Judge orders state to ensure formerly incarcerated New Mexicans can vote in next month’s election

The New Mexico Corrections Department was not regularly communicating who was in its prisons to the Secretary of State, who in turn was forced “to rely on outdated and inaccurate information,” according to a lawsuit. (Photo by Austin Fisher / Source NM)

A judge has ordered two state agencies to work together to ensure roughly 11,000 formerly incarcerated New Mexicans can vote in next month’s election if they want.

Tuesday’s order came in response to a lawsuit filed in late September alleging the voting rights of up to 11,000 individuals were in jeopardy this year, a violation of a 2023 law that allows people incarcerated on felony crimes to vote once they had been released, even if they are still on probation or parole.

The order , issued by Judge Kathleen McGarry Etlenwood in Santa Fe District Court, also created a process by which the state’s 33 county clerks can confirm through a 24-hour hotline whether people convicted of felonies who’ve registered to vote online or through the mail are no longer behind bars.

At the heart of the problem was that the New Mexico Corrections Department was not regularly communicating who was currently in its prisons to the Secretary of State, who in turn was forced “to rely on outdated and inaccurate information,” according to the lawsuit. The end result: the Secretary of State was improperly flagging individuals who were, according to the 2023 law, eligible to vote.

Tuesday’s order provides a short-term fix, ensuring those New Mexicans potentially disenfranchised can vote in next month’s election, said Santa Fe attorney Daniel Yohalem, who along with Washington-based Campaign Legal Center and the group Millions for Prisoners New Mexico, sued the state.

“We pushed repeatedly but the Secretary of State ignored us until we filed the lawsuit,” Yohalem said of the state agency responsible for guaranteeing New Mexicans’ right to vote.

A spokesman for the Secretary of State did not respond to a text and telephone call seeking comment Tuesday.

The state courts will retain oversight of the issue, at least for the foreseeable future, according to the order. A status conference in the second half of January will be held to determine if the two state agencies met the judge’s stipulations in the order. The judge also will hear about “the progress made by NMSOS and the NM Corrections Department to achieve the seamless exchange of data.”

Creating systems at the corrections agency and Secretary of State to talk to one another is one of the long-term fixes the plaintiffs are seeking, Yohalem said.

The judge’s stipulations in Tuesday’s order are clear.

The corrections department must send a database of all the people incarcerated in its system each month to the Secretary of State, allowing that agency to compare voter lists against current corrections data. To guard against making mistakes about who is behind bars and who is not, the corrections data will include personal information such as birthdays and social security numbers of offenders in the prison system, the order said. If a person is not found in the corrections database, the Secretary of State will clear a formerly incarcerated person to be able to register to vote.

The corrections agency also will set up a 24-hour hotline county clerks can call to confirm if a person seeking to register to vote by mail or online is no longer behind bars.

County clerks will have until October 18 to take a second look at voter registration applications dating back to July 1, 2023 when the new law went into effect, and correct them if the applicants were improperly rejected from registering to vote despite having been released.

“These people, our clients, are sensitive, they are in jeopardy,” Yohalem said. “They have had bad experiences dealing with the government and don’t really trust the government and they went in to register and were told repeatedly they could not register to vote.”

“We are trying to get the word out to them that this is real, they can register to vote,” he added.

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