THOMSON LAW OFFICE, P.C.

David K. Thomson
August 3, 2012
VIA FACSIMILE AND U.S. MAIL
Fax: (505) 817-8081
Diana Duran
NM Secretary of State
New Mexico State Capitol
325 Don Gaspar, Suite 300
Santa Fe, NM 87501
RE: Secretary of State Maintenance of Voter File
Dear Madam Secretary:
I represent the Democratic Party voter protection team and other concerned voters
who are threatened to be disenfranchised by your most recent decision to include voter
suppression language in your otherwise lawful process of clearing the voter rolls. The
objectionable language is shown in Exhibits 1 and 2 of this letter. We respectfully request
that you cease and desist from sending this mailer until this matter is resolved.
Let me say from the onset that we do not object to your authority or action to
reduce the voter rolls in a manner consistent with NMSA 1-4-28(C). For example, you
properly sent the notices before August 8. Your preliminary statement is correct that a
voter should return the card within 28 days to confirm the voter's proper address (N.M.
Stat. Ann. 1-4-28(C)(I)). However, despite your representations in the mailing, the
recipient's registration cannot be cancelled until the day after the second general election
following themailingofthenotice(N.M.Stat.Ann1-4-28(E)(1)).This means that
even if the voter does not return the card sent by the SOS, the voter may not be purged
from the voter roll before the 2012 election.
If the voter has moved, she may update her address at the polls on Election Day
(N.M. Stat. Ann. 1A-28(C)(2))-or return the card setting out her new address (N.M.
Stat. Ann. 1-4-28(C)(4) and (5)). See also NMAC 1.10.35.9. This statutory provision
is to allow a voter to update their address; it is not a grant of authority to the Secretary of
State to require verification by the voter oftheir address. To do so is a back door attempt
at voter identification.
Tel: 505-982-1873
Santa Fe, N.M. 87501
Fax: 505-982-8012
david@thomsonlawfirm.net
303 Paseo de Peralta
As outlined below, the instructions to the voter on the mailer are contrary to law.
The mailer states, "you may be required to confirm your current address on the poles at
election day if this card is not returned." See Exhibit I attached. To compound your
mistake you made the public statement saying, "[i]f you receive one of these postcards in
the mail, please fill it out, update your address, and return it promptly. Your address and
voting precinct will be corrected and you will remain eligible to vote." See Exhibit 2.
The election code clearly prohibits your efforts to try and disqualify voters for
mismatched addresses. As stated in the Election Code, "required voter identification"
means any ofthe following forms of identification as chosen by the voter:
A. A physical form of identification, which may be:
(l) An original copy of a current and valid photo identification
with or without an address, which address is not required to
match the voter's certificate of registration; or
(2) An original copy of a utility bill, bank statement,
government check, paycheck, student identification card, or
other government document-including identification issued
by an Indian nation, tribe or pueblo that shows the name and
address of the person, the address of which is not required to
match the voter's certificate of registration.
B. A verbal or written statement from the voter stating their name,
registration address, and year of birth-provided, however, that the
statement of the voter's name need not contain the voter's middle
initial or suffix.
N.M.S.A. 1978, 1-1-24
Regarding the issue of a voter's eligibility, the administrative code attached
clearly shows a voter cannot be removed from the voter file as you suggest in your mailer
attached as Exhibit 1.
G. A voter whose confirmation card is returned undeliverable
shall be designated on the voter file as "inactive." The designation
shall be carried out only by the Secretary of State.
H. A voter is eligible for removal from the voter file if the voter
has not been returned to active status, corrected the voter's address
on the certificate of registration and not appeared to vote during a
period beginning on the date of the confirmation mailing and
ending on the day after the date of the second general election
that occurs after the date of the confirmation mailing.
2
I. Cancellation of voter registration shall be by the board of
registration and subject to the provisions of the election code.
Upon cancellation, the county clerk shall remove the certificate of
registration from the county register and retain it for six (6) years.
NM ADC 1.10.35
Therefore, a voter will remain eligible to vote in the 2012 election even if they do
not send back the card. You must omit this erroneous language from the card and correct
your public statements. In addition, during the upcoming election school for county
clerks, you must specifically advise the county clerks that they may remind voters to keep
their address up to date, but they may not ask them to "confirm your current address" at
the polls. You also may not instruct the use of provisional ballots based on your
misreading ofthe law.
We ask that you cease and desist from sending out these mailers with the
language I have highlighted. Again, we have objection to you continuing with the
process under NMSA 1978 1-4-28 as long as you comply with the law and do not use it
for a purpose of voter confusion, harassment or suppression.
Please acknowledge receipt ofthis letter, and advise ofthe steps you plan to take
to correct it.
Very truly yours,
Thomson Law Office, P.C.
ac
DAVID K. THOMSON
cc: Attorney General Gary King
Encl.
3
DIANNA .I. DURAN
SECRETARY OF STATE
PRESORTED
STATE OF NEW MEXICO FIRST-CLASS MAIL
PO BOX 25113 US POSTAGE PAID
Santa Fe, New Mexico 87504-5113
Albuquerque, NM
Permit No. 1893 !
FORWARDING SERVICE REQUESTED
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TEAR ALONG PERFORATION BEFORE MAlUNG 1 VALENCIA COUNTY CLERK
CORTELO A LO LARGO DE LA PERFORACION 505-8662073
.
ANTES DE ENVIARLO POR CORREO 108748
ATTENTIO N YOTER: Please completely fill in the information below and return this postage paid card to the address
listed on the.reverse side as SIlon as possible, If you have questions regarding this form please call the Office of the County
Clerk at the number above.. Thank you. Dianna J.Duran, Secnltary of State
ATENCION YOTANTE: Por favor Ilene completamenle esta informaci6n yenvie Ia tarjetacon franqueo pagado ala
dlrecdOn listada en el reverso de esta tarjeta 10 mas pronto posilbe. Si usled tiene alguna pregunta, favor de lIamar ala Oficina
de el (18) Escribano(a) del Condado ael numero arriba. Gracias, Dianna J. Duran, Secretaria de Estado
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COIIFI_CION DliLRlGIBTRoDEL'.VOTANrE

De acuenio con III National Voler Regislration Act. la OIicina de el
{la} EscrioallO(a) de Condado liS requerido(a) confirmsr /s
residencia de los IjI}tantes denim de la jurlsdicc!on del Condado.
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Por Favor aepare y complete y envle la
tarJeta postal no mas tarde del
9 de Octubre de 2012.
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'USTED pooRA SER REQUERIOO CONFIRMAR SU
ACTUAL RESIDENCIA EN EL SITIO DE VOTAR EN EL DIA
DE LAELECCION $I ESTA TARJETANO ES ENVIADA.
'SI ESTA TARJETA NO ES ENVIACA YUSTED NO VOTA EN
NINGUNAELECCION DESDE LAFECHADE ESTATARJETA
HASTA LA ELECCION GENERAl DE NOVIEMBRE DEL
2014. SU NOMBRE SERA REMOVIDO DE LA lISTA DE
REGiSTRO DE VOTANTES.
'SI USTED SE CAMBIO AOTRO CONDACO USTED DEBE
REGISTRARSE CON EL ESCRIBANO (Al DEL CONDACO
EN EL CONDACO CUAL USTED RADICAAHORA.
cONFlRllATIONOF YOTSt:lal81RA't'ION
In accordance wrlh the Naliooal Voter RegislrBlkm Act. the OffICe
of the Counly Clelk is requirod to confirm Ihe residence of vofBll1
wHhln the Counlys jurisdiction.
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Please detach, complete and return
this postcard no later than
October 9, 2012.
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'YOU MAY BE REQUIRED TO CONFIRM YOUR CURRENT
ADDRESS AT THE POLLS ON ELECTION DAY IF THIS
CARD IS NOT RETURNED.
'IF THIS CARD IS NOT RETURNED AND YOU DO NOT
VOTE IN ANY ELECTION FROM THE DATE OF THlS
NOTICE THROUGH THE NOVEMBER. 2014 GENERAL
ELECTION. YOUR NAME WILL BE REMOVED FROM THE
VOTER REGISTRATION LIST.
'IF YOU HAVE MOVED TO ANOTHER COUNTY YOU MUST
RE-REGISTER WITH THE COUNTY CLERK IN THE
COUNTY IN WHICH YOU NOW RESIDE,
THIS CARD IS NO,T A
'. V.OTER REGISTRATION FORM.
FOR IMMEDIATE RELEASE Contact: Ken Ortiz
July 31,2012
Chief of Staff
Secretary of State
(505) 827-3600
Secretary of State working to correct the state Voter File
New Mexico has not followed federally-required procedures since 2005
SANTA FE - The Secretary of State (SOS) is working to correct the statewide voter file,
beginning the process of purging non-residents and non-voters-a notification process that New
Mexico has not completed in over seven years.
In 2011, the Department of Justice (DOJ) informed the new, incoming Secretary of State, Dianna
Duran, that New Mexico was the only state that was not in compliance with the National Voter
Registration Act (NVRA). DOJ informed the SOS that the previous administration had not
complied with the Act in either 2007 or 2009. As a result, the New Mexico voter file may
contain as many as 170,000 non-residents or otherwise ineligible voters.
"Many ofthese voters moved out of state years ago and should have already been removed from
the voter files if the process had been correctly followed in the past," said Secretary Dianna
Duran, "We are working hard to clean up the file and bring New Mexico into compliance with
federal law."
Under the NVRA, the Secretary of State is required to mail a notice to voters whose election
mail has been returned as "undeliverable," or who have a National Change of Address (NCOA)
on file with the US Post Office. The SOS must request that these voters return a confirmation
card with a current address. If those voters do not return the card, updating their address, and do
not vote in any general election through 2014, then their names will be purged (removed) from
the voter rolls.
To begin the process of bringing New Mexico into compliance, this week the Secretary of State's
office is mailing 177,768 postcards. The Secretary of State is urging voters to update their
mailing information. "If you receive one ofthese postcards in the mail," Duran said, "Please fill
it out, update your address, and return it promptly. Your address and voting precinct will be
corrected and you will remain eligible to vote."
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