CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/6/2023 1

State-Court Ballot Litigation and 

the Federal Deadline for Overseas Ballots 

Board of County Commissioners v. Duran 

(1:14-cv-844) and New Mexico ex rel. Salazar 

v. Duran (1:14-cv-848) (Karen B. Molzen, D.N.M.) 

A state’s secretary of state removed two actions to federal court that 

challenged her refusal to put nonbinding ballot questions on two 

counties’ ballots, citing federal requirements that she transmit absentee ballots to overseas voters imminently. The parties consented to a 

magistrate judge’s presiding over the cases, and the judge determined 

that she did not have federal jurisdiction over the cases, applying the 

well-pleaded complaint rule. The state court ruled promptly against 

the secretary of state. 

Subject: Ballot measures. Topics: Getting on the ballot; ballot 

measure; absentee ballots; case assignment; matters for state courts; 

Uniformed and Overseas Citizens Absentee Voting Act 

(UOCAVA). 

Three days before the September 20, 2014, federal deadline for mailing absentee ballots overseas for the 2014 general election, New Mexico’s secretary of 

state filed an injunction motion in the District of New Mexico challenging a 

state-court action by Bernalillo’s county clerk as improperly delaying the 

printing of ballots in Bernalillo County.1

The clerk had filed a mandamus petition with New Mexico’s supreme 

court on September 15, challenging the secretary of state’s refusal to place advisory questions on Bernalillo’s ballots.2

 New Mexico’s supreme court set the 

matter for hearing on September 23 and stayed final printing of ballots for 

Bernalillo County.3

 The secretary removed this action to federal court on September 16.4

 On the following day, the county clerk moved for a remand.5 Magistrate Judge Karen B. Molzen set the motions for hearing at 4:00 that afternoon.6

1. Injunction Motion, Bd. of Cty. Comm’rs v. Duran, No. 1:14-cv-844 (D.N.M. Sept. 17, 

2014), D.E. 5 [hereinafter Bd. of Cty. Comm’rs Injunction Motion]. 

2. Mandamus Petition, Bd. of Cty. Comm’rs v. Duran, No. 34,890 (N.M. Sept. 15, 2014), 

also filed as Ex. A, Notice of Removal, Bd. of Cty. Comm’rs, No. 1:14-cv-844 (D.N.M. Sept. 16, 

2014), D.E. 1 [hereinafter Bernalillo County Notice of Removal]. 

“One of the two non-binding Bernalillo County questions would center on marijuana decriminalization, while the other would be on raising taxes for mental-health programs.” Dan 

Boyd, Debate Heats Up on Easing Pot Penalties, Albuquerque J., Sept. 17, 2014, at A1. 

3. Order, Bd. of Cty. Comm’rs, No. 34,890 (N.M. Sept. 16, 2014), also filed as Ex. B, Bernalillo County Notice of Removal, supra note 2; see Dan McKay, High Court Will Hear Bern. 

Ballot Arguments, Albuquerque J., Sept. 16, 2014, at A1. 

4. Bernalillo County Notice of Removal, supra note 2. 

5. Remand Motion, Bd. of Cty. Comm’rs, No. 1:14-cv-844 (D.N.M. Sept. 17, 2014), D.E. 7. 

6. Order, id. (Sept. 17, 2014), D.E. 8. 

Tim Reagan interviewed Judge Molzen for this report by telephone on September 21, 2015. 
State-Court Ballot Litigation and the Federal Deadline for Overseas Ballots 

2 Federal Judicial Center 10/6/2023 

In the District of New Mexico, civil cases other than prisoner petitions 

were assigned to magistrate judges, who presided over the cases with the parties’ consent.7

 In this case, the parties consented.8

Overseas ballots were the subject of litigation for 2010 and 2012 elections. 

On October 14, 2010, Judge Martha Vázquez issued a consent decree9 binding 

New Mexico and the U.S. Justice Department to remedies for New Mexico 

election officials’ sending some overseas voters late absentee ballots in violation of the Uniformed and Overseas Citizens Absentee Voting Act of 1986,10

as amended by the Military and Overseas Voter Empowerment Act of 2009.11

A supplemental consent decree covered the 2012 election cycle.12

On the day after Bernalillo filed its action with New Mexico’s supreme 

court, Santa Fe County filed a similar mandamus action,13 which the supreme 

court set for hearing on September 19, 2014.14 New Mexico’s secretary of state 

removed this action on September 17,15 and Santa Fe County moved for a remand on September 18.16 Assured that the parties in the second case also consented to magistrate-judge jurisdiction, Judge Molzen consolidated the Bernalillo action and the Santa Fe action.17 She held a second hearing on September 18.18

Finding that the federal court lacked subject-matter jurisdiction over the 

cases, following the well-pleaded complaint rule, Judge Molzen remanded the 

two cases on the day of the second hearing.19

7. Interview with Hon. Karen B. Molzen, Sept. 21, 2015. 

8. Minutes, Bd. of Cty. Comm’rs, No. 1:14-cv-844 (D.N.M. Sept. 17, 2014), D.E. 9. 

9. Consent Decree, United States v. New Mexico, No. 1:10-cv-968 (D.N.M. Oct. 14, 2010), 

D.E. 7, also filed as Ex. A, Bd. of Cty. Comm’rs Injunction Motion, supra note 1; see Complaint, 

Bd. of Cty. Comm’rs, No. 1:14-cv-844 (D.N.M. Oct. 12, 2010), D.E. 1. 

10. Pub. L. No. 99-410, 100 Stat. 924, as amended, 52 U.S.C. §§ 20301–20311. See generally

Robert Timothy Reagan, Overseas Voting: The Uniformed and Overseas Citizens Absentee 

Voting Act (Federal Judicial Center 2016). 

11. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 

2190, 2318–35. 

12. Supplemental Consent Decree, United States v. New Mexico, No. 1:10-cv-968 (D.N.M. 

Aug. 1, 2011), D.E. 12. 

13. Mandamus Petition, New Mexico ex rel. Salazar v. Duran, No. 34,893 (N.M. Sept. 16, 

2014), also filed as Ex. A, Notice of Removal, New Mexico ex rel. Salazar v. Duran, No. 1:14-

cv-848 (D.N.M. Sept. 17, 2014), D.E. 1 [hereinafter Santa Fe County Notice of Removal]; see

Boyd, supra note 2 (“Earlier this month, the Santa Fe commission voted to include a question 

on the ballot asking voters whether the commission should support city, county and statewide 

efforts to decriminalize possession of one ounce or less of marijuana.”). 

14. Order, Salazar, No. 34,893 (N.M. Sept. 17, 2014), also filed as Ex. B, Santa Fe County 

Notice of Removal, supra note 13. 

15. Santa Fe County Notice of Removal, supra note 13. 

16. Remand Motion, Salazar, No. 1:14-cv-848 (D.N.M. Sept. 18, 2014), D.E. 4. 

17. Order, Bd. of Cty. Comm’rs v. Duran, No. 1:14-cv-844 (D.N.M. Sept. 18, 2014), D.E. 

13; Docket Sheet, Salazar, No. 1:14-cv-848 (D.N.M. Sept. 17, 2014) (D.E. 5 to 7); Interview 

with Hon. Karen B. Molzen, Sept. 21, 2015; see Joint Motion to Consolidate, Salazar, No. 1:14-

cv-848 (D.N.M. Sept. 18, 2014), D.E. 9. 

18. Minutes, Bd. of Cty. Comm’rs, No. 1:14-cv-844 (D.N.M. Sept. 18, 2014), D.E. 14. 

19. Order, id. (Sept. 18, 2014), D.E. 15; Interview with Hon. Karen B. Molzen, Sept. 21, 
State-Court Ballot Litigation and the Federal Deadline for Overseas Ballots 

Federal Judicial Center 10/6/2023 3

On September 19, New Mexico’s supreme court ruled in favor of nonbinding questions on the counties’ ballots.20 Judge Molzen was pleased that the 

state court was able to resolve the cases promptly.21

2015; see Scott Sandlin, Ballot Issue Back in State Court, Albuquerque J., Sept. 19, 2014, at C1 

(“A case may be removed by the defendant only if it could have been filed in federal court in 

the first place, she said.”). 

20. Order, Bd. of Cty. Comm’rs v. Duran, No. 34,890 (N.M. Sept. 19, 2014); see Thomas J. 

Cole, Ballot Fight Comes Down to “Other Questions,” Albuquerque J., Sept. 29, 2014, at A1; 

Dan McKay, Court Puts Pot Questions Back on Ballot, Albuquerque J., Sept. 20, 2014, at A1. 

21. Interview with Hon. Karen B. Molzen, Sept. 21, 2015.