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N.M. court hears case of request for recount

Change in 2004 results is unlikely

SANTA FE -- The state's highest court was asked yesterday to order a recount in the razor-close 2004 presidential election in New Mexico, even though it is too late for a new vote tabulation to change the outcome.

A lawyer for Green Party presidential candidate David Cobb and Libertarian candidate Michael Badnarik made the request to the New Mexico Supreme Court during a hearing on a challenge to the state's handling of the candidates' request for a recount.

Cobb and Badnarik said they were wrongly required to pay $1.4 million for a recount, which never happened because of the legal dispute over the cost.

John Boyd, a lawyer for Cobb and Badnarik, said a recount of paper ballots and a recheck of voting machine results was needed to highlight problems with New Mexico's election system.

''There is no more important issue than the purity of elections in this state," Boyd said during an hourlong hearing. ''And I will tell . . . the court that the elections are not pure."

David Thomson, an assistant attorney general representing the state Canvassing Board, said the election challenge was moot because the presidential election has been decided. He also argued that the board -- made up of three Democrats, including Governor Bill Richardson -- acted properly last year in handling the recount request.

The court took the case under consideration. There is no deadline for the court to issue a ruling, which could take several months.

President Bush won New Mexico in the general election by a 5,988-vote margin over Senator John F. Kerry of Massachusetts. In the end, the state's five electoral votes were not crucial, as Bush finished with 286 electoral votes, 16 more than he needed.

Cobb and Badnarik submitted a deposit of $114,400 and said that was the proper amount for a recount based on a formula in state election law.

However, the state canvassing board decided on Dec. 14 that the candidates could have a recount if they paid $1.4 million -- an estimate of the full cost of the recount -- as an upfront security deposit.

Under state law, candidates who request recounts must pay for them unless the recount changes the winner of the race. In that case, the state covers the cost and refunds any money deposited.

Cobb and Badnarik said the canvassing board had exceeded its powers in demanding more than $1 million in advance. The candidates filed a lawsuit, lost in district court, and then appealed.

Boyd, the lawyer for Cobb and Badnarik, said the court should decide the case dispute because similar problems could occur in future elections if the canvassing board has ''unfettered discretion" in deciding how much to charge candidates in advance for a recount.

He told the justices it is too late to change the outcome of the 2004 presidential election. He also said it was impossible to have a complete recount because some voting machines have been cleared of the presidential election results.

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