General both tried to block the impoundment for good. “Don’t let anyone see anything, ever,” was the position of Secretary of State Maggie Toulouse Oliver and Attorney General Hector Balderas. So much for transparency. Both of those elected officials continue to pile onto their already substantial records of opposing open government and transparency.

Did the Democrat Secretary of State Break the Law? 

One thing discovered in this whole process is the existence of a new way to make an Absentee Ballot Request. This year, the Secretary of State—without any rulemaking or public notice—created an on-line electronic absentee ballot request that does not require the voter's signature.

Come again? An absentee ballot request without a signature at all? Let’s go back to New Mexico law:

Article 6, paragraph 4, in subparagraph B states:

“Each application for an absentee ballot shall be signed by the applicant and shall require the applicant's printed name, registration address and year of birth to be supplied by the applicant, which shall constitute the required form of identification…”

Again, the word “shall” appears. It does not say, “may sign,” or that signing the form is “optional.” It says definitively that the application shall be signed by the voter. Below is an application for an absentee ballot that has no signature.

Apparently, Secretary Oliver decided to have voters submit their New Mexico driver’s license number instead. It seems like the Secretary may try to argue that she kinda/sorta tried to follow the statute for online voter registration applications, but in doing so, she totally broke the law.

First, both the statute and her own administrative rule say that the application must be signed.  Her absentee ballot application program, unlike the online voter registration program, didn’t import the voter’s signature from the MVD database.  So, apparently, NONE of the electronic voter registration applications have signatures of the voters applying to vote. 

Instead, they all say they are "electronically authenticated." 

That leads to the second big ole problem with Maggie’s new forms.  It is not the Secretary of State’s job to authenticate absentee ballot applications.  By statute, that’s the job of the county clerks.

What is the significance of that part of the law?

It is this: If a voter had submitted a paper absentee ballot application with no signature, but decided to include his or her driver’s license number, it would have been rejected by every county clerk in New Mexico, following the statute. 

But Maggie submitted who knows how many of her "electronic" applications—with no signature at all—to the county clerks electronically, and they were accepted.  How many people got to vote without providing their signature on their ballot request?

There is no statute and no rule that authorizes this new double standard for absentee ballot applications in New Mexico.  Just a secret decree from Queen Maggie. 

So after years and years of debates in the legislature about voter ID, the Secretary has simply created her own new ID requirement for electronic absentee applications—a New Mexico driver’s license number. No debate needed. No statute. No rule. Did the Democrats know this? They’d have almost certainly opposed it if it were ever proposed by a Republican in the state legislature. But in the end it wasn't proposed by anyone in the state legislature. Maggie just did it.

Maggie Toulouse Oliver took a beating from the Supreme Court on her effort to single-handedly invent the straight-party ballot without any input from the legisature or any law to authorize her edict.  As for this additional power grab, she appears to have kept her "no-signature-required" idea under wraps and away from public scrutiny.

Here's what a real application for an absentee ballot looks like: 

You can see the gigantic X by the blank where it says "SIGNATURE of registered voter."

An Additional Point on the Absentee Ballot Law

The statute (1-6-4) on absentee ballot applications also says:

"A person who willfully and with knowledge and intent to deceive or mislead any voter, precinct board, canvassing board, county clerk or other election official and who falsifies any information on an absentee ballot request form or who affixes a signature or mark other than the person’s own on an absentee ballot request form is guilty of a fourth degree felony."

Oddly enough, it is the Secretary of State herself who, without statutory or administrative authority, has affixed something other than the voter’s signature to all of the electronic absentee ballot applications statewide. 

How many?  Who knows? But we hope the other members of the State Canvassing Board will be asking that question on November 27. 

The reason for the signature requirement is obvious. The integrity of elections depends on ensuring that one person gets one vote, and one vote only, and that that vote is actually his or hers. The key to that principle is centered on the individual, his or her personal identity, and the signature (especially in the absence of Voter ID in New Mexico) is the only remaining lynchpin in that process.

Just How Lawful was the Voting Process in Doña Ana County?

What we do know is that some 11,995 absentee ballots were requested in this year's mid-term election, with some 8,579 being returned. Two years ago, in a presidential election, 3,456 absentee ballots were cast. That's an increase of 148%.

Is everything on the up and up?

We don’t know. Maybe it was all fair and square. But we have to wonder why a Democrat District Court Judge does not want the state police to be guarding the ballots right now. Why not?

Why does a Las Cruces judge want the ballots to be solely in the possession and under the “supervision” of the very people who have arguably mishandled the ballots to this point?

Why did the Secretary of State and the Attorney General take the position that the ballots absentee ballot requests, and all other documents should NEVER be examined?

These questions also remain unanswered.


Email us (at nmpj@dfn.com) with your feedback, comments, questions and ideas.


Intelligent Political Discourse—for the Thoughtful New Mexican

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National Issues

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2016 Presidential Campaign - Democrats

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2016 Presidential Campaign - Republicans

Jeb Bush gets religion.

"They said he got religion at the end, and I'm glad that he did."  — Tom T. Hall. The Year Clayton Delaney died.

Well, it's official.  Jeb Bush has changed quite of few of his positions on illegal immigration.  The single most significant is that he no longer endorses the "path to citizenship" for those who came here illegally. 

This is, after all, the key portion of any proposal aimed at "reforming" our existing illegal immigration situation.

No sensible citizen can see any point in trying to deport between 12 and 16 million people currently living in America illegally.  And no candidate for any office that we know of supports that.  What the average American wants is for the country to "get a handle on it."  They want it stopped, our borders secured and future illegal immigration prevented.  It is a national security issue.

The Path to Legal Status

The only way to accomplish the above goals, is to identify current illegal immigrants, get them accounted for, have them documented, and placed on a path to legal status.  Neither they nor their children or spouses should live in a state of fear or anxiety.

But a path to "citizenship" is not the right course.  It is not morally or legally correct.  A merciful and compassionate nation can provide the safeguards of legal status without sending the message to the rest of the world that all you have to do is cross our border and you will eventually get to become a citizen, thus circumventing the legal framework scores of millions of Americans have followed, honored and respected.

If someone who is granted legal status eventually wants to become a citizen, that person should have to return to his or her country of origin and wait in line like 20 million people around the world are doing at any given time.  Failing that, America will forever send the signal that anyone in the world can "jump the line," and that there is no reason at all to obey our immigration and naturalization laws.

We Like Jeb Bush

We are glad Jeb Bush has learned this lesson.  He is a fine speaker, and can eloquently explain his positions on complex issue.  If he were not named "Bush" he would be an actual top tier candidate—in all that that title would entail, including likelihood of acceptance and support of and from the American people in the primaries, and in any theoretical general election.  

We also recognize that he already is a de facto top-tier candidate because of his fame and his fundraising.

If he were to be the nominee of the Republican Party we would heartily support him and endorse him.  We hope, however, that he is not, as he does not give the center-right coalition the best chance of winning.

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    Selma   ????? We have now seen the Oscar-nominated movie Selma.   Our earlier allusion to criticism that sounded as though it was in an Oliver Stone category for historical fabrication is some...

Sports

Sports

The Major League Baseball Playoffs are not realistic, and destroy the actual meaning of the sport. 

Major League Baseball is unique in this respect—its postseason is markedly different from the way the game is played normally.  No other major league sport suffers from this flaw.

Not that much is wrong with baseball. In some respects it's the most well thought-out sport there is.  The "perfect game" many aficionados say.

But the Major League Baseball postseason experience is unique in the world of professional sports, and not in a good way. 

In fact the playoffs are flawed in such a way as to detract from the sport itself and diminish the game and what it means to be the world champion of the sport. 

Among the Big Four team sports of North America: football, hockey, basketball and baseball—and all the 122 professional major league teams competing in the NFL, NHL, NBA and MLB respectively—it is in baseball alone that the postseason turns the sport itself on its head and makes it reflect something that it is not.  This article will explain why that happens and why it is wrong-headed.

 

Background on the The Frequency of Play

The 30 teams in both the National Hockey League and the National Basketball Association teams play a very similar schedule.  On average, each team has a day off between games, sometimes two days off.  Though there are back-to-back games, they are relatively infrequent.  NBA teams play between 14 and 22 back-to-back games a season, and for the NHL it usually ranges between 9 and 19. The NFL has a full week between games, the exception being the new Thursday games that each team plays once, leaving them only four days' rest once a year.

But baseball players play every single day.  Ten days straight, then a day off, then seven more games, then a day off, then ten more games.  Typically a baseball team plays 27 games every 30 days.  For the NHL and NBA it would be 14 per month, and for the NFL the number would be 4.

 

Getting to the Playoffs:  It's a grind

In all four sports, getting to the postseason requires a total team effort—in fact an all-out total organizational effort.  Teams must be deep, have bench strength and the capability of moving players in and out of the lineup, and on and off the roster, who can take the place of key players who go down for an injury, or who have to miss games for whatever reason.  While this is true of the other three major sports as well, it is most certainly even more of a concern for baseball teams because of the sheer volume of games in which a team must field a competitive lineup.

Each league's regular season* is a marathon, not a sprint.  NFL teams play for 17 weeks, 16 games.  The NHL has an 82-game season over six months, paralleled by an NBA season of 84 games over the same timeframe. Baseball is the biggest marathon of all—a true test of resilience and endurance—162 games usually starting around the beginning of April and finishing about the end of September.

NHL teams carry 23-man rosters, of which 20 can be active for any particular game.  The NBA is similar, with 15-man rosters of which 13 can be on the bench for a given game. In the NFL, the teams have 53 players on a roster, but only 46 can suit up on game day.  In Major League Baseball, teams have a 25-man active roster, and all 25 are at the park every day.

 

The Postseason Playoffs:  Sport by Sport

The National Football League:

Of the 32 teams, 12 qualify for the playoffs.  The playoffs are conducted in the exact same manner as the regular season.  Each team plays once a week, the exception being that the four top teams get the first week off.  For a typical qualifier to reach the Super Bowl, the team must play three consecutive weeks.  At that point both remaining teams have two weeks off before the Super Bowl.

In short, the playoffs, with a game each week, reflects the same means of advancement as is present in regular season grind.

The National Hockey League: 

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

 

The National Basketball Association

16 of the 30 teams qualify for the postseason.  The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on.  Just as in the regular season, there are occasionally two days off.  But the playoffs require the same stamina, the same approach as that required to make the playoffs.

Major League Baseball

10 of the 30 teams qualify for the postseason.  (Although four of those teams qualify only for a one-game do-or-die play-in game.)

Here is where all similarity to baseball ends. 

Unlike the other three sports whose playoffs mirror the test of the regular season, and whose conditions are the same as the regular season, Major League Baseball playoffs in no way resemble the sport itself.  In hockey, basketball and football, the teams win playoff games and reach the pinacle of the sport in exactly the same way that they qualify to try to do so. 

Not so in baseball.  They are two entirely different concepts.  Teams make the playoffs only because they have depth, five-man pitching rotations and can play day-in and day-out at a high level.  But the baseball playoffs suddenly become a kind of "all-star" game within each team's roster.  MLB playoffs are conducted in a way that more closely follows the NBA and the NHL.  Teams have enormous numbers of days off. 

Here's the key point:  No Major League Baseball team could even qualify for the postseason if they played the same way during the regular season that they do in the playoffs.  None.

In the regular season Major League Baseball teams have to use a 5-man starting rotation, with pitchers pitching every 5th day.  There are not enough days off to have even a four-man rotation, let alone a team with three pitchers.  Even the best team in baseball using only a 4-man rotation, would wear them out, and most likely end up with a record of something like 66-96, or 70-92—and that would be if they were otherwise teh best team in the sport.

 

The 2014 Baseball Postseason is Typical

As examples, last year's World Series teams the Kansas City Royals played only 15 games in 30 days, and the San Francisco Giants played only 17 games in 30 days.  The 12 to 15 days off in the non-baseball fantasy world of the MLB postseason, means that teams can turn to three pitchers and give all of them plenty of rest.  But it isn't the way baseball really works.

At one point, the Royals had 5 consecutive days off, and the Giants had 4.  This never happens in the regular season.  Even the All-Star break is only three days.  Very rarely is there anything beyond a one-day break, and even that happens only a couple of times a month. 

What this means is that neither team used the team that got them to the playoffs.  (The NFL, NBA and NHL teams ALL used the very same teams that got them to the playoffs.) 

Baseball teams use a three-man pitching rotation in the playoffs.  Sometimes, they essentially opt for two pitchers only—conceding the likelihood that some of their games are going to be lost—when their third-, or rarely fourth-best pitcher has to face one of their opponents' two-man or three-man rotation members. 

Imagine an NFL team using only one running back and three wide receivers, instead of rotating through their roster in the course of a playoff game—or using only 4 defensive backs and 4 linebackers, instead of rotating 8 or 9 DBs and 6 or 7 linebackers?  In hockey, would a team use only two or three of their forward lines?  Would an NBA team use only the starting five?  They would never make the post season if they tried to present that product to their fans during the regular season.

Those are the equivalents of what Major League Baseball sets up every fall.  No other sport drags its playoffs out in such a way as to completely change the playing field—completely change the dynamics of its game.

Why Does Baseball Do This?

MLB does this because the TV networks want to drag out the games so that they can try to have one game each day  This requires an unnecessary staggering of games, and creates the phenomenon of 15 off-days in a month.

What about travel days?

What about them?  Baseball has travel days constantly.  A team may play in Chicago one day and in Miami the next, or in New York one day and Phoenix the very next day.  Travel days as a routine part of the game are again, a phenomenon of television, and stretching out the playoffs.

In years past, travel days were employed only when necessary. The famous "subway series" games were played on seven consecutive days.  Why?  Because there was no "travel day" required to go from Brooklyn to the Bronx.  Today, they would put in artificial travel days.

Even fairly long train trips didn't necessarily matter.  The 1948 World Series between the Cleveland Indians and the Boston Braves was played in six consecutive days, October 6 & 7 in Boston, October 8, 9 & 10 in Cleveland, and October 11 back in Boston.

This reflects actual baseball, the way the teams play day-in and day-out, and the kind of unique test that baseball presents to its athletes, its managers and management, and to its fans.

In the modern world of charter planes, teams fly from coast to coast to play games on consecutive days.  The artificial "travel day" should be eliminated so that teams can play in the playoffs in the same way that got them there in the first place.


*All these leagues also have pre-seasons and training camps, which add an additional 6-8 weeks to each player's year.


Email us with your feedback, comments, questions and ideas. 

Religious Issues

Religious Issues

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