NM Secretary Of State Settles In ‘Win For Election Transparency’

New Mexico will cut its $5,000-plus fee to obtain individual copies of the state’s voter rolls by more than 90 percent after reaching a settlement with the Public Interest Legal Foundation (PILF).

The election integrity watchdog says the agreement is a big win for transparency and the law, putting on notice states that charge exorbitant fees for voter records. 

The settlement resolves a lawsuit that PILF filed in February 2023 against New Mexico Secretary of State Maggie Toulouse Oliver, a Democrat, alleging the Land of Enchantment violated the National Voter Registration Act (NVRA) by excessively overcharging for voter roll information. According to the agreement, Oliver has reduced the cost for the complete voter list to $600. 

“Defendant represents that she has implemented an office-wide reduction of the SERVIS Data Fees, which have a maximum of $600.00 per request,” the settlement, filed last last month in the U.S. District Court of New Mexico, states. “Defendant shall change all public-facing fee schedules to reflect the new $600.00.”

J. Christian Adams, president of PILF, said the settlement is a “win for election transparency.” 

‘At a Reasonable Cost’ 

The Alexandria, Va.-based foundation regularly purchases voter records to analyze whether local and state elections officials are, among other things, keeping their voter rolls clean and current in accordance with federal and state election law. PILF relies on access to these records in putting together reports and other communications to educate the public on election integrity issues. That’s what watchdog organizations do. 

New Mexico requires requests for State Elections Registration and Voting Integrity System (SERVICE) data to be sent via the “Voter Data Request Form.”  

According to PILF’s lawsuit, fee schedules included: 

› $4 per 1,000 records with voting history (unsorted) in electronic format

› $3 per 1,000 records without voting history (unsorted) in electronic format

› $5 per 1,000 records printed list (as requested)

The costs included a $15 setup fee on all voter data information requests, according to the complaint. Those requesting voter records must pay the data fees each time a request is made.

Said fees can add up quickly. New Mexico counted more than 1.37 million registered voters in November’s election, according to records from the Secretary of State’s office reported by Source NM. Individuals seeking a statewide list of registered voters with registered voting history information would have to pay thousands of dollars for each digital list. And that’s for a snapshot in time. Voter lists, as election integrity watchdogs are all too aware, are subject to change. 

The National Voter Registration Act requires elections officials “to protect the integrity of the electoral process” and “to ensure that accurate and current voter registration rolls are maintained.” Doing so requires each state to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of … the death of the registrant … or a change in the residence of the registrant[.]” 

States also are subject to the NVRA’s public records provision. The law demands all records “concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters” must be maintained for at least two years. The records also must be available for inspection and, where available, photocopying, “at a reasonable cost.” 

‘Preempted and Unenforceable’

New Mexico’s Secretary of State’s office apparently believed $5,000 was a “reasonable cost.” PILF offered to defray the processing costs borne by the office by bringing “storage media resources and hardware to complete the data transfer,” according to the complaint. 

No dice. 

A PILF representative was presented with a copy of the “Data Fees” document indicating the price tag would be “approximately $5,000.” 

“The imposition of a $5,000 per-request fee is not ‘reasonable,’ as the NVRA requires, but is exorbitant and arbitrary,” PILF informed the agency in a notice letter, dated Nov. 4, 2022. “New Mexico’s $5,000 per-request fee precludes access to public records in a way that poses obstacles to the achievement of the NVRA’s objectives. The $5,000 per-request fee is therefore preempted and unenforceable.” 

Toulouse Oliver apparently disagreed. The leftist’s special counsel informed the foundation that it first needed to provide an affidavit “that the data will be used for governmental or election and election campaign purposes only and shall not be made available or used for unlawful purposes, from a requester before voter data is provided.” 

PILF responded that the secretary was breaking federal law. Even though the foundation argues it is not required to do so under the NVRA, it provided the completed “Voter Information Authorization” form as requested. Toulouse Oliver then charged PILF $5,479.40 for the voter list, according to court documents. She insisted that the voter roll “is not a record subject to disclosure under the NVRA,” according to a letter attached in the complaint. 

The foundation gave notice that New Mexico was violating that act’s transparency provisions. But the secretary’s office had not “cured her NVRA violation.” So the foundation sued, alleging denial of access and the implementation of unlawful costs. 

‘We’re Watching Other States’

Lauren Bowman Bis, PILF’s director of communications and engagement, said the secretary of state’s data fee system not only ran counter to the principles of open government and election integrity, it violated federal law with excessive record costs. 

“It’s a roadblock to transparency,” she told The Federalist in an interview. 

She noted PILF’s work in Michigan, where it used the state’s voter database to track deceased registrants. In a video released in February, the foundation showed the graves and obituaries of the dead still on Michigan’s voter list to highlight the election integrity threat. More than two years earlier, PILF had filed a federal lawsuit against Michigan Secretary of State Jocelyn Benson on allegations the far-left Democrat violated the NVRA by “failing to make a reasonable effort to remove deceased registrants from the voter rolls.” According to the complaint, the foundation had uncovered more than 26,000 deceased registrations on the rolls — with more than 17,000 of registrants dead for at least a decade, nearly 4,000 dead for two decades or more. 

In late October, PILF appealed the case to the U.S. Sixth Circuit Court of Appeals. 

Fortunately, Bis said, Michigan’s voter roll access fees are not nearly as steep as other states’ costs. 

“You have to purchase voter rolls multiple times to be confident in your data,” the PILF spokeswoman said. “That adds a whole other level of expense in states like New Mexico that had just been blocking people from being able to hold their election officials accountable.” 

Wisconsin, Alabama, Texas, and Virginia charge more than $12,000 to obtain a copy of voter rolls, according to PILF. 

As The Federalist has reported, the foundation sued Wisconsin elections regulators last year for failing to follow the National Voter Registration Act public disclosure provision. It’s a broader lawsuit that gets at what PILF believes to be the inherent unfairness of a handful of states, including Wisconsin and Minnesota, from the NVRA provisions because they offer same-day voter registration. Bis said that lawsuit also deals with the prohibitive costs to obtain Badger State voter roll information. 

“The charge for reports in electronic format is a $25 base fee per report; plus $5 for the first 1,000 voter registration data records, or up to 1,000 voter registration data records; plus $5 for each additional 1,000 voter registration data records, rounded to the nearest thousand. The maximum charge for an electronic report is $12,500,” according to state administrative code.

Bis said she’s hopeful other states will take notice of the New Mexico settlement. 

“We’re watching other states to see what can be done there,” she said. “If they’re not following the law and providing voter rolls at reasonable costs as the NVRA calls for, we’re here as watchdogs to put these officials on notice.”

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.