CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/9/2023 1

A Recount Ordered Because of Evidence 

That Write-In Votes Were Not Counted 

Curtis v. Oliver (James O. Browning, D.N.M. 1:20-cv-748) 

A write-in Libertarian Party primary-election candidate for New 

Mexico’s court of appeals was only a few votes short of the number 

needed to advance to the general election. But there were indications 

of counting errors related to extensive absentee voting because of the 

social distancing made necessary by a global infectious pandemic. 

There was sufficient evidence of an undercount in one county for the 

district judge to order a recount. After the recount, the candidate 

qualified for the general election. 

Subject: Recounts. Topics: Election errors; primary election; 

voting technology; recounts; absentee ballots; early voting; matters 

for state courts; Covid-19; attorney fees. 

A write-in candidate for New Mexico’s court of appeals in the Libertarian 

Party’s June 2, 2020, primary election filed a federal complaint in the District 

of New Mexico on July 23, 2020, against New Mexico’s secretary of state, including as plaintiffs the Libertarian Party of New Mexico, its chair, and a voter, 

alleging that election officials failed to tabulate all votes for the first plaintiff, 

denying him qualification for the general-election ballot.1

 According to the 

complaint, the candidate plaintiff “was credited with receiving only 204 votes 

by Defendant, 26 votes short of the number required.”2 Six days later, the 

plaintiffs filed a motion for a temporary restraining order and a preliminary 

injunction requiring recounts in seven counties.3

Judge James O. Browning set the case for a videoconference hearing on 

August 7, noting on the public docket sheet that the passcode would be provided to participants by email.4

 The hearing lasted from 1:29 to 3:47 p.m.5 “The 

Court noted that, at the moment, the record indicates that one voter believes 

her vote was not counted.”6 There was specific evidence of at least one vote not 

counted in Bernalillo County.7

There were indications of vote-count errors related to extensive voting by 

mail because of social distancing made necessary by the global Covid-19 infectious pandemic.8

 There also was controversy over whether the candidate 

1. Complaint, Curtis v. Oliver, No. 1:20-cv-748 (D.N.M. July 23, 2020), D.E. 1; Curtis v. 

Oliver, 479 F. Supp. 3d 1039, 1059–60 (D.N.M. 2020); see Phaedra Haywood, Judge Candidate 

Sues Secretary of State Over Primary, Santa Fe New Mexican, July 25, 2020, at A1. 

2. Complaint, supra note 1, at 5. 

3. Motion, Curtis, No. 1:20-cv-748 (D.N.M. July 29, 2020), D.E. 7; Curtis, 479 F. Supp. 3d 

at 1060. 

4. Docket Sheet, Curtis, No. 1:20-cv-748 (D.N.M. July 23, 2020) (D.E. 9). 

5. Minutes, id. (Aug. 7, 2020), D.E. 13. 

6. Curtis, 479 F. Supp. 3d at 1074. 

7. Id.

8. Id. at 1050–54, 1061–63, 1074, 1081–85. 
A Recount Ordered Because of Evidence That Write-In Votes Were Not Counted 

2 Federal Judicial Center 10/9/2023 

would have to post a bond of about $3.5 million for a recount.9 On Friday, 

August 14, Judge Browning ordered a recount in Bernalillo County.10 He issued an agreed final order on Monday recognizing that an accounting of the 

write-in votes in Bernalillo County established that the candidate plaintiff 

qualified for the general election.11

The last filing in the case was a September 18 extension of time to September 30 for a motion for fees or costs.12

In November, the candidate plaintiff did not prevail over the incumbent.13

9. Id. at 1056, 1058–59, 1062–65. 

10. Id. at 1148. 

11. Agreed Final Order, Curtis v. Oliver, No. 1:20-cv-748 (D.N.M. Aug. 17, 2020), D.E. 29; 

see Three Parties on the Ballot for Court of Appeals Seat, Santa Fe New Mexican, Oct. 17, 2020, 

at A8. 

12. Order, Curtis, No. 1:20-cv-748 (D.N.M. Sept. 18, 2020), D.E. 32. 

13. See Phaedra Haywood, Democrats Poised to Continue Domination of State Judiciary, 

Santa Fe New Mexican, Nov. 4, 2020, at A7.