Jo Ann Gutierrez-Bejar remembers volunteering for the annual voter registration drive in Albuquerque, N.M. She remembers the camaraderie as the group of usually 30 to 40 volunteers headed out in the morning, clipboards in hand, to knock on doors and register new voters.
But those days are over.
"It's gotten to the point where a neighbor can't register another neighbor to vote," said Gutierrez-Bejar, now the communications organizer of the statewide Latino advocacy group, SouthWest Organizing Project — the same group for which she used to volunteer.
The group blames a 2006 state law aimed at regulating third-party registration drives. Part of the law imposed criminal penalties for failing to return completed applications within 48 hours. It also requires form gatherers to pre-register, become certified and sign out a limited number of voter registration forms at county offices.
Opponents of New Mexico's law believe it could have enough impact to sway the November election, considering that President George W. Bush beat Sen. John Kerry in the state by fewer than 6,000 votes in 2004. So even the slightest margin could tilt the balance.
Between November 2007 and March 2008, New Mexico added 31,500 new voters, not including those who may have re-registered, according to the secretary of state. In 2004, before the law in question, more than 100,000 voters — roughly 15 percent of all voters in the state — registered by a third-party, according to the U.S. Census.
These days, SWOP doesn't even solicit volunteers to register voters. Instead, it relies on 10 staffers for all of its get-out-the-vote drives. While it used to register thousands of new voters, this year the group has probably enrolled fewer than 100, Gutierrez-Bejar said.
"This law is significantly restricting our ability to register new voters," she said.
Four nonpartisan advocacy groups, including SWOP, filed a lawsuit in New Mexico state court on July 24 to loosen those third-party registration laws on the grounds that they violate constitutional rights and the National Voting Rights Act.
New Mexico Gov. Bill Richardson indicated he might be open to revising parts of the state law.
Allan Oliver, the governor's deputy communications director, said: "There may be merit to reviewing the voter registration process to ensure there are not undue hardships on people who are running legitimate voter registration efforts. But we need safeguards that assure voter registration information will be delivered safely to our state election officials."
Voter advocate lawyers have successfully challenged similar laws in other states crucial to the November presidential election.
Attorneys for the nonprofit Advancement Project persuaded a judge to suspend a Florida law that requires third-party groups to pre-register and return their completed forms within 10 days. The case, League of Women Voters of Florida v. Browning, awaits a ruling from a federal district court judge in Miami.
In Ohio, attorneys for the voter rights group Project Vote succeeded in permanently negating parts of a state law that required pre-registration and training for paid form gatherers. A 10-day deadline like the one contested in Florida is all that remains in place.
Georgia had a similar law shot down in the courts, though Advancement Project lawyers alleged recently that Georgia officials are not abiding by the court order.
New Mexico Stands Out
Denise Lamb, who served for 12 years as New Mexico's state election director until 2004 and now works as the Santa Fe County director of voter registration, called the recent lawsuit "ludicrous." Lamb defended the state by saying the law serves a valuable purpose to protect the rights of voters who put their trust in the hands of voter registration groups. Besides, Lamb said, the law is largely ineffective because get-out-the-vote drives can always forego state law by using federal voter registration forms.
But confusion exists over those federal forms. New Mexico Secretary of State Mary Herrera and Attorney General Gary King declined to comment on the matter.
"This law had nothing to do with voter fraud," Lamb said. "This had to do with agents not turning in the forms and filling them out honestly. If the state is permitting people to act as their agents, I think 48 hours to mail something in without postage is a small thing to ask."
The 48-hour turnaround time, one of the nation's shortest, accounts for just one of the reasons the law is unconstitutional, argued Wendy Weiser, an attorney with the Brennan Center of Justice who serves as lead counsel in the case and has studied third-party registration laws across the country.
"You have to look at the entirety of the law and see how punitive it is," Weiser said. "New Mexico, with its combination of harsh penalties, pre-registration and limited training puts it into a class unto itself. In a year in which unprecedented numbers of Americans are interested in participating in our democracy, New Mexico should be welcoming new voters, not putting up barriers to their participation."
Those most adversely affected by the law, according to the attorneys prosecuting the case, are minorities and the historically disenfranchised, individuals most likely to rely on third-party groups in order to register.
Others Go Unchallenged
Before the National Voting Rights Act was revised in 1993, so-called "deputy registrar" systems similar to New Mexico's certification program — with pre-registration and official training requirements — were commonplace and historically viewed as a way to suppress the vote. Legal observers widely understood the landmark civil rights law to have abolished deputy registrars. But several states clearly kept their systems in place.
Colorado, Maryland, Missouri and New Mexico each enacted laws restricting community-based voter registration drives after the 2004 election. So far, New Mexico's is the first among these latest measures to be challenged. Other states, including Texas and Hawaii, have had similar laws on the books left unchallenged for years.
Other states, including Arizona and Wisconsin, maintain such laws, but they are either not enforced or they provide broad exceptions. Most states impose minimal, if any, regulations. A detailed report prepared by the Brennan Center describes policies toward registration groups in nearly every state.
"New Mexico has enacted one of the most chilling and restrictive voter registration laws in the country," Weiser said.
A Chilling Effect
In Bernalillo County, where Albuquerque is located, training courses to become certified registration agents typically last about an hour and tend to be offered just a few times a week during regular business hours. Maggie Toulouse Oliver, the county clerk, said her office accommodates groups as much as possible by offering training on weekends or after hours. So far this year, the county has certified 900 registration agents.
"We're doing everything we can do to try and accommodate these groups," she said.
The Students for New Mexico PIRG, based at the University of New Mexico in Albuquerque, has felt the impact on its get-out-the-vote drives, said board member Katryn Fraher. Before the law took effect, the group organized between 50 and 75 volunteers registering people to vote. Now it gets about a dozen volunteers each semester.
"It was so easy to get volunteers before," she said. "Students could come out every day or just once."
The story in Albuquerque differs slightly from that in Santa Fe, where election officials conduct training courses — typically lasting about 10 minutes — primarily at the time and place that registration groups request, said Lamb, the county's director of voter registration. Since June, Lamb and her colleagues have certified about 100 registration agents.
"It's unfortunate there isn't enough coordination," Lamb said. "I don't think there's ever really been any directive from the state in terms of how we should conduct these trainings."
The certification in New Mexico does not apply to those who want to simply distribute registration forms, but advocacy groups find the tactic far less effective because they are unable to follow up with people they registered or check whether they actually made it onto the voter roll.
"If your goal is to turn that person out to vote, all of these rules have a negative impact on the effectiveness of voter registration drives," said Jeanette Senecal, head of the elections and e-democracy department of the League of Women Voters.
Although New Mexico hasn't leveled a penalty against any of the groups involved in the lawsuit (no reports of prosecution for seemingly innocent mistakes have surfaced), the mere threat of prosecution is enough to have a chilling effect, voter advocates contend.
"We're just not willing to put our volunteers at risk," Gutierrez-Bejar said.
For students at the University of New Mexico, threat of criminal prosecution was enough to send several volunteers packing. "It scared off a lot of people and drastically decreased all of our numbers," Fraher said.