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As states prepare for the worst and steel themselves against attacks on voting rights, a coalition of advocates in New Mexico celebrated a remarkable triumph just prior to the holidays. In response to a lawsuit filed by groups including Project Vote, Demos, and the Lawyers’ Committee for Civil Rights Under Law, claiming that New Mexico public assistance agencies were not offering clients the opportunity to register to vote as required under Section 7 of the National Voter Registration Act (NVRA), U.S. District Judge Judith Herrera made history by issuing the first legal ruling on the issue of whether clients must “opt in” to receive voter registration materials.
Under Section 7, state public assistance agencies are required to give every client a voter registration application alongside the materials needed for benefits, recertification, or change of address. However, New Mexico's policy to date had been to disburse voter registration applications only when clients requested them. Unsurprisingly, in 2007-2008 combined, reported numbers showed that only 1,428 voter registration applications originated in New Mexico’s Human Services Division (HSD) — an abysmal 0.6% of the total applications for benefits received. The court ruled that "Section 7 does not make the provision of a voter registration application contingent upon an affirmative request," making New Mexico's policy of requiring clients to "opt in" a violation of the law. Judge Herrera further noted that "the Court cannot say as a matter of law that HSD has demonstrated that it has the tools in place to be compliant in the future without an injunction and Court monitoring," a commitment from the court to ensure that compliance is achieved.
The District Court also rejected the Secretary of State's claim that her office was not charged with ensuring statewide conformity with NVRA guidelines. Citing the Sixth Circuit Court of Appeal's decision in Harkless v. Brunner — a case in Ohio that was initiated by the same group of voting rights advocates — Judge Herrera ruled that "each state's chief election official is responsible for NVRA state compliance," and that the Secretary of State “has the obligation to prescribe the actions that the state, including HSD offices, must take to comply with Section 7."
This milestone follows on the heels of a related victory in the state last July, when a similar coalition of democracy advocates reached a settlement agreement to bring New Mexico's Motor Vehicle Division into compliance with the NVRA.
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