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AAPD v. Herrera

Case challenging New Mexico's restrictions on voter registration drives.

Published: September 18, 2008

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.

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