{"id":38221,"date":"2012-03-23T08:58:30","date_gmt":"2012-03-23T14:58:30","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=38221"},"modified":"2012-03-23T17:38:06","modified_gmt":"2012-03-23T23:38:06","slug":"residency-controversy-dogs-house-candidate","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2012\/03\/residency-controversy-dogs-house-candidate\/","title":{"rendered":"Residency controversy dogs House candidate"},"content":{"rendered":"
\"Johnny<\/a>

Johnny Lu\u00e9vano (Courtesy photo)<\/p><\/div>\n

While Johnny Lu\u00e9vano\u2019s retirement home was being built, he used the address to register to vote and vote. He says that was his best option for retaining residency while an active-duty Marine. Police are investigating.<\/h4>\n

Did a U.S. Marine who registered to vote and voted using an address where he didn\u2019t yet live violate state law?<\/p>\n

A liberal advocacy group says Republican Johnny Lu\u00e9vano<\/a> did, but the Bernalillo County clerk says it\u2019s not clear and has forwarded the voter-fraud allegations brought by ProgressNow New Mexico<\/a> to the sheriff\u2019s department for investigation.<\/p>\n

\u201cAt this point it\u2019s not clear. That is why it\u2019s important for law enforcement to investigate the matter and get to the bottom of it,\u201d Clerk Maggie Toulouse Oliver<\/a> said. \u201cWe can\u2019t make any assumptions one way or the other at this point.\u201d<\/p>\n

Lu\u00e9vano, a former NMPolitics.net columnist<\/a> who filed earlier this week to run for the N.M. House District 16<\/a> seat \u2013 days after moving into the now-finished home in the district \u2013 says he did nothing wrong and was dealing with how to vote while an active-duty Marine.<\/p>\n

\u201cI registered at a dirt lot that was having a home being built on it where I intended to reside when I retired,\u201d he said. \u201cI am sure there are plenty of other active-duty service members who do the same thing.\u201d<\/p>\n

But ProgressNow hit Lu\u00e9vano hard earlier this week<\/a>.<\/p>\n

\u201cIn addition to clearly being ineligible to run for office in District 16, Lu\u00e9vano may have also committed felony offenses against New Mexico\u2019s voting laws by falsely claiming to live in a vacant lot and likely voting from there,\u201d a news release from the group states.<\/p>\n

At issue, ProgressNow claimed, is the fact that Lu\u00e9vano didn\u2019t receive a certificate of occupancy allowing him and his family to move into the house in District 16 until March 14 \u2013 more than a week after the deadline for a person to live in the district and be eligible to run in the election had passed, and almost a year after he registered to vote there.<\/p>\n

But Lu\u00e9vano\u2019s active-duty military status may make the situation more complicated than that, according to Toulouse Oliver. It\u2019s now up to law enforcement to decide whether Lu\u00e9vano broke state law by registering to vote at the address in District 16 last April and voting in the Albuquerque election last fall.<\/p>\n

\n
\n
\"Bernalillo<\/a><\/dt>\n

\u201cAt this point it\u2019s not clear. That is why it\u2019s important for law enforcement to investigate the matter and get to the bottom of it.\u201d – Bernalillo County Clerk Maggie Toulouse Oliver<\/strong><\/h4>\n<\/dl>\n<\/div>\n

As for Lu\u00e9vano\u2019s candidacy for the seat currently held by state Rep. Antonio \u201cMoe\u201d Maestas<\/a>, D-Albuquerque, a third party \u2013 such as Maestas or ProgressNow \u2013 could challenge it in court. No one has yet done that.<\/p>\n

The timeline<\/h3>\n

Lu\u00e9vano said he bought the lot on Albuquerque\u2019s west side in November 2006, while he was stationed in Missouri, because retirement was approaching. He and his family planned to move there after retirement.<\/p>\n

He had moved to the west side of Albuquerque from Artesia around 1997 or 1998, and was registered to vote at a home he owned there, but rented out while he was stationed elsewhere, until 2003 or 2004 \u2013 around the time he got married. Then he changed his registration to his in-laws\u2019 home in unincorporated Bernalillo County.<\/p>\n

Last April, Lu\u00e9vano returned to Albuquerque and changed his voter registration to the property in District 16. He had already started construction on the house before returning from Tucson, the last place he was stationed.<\/p>\n

Lu\u00e9vano hadn\u2019t yet retired from the Marines, and while the home was being built he and his family lived part of the time in temporary housing at Kirtland Air Force Base and part of the time at his in-laws\u2019 home. Neither is in House District 16.<\/p>\n

His retirement took effect on Jan. 1. He and his family were finally able to move into their newly completed house in District 16 about a week ago.<\/p>\n

Registering to vote and voting<\/h3>\n

When Lu\u00e9vano changed his registration in April, he listed the under-construction home as the \u201cphysical street address where you live now.\u201d<\/p>\n

That clearly wasn\u2019t accurate. But, Lu\u00e9vano asked, what are active-duty military members supposed to do in such situations? The federal Uniformed and Overseas Citizens Absentee Voting Act<\/a> requires states to allow active duty military members to retain residency for voting purposes, he pointed out.<\/p>\n

State law makes clear that a New Mexican living outside the state who \u201chas the intention to return\u201d can retain registration status at a residence such as, for example, a parent\u2019s home. It also makes clear that being out of state \u201cwhile employed in the service of the United States\u201d is not a reason to lose residency status for purposes of registering to vote and voting.<\/p>\n

So registering using his in-laws\u2019 home, which Lu\u00e9vano did while he was in Arizona, was no problem. What about once he returned to Albuquerque but before he had a permanent residence?<\/p>\n

Federal law allows active-duty military members to retain voter registration in New Mexico without listing any address if they don\u2019t have one. Lu\u00e9vano could have done that.<\/p>\n

Toulouse Oliver also said it\u2019s \u201cnot uncommon\u201d for military members living in temporary base housing to register using that address. Or he could have continued to use his in-laws\u2019 address.<\/p>\n

So Lu\u00e9vano didn\u2019t use the methods the law apparently comprehends for registering to vote and voting while on active duty. Toulouse Oliver said she\u2019s never seen a situation like this before. But does that prove Lu\u00e9vano did something illegal?<\/p>\n

\u201cThe law is so gray where that\u2019s concerned, especially when you consider the federal piece about how you deal with a voter who has moved,\u201d Toulouse Oliver said. \u201cIt makes it really hard to interpret and really hard to enforce anything around people being registered where they don\u2019t actually live.\u201d<\/p>\n

Declaring candidacy for House seat<\/h3>\n

State law provides some leeway in favor of candidates if the question of residency arises. If there\u2019s a dispute, the Election Code<\/a> states, \u201cpermanent residence shall be resolved in favor of that place shown on the person\u2019s certificate of registration as his permanent residence, provided the person resides on the premises.\u201d<\/p>\n

<\/p>\n

Which Lu\u00e9vano now does. But he didn\u2019t by the day in early March when the governor issued her election proclamation, which the law also requires.<\/p>\n

Albuquerque attorney Pat Rogers, who isn\u2019t currently representing Lu\u00e9vano, said ProgressNow is ignoring the provision in state law that says residency disputes shall be resolved in favor of the address listed on a registration form if the candidate lives there.<\/p>\n

\u201cCourts show a big preference\u00a0to qualify candidates \u2013 that\u2019s the\u00a0rule,\u201d Rogers said. \u201cAs my civil procedure professor at Georgetown was fond of saying as to jurisdiction: \u2018Everybody has to be somewhere.\u2019 If his voter residence and the place he intends, indefinitely, to make is home is not\u00a0his residence, where would his residence be located?\u201d<\/p>\n

\u201cHis voter registration, his intent, any physical presence, however slight or fleeting, will qualify,\u201d said Rogers, who is also the Republican national committeeman for New Mexico.<\/p>\n

ProgressNow\u2019s Pat Davis disagrees.<\/p>\n

\u201c\u2026a certificate of occupancy was only issued on March 14 \u2013 eight days after the deadline to establish residency for candidates for office,\u201d he said in a news release.<\/p>\n

If someone files a civil lawsuit challenging Lu\u00e9vano\u2019s candidacy, a judge would decide whether he can stay on the ballot. Otherwise, Toulouse Oliver\u2019s office has already certified his candidacy and he will appear on the ballot.<\/p>\n

Not a matter for the secretary of state<\/h3>\n

This isn\u2019t a matter for the secretary of state, Chief of Staff Ken Ortiz said. Because District 16 is located entirely in Bernalillo County, the issues are Toulouse Oliver\u2019s to handle.<\/p>\n

The clerk did that by certifying Lu\u00e9vano\u2019s candidacy and reporting the voter-fraud allegation to law enforcement.<\/p>\n

\u201cAs with any allegation of voter fraud, we are getting law enforcement involved and cooperating with the investigation,\u201d Toulouse Oliver said. \u201cWhere the candidacy is concerned, we basically believe that our role is to qualify candidacies based on the face of the registration, and if there\u2019s a challenge that is something the courts will deal with.\u201d<\/p>\n

Davis applauded Toulouse Oliver, a Democrat, \u201cfor her efforts to uphold the integrity of our voting system.\u201d<\/p>\n

\u201cIronically, those who try to gain an upper hand by breaking voting laws will likely lose their right to vote in the end,\u201d he said. \u201cAnd, that’s the way it should be.\u201d<\/p>\n

\u2018I don\u2019t have any other residence\u2019<\/h3>\n

ProgressNow has been on the hunt for voter-fraud cases tied to Republicans, and has been quick to point out in its releases about Lu\u00e9vano that it also \u201cconnected a senior staffer for Heather Wilson\u2019s U.S. Senate campaign to a\u00a0scheme to register the staffer\u2019s dog to vote.\u201d<\/p>\n

The group was referring to its uncovering of the fact that a man who illegally registered his dog to vote to prove how easy it is to do is the husband of a staffer<\/a> on Wilson\u2019s campaign. The Bernalillo County Sheriff\u2019s Department is also investigating that case.<\/p>\n

Lu\u00e9vano said he isn\u2019t amused by the comparison.<\/p>\n

\u201cI\u2019ve put my entire 20-year savings into this house, so for them to compare me to a fraudulent dog as an active-duty Marine voting back home is huge,\u201d he said. \u201cIt\u2019s a game that they\u2019re playing, but it\u2019s a serious issue, and that\u2019s the point I\u2019m trying to make.\u201d<\/p>\n

Lu\u00e9vano said he doesn\u2019t know the entire state law on voter registration but knows he had a right to maintain his residency and vote while on active duty \u2013 and the lifelong New Mexico resident did vote here during his entire 20 years on active duty.<\/p>\n

He said his intent is a significant legal consideration \u2013 and he proved intent by buying the lot, paying property taxes and building the home.<\/p>\n

\u201cI\u2019ve shown a clear intent to reside at this residence over years,\u201d he said. \u201cI don\u2019t have any other residence. I don\u2019t know where they wanted me to go.\u201d<\/p>\n

This article has been updated to clarify that Lu\u00e9vano voted in New Mexico during his entire time on active military duty and corrected to clarify the timeline of events. The article previously failed to mention that he was stationed in Missouri and used to own another house in Albuquerque, and incorrectly stated he registered to vote at the house in District 16 in March 2011, not April 2011.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

While Johnny Lu\u00e9vano\u2019s retirement home was being built, he used the address to register to vote and vote. He says that was his best option for retaining residency while an active-duty Marine. Police are investigating.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[156,142,171,107,225],"class_list":["post-38221","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","tag-2012-election","tag-crime","tag-military","tag-roundhouse","tag-voter-fraud"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/38221","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=38221"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/38221\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=38221"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=38221"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=38221"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}