AAPD v. Herrera

September 17, 2008
Restricting the Vote
Voting Rights & Elections

On July 24, 2008, the Brennan Center for Justice, along with pro bono law firms Davis
Polk & Wardwell and Freedman Boyd Hollander Goldberg & Ives,
filed a lawsuit in state court in Albuquerque challenging a New Mexico
law that significantly restricts the ability of voter registration
groups to register new voters and threatens to block thousands of
eligible New Mexico citizens from registering and voting in the 2008
elections as unconstitutional and inconsistent with federal and state
law. A federal judge denied Plaintiffs motion for a preliminary injunction on September 17, 2008.

The challenged law requires voter registration groups in New Mexico to
meet one of the shortest deadlines in the country—48 hours—for the
return of completed forms, and imposes hefty civil and criminal
penalties, including fines and even jail time, if voter registration
volunteers and employees do not adhere to restrictive and cumbersome
rules for signing up new voters.

Before registering voters, each volunteer (or employee) must first
pre-register and submit an affidavit to the state and, in certain key
counties, go through an in-person, hour-long training that is conducted
only during business hours and only a few times a month. Volunteers are
then limited to collecting no more than fifty forms at one time, unless
they get a special dispensation from election officials. Because each
form is "tracked" to an individual, every volunteer must pick up his or
her own forms from election offices, which means that registration
drive coordinators cannot pick up forms for their volunteers, even if
the volunteers intend to help for just one day of the month.

Once an individual conducting voter registration has obtained a
completed registration form, he or she has only forty-eight hours to
return it to county or state officials. Most prohibitively, if an
individual "intentionally" violates any of these rules, he or she is
guilty of a criminal act, which may be punishable with a jail sentence.
Civil penalties of up to $5,000 can be assessed under a "strict
liability" legal standard, meaning no extenuating circumstance—a car
breakdown, a hurricane—will excuse failure to submit a completed form
within 48 hours.

In the last election cycle, before the enactment of the law challenged
today, third-party voter registration groups registered thousands of
new voters in New Mexico. Over 100,000 voters reported having been
registered by a drive that year, according to the U.S. Census. Overall,
about 15% of all registered voters in New Mexico registered through a
drive.

The challenged law was enacted in early 2005, after the 2004
election cycle during which then-U.S. Attorney David Iglesias was
pressured to bring prosecutions for voter registration fraud despite
the lack of evidence to support those prosecutions.

The challenge to New Mexico's law comes in the wake of challenges to
similar state laws around the country, in which the Brennan Center has
played a lead role. In 2006, a federal judge in Florida blocked the
state's law restricting voter registration drives as unconstitutional,
and in that same year federal judges in Ohio and Georgia blocked
enforcement of those states' restrictive laws governing third-party
voter registration drives. Colorado, Maryland, and Missouri also enacted laws restricting
community-based voter registration drives in the wake of the 2004
election. Other states, including Washington, California, Minnesota,
and Virginia, also have such laws on the books.

Plaintiffs in the case are the American Association of People with
Disabilities (AAPD), the Federation of American Women's Clubs Overseas
Inc. (FAWCO), New Mexico Public Interest Research Group (NMPIRG), and
the Southwest Organizing Project (SWOP). Plaintiffs typically register
thousands of New Mexico citizens (especially low income, minority,
disabled, and young citizens) to vote but have suspended or
dramatically curtailed their operations as a result of the challenged
law.

Court Papers