(concurring in part and dissenting in part).
{33} The majority concludes that the votes of Dorothy Brown and Madelyn Hastings may not be counted under the Municipal Election Code, NMSA 1978, §§ 3-8-1 to -80 (1965 as amended through 2003), and 3-9-1 to -16 (1973, as amended through 2003), even though the undisputed evidence before the district court demonstrated: (1) they were both qualified to vote in the 2004 Edgewood mayoral election; (2) they both went to polls to vote; (3) they both voted; and (4) who they voted for. In arriving at its conclusion the majority unduly restricts the power of a district court in deciding an election contest under Section 3-8-64(A), which results in disenfranchising qualified voters. I am unable to agree with this conclusion and therefore dissent.
{34} Our constitution declares:
All political power is vested in and derived from the people: all government of right originates with the people, is founded upon their will and is instituted solely for their good.
N.M. Const, art. II, § 2. This fundamental principle of democracy is animated into life by the vote of free citizens because the very essence of democracy lies in the free exercise of the constitutional right to vote. As stated by our Supreme Court, “the supreme right guaranteed by the Constitution of the state is the right of a citizen to vote at public elections.” Bridges, 27 N.M. at 174, 199 P. at 372. See also Christ, 25 N.M. at 199, 179 P. at 637 (stating that the right to vote is the “highest right of the citizen”); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”); Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (stating the right to vote is regarded as a fundamental right because it preserves all other rights). Not only do citizens have a constitutional right to vote, they have a constitutional right to have their votes counted:
[TJhere is ... a constitutional mandate to which we must yield, that one which says that the person receiving the highest number of votes shall be elected to office; as well as the often announced principle that voters will not be denied their rightful voice in government absent a certain and controlling conflict with a more compelling consideration, that of the public interest to be served in the preservation of the validity of elections.
Valdez v. Herrera, 48 N.M. 45, 54, 145 P.2d 864, 869-70 (1944) (quoting in Darr, 1998-NMCA-104, ¶ 17, 125 N.M. 394, 962 P.2d 640); see also Wesberry, 376 U.S. at 17, 84 S.Ct. 526 (stating that the constitutional provision requiring the election of members of the U.S. House of Representatives gives citizens qualified to vote a constitutional right to vote and to have their votes counted).
{35} To these ends, the legislature has declared:
It is the purpose of the Municipal Election Code to:
(1) secure the secrecy of the ballot;
(2) secure the purity and integrity of elections;
(3) guard against the abuse of the elective franchise; and
(4) provide for the efficient administration and conduct of elections.
Section 3-8-l(B).
{36} The meaning of the phrase to “guard against the abuse of elective franchise” includes but is not limited to insuring that the right of citizens to cast votes for candidates they favor is not impaired. Recognizing that the constitutional right of citizens to vote for the candidate of their choice (N.M. Const, art. VII, § 1) and the constitutional right of the candidate who receives the highest number of votes to take office (N.M. Const, art. VII, § 5) are intertwined, the legislature enacted Section 3-8-63 in 1985, which permits any unsuccessful candidate for election to a municipal office to contest the election by filing a verified complaint of contest in the district court. In turn, Section 3-8-64(A) directs in pertinent part:
Judgment shall be rendered in favor of the person legally qualified to take office for whom a plurality of the legal votes and shall be proven to have been cast in accordance with [Section 3-8-32], and shall be to the effect that the person is entitled to the office in controversy with all the privileges, powers and emoluments belonging thereto and for his costs.
{37} In the process of construing Section 3-8-64 in Darr, we repeated, “ ‘[T]he essential principle of the elective system [is] that the will of the majority of the qualified voters shall determine the right to an elective offiee[.]’” 1998-NMCA-104, ¶ 17, 125 N.M. 394, 962 P.2d 640 (quoting Kiehne, 93 N.M. at 661, 604 P.2d at 127 (alterations in original)). We also said, “ ‘[E]ven if the acts of [election] officers are fraudulent the votes of electors should not be invalidated if it is possible to prevent it.’ ” Darr, 1998-NMCA-104, ¶ 17, 125 N.M. 394, 962 P.2d 640 (quoting Orchard v. Bd. of Comm’rs of Sierra County, 42 N.M. 172, 188, 76 P.2d 41, 51 (1938) (alterations in original)). Likewise, our Supreme Court has expressly stated that New Mexico sides with the preponderance of the states by liberally construing statutes “in favor of the voter.” Kiehne, 93 N.M. at 664, 604 P.2d at 130 (citing Bryan v. Barnett, 35 N.M. 207, 292 P. 611 (1930) (holding that absentee voters did not lose their votes even though the applications for ballots were not signed by the voters)).
{38} I therefore conclude that Section 3-8-64(A) is a remedial statute to be liberally construed to ensure that every vote cast by a qualified voter is counted. Under Section 3-8-64(A) the district court must decide two questions after hearing the evidence presented: (1) did a person who was qualified to vote at that particular election at that particular time vote; and (2) who did that person vote for. This is how the district court determines “the legal votes” that were “proven to have been cast” under Section 3-8-64(A). In answering these questions, the district court does not act merely as another canvassing board, and mere technical formality does not govern over substance. I now turn to the specifics of this case.
THE VOTE OF DOROTHY BROWN
{39} The town clerk of Edgewood has been personally involved in about fourteen municipal elections either as municipal clerk or as a poll worker. She explained that in the voting booth a voter can change her mind about her vote at any time until she presses the “cast vote” button. If that button is never pushed, then the next voter to vote on the machine will “eancel[ ] the other person’s vote.” The safeguard to insure that two people do not register their votes “on top of one another” is that a precinct worker who is near the machine listens for a “beep” that occurs when the voter hits the “cast vote” button, and when the voter leaves the voting booth, the precinct worker then hits another button on the machine to reset the counter, and the next voter is then allowed to enter the voting booth. “So [it would] be possible if the precinct worker didn’t hit that button, that another vote could be recorded over a previous one[.]”
{40} She described the following procedure that was supposed to be followed if the voter did not press the “cast vote” button: “We instruct the precinct workers to be very careful that each voter does press the cast button. If they catch it, then they’re able to call the voter back and have them press the cast vote button, or the precinct judge or the individual that’s at the machine can go under the curtain and hit the cast button.” Further, “[w]e tell them to be very careful to watch that sort of thing, because those kind of things do happen at elections.” When asked if the precinct workers “dropped the ball” and did not handle the situation correctly in the situation involving Ms. Brown and her daughter, she answered, “Again, there are things like that that occur during election day that we try to instruct them, so that they’ll be prepared and aware of what things can happen. And it was my understanding that something like that did occur in our municipal election.”
{41} The precinct judge testified that his recollection was that two elderly women came in and got in line. “They both had received a slip when you sign in on the voter roster, checked that you were eligible. They both received a slip with a number on it. They both went into the booth, and they both left. But [the voting machine] only cast one vote.” They entered the voting booth together because one of them needed assistance from the other, although “[y]ou’re supposed to allow one in at a time.” When asked if anyone mentioned that only one vote was cast, he answered, “The lady that was running the machine at the time, to my recollection, there was a line. Things were a little confusing. It was busy in there, and they wheeled her out, and the lady thought that she was going to come back and vote again, and it was too late. They were gone.”
{42} Ms. Brown’s daughter who is elderly testified she recalled bringing her mother to vote and physically helping her mother maneuver with her walker or wheelchair. However, she did not help her mother vote, and her mother went into the voting booth by herself. “No, I didn’t help her. She knew who she was going to vote for, and she voted by herself.” She believed she voted before her mother, but she was not sure. Further, she was “pretty sure” that she pushed the button to cast her vote, “but I really don’t remember.”
{43} Ms. Brown is ninety-nine years old, and she “definitely” intended to vote in the election. She alternates between using either a wheelchair or a walker and her daughter was not in the voting booth when she actually voted. She voted for Robert Stearley, and specifically remembered that she pushed the button that registered her vote. Upon leaving the voting booth, she believed she had properly voted. After completing her testimony, she said, “I hope you boys can get it straightened out.”
{44} In light of the foregoing evidence, several things may have occurred: (1) Ms. Brown failed to activate the cast vote button as found by the district court; (2) Ms. Brown activated the cast vote button but her daughter did not; (3) the poll worker failed to activate the counter reset on the machine, resulting in only one of the votes being counted; or (4) the machine was not working properly and failed to record one of the votes. Whether Ms. Brown failed to properly interact with the technology of the machine, whether the poll worker failed to do her job, or whether the machine itself failed to function properly is really beside the point in this case. We know how Ms. Brown and her daughter voted, and we know they were both qualified to vote on that day in that election, but for some reason one of votes was not recorded by the machine. Nevertheless, the district court concluded, and the majority agrees, that Ms. Brown did not vote because the cast vote indicator was not activated. They rely on Section l-9-4.2(A), which states:
A vote on a touch-screen direct recording electronic voting system or electronic voting system consists of a voter’s selection of a candidate or answer to a ballot question selected by the electro-optical ballot display of the device, followed by the voter activating the cast vote indicator.
{45} In light of the facts recited above, it is a close question whether the evidence is sufficient to support the district court finding that Ms. Brown failed to activate the cast vote button. Nevertheless, I will assume that it is. Significantly, Section 3-8-64(A) does not itself specify that the district court must find that the votes cast complied with Section 1 — 9-^.2; it states the district court must find the votes were “legal votes.” A vote which complies with Section 1-9^12 certainly constitutes a “legal vote” but I respectfully submit that the concept of a “legal vote” is not so limited. Otherwise, there would be no need for a trial under Section 3-8-64(A).
{46} A vote was cast by Ms. Brown for Mr. Stearley and she was legally entitled to vote for him. Her vote was therefore a “legal vote” in that it was made by a “legal voter.” Since the machine did not record her vote, a trial was necessary under Section 3-8-64(A). The trial without contradiction demonstrated that Ms. Brown was entitled to vote, that she voted, and who she voted for. I therefore respectfully submit that her vote in favor of Mr. Stearley should have counted.
THE VOTE OF MADELYN HASTINGS
{47} It is undisputed that Ms. Hastings was a resident of Edgewood and registered to vote in the election. She had never missed a municipal election in Edgewood and her name was always on the signature roster. In this election, however, the poll workers told her she was not on the signature roster when she arrived to vote around 10:00 a.m. She explained that she should be on the roster, and it was noted that her husband was on the roster. She was told that the poll workers would need to call the Santa Fe County Clerk and verify her address “and get some sort of a verification of registration from them.” The precinct judge knew her and that she lived in the town limits. He said he would call the county clerk and verify her address, that she should be on the list, and when he had done that, he would call her and she could return and vote. Ms. Hastings left and returned about forty-five minutes later to vote. At that time she was told she would need to fill out a “required challenge ballot.” She did not know what such a ballot was, no one explained to her what it was, and no one said that the ballot was not going to be counted. She completed the “required challenge ballot” believing she was thereby voting and that her vote was going to be counted. She voted for Howard Calkins for mayor. If she had been told that her vote was not going to be counted, she would have remained at the polling place and requested that the poll workers continue calling the county clerk. “I would have insisted that the County Clerk do her job and verify my address.”
{48} The precinct judge acknowledged he knew Ms. Hastings and that she lived in the Edgewood town limits. When she came to vote, her name was not on the voter roster, so he called the county clerk’s office to see if she was eligible and he was told she was not on the roster. He told them, however, that he knew she lived inside the town of Edge-wood. When Ms. Hastings returned, “We informed her of her right to vote. She had that right to vote. We told her she could not vote on the machine. There would be a written ballot that was available to her. She could vote. We would mark the ballot, put it in the box.” Nevertheless, as the precinct judge, he did not know if her vote would be counted later. Later in the day it was discovered that other voters who also lived in the town limits were likewise not on the voter roster due to an error in the county clerk’s office. In fact, the county clerk had left a whole subdivision off the roster. Accordingly, the county clerk started issuing certificates of eligibility to those voters. “But that option wasn’t available for Ms. Hastings.”
{49} Cheryl Huppertz also presented herself to vote but she was not on the voter roster, due to an error by the county clerk. Like Ms. Hastings, she was given a “required challenge ballot” to complete. Later in the election day Ms. Huppertz went to the town clerk’s office to find out why her name had not appeared on the voter roster. The town clerk called the county clerk who acknowledged that Ms. Huppertz should have been on the roster. Accordingly, the county clerk issued her a certificate of eligibility. Ms. Huppertz’ vote was not initially counted, but the canvassing board later decided to count her vote because she had been issued a certificate of eligibility, even though it was issued after she voted.
{50} The district court concluded, and the majority agrees, that Ms. Hastings’ vote should not be counted because she did not receive a certificate of eligibility from the county clerk so her vote was not cast under Sections 3-8-40 and 3-8-40.1. They come to this conclusion even though her name was improperly removed from the roster of voters by the county clerk, so she never should have been required to obtain one in the first place. Furthermore, she was entitled to receive a certificate of eligibility from the county clerk, but she was never given the opportunity to obtain one. They rely on Section 3-8-43(C), which states:
A required challenge shall be interposed by the precinct board when a person attempts to offer himself to vote and demands to vote and his name does not appear on the signature roster and cannot be entered pursuant to Subsection C of Section 3-8-j.O. ... A required challenge shall be interposed by the precinct board as follows:
(1) the election judge shall cause the election clerks to enter the person’s name and address under the heading “name and address” in the signature roster in the first blank space immediately below the last name and address that appears in the signature roster;
(2) the election clerk shall immediately write the words “required challenge” above the space provided for the person’s signature in the signature roster;
(3) the person shall sign his name in the signature roster;
(4) the person shall nevertheless be furnished a paper ballot, whether or not voting machines are being used at the polling place, and the election clerk shall write the number of the ballot so furnished next to the person’s signature in the signature roster; and
(5) the person shall be allowed to mark and prepare the ballot. He shall return the paper ballot to an election judge who shall announce his name in an audible tone and in his presence place the required challenge ballot in an envelope marked “rejected-required challenge” that shall be sealed. The person’s name shall be written on the envelope and the envelope containing the rejected ballot shall then be deposited in the ballot box and shall not be counted.
(Emphasis added.)
{51} Two observations demonstrate immediately why this statute does not prevent Ms. Hastings’ vote from being counted. First, her name could have been entered on the signature roster under Section 3-8-40(0; the only reason it was not was because she was not provided the certificate of eligibility she was entitled to but not given. She could even have been provided the certificate after she voted, but she was not. Secondly, when the statute says that the “required challenge” ballot “shall not be counted,” this only means that the municipal canvassing board cannot count the ballot in the canvass of returns under Section 3-8-53(C). Again, Section 3-8-64(A) does not say that the district court can only count “legal votes as described in Section 3-8-40 and 3-8^10.1,” which provide for votes cast with a certificate of eligibility issued by the county clerk; it says the district court determines from the evidence the “legal votes ... proven to have been cast.” I would conclude that Section 3-8-64(A) empowers the district court to count Ms. Hastings’ vote because it is without question a “legal vote.” In this regard, it can be questioned why the statute requires the ballot to be completed and sealed if it cannot be counted at any time, even by the district court under Section 3-8-64(A).
{52} A vote was cast by Ms. Hastings for Mr. Calkins and she was legally entitled to vote for him. Her vote was therefore a “legal vote” in that it was made by a “legal voter.” Since she was mistakenly told to vote on a “required challenge ballot,” a trial was necessary under Section 3-8-64(A). The trial without contradiction demonstrated that Ms. Hastings was entitled to vote, that she voted, and who she voted for. I therefore respectfully submit that her vote in favor of Mr. Calkins should have counted.
CONCLUSION
{53} I agree with the majority that Mr. Calkins properly contested the election and that a the Municipal Election Code permitted him to file the action challenging the election in district court without challenge prior to or during the election.
{54} However, I dissent from the majority opinion holding that the votes east by Ms. Brown and Ms. Hastings should not be counted. I realize that this also results in a tie vote, but this is not a reason not to count each and every vote because the directive that “every vote counts” is most significant in a closely contested election. It has been reported that more than three million votes were never counted in the 2004 presidential election and that a significant portion (1,389,-231) were not counted because they were deemed “spoiled” ballots. Among the reasons given were because the “x” was too light or the voter didn’t punch the card hard enough, so the voter “hung the chad.” Greg Palast, Recipe for a Cooked Election, Yes Magazine, Fall 2006. It was also reported that millions of Americans were panicked about computer voting machines leading up to that election. Id. The legislature has provided our courts with the necessary authority in Section 3-8-64(A) to assure our citizens that dll “legal votes” that are “proven to have been cast” will be counted and not rejected for technical, trivial reasons and to diminish fears and suspicions that may exist about voting on computer voting machines.
{55} Finally, the facts of this case do not demonstrate “a more compelling consideration” not to count these two votes as required by our Supreme Court in Valdez. Since the majority concludes otherwise, I respectfully dissent.