Secretary of state fails open government test


Heath Haussamen

Last month Dianna Duran claimed to have evidence of foreign nationals illegally voting in elections, but she won’t share that evidence with the public. I’ve identified several potential public records act violations stemming from her dealings with me.

When Secretary of State Dianna Duran claimed last month that her office had evidence of 37 foreign nationals illegally voting in elections, I expected documents to be forthcoming.

Instead, I’ve spent a month going back and forth with the Secretary of State’s Office about my requests for records, and I have almost nothing to show for it except a handful of denials. Duran, in my view, has pushed the limits of what can be kept secret under the state’s Inspection of Public Records Act (IPRA) and is on very shaky ground.

In other words, I’ve identified several potential IPRA violations stemming from her office’s dealings with me.

An ongoing investigation

Duran initially said on March 15, at a legislative hearing and in a news release, that her office had matched 117 voter registrations to people in the MVD foreign national database using names and dates of birth. She also said 37 of those 117 had voted in New Mexico elections.

The secretary of state used those findings to try to convince a legislative committee to approve a voter identification bill. The committee killed the bill.

Interesting, right? We’ve heard Republicans claim to have evidence of voter fraud every so often over the years, but proof of widespread voter fraud has never been made public.

Duran’s claims sounded at first as though they had a chance of being more credible than past instances. Plus, the evidence existed at least in part in public records, so I thought I could get my hands on it.

Nope. The state’s elections director, Bobbi Shearer, told me the office wasn’t releasing any documents because there was an ongoing investigation. But public records are public records regardless of whether they’re part of an investigation, so that isn’t a valid reason to withhold documents.

I kept trying. There was a potentially valid obstacle to me obtaining some of the records. A state law makes driver’s license records confidential except for certain purposes, including research, to protect people from stalking.

I had no problem keeping confidential the names of those the secretary of state said appeared to have voted illegally, since her determination was based in part on records subject to this law. I simply wanted to do my own research to verify Duran’s claim.

So I e-mailed Shearer, asking her to release the Motor Vehicle Division records for research purposes only. I promised not to publish names or other information.

After receiving a tip that the secretary of state also found some voter registration forms on which the registrants indicated they are not U.S. citizens (non-citizens can’t register to vote or vote), I also requested those.

Told to go elsewhere


Shearer replied to my records requests by saying her office was checking with the office of Attorney General Gary King on what it could disclose.

The eventual response, which came 15 days later (the maximum time allowed unless the request is deemed “overly burdensome” – and this one was certainly not), was that the secretary of state wouldn’t hand over any records.

The secretary of state cited the law keeping MVD records confidential in telling me I couldn’t have those forms. Her office told me to go directly to MVD if I wanted to try to obtain records by claiming the research exemption. But the SOS didn’t forward my request to MVD, as required by the public records act.

As for the voter forms Duran’s office compared with MVD records, I was told the office “does not maintain the original voter registration forms” – the county clerks have the original forms for 1.6 million registered voters in the state. Again, my request wasn’t forwarded.

And anyway, I didn’t ask for 1.6 million forms. I asked to view some examples of those the secretary of state compared with MVD records to determine that foreign nationals may have illegally voted. My request was specific to a unique set of documents possessed by the secretary of state.

The databases of 1.6 million registered voters and 83,000 foreign nationals with driver’s licenses weren’t what I was looking for. I was looking for documents that indicated how the secretary of state determined that foreign nationals had illegally registered to vote and voted so I could determine if there was any validity to her politically charged claim.

Duran blames AG

I sent an e-mail clarifying that I thought my records request would also cover any other documents related to the voter and MVD forms, such as “memos, e-mails, or reports,” and asked them to release those. I also asked for a list of all documents they were withholding.

I got a call from Duran herself, who told me she couldn’t give me anything because she was advised by the AG to withhold it all.

“We want to be as transparent and open as we can,” Duran told me, but “with certain advice from our attorney, we’re limited at times.”

She noted that her office had communicated with the AG via letters. When I asked for those letters she told me she couldn’t release them either, saying it’s “all attorney-client privileged information.”

Hogwash. Duran is the client, and she can release whatever she wants. In addition, she doesn’t have to follow the AG’s advice if she thinks it’s wrong, because it’s just that – advice.

Gary King is not the emperor of New Mexico. In fact, he’s not even necessarily an expert on IPRA. A district judge recently ruled that King’s office violated the public records act.

Following my phone conversation with Duran, I sent a follow-up e-mail. One point I wanted to make clear, in writing, was that I didn’t ask for the original voter registration forms possessed by county clerks. I requested the copies Duran’s office reviewed to determine foreign nationals may have voted illegally. Copies of documents, like originals, are subject to IPRA.

I also noted that her office’s denial didn’t address my request for any related documents such as memos, letters, or reports, and asked for those to be provided or for the office to deny my request as it related to those records.

The SOS responded by denying all my requests, saying it couldn’t release anything related to the investigation – driver’s license records, voter registration forms, or related documents – because all fall under the exemption in the law that keeps driver’s license records private.

“Since it would be impossible to reveal the names of the individuals designated as foreign nationals who illegally voted, without disclosing the information as it correlates with MVD records, it would be likewise be impossible for us to give you copies of voter registration forms, or refer you to any specific county clerk, without disclosing the same information (i.e. protected personal information),” Duran’s records custodian, Christiana Sanchez, wrote to me.

She also denied my request for a log of documents they were withholding, saying IPRA “does not require us to provide you with one, and therefore we are unable to fulfill this request.”

“Unable?” I think it would have been more accurate for her to say the office “won’t” fulfill my request.

Claiming executive privilege

While I was corresponding with Sanchez, I learned from this blog post on Clearly New Mexico that Duran’s office had given the ACLU some documents related to the investigation – copies of e-mails and other correspondence that were heavily redacted. Why wasn’t I given those documents when I requested e-mails and memos related to the situation? Was I being treated differently than the ACLU?

“We looked at your request again, and didn’t find your IPRA request to include, with reasonable particularity, this specific request,” Sanchez wrote. She offered to forward me the e-mails her office gave to the ACLU. You can view them here.

The e-mails are so heavily redacted that they’re mostly useless, but there’s one interesting letter in that batch of documents – a letter from Duran to the AG’s office asking for advice on what the office could release in response to records requests from me and others.

In fact, it’s the very letter I asked Duran to release when I had her on the phone – the letter she told me she could not release.

Why the redactions in the documents provided to the ACLU? Executive privilege, Sanchez told me.

“Revelation of the information within these emails will compromise the Secretary of State’s decision-making process, and thus outweighs the public’s interest in disclosure,” Sanchez wrote.

That sounds familiar. During the years Bill Richardson was governor, executive privilege was known as the way to keep documents secret when there was no other way to legally do it.

I made one more request. The letter from Duran to the AG mentions the existence of voter registration forms on which “the person registering to vote checked ‘no’ to the question ‘Are you a citizen?’” Those weren’t compared with MVD records, so the SOS wouldn’t cite the MVD law, I figured. I asked for those forms.

Again, nothing. Those documents, Sanchez said, were turned over to the Department of Public Safety for investigation. The secretary of state apparently no longer has possession of any of those forms. The office conducted a massive investigation into voter fraud and then gave the evidence to DPS without keeping copies. Sanchez told me how to contact DPS to make a request for the records.

A summary

I walked you through this lengthy process to show you how dizzying it’s been. To summarize, here’s what the Secretary of State’s Office said in response to my requests:

  • It can’t provide documents because there’s an ongoing investigation – which is clearly not a valid reason to withhold public records.
  • It can’t provide voter registration forms or other related records because of an exemption designed to keep driver’s license records private.
  • It can’t give me the driver’s license records under the research exemption that allows their release. I’d have to try with MVD if I want to claim that exemption.
  • It turned voter registration forms I requested over to DPS and no longer has copies to provide me.
  • It didn’t initially provide me with correspondence about the investigation even though I requested related documents “including, but not limited to, memos, e-mails, or reports.”
  • It’s claiming executive privilege in redacting e-mails about the investigation to the point that almost all of the documents it did release are worthless.
  • Last – and this was a big deal when Richardson was governor – IPRA requires government agencies that receive requests for records they don’t possess to forward those requests to the appropriate agencies. Duran’s office didn’t forward my request for voter forms to the county clerks or to the Department of Public Safety. And it didn’t forward my request for drivers’ license records to MVD.

Voter registration forms are public records

Sarah Welsh, executive director of the N.M. Foundation for Open Government, sees problems with the way Duran’s office has responded to my requests over the last month.

For starters, she said, it “doesn’t make any sense” to say that a law that makes MVD records confidential “somehow makes voter registrations confidential.”

“They’re public records,” Welsh said. “Under any other circumstances they would be public records.”

Welsh also said it’s concerning any time a government agency claims executive privilege because it’s “a nebulous” claim. She said the redactions in e-mails provided to the ACLU and me “don’t seem to fit under FOG’s view of executive privilege.” She also said it “stands in contrast to” the executive order Gov. Susana Martinez issued detailing how her administration would and would not use executive privilege.

As the Court of Appeals has already said in a case involving the City of Farmington, open government laws are meant to protect the public from having to believe public officials acted appropriately without seeing evidence. Yet in this case, Welsh noted, Duran made a claim about foreign nationals voting illegally to try to influence the legislative process, but now won’t back up her claim.

“Here they’re saying we found evidence of voter fraud, but you’re going to have to trust us on this because we can’t show it to you,” Welsh said. “That’s not open government.”

Like I’m dealing with Richardson all over again

Welsh is right. Republicans, including Duran, didn’t accept the “trust us, we’re the government” attitude from the Richardson administration on this very issue of foreign nationals who may have been voting illegally. But now Duran is asking us to do the same – trust the government without seeing proof.

As I hope I’ve adequately laid out here, the secretary of state’s arguments for withholding documents appear to be gutless at best (as in, “We’ll just do what the AG advises and blame him for not being transparent”) – and something much more nefarious at worst. And her actions are legally questionable.

My interactions with Duran and her office over the last month have been outrageous. I feel as though I’m dealing with the Richardson administration all over again.

And what might have been a news article about foreign nationals illegally voting in New Mexico elections has instead turned into a commentary about Duran’s office not being open and transparent.

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23 thoughts on “Secretary of state fails open government test

  1. Republican Representative Ricky Little kept his “donate” web-page up and active throughout the entire legislative session. That’s unethical and against the law. Duran was contacted about it early in the session (and several times throughout the session) and obviously nothing was done since the page was never taken down. Duran exhibits no signs of adhering to an internal, let alone legal, ethical code of conduct.

  2. Really Now:

    Excellent point. Thank you.

    We’ll see if the ACLU receives a different response from the Governor’s office.

  3. IcarusPhoenix:

    You are correct. My goal (although unrealized!) was to comment to psimonson’s response of April 21, 2011 at 3:29pm.

    Thank you for the clarification you provided.

  4. Really Now:

    Ms. Welsh was pointing out the contrast between the two; indeed, as you noted, she actually used the word, and despite a modern-day tendency to mangle the language, English is actually remarkably precise. Nowhere in her statement did Ms. Welsh say that the Secretary was “violating” the Executive Order, nor in any way suggesting that the Secretary of State’s office is in any way answerable to the Governor.

  5. Not to justify anyone’s actions, but this statement by Ms. Welsh, “…[s]he also said it “stands in contrast to” the executive order Gov. Susana Martinez issued detailing how her administration would and would not use executive privilege.” doesn’t work in this instance. The Secretary of State is an elected individual and runs a campaign separate from that of the Governor. This (The Secretary of State’s Office) is not part of the Governor’s administration and thus the Executive Order does not apply here. The Secretary of State’s Office is not an agency under the Executive Branch of government although it is part of the executive branch.

    New Mexico has a plural executive. Article V of the state constitution creates the executive branch of our state government. It establishes a plural executive. This meanswe elect several different officials in the executive branch. The governor is the chief executive officer in the state. We elect the governor and lieutenant governor as a team.
    The other elected officials in the executive branch are: secretary of state, state auditor, state treasurer, attorney general, commissioner of public lands, and a three person state corporation commission. Each official is independent of the others. Each has specific functions and duties.
    This plural executive can be confusing because we like to think of our governor as a local version of the American presidency. There are two reasons the framers of the New Mexico Constitution created a plural executive. First, they wanted to limit the powers of the governor. Secondly, they wanted greater accountability in government. They made state officials more accountable by direct election. Several other states organize their executive branch in this manner.

  6. The SOS’s response is especially ironic given that Gov. Martinez ran on promises of “ensuring transparency and ethics in our government,” including this offering from her website:

    “My administration will not use executive privilege to unjustifiably block public access to the activities of state government, as has been done in the past. As public servants, we are accountable to New Mexicans and they should know exactly what their government is doing on their behalf.”

  7. Funny, she didn’t think much of the AG’s opinion when he said that she was wrong for letting Governor Martinez use campaign funds to run media ads against the Democrats.

  8. Thanks Heath – This and many other instances, related specifically to this matter and others not, demonstrate a serious disregard for truth and justice in New Mexico by elected officers and their minions. If these matters are allowed to pass without comment and disclosure by individuals who feel deeply about their personal commitment to what is left of a social contract there will soon be none. Especially worrisome are the lawyers, judges, elected officials, appointed and non-appointed public officials who see themselves and their interests as the arbiters of what passes for justice. We must all make a commitment to defend and pursue truth and justice or lose them.

  9. As a followup to upthehill, according to ,

    “How often do people move in the US?

    About 40 million people move annually in the US. Nearly 3/4 of the US population moves an average of once every 5 years. Many things contribute to these statistics:

    – shifts in the economy; for instance, from the Rust Belt to Silicon Valley.
    – the doubling of the divorce rate in last 30 years; divorce results in many moves, and sometimes moves can trigger divorces!
    – corporate transfers play a role
    – changes in status (i.e., marriage, graduation from college, retirement, etc.) are common reasons for moving.”

  10. Unfortunately, the problem that Heath encountered is getting more common. It seems to be an attitude of “make me do it” (no matter what the law says). This will buy the resister a lot of time, because we must go to the expense of filing suit and then await a decision by a judge. What a joke this makes of governmental organizations and, in this case, the honesty and integrity of our elected officials. Come on voters, wake up!

  11. Please check and note the following:

    Records include “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.” [31]

    Notable exceptions include:

    •Medical records (14-2-1-A-1 and 14-6-1-A)
    •Letters of reference and matters of opinions placed in personnel or student files (14-2-1-A-2 and A-3)
    •Law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime. (14-2-1-A-4)
    •Donations to universities and museums where the donor has asked that the donated item be made confidential (14-2-1-A-5 and 14-3-A-1)
    •Records containing the identity of applicants or nominees for the position of president of a public college or university, except that the governing board shall give public notice of the names of at least five finalists for the position at least 21 days before the date of final action. (14-2-1-A-7 and 14-2-1B)
    •Public hospitals’ trade secrets, attorney-client privileged information or business plans (14-2-1-A-6)
    •Tactical response plans or procedures (14-2-1-A-8)
    •Military discharge documents (14-2-1-A-9)
    •As otherwise provided by law (14-2-1-A-12)[32]
    However, custodians are required by law to separate exempt and non-exempt materials in the same source and release exempt materials

    I noted a certain amount of mistrust of the Secretary during her campaign having noted certain personally questionable actions on her part when she was a state senator. I had the impression that illegals and dead people voting to be nothing more than campaign rhetoric, so Mr Haussamen I believe you are spinning your wheels with expecting documents that would support these claims. Federal law does not provide for proof of citizenship when registering to vote and to implement a true voter ID system would be very costly to the taxpayers of New Mexico in light of the unreliability of the NM driver’s license to serve that purpose. My analysis has determined that anywhere from 10-15 percent of people in Southern NM move from one address to another or relocate between election cycles, so it is not unrealistic for a voter’s address to be different on a driver’s license compared to their voter registration. If the claim of 37 is even close to correct, that is not enough to sway the vote in a local race let alone a statewide race. Let’s get real, we have a system in place that allows citizens under the US Constitution to vote and we must be very careful as to whom we might arbitrarily take away these rights. Instead of a witch hunt, not you Mr Haussamen, you did a great job with this reporting, but for those who believe either one party or the other is violating federal and state laws. Let’s move on to creating jobs, improving our communities, conserving energy, protecting our borders, and the list goes on.

    Perhaps Senator Rue should advise Sec Duran on transparency rather than AG King.

  12. thank you Mr. Haussamen for keeping us honest. Using IPRA to delay and hide info is the exact opposite of the intent and spirit of the law. We must do better.

  13. And Heath – just as a technical issue – yes the County Clerks maintain the registration record, however that record is scanned into a statewide system which Duran maintains and the SOS is certainly able to print the scanned copies. No MVD information at all in that system.

  14. Bernalillo County has referred over 1600 voter registration applications to law enforcement in four years. These are voter registration applications that were submitted by third party agents which contain suspicious information. These applications are available for public inspection in our office or via copy request. To date, there has not been a case prosecuted (law enforcement = DA, AG, FBI, US Attorney and SOS.)

    As for actual voting fraud, we have not been presented with one case to forward for investigation. Poll officials (like the one below) do have a responsibility to turn over suspected fraud for investigation.

  15. Ms. Wedum:

    The 117 figure is the number of registrations she claimed had “discrepancies”; 37 is the number that she claims actually voted in the last election… and then, as we all know, provided no proof for.

    Mr. Adams:

    I want to thank you for your commitment. Out of curiosity (considering that the state GOP has been on this crusade for a decade now), has your office ever received a complaint of this specific nature that proved to be legitimate?

  16. The point is that the states Chief Elections Officer testified with some degree of certainty that she had evidence of fraudulent voting. When pressed for the details, she stonewalled the public, media and other county clerks. This is not good government. The testimony was given in support of photo voter identification proposal (Which ironically, would not have addressed the problem she testified to).

    I would urge anyone with evidence of voter fraud to report it immediately to law enforcement so that it may be investigated and prosecuted if needed. If you are unsure of where or whom to report to, feel free to email me at
    Robert Adams
    Deputy Clerk
    Bernalillo County NM

  17. Interesting that the version I heard was that Duran found 37 voter registrations with no social security number listed. Now it’s 117 voter registrations with something else listed, or not listed, but she won’t say what.

    37/1.6 million gives 0.002% possibly improper votes. 117/1.6 million gives 0.007% improper registrations.

    Either way, our voter records in New Mexico appear to be a minimum of 99.993% pure. That’s purer than Ivory Soap (for you youngsters, the advertisement claimed Ivory was 99.44% pure).

    How much taxpayer money and employee time was wasted on this witchhunt?? In the meantime, the SOS office did not get its act together on the campaign and PAC finance reports. The changes were voted in in 2009, WHEN Duran was a state senator, duh. She should have been working on this bread and butter procedural issue instead of the Republican political agenda.

  18. Casus Belley:

    I am for now going to sidestep your tenuous grasp of the English language and instead address the very few substantive claims that you have made:

    First of all, if a poll worker actually said that – particularly in front of a voter – why didn’t you report them to the country clerk’s office, or at least to the precinct judge? For that matter, if you were at a polling location that had challengers – from either party – I would hope that one of them would step in and say something. Certainly I would have, and this is exactly the situation that the challenger law exists to address.

    Second, what the poll worker allegedly said was not only an invalid rationalization, but your interpretation of the results (multiple registrations) is entirely spurious. This is why people register with their social security number – to prevent exactly that sort of thing from happening. It’s a very easy thing to prevent.

    Third, the lawyers in question (from, I presume, Democratic Party, as there is no such party as the “Democrat party”) go from location to location, frequently responding to the calls of poll challengers who remain there all day. Both parties have them, they are authorized – and indeed, recommended – by the law, and it is their job to safeguard the electoral process. Considering your attitude and imperfect grasp of the law, I would be very surprised if a challenger called them because of you. By the same token, if could just as easily been your colleague’s bizarre statement on multiple registrations.

    Fourth, the Constitution of New Mexico specifically states that all government business in New Mexico is to be done in both English and Spanish. Thus, I’m going to ignore the blatant bigotry of your “doesn’t know English” statement and merely point out that your colleague’s reading of the law was entirely accurate in this case, and that a utility bill is specifically mentioned in the law as a valid form of identification to vote.

    On a similar note, your reading of the law is laughable at best. The “voter bill of rights poster” you mentioned is entirely accurate. That is not only a legitimate “interpretation” of New Mexico voter identification laws, but it’s actually explicitly stated that way in the law. Just because you don’t like it doesn’t mean you can invent the law in your head. The poster you refer to is actually printed by the Secretary of State’s office – the office responsible for enforcing that particular law – and every location is required to have one.

    As for the early voting issue, the Registrar isn’t “suggesting” your address, they are confirming it… as they are advised to do in the Election Handbook of the State of New Mexico, which sets out the guidelines for everyone involved in the operation of any election.

    Please do your fellow citizens a favor and either a) educate yourself if what is and is not acceptable in elections in the state of New Mexico, or b) NEVER work another election again, lest you actually give in to your undemocratic and border-line vigilante attitudes and trample upon the rights of your fellow citizens, as you seem so keen to do. Every single thing you suggested as a “subversion” of election law is explicitly laid out in the law, and the subversion is, in fact, your position.

    It should be noted that even if Secretary Duran is correct and there are 117 foreign nationals registered to vote – a charge that she has very deliberately and systematically refused to prove and that the NMGOP has been obsessing over for years now without even one case turning out to be true – that is a remarkably low number in a state with 1.1 million registered voters. I’m not personally going to lay awake at night fretting about the sanctity of our democracy over a completely unproven allegation involving .01% of registered voters. Thanks to people like Belley, it is apparent that there are far bigger threats to our system.

  19. Casus Belley,
    I see nothing systemic in these antidotes. It doesn’t sound like any nefarious group is going around breaking voting laws. Certainly, there is no evidence that an electoral outcome has been effected by mis-representation of identity at the polls. I have had my doubts about absentee votes.
    I can tell that you are a radical far right idealog because of your incorrect usage of the word Democrat in, “It wasn’t but a short time after that…. that Democrat lawyers showed up looking for any possible problems of voters being harassed or intimidated”. It should be “democratic”.

  20. Hey, I work the polls for the last few elections. I sit at that signature roster part of the time. You know the drill.

    So I am sitting there, a guy comes in gives me his drivers license. It isn’t required but that is what he does.

    I look up the name, find it in the roster but the address doesn’t match. I say “hey the address doesn’t match”

    He says “I register with my business address”

    I say “what is to keep a guy from registering with both his business address and residential address?”

    My poll worker counter-part says “I think a guy should be able to register and vote for both addresses. After all he might own property and pay taxes in different precincts that are affected by different administrations.”

    Poll workers have rationalized voters having multiple registrations.

    It wasn’t but a short time after that…. that Democrat lawyers showed up looking for any possible problems of voters being harassed or intimidated.

    Me, essentially a volunteer, of course I was intimidated by those lawyers.

    In another episode, a young voter comes up to the table. I give him the greeting “hi, how are you doing or something like that.”

    The young voter doesn’t say anything. He just hands me a utility bill.

    I look up the name and he gets a ballot.

    A few minutes later I speculate to my counter-part… “I don’t think that guy knows english”

    My counter-part doesn’t argue but says “I think they should be able to vote.”

    I didn’t say this but I thought

    I should be able to kill people, but there is a law that says I can not. We have laws about who can vote and how many times they can register and vote. It is not about what I think or feel. It is about election law.

    Election law is easily subverted.

    Early voting …

    In ABQ’s 08 election the “voter bill of rights poster” [sic] said voter identification CANNOT be required unless a voter is unable to make a VERBAL representation.

    That is in know way a legitimate interpretation of NM voter id law. I wanted so bad to steal that poster, so I could have it for posterity. That would have made me the bad guy eh?

    Early voting …

    You march up to the registrar and say your name …

    Then the registrar SUGGESTS your address.

    Get it?

    That is like the registrar suggesting your identity.

    I identify myself unambiguously to the poll official by stating my name and my address and my birth year.

    It is not for the poll official to SUGGEST “oh, are you the Chavez on Bluebird SE”

    That is handing identities to voters.

    Election law is easily subverted.

  21. Secretary of State Dianna Duran is simply paranoid seeing illegal voters everywhere. She couldn’t believe that there was an actual registered voter Duran Duran. Unfortunately for Ms. Duran, there really is a Duran Duran listed in the Albuquerque phone book.

    Here is a little music for our Secretary of State. It might calm her down a bit!