rio rancho, new mexico election 2012 federal complaint

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

TERESA FLEMING, DAVID DOYLE, ) PAULA PAPPONI, and ) LAWRENCE MCCLAIN ) ) ) Plaintiffs ) ) v. ) 1:13-cv-00222 ____-____ ) EDDIE GUTIERREZ, in his Individual ) Capacity; SALLY PADILLA, in her ) Individual Capacity; EILEEN GARBAGNI, ) in her Official Capacity; and MAGGIE ) TOULOUSE OLIVER, in her Official ) Capacity; ) ) Defendants )

COMPLAINT FOR DECLARATORY AND PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF FOR VIOLATIONS OF

CONSTITUTIONAL AND CIVIL RIGHTS

I. INTRODUCTION

This lawsuit is filed to remedy the systemic failures in the administration of the 2012

general election in Rio Rancho, New Mexico, which deprived thousands of citizens of their right

to vote. Plaintiff Teresa Fleming, like thousands of other registered voters in Rio Rancho, was

effectively prevented from voting due to the long lines and long delays for voters in Rio Rancho

on Election Day. Plaintiffs Doyle, Papponi, and McClain were candidates in the 2012 general

election, each of whom lost their elections due to voter suppression by the Sandoval County

Clerk and her employees.

The wholly inadequate voting system in Rio Rancho was the result of decisions by the

Sandoval County Bureau of Elections Director Eddie Gutierrez and Sandoval County Clerk,

Case 1:13-cv-00222 Document 1 Filed 03/07/13 of 21

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Sally Padilla, to consolidate the Rio Rancho voting precincts into only five “voting convenience

centers,” and to provide only a very limited number of ballot printing machines for voters at

those centers in Rio Rancho. These decisions resulted in extremely long lines and intolerable

delays in excess of five hours for some Rio Rancho voters, and altogether prevented many

voters, a majority of whom are Republican in registration and voting performance, from

participating in the 2012 election. Gutierrez and Padilla, both of whom are Democrats,

effectively prevented more than 5,000 Rio Rancho voters from voting in the 2012 general

election and also caused candidates Doyle, Papponi and McClain to lose close elections.

Rio Rancho voters, and all voters in Sandoval County, are entitled to elections that are

open, free and reasonably planned and conducted to allow all citizens the precious opportunity to

vote, without regard to where they live or vote, or to what political party they prefer. The right

to vote has been described as the most precious freedom and is federally protected because it is

“preservative of other basic civil and political rights . . . .” Reynolds v. Sims, 377 U.S. 553, 562,

84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is

more precious in a free country than that of having a voice in the elections of those who make

the laws under which, as good citizens, we must live. Other rights, even the most basic, are

illusory if the right to vote is undermined.”). “[T]he federal Constitution protects the right of all

qualified citizens to vote in state and federal elections . . . .” Reynolds, 377 U.S. at 554. The

right to vote is protected in its “initial allocation” as well as in “the manner of its exercise.” See

Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). “Once the franchise is

granted to the electorate, lines may not be drawn which are inconsistent with the Equal

Protection Clause of the Fourteenth Amendment.” Id. at 105 (quoting Harper v. Virginia Bd. of

Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966)). United States citizens


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have a constitutional right to a reasonable opportunity to vote, including the right to vote within a

reasonable time. See, e.g., Ury v. Santee, 303 F. Supp. 119, 126-127 (N.D. Ill. 1969) (finding

that voters were effectively deprived of their right to vote and ordering a new election where

election officials had consolidated precincts, resulting in delays of two to four hours).

II. JURISDICTION

1. This action arises under 42 U.S.C § 1983 and the Fourteenth Amendment to the

United States Constitution, of which this Court has jurisdiction under 28 U.S.C §§ 1331 and 28

U.S.C. §1343(3).

2. Venue is proper under 28 U.S.C § 1391(b) because the facts giving rise to this

complaint occurred, and the Defendants reside, in this district.

III. PARTIES

3. Teresa Fleming (“Fleming”) is a resident of Sandoval County. From 1981 to

2008, Ms. Fleming voted in every presidential election. In 2012, she intended to vote on

Election Day, as she was unable to vote early because she had to work on Saturdays. Ms.

Fleming was aware of media accounts of long lines at the voting convenience center she

preferred so she attempted to vote at a second voting convenience center in Rio Rancho. Due to

a chronic health condition, Ms. Fleming was unable to tolerate the hours long wait in the

extremely long lines at the second voting convenience center. As a result, Ms. Fleming was

effectively denied her right to vote in the 2012 general election for any of her chosen candidates,

including David Doyle, Paula Papponi, and Lawrence McClain.

4. David Doyle (“Doyle”) is a resident of Sandoval County, and he was a candidate

for the State Senate, District 9 in the 2012 general election. He voted in that election.


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5. Paula Papponi (“Papponi”) is a resident of Sandoval County, and she was a

candidate for Sandoval County Clerk in the 2012 general election. She voted in that election.

6. Lawrence McClain (“McClain”) is a resident of Sandoval County, and he was a

candidate for Probate Judge in the 2012 general election. He voted in that election.

7. Eddie Gutierrez (“Gutierrez”) is the Director of the Sandoval County Bureau of

Elections, and he is sued in his individual capacity.

8. Sally Padilla (“Padilla”) is the former Sandoval County Clerk and is sued in her

individual capacity.

9. Eileen Garbagni (“Garbagni”) is a nominal Defendant and is sued in her official

capacity as the new Sandoval County Clerk. If a new election is ordered, as a nominal

defendant, she would be expected to appoint someone to oversee and implement the new

election.

10. Bernalillo County Clerk Maggie Toulouse Oliver (“Toulouse Oliver”) is a

nominal Defendant and is sued in her official capacity. Because Senate District 9 includes one

precinct in Bernalillo County, a new election for Senate District 9 would require Toulouse

Oliver’s limited participation.

IV. FACTS

Rio Rancho Voters Have Historically Been Subjected to Barriers to the Opportunity to Vote.

11. Rio Rancho voters are predominantly Republican in registration, and their voter

history shows them to favor Republican candidates.1

1 See New Mexico Secretary of State election data, available at http://www.sos.state.nm.us/uploads/FileLinks/2966cef424224c59b1abaf5b30a91116/COUNTYOCT312012.PDF; http://www.sos.state.nm.us/Elections_Data/ (showing election results for 2000-2010).


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12. In 2004, Sandoval County did not provide an early voting site in Rio Rancho,

which had a population of 51,765, but did place an early voting site in San Ysidro, which had a

population of 238.2

13. In 2004, the Executive Director of the New Mexico Republican Party accused the

Sandoval County Commission of creating barriers for voters and denying Rio Rancho voters a

reasonable opportunity to vote at an early voting site.

14. The Executive Director claimed that Sandoval County intentionally made early

voting difficult for voters in Rio Rancho, because the area is predominantly Republican.

15. In 2004, the Albuquerque Journal chided the county commission and the county

clerk for the fact that voters waited three hours to vote at a site in northern Rio Rancho where

there were only six voting booths. The Journal criticized the lack of early voting sites in Rio

Rancho and concluded: “There’s no way to know how many early voters were discouraged by

long lines and two-hour waits….”3

16. In addition to failing to provide an early voting site for Rio Rancho voters in

2004, election officials failed to provide Precinct 50 in Rio Rancho with sufficient voting

machines on Election Day. Rio Rancho voters waited more than three hours to vote in that

precinct, and hundreds of voters were still in line after the polls closed.4

17. In 2008, the Sandoval County Clerk placed one early voting center in San Ysidro

(population 229), one in Bernalillo (population 9,241), and only two in Rio Rancho (population

79,723).5

2 See American FactFinder, US Census Bureau (2008). 3 “Still Some Vote Glitches,” Albuquerque Journal Editorial (November 6, 2004) 4 Id. 5 See: http://www.idcide.com/citydata/nm/san-ysidro.htm; http://www.idcide.com/city.data/nm/Bernalillo.htm; http://www.idcide.com/citydata/nm/rio-rancho.htm.


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Sandoval County Suppressed the Rio Rancho Vote in the 2012 Election.

18. Prior to the 2012 general election, Sandoval County replaced forty-seven voting

precincts, all of which were located in Rio Rancho, with five “voting convenience centers” to

serve 57,946 registered voters.

19. Defendants Gutierrez and Padilla made the decision to provide only three ballot

printers at each of the five voting centers, a number which was wholly inadequate, and which

guaranteed significant delays and extremely long lines for voters in Rio Rancho.

20. Defendants Gutierrez and Padilla allocated this grossly inadequate number of

printers despite the fact that the distributor of the ballot printing machines provided time

estimates for the ballot printing machines to interested county clerks and election officials,

stating an upper limit of 300 ballots printed by each machine per 12 hour day.

21. Farmington, located in San Juan County, has a population of fewer than 37,000,

and yet was equipped with nine voting convenience centers for the 2012 election. Busy voting

convenience centers in Farmington were furnished with up to six ballot printers each.

22. Sandoval County did not consolidate any of the 29 voting precincts located

outside Rio Rancho.

23. The unconsolidated Sandoval County precincts received pre-printed ballots well

before Election Day so that no voters in those areas would be required to wait for a printer to

print a ballot.

24. Voters in the unconsolidated voting precincts outside of Rio Rancho are

predominantly Democratic in registration, and their voter history shows them to favor

Democratic candidates.6

25. Defendants Gutierrez and Padilla are registered Democrats. 6 See supra n. 1.


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26. Replacing all 47 Rio Rancho voting precincts with five voting centers caused

extremely long lines in Rio Rancho on Election Day.

27. Defendants Gutierrez and Padilla employed non-uniform standards, processes and

rules in setting up Rio Rancho voting center locations and in outfitting them with equipment.

28. The wait times at some Rio Rancho voting centers on Election Day exceeded five

hours.

29. Defendants Gutierrez and Padilla were directly and personally responsible for

creating the long voting lines and delays that Rio Rancho voters faced on Election Day in 2012.

30. The long lines and delays were widely reported by radio, television and social

media.

31. Thousands of Rio Rancho voters were unable, either physically or due to other

factors, to withstand the long waits in order to cast their ballots.

32. Numerous Rio Rancho voters became discouraged by the long lines and were

unable to vote.

33. The long lines and delays at Rio Rancho voting centers increased the number of

voters waiting to vote at any given time, which in turn made parking vehicles at some voting

centers very difficult.

34. Eligible voters waiting in line after seven p.m. in Rio Rancho were further

discouraged from voting when media outlets announced the “winning” candidates for President,

the United States Senate, the New Mexico Congressional seats, and many other races and ballot

issues.

35. Defendant Gutierrez publicly and forthrightly acknowledged his errors and took

responsibility for the Election Day problems in Rio Rancho. After the election, Gutierrez was


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quoted as saying, “the county clerk has me as her director as Bureau of Elections…She trusted

my years of experience. If anyone is going to take a hit, it should be me.”7

36. Sandoval County, and Defendants Padilla and Gutierrez, have a history of

providing inadequate resources to Rio Rancho voters, such that the voting system in Rio Rancho

has had chronic systemic failures and has been persistently incompetent and unfair in its

treatment of those voters.

37. Defendant Gutierrez has publicly acknowledged that Sandoval County was on

notice that there have been long lines at Rio Rancho voting locations in the past.8

38. Defendant Padilla was the County Clerk, acted as Mr. Gutierrez’s superior, and

was responsible for preparing and supplying the ballots used in the 2012 general election,

pursuant to Sections 1-9-12 and 1-10-2 NMSA 1978.

39. Attorney General Gary King described the events on Election Day in Rio Rancho

as “a debacle” and “a near meltdown of voting procedures.”9

40. Attorney General King stated his concern about “the possibility of voting

suppression” and initiated an investigation.10

41. On December 13, 2012, the Sandoval Board of County Commissioners passed a

resolution to address future possible election procedures, finding:

a. “extremely long lines at all five voting convenience centers in Rio Rancho”;

b. “some of the wait times for voting exceeded five hours”;

7 See “AG Wants Answers to Voter Catastrophe,” Rio Rancho Observer, November 14, 2012, (http://www.rrobserver.com/news/local/article_f4d4888c-2e6e-11e2-8e1f-001a4bcf887a.html) 8 See Id. 9 See Id. 10 See Id.


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c. “some eligible voters in the City of Rio Rancho on November 6, 2012, left the long lines at the convenience centers, and/or determined the lines were too long to wait”;

d. “the wait times were totally unacceptable and resulted in some eligible voters not voting in the general election on November 6, 2012.”;

e. “the County Clerk, County Bureau of Elections, county leaders of the major political parties, the general public and the Board of County Commissioners have all determined that the excessive wait times experienced on Election Day should never occur in the future.”

See Resolution No. 12-13-12.12 Supplemental County Election Procedures (December 13,

2012).

The Growing Rio Rancho Population Has Produced Many Additional Voters.

42. The last ten years of data show that Rio Rancho is the fastest growing community

in the state, and that it is growing at a rate of 2.50 times the combined growth rate of the other

three southern Sandoval County communities.

43. The other three southern Sandoval County communities, Bernalillo, Placitas and

Corrales, are growing at a combined rate of 2.76% per year. Rio Rancho is growing at 6.91%

per year, which is approximately 2.50 times that rate.11

44. The combined populations of Bernalillo, Placitas and Corrales grew from 17,397

to 22,212 between 2000 and 2010, or 27.68%, while Rio Rancho grew from 51,765 to 87,521 or

69.07%.12

45. The following table includes voter totals, from 2008 and 2012, for each Sandoval

county community13:

11 See 2000-2010 U.S. census data, available at http://censusviewer.com/city/NM/Bernalillo/Placitas/Corrales/RioRancho for all data, including growth rate. 12 See id. 13 See election results posted at www.sos.state.nm.us.


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46. Bernalillo, Placitas and Corrales exhibited a combined percentage increase in

voting of 2.16%, from 2008 to 2012.

47. The ratio of the increase in voters to the corresponding combined population

increase exceeds 75%.14

48. Assuming the same rate of increase in voter turnout, as compared with the

population increase, Rio Rancho voter turnout in 2012 should have increased at a rate of 75% of

the population increase of 6.91%, or approximately 5.4%.

49. A 5.4% increase in 2012 votes in Rio Rancho would total 39,438; an increase of

2,020 votes over 2008, yielding a forecasted 5,955 more voters than actually voted in 2012.

50. A 5.4% increase in 2012 total votes in Rio Rancho is an appropriate estimate

because the total percentage increase in votes in the three communities of 2.16%, multiplied by

2.5, the increased growth rate of Rio Rancho over the other three southern Sandoval County

communities, comes to approximately 5.4%.

51. Absent voter suppression, error, or fraud, the total Rio Rancho vote, should have

increased by 2,020 votes, not decreased by the 3,935 votes reflected in returns.

39,438 +2,020 5.4%

14 Figure based on a ratio of 2.16/2.75.

Net Change 2008 2012 2008 2012Bernalillo 3,818 3,890 +72 +1.9%Placitas 3,359 3,482 +103 +3.1%Corrales 5,627 5,708 +81 +1.4%Rio Rancho 37,418 33,483 -3,935 -10.5%


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In the Absence of Vote Suppression, Rio Rancho Voters Would Have Elected Doyle, Papponi, and McClain.

52. Thousands of registered voters who were unable to vote on Election Day were

harmed by the flawed election system in place in Rio Rancho.

53. Because Rio Rancho’s voting population is majority Republican, the natural result

of suppressing the Rio Rancho vote was to significantly diminish the votes for Republican

candidates in Sandoval County.

54. As a result of voter suppression, Plaintiffs Doyle, Papponi, and McClain lost close

races for Senate District 9, the Sandoval County Clerk and Sandoval County Probate Judge,

respectfully. These races were directly, improperly, and unconstitutionally decided.

55. The decisions to eliminate voting precincts, to create only five voting convenience

centers, and to provide an insufficient number of ballot printers in Rio Rancho and not in the

unconsolidated Sandoval County precincts, worked to suppress the net Republican vote in

Sandoval County, and resulted in electoral losses for Plaintiffs Doyle, Papponi, and McClain.

56. Papponi, the Republican nominee for county clerk, carried 45 of 46 precincts

affected on Election Day, and did so with an average of 60.50%. Based upon reasonable

projections given population growth in Rio Rancho, and absent vote suppression, fraud or error,

Papponi would have won the election for county clerk 29,019 to 28,097; a margin of 922 votes.15

57. McClain, the Republican nominee for probate judge, carried 44 of 46 precincts

affected on Election Day, and did so with 59.07% of the vote. Absent voter suppression, fraud,

or error, and based upon reasonable projections given population growth in Rio Rancho,

15 See election returns for Sandoval County precincts 30-50, 52, 58-73, 75, 80-86, posted at www.sos.state.nm.us.


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McClain would have won the race for probate judge 28,294 to 28,157, with a margin of 137

votes.16

58. On Election Day, Doyle, the Republican nominee for State Senator, in District 9,

won all 15 State District 9 precincts in Rio Rancho which were affected by the voter suppression.

Doyle won the Rio Rancho precincts with an average of 60.30% of the vote.

59. Absent voter suppression, fraud, or error, and based upon reasonable projections

given population growth in Rio Rancho, 1,842 additional voters would have cast ballots, and

Doyle would have won the State Senate election 12,607 to 12,388.

60. Sample precinct returns from Senate District 9 are:17

Total votes cast 2008 2012 201218 Shortfall Election Day

% Doyle Net Gain for

Doyle30 673 641 673 0 n/a31 1,071 863 1,124 261 60.94 +5732 472 377 496 119 55.29 +1333 1,299 1,262 1,365 103 52.9 +534 620 530 651 121 58.14 +1935 785 624 824 200 53.63 +1436 1,035 706 1,086 380 54.88 +3838 933 816 979 163 69.57 +6352 311 276 326 50 62.26 +1259 314 285 330 45 63.64 +1362 & 83 1,702 1,583 1,786 203 63.33 +5564 1,127 880 1,183 203 60.67 +4372 & 86 1,558 1,739 1,635 0 65.52 n/a 332

16 See Rio Rancho precinct vote totals for precincts 30-32, 52, 58-73, 75, 80-86, posted at www.sos.state.nm.us. 17 See election results posted at www.sos.state.nm.us. 18 Numbers in this column represent the predicted number of voters in Rio Rancho, assuming the same ratio of voter turnout to population increase as shown to have taken place in Placitas, Bernalillo and Corrales.


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V. CLAIMS FOR RELIEF

A. FIRST CAUSE OF ACTION: FEDERAL EQUAL PROTECTION VIOLATIONS

61. The allegations in paragraphs 1 through 60 are incorporated.

62. Defendants Gutierrez and Padilla, under color of law within the meaning of 42

U.S.C. § 1983, deprived Plaintiffs of rights and privileges secured by the United States

Constitution, and are liable to injured parties.

63. The deprivation of law, rights and privileges was a natural consequence of

Defendants’ actions, irrespective of whether such consequence was intended.

64. In consolidating the voter precincts into five voter convenience centers and in

providing those centers with insufficient voter ballot printers, Defendants Gutierrez and Padilla

deprived Plaintiffs of the rights and privileges secured by the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

65. Gutierrez and Padilla’s actions worked to systematically suppress votes of

individuals who were predominantly Republican, and who lived in the city of Rio Rancho, as

opposed to in other more rural portions of Sandoval County.

66. The discrimination against Plaintiff Fleming and other Rio Rancho voters on both,

or either, geographical location or political affiliation constitutes an equal protection violation.

“The idea that one group can be granted greater voting strength than another is hostile to the one

man, one vote basis of our representative government.” Moore v. Ogilvie, 394 U.S. 814, 819, 89

S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969). See also Communist Party of Illinois v. State Board of

Elections, 518 F.2d 517 (7th Cir. 1975) (holding that, statute denied equal protection by

discriminating against residents of the populous counties of the state in favor of rural sections);

Ury, 303 F.Supp. 119 (holding that conditions effectively deprived plaintiffs of the right to vote,


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where voters were required to wait for two to four hours to cast their ballots and where polling

locations were excessively crowded);.

67. “Just as a state may not directly condition the franchise on one’s place of

residence, one’s place of residence cannot cause his or her vote to be cheapened or devalued.”

League of Women Voters of Ohio v. Blackwell, 432 F. Supp.2d 723, 728 (N.D. Ohio

2005)(finding numerous inadequacies in election day procedure, including that voters were

forced to wait from two to twelve hours to vote), overruled on other grounds by League of

Women Voters of Ohio v. Blackwell, 548 F.3d 463 (6th Cir. 2008)

68. “Weighting the votes of citizens differently, by any method or means, merely

because of where they happen to reside, hardly seems justifiable. One must be ever aware that

the Constitution forbids sophisticated as well as simpleminded modes of discrimination.”

Reynolds, 377 U.S. at 563.

69. “The equal protection clause secures from invidious official discrimination the

voter’s interest in a voice in government of equal effectiveness with other voters.” Shakman v.

Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970)(listing cases).

70. “The right to vote is protected in more than the initial allocation of the franchise.

Equal protection applies as well to the manner of its exercise. Having once granted the right to

vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one

person’s vote over that of another.” Bush, 531 U.S. at 104-05 (internal citations and quotations

omitted)

71. “[T]he right to vote as the legislature has prescribed is fundamental; and one

source of its fundamental nature lies in the equal weight accorded to each vote and the equal

dignity owed to each voter.” Bush, 531 U.S. at 104.


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72. The analysis in Bush v. Gore is applicable to Plaintiffs’ challenge to the voting

system in Rio Rancho. See, e.g., League of Women Voters of Ohio, 548 F.3d at 477 (stating

that, “district courts have found [Bush v. Gore’s] analysis applicable in challenges to voting

systems”). See also Black v. McGuffage, 209 F.Supp.2d 889 (N.D.Ill. 2002) (holding that

plaintiffs had stated an equal protection claim where they alleged that votes in some geographic

areas were statistically less likely to be counted than votes in other geographic areas); Common

Cause S. Christian Leadership Conference of Greater L.A. v. Jones, 213 F.Supp.2d 1106, 1108-

10 (C.D.Cal.2001) (holding that defendants were not entitled to judgment on the pleadings where

plaintiffs had alleged equal protection violations on the basis that some counties had more

reliable voting procedures than others).

73. The Defendants effectively deprived Plaintiff Fleming and a substantial number

of Rio Rancho voters, of the “constitutionally protected right to participate in [the 2012 election]

on an equal basis with other citizens in the jurisdiction.” See Dunn v. Blumstein, 405 U.S. 330,

336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). See also Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct.

801, 9 L.Ed.2d 821 (1963) (“The idea that every voter is equal to every other voter in his State

. . . underlies many of our decisions.”).

74. As a consequence of the failure of Defendants Gutierrez and Padilla to provide

substantially equal voting facilities, Plaintiff and those similarly situated were discriminated

against in the exercise of their franchise and were denied the right secured by the Fourteenth

Amendment to the United States Constitution to equal protection under the law.

B. SECOND CAUSE OF ACTION: FEDERAL DUE PROCESS VIOLATIONS



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76. Defendants Gutierrez and Padilla, under color of law within the meaning of 42

U.S.C. § 1983, deprived Plaintiffs of rights and privileges secured by the United States

Constitution, and are liable to injured parties.

77. The deprivation of law, rights and privileges was a natural consequence of

Defendants’ actions, irrespective of whether such consequence was intended.

78. Voting is a “fundamental political right, because preservative of all rights.” Yick

Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Harper v. Va. State Bd. of

Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).

79. “[A]ll qualified voters have a constitutionally protected right to vote and to have

their votes counted.” Reynolds, 377 U.S. at 554. “No right is more precious in a free country

than that of having a voice in the election of those who make the laws under which, as good

citizens, we must live.” Burdick v. Takushi, 504 U.S. 428, 441 (1992) (citing Wesberry, 376

U.S. at 17 (1964)).

80. “Obviously included within the right to choose, secured by the Constitution, is the

right of qualified voters within a state to cast their ballots and have them counted . . . .” United

States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037 (1941).

81. Federal court intervention is appropriate in this case, as Plaintiffs challenge “the

fairness of the official terms and procedures under which the election was conducted.” Griffin,

570 F.2d at 1078-79 (“The right to vote remains, at bottom, a federally protected right. If the

election process itself reaches the point of patent and fundamental unfairness, a violation of the

due process clause may be indicated and relief under § 1983 therefore in order.”). See also

Black, 209 F.Supp.2d at 900-01; Welch v. McKenzie, 765 F.2d 1311, 1314 (5th Cir.1985).


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82. In consolidating the voter precincts into five voter convenience centers and

depriving the centers of sufficient voter ballot printers, Defendants Gutierrez and Padilla assured

a fundamentally flawed election process in Rio Rancho.

83. For Rio Rancho voters, the election process reached the point of patent and

fundamental unfairness because of the long lines and delays of up to five hours.

84. As a result of Defendants Gutierrez’s and Padilla’s actions, Plaintiff Fleming and

a substantial number of other Rio Rancho citizens were effectively denied the right to vote in the

2012 general election so as to constitute patent and fundamental unfairness under the due process

clause of the Fourteenth Amendment to the United States Constitution. See Griffin v. Burns, 570

F.2d 1065, 1078 (1st Cir. 1978)

85. The deprivation of the right to vote for thousands of Rio Rancho voters resulted in

electoral losses for Plaintiffs Doyle, Papponi, and McClain.

86. Plaintiffs Doyle, Papponi, and McClain were improperly and unconstitutionally

denied victories in the 2012 general election.

87. As a consequence of the failure of Defendants Gutierrez and Padilla to provide

adequate voting facilities, Plaintiff Fleming and those similarly situated were hindered, delayed

and effectively deprived of their rights secured by the Constitution of the United States to vote in

the 2012 general election.

88. The systemic failures in Rio Rancho voting locations impinged on Plaintiff

Fleming’s fundamental right as a United States citizen, to a reasonable opportunity to vote, to

reasonable access to the voting place, and to be able to vote within a reasonable time, all in

violation of her constitutional right to due process.


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C. THIRD CAUSE OF ACTION: VIOLATION OF THE NEW MEXICO CONSTITUTION


90. The New Mexico Constitution demands “free and open” elections. NM Const.

Article II, Section 8 (“All elections shall be free and open, and no power, civil or military, shall

at any time interfere to prevent the free exercise of the right of suffrage.”)

91. The basic and fundamental right to vote under the New Mexico Constitution is

broader than the federal constitutional right. See Gunaji v. Macias, 130 N.M. 734, 742 (2001)

(finding a state constitutional violation where voters were not allowed to choose between the

lawful candidates for office due to an incorrect ballot face being used in one of the voting

machines).

92. A substantial number of citizens were denied the right to vote in the 2012 general

election in Rio Rancho, in violation of the right to “free and open” elections as guaranteed by the

New Mexico Constitution, Article II, Section 8.

93. Plaintiffs Doyle, Papponi, and McClain have standing to assert the rights of Rio

Rancho voters who were deprived of the right to vote in the 2012 election. See Gunaji v.

Macias, 130 N.M. 734, 742 (2001) (finding that unsuccessful political candidates had standing to

assert rights of those voters whose votes were incorrectly tabulated).

94. An election is only “free and open” if voters are allowed to choose between the

lawful candidates for office. See Gunaji, 130 N.M. at 742 (stating that, “[n]o election can be free

and equal . . . if any substantial number of persons entitled to vote are denied the right to do so.”)

(quoting with approval the interpretation of an analogous “free and equal” election clause in the

Kentucky state constitution in Wallbrecht v. Ingram, 164 Ky. 463, 175 S.W. 1022, 1026-27

(1915)).


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D. PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF IS WARRANTED


96. Plaintiffs have a substantial likelihood of success on the merits. The deprivation

of the right to vote is subject to strict scrutiny, and the Sandoval Board of County

Commissioners has found and acknowledged that voters were effectively denied the right to

vote.

97. Absent preliminary and permanent injunctive relief, Plaintiffs will suffer

substantial, immediate and irreparable harm based on the disenfranchisement of thousands of

future voters and based on Plaintiffs’ Doyle, Papponi, and McClain’s electoral losses.

98. The balance of equities favors the relief. No one should benefit, from either fraud

or errors that result in voter disenfranchisement.

99. The public interest supports the issuance of a preliminary injunction because the

right to vote is a precious, basic and fundamental right under state and federal law.

100. Plaintiffs request a preliminary and permanent injunction to:

A) Require that Sandoval County election officials promulgate, adopt and

enforce uniform standards that provide reasonable opportunities for Rio Rancho voters to

exercise their constitutional rights to vote early or on election day, in precincts or at

convenience centers in all future elections;

B) Prohibit any method or means that create a barrier to the ability or

opportunity to vote;

C) Require no fewer than 15 voting convenience centers in Rio Rancho in all

future elections and a proportionate increase in voting convenience centers as the number

of registered voters in Rio Rancho continues to increase;

D) Require no fewer than 6 printers in each voting center in Rio Rancho;


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E) Require the Sandoval County Clerk to establish a competent and fair

voting system in Rio Rancho, to include voting precincts or voting convenience centers

that are sufficiently equipped and actually convenient to the voters and that guarantee

minimal wait times in equal fashion, throughout the county for all voters.

F) Require the Sandoval County Clerk to schedule a prompt “free and open”

election for the disputed offices, free of any barriers to opportunities to vote for Rio

Rancho and all County voters. See, e.g., Ury, 303 F. Supp. At 127 (ordering a new

election where precinct consolidation caused delays exceeding two hours and where in

lines to vote and “hundreds of voters [were] effectively prohibited from voting.”);

Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir. 1978) (new election would be warranted to

remedy “patent and fundamental unfairness”); Henderson v. Graddick, 641 F. Supp. 1192

(N.D. Ala. 1986) (ordering a new election in Democratic party primary for governor);

Duncan v. Poythress, 515 F. Supp. 327, 337 (N.D. Georgia 1981) (stating that the fact

that a new election would cost $1 million was not a compelling reason to deprive voters

of a valuable and fundamental right); Coalition for Education in District One v. Board of

Elections, 370 F. Supp. 42, 54 (S.D. N.Y. 1974) (ordering a new election where polling

location changes and resulting confusion resulted in lower turnout in certain

neighborhoods).

101. No bond is necessary due to the nature of the rights that have been denied.

E. DECLARATORY RELIEF IS WARRANTED

Plaintiffs request:

1. A declaration that Defendants’ practices and Sandoval County’s voting system

denies Plaintiffs equal protection and due process guaranteed them by the


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Fourteenth Amendment to the United States Constitution, and also violates the

laws of the United States and the New Mexico Constitution.

2. A declaration that the 2012 general elections for Senate District 9, Sandoval

County Clerk and Sandoval Probate Judge are null, void and have no effect after

the new and constitutional elections are final.

3. Reasonable attorneys’ fees and costs pursuant to 42 U.S.C § 1983 and 42 U.S.C §

1988.

4. Such other and further relief as the Court may deem just and equitable.

Date: _____________ Respectfully submitted,

PATRICK J. ROGERS, LLC

By: /s/ Pat Rogers . Pat Rogers 20 First Plaza Center, NW #725 (87102) P.O. Box 26748 Albuquerque, NM 87125 (505) 938-3335 (505) 938-3336 Facsimile [email protected] and PAUL KENNEDY & ASSOCIATES, PC By: /s/ Paul Kennedy . Paul J. Kennedy Justine Fox-Young 201 12th Street, N.W. Albuquerque NM 87102-1815 (505) 842-8662 (505) 842-0653 Facsimile [email protected] Attorneys for Plaintiffs


rio rancho, new mexico election 2012 federal complaint

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