Johnny Lu?vano (Courtesy photo)
While Johnny Lu?vano?s retirement home was being built, he used the address to register to vote and vote. He says that was his best option for retaining residency while an active-duty Marine. Police are investigating.
Did a U.S. Marine who registered to vote and voted using an address where he didn?t yet live violate state law?
A liberal advocacy group says Republican Johnny Lu?vano did, but the Bernalillo County clerk says it?s not clear and has forwarded the voter-fraud allegations brought by ProgressNow New Mexico to the sheriff?s department for investigation.
?At this point it?s not clear. That is why it?s important for law enforcement to investigate the matter and get to the bottom of it,? Clerk Maggie Toulouse Oliver said. ?We can?t make any assumptions one way or the other at this point.?
Lu?vano, a former NMPolitics.net columnist who filed earlier this week to run for the N.M. House District 16 seat ? days after moving into the now-finished home in the district ? says he did nothing wrong and was dealing with how to vote while an active-duty Marine.
?I registered at a dirt lot that was having a home being built on it where I intended to reside when I retired,? he said. ?I am sure there are plenty of other active-duty service members who do the same thing.?
But ProgressNow hit Lu?vano hard earlier this week.
?In addition to clearly being ineligible to run for office in District 16, Lu?vano may have also committed felony offenses against New Mexico?s voting laws by falsely claiming to live in a vacant lot and likely voting from there,? a news release from the group states.
At issue, ProgressNow claimed, is the fact that Lu?vano didn?t receive a certificate of occupancy allowing him and his family to move into the house in District 16 until March 14 ? more than a week after the deadline for a person to live in the district and be eligible to run in the election had passed, and almost a year after he registered to vote there.
But Lu?vano?s active-duty military status may make the situation more complicated than that, according to Toulouse Oliver. It?s now up to law enforcement to decide whether Lu?vano broke state law by registering to vote at the address in District 16 last April and voting in the Albuquerque election last fall.
As for Lu?vano?s candidacy for the seat currently held by state Rep. Antonio ?Moe? Maestas, D-Albuquerque, a third party ? such as Maestas or ProgressNow ? could challenge it in court. No one has yet done that.
The timeline
Lu?vano said he bought the lot on Albuquerque?s west side in November 2006, while he was stationed in Missouri, because retirement was approaching. He and his family planned to move there after retirement.
He had moved to the west side of Albuquerque from Artesia around 1997 or 1998, and was registered to vote at a home he owned there, but rented out while he was stationed elsewhere, until 2003 or 2004 ? around the time he got married. Then he changed his registration to his in-laws? home in unincorporated Bernalillo County.
Last April, Lu?vano returned to Albuquerque and changed his voter registration to the property in District 16. He had already started construction on the house before returning from Tucson, the last place he was stationed.
Lu?vano hadn?t yet retired from the Marines, and while the home was being built he and his family lived part of the time in temporary housing at Kirtland Air Force Base and part of the time at his in-laws? home. Neither is in House District 16.
His retirement took effect on Jan. 1. He and his family were finally able to move into their newly completed house in District 16 about a week ago.
Registering to vote and voting
When Lu?vano changed his registration in April, he listed the under-construction home as the ?physical street address where you live now.?
That clearly wasn?t accurate. But, Lu?vano asked, what are active-duty military members supposed to do in such situations? The federal Uniformed and Overseas Citizens Absentee Voting Act requires states to allow active duty military members to retain residency for voting purposes, he pointed out.
State law makes clear that a New Mexican living outside the state who ?has the intention to return? can retain registration status at a residence such as, for example, a parent?s home. It also makes clear that being out of state ?while employed in the service of the United States? is not a reason to lose residency status for purposes of registering to vote and voting.
So registering using his in-laws? home, which Lu?vano did while he was in Arizona, was no problem. What about once he returned to Albuquerque but before he had a permanent residence?
Federal law allows active-duty military members to retain voter registration in New Mexico without listing any address if they don?t have one. Lu?vano could have done that.
Toulouse Oliver also said it?s ?not uncommon? for military members living in temporary base housing to register using that address. Or he could have continued to use his in-laws? address.
So Lu?vano didn?t use the methods the law apparently comprehends for registering to vote and voting while on active duty. Toulouse Oliver said she?s never seen a situation like this before. But does that prove Lu?vano did something illegal?
?The law is so gray where that?s concerned, especially when you consider the federal piece about how you deal with a voter who has moved,? Toulouse Oliver said. ?It makes it really hard to interpret and really hard to enforce anything around people being registered where they don?t actually live.?
Declaring candidacy for House seat
State law provides some leeway in favor of candidates if the question of residency arises. If there?s a dispute, the Election Code states, ?permanent residence shall be resolved in favor of that place shown on the person?s certificate of registration as his permanent residence, provided the person resides on the premises.?
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Which Lu?vano now does. But he didn?t by the day in early March when the governor issued her election proclamation, which the law also requires.
Albuquerque attorney Pat Rogers, who isn?t currently representing Lu?vano, said ProgressNow is ignoring the provision in state law that says residency disputes shall be resolved in favor of the address listed on a registration form if the candidate lives there.
?Courts show a big preference?to qualify candidates ? that?s the?rule,? Rogers said. ?As my civil procedure professor at Georgetown was fond of saying as to jurisdiction: ?Everybody has to be somewhere.? If his voter residence and the place he intends, indefinitely, to make is home is not?his residence, where would his residence be located??
?His voter registration, his intent, any physical presence, however slight or fleeting, will qualify,? said Rogers, who is also the Republican national committeeman for New Mexico.
ProgressNow?s Pat Davis disagrees.
??a certificate of occupancy was only issued on March 14 ? eight days after the deadline to establish residency for candidates for office,? he said in a news release.
If someone files a civil lawsuit challenging Lu?vano?s candidacy, a judge would decide whether he can stay on the ballot. Otherwise, Toulouse Oliver?s office has already certified his candidacy and he will appear on the ballot.
Not a matter for the secretary of state
This isn?t a matter for the secretary of state, Chief of Staff Ken Ortiz said. Because District 16 is located entirely in Bernalillo County, the issues are Toulouse Oliver?s to handle.
The clerk did that by certifying Lu?vano?s candidacy and reporting the voter-fraud allegation to law enforcement.
?As with any allegation of voter fraud, we are getting law enforcement involved and cooperating with the investigation,? Toulouse Oliver said. ?Where the candidacy is concerned, we basically believe that our role is to qualify candidacies based on the face of the registration, and if there?s a challenge that is something the courts will deal with.?
Davis applauded Toulouse Oliver, a Democrat, ?for her efforts to uphold the integrity of our voting system.?
?Ironically, those who try to gain an upper hand by breaking voting laws will likely lose their right to vote in the end,? he said. ?And, that?s the way it should be.?
?I don?t have any other residence?
ProgressNow has been on the hunt for voter-fraud cases tied to Republicans, and has been quick to point out in its releases about Lu?vano that it also ?connected a senior staffer for Heather Wilson?s U.S. Senate campaign to a?scheme to register the staffer?s dog to vote.?
The group was referring to its uncovering of the fact that a man who illegally registered his dog to vote to prove how easy it is to do is the husband of a staffer on Wilson?s campaign. The Bernalillo County Sheriff?s Department is also investigating that case.
Lu?vano said he isn?t amused by the comparison.
?I?ve put my entire 20-year savings into this house, so for them to compare me to a fraudulent dog as an active-duty Marine voting back home is huge,? he said. ?It?s a game that they?re playing, but it?s a serious issue, and that?s the point I?m trying to make.?
Lu?vano said he doesn?t know the entire state law on voter registration but knows he had a right to maintain his residency and vote while on active duty ? and the lifelong New Mexico resident did vote here during his entire 20 years on active duty.
He said his intent is a significant legal consideration ? and he proved intent by buying the lot, paying property taxes and building the home.
?I?ve shown a clear intent to reside at this residence over years,? he said. ?I don?t have any other residence. I don?t know where they wanted me to go.?
This article has been updated to clarify that Lu?vano voted in New Mexico during his entire time on active military duty and corrected to clarify the timeline of events. The article previously failed to mention that he was stationed in Missouri and used to own another house in Albuquerque, and incorrectly stated he registered to vote at the house in District 16 in March 2011, not April 2011.
Source: http://www.nmpolitics.net/index/2012/03/residency-controversy-dogs-house-candidate/
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