2021 ABQ Mayoral Race

Speeding Isn’t ‘Not Speeding’ Just Because You Didn’t Crash the Car

The New Mexico Supreme Court dealt what should be the death blow to Bernalillo County Sheriff Manny Gonzales’ quest for public campaign financing in his bid for Albuquerque mayor. 

Lawyers for the Gonzales campaign argued that it is a conflict of interest to allow an employee of the incumbent mayor to hold the decision-making power to deny a challenger public financing.

They argued that there were not enough fraudulent qualifying contribution forms “to put Sheriff Gonzales below the required threshold,” and that it “has never been suggested to have been done or even known about by Sheriff Gonzales.”

Neither claim is unfounded. It doesn’t take a seasoned politico to see why an employee of the mayor shouldn’t be able to deny public financing to his boss’s challenger.

But try as they may to argue against appearances and potentialities of impropriety, the Gonzales campaign has been denied not once, not twice, but five times.

There are two fatal flaws in Gonzales’ defense. One is that as a mayoral candidate Gonzales signed a “Designation of Representatives” form agreeing to take full responsibility for the actions of his staff, thus invalidating any claim of deniability for the errors (particularly fraudulent ones) of paid campaign staff. But more important than deniability is the campaign’s repeated admission that fraud took place. 

It doesn’t matter that only “some” of the qualifying contribution forms were forged. You can’t get out of a ticket by saying, “Yes, I was speeding, but at least I didn’t crash.” 

Any number of fraudulent signatures is still fraud, and unfortunately for Gonzales’ campaign, his lawyers conceded the point on the record.

Gonzales’ attorneys made the Supreme Court’s denial easy.

Supporters of Gonzales are quick to point out that Albuquerque Mayor Tim Keller also was accused of campaign ethics violations, and as such should be held to the same standards and denied public campaign financing as well.

As campaign records show, the standards aren’t the problem. 

Albuquerque City Clerk Ethan Watson threw out the complaints against Keller on the basis that they failed to provide a “reasonably detailed description of the alleged violations,” according to an August 9, 2021 report by Jessica Dyer of The Albuquerque Journal

While it may be that Keller has better lawyers than Gonzales, it’s also the case that the circumstances were different.

Like Gonzales, who appealed his initial denial of public financing to the city ethics board, then the state, only to have it remanded back to the city, Keller’s accuser also had the opportunity to appeal the rejection of his ethics complaint.

The reason he didn’t becomes clear as you dive into the allegations themselves.

In a “memorandum in support of a motion to dismiss,” Keller’s attorneys were unequivocal in their denial of the complainant’s allegations, writing, 

“Although his complaint is 25 pages long, it includes no allegations that would establish that Mr. Keller violated the Code of Ethics in any way. And to be clear, he did not.”

— Keller attorney Lauren Keefe, August 20, 2021

Juxtapose that with Gonzales’ attorneys conceding that “some” but not “all” of the qualifying contributions forms were indeed forged.

“It is true that the campaign has conceded that some but certainly not all of the alleged problematic qualifying contribution sheets appear to have been signed by someone other than the contributor.” 

— Gonzales attorney Daniel Gallegos, September 1, 2021

On September 2, 2021, The Conservative New Mexican wrote that “It may have been the first due process hearing in the history of due process hearings where the defendant’s attorney didn’t…defend.”

We stand corrected. Their expedited Petition for Writ of Superintending Control to the Supreme Court proved to be the second such occasion of a defenseless defense.

During a September 1 hearing with the City Clerk, Gonzales’ legal team outright refused to address the evidence at hand. They kept up that shtick in their appeal to the Supreme Court, resorting to generic grandstanding and left-field lamentations about “unemployment and crime” in Albuquerque, when a simple point-by-point defense of their client’s innocence would have sufficed.

For example, they asked the high court, “Can the wholesale deprivation of a massive electoral entitlement like public financing be constitutionally predicated on a subjective finding like whether a candidate ‘should have known’ of fraud…?”

A first-year law clerk looking at the forged signatures of paid campaign staff could have answered in the affirmative without referencing a single statute.

Keller’s attorneys, by contrast, managed to mount a defense of their client based not on the alleged corruption of the system or the appearance of partiality, but on the individual allegations.

They argued for 18 pages every point of the complainant’s allegations, articulating factual findings that either outright disproved the claims as presented or clarifying what appeared in several instances to be simple ignorance of the process.

For example, the complainant alleged the Keller campaign failed to list donors’ home addresses despite the reporting software allowing donors to list their employer’s address. 

In another example, they claimed Keller used a city employee, paid on city time and campaigning on city property, to work on behalf of the campaign. Not only did the allegations fail to provide supporting evidence, but Keller’s attorneys made it clear that the union president in question is paid by the union, and that his “support” in gathering signatures does not qualify him as an “agent” working on behalf either of the mayor or the campaign itself.

For those wondering about the lack of local news coverage of the allegations against Keller’s campaign, it’s simple: his accusers withdrew their complaint, “without prejudice.”

The laws should be applied equally to every candidate, regardless of party or power, and that is exactly what happened. The difference was that Keller’s accusers couldn’t defend their claims and withdrew their motion before the ethics board could adjudicate them. 

None of this is to say that Keller has done a good job as mayor. Nothing about the difference in campaign ethics complaints has anything whatsoever to do with the quality or effectiveness of leadership under the Keller Administration. Few would say Albuquerque is better off after four years under Tim Keller. 

But those issues are up to the voters to decide, and how they vote has nothing to do with whether this or that candidate did or didn’t violate this or that campaign ethics rule.

The months-long fight over public financing may, however, raise questions about the potential effectiveness of a Gonzales Administration. If he can’t mount a defense to publicly fund his campaign, what does that foretell about his ability to run an entire city?

While it appears the Gonzales campaign will continue to pursue legal action for the public financing, his lawyers have already signaled the campaign’s end game.

In their arguments to the State Supreme Court, they wrote that without public financing it’s “impossible to win,” calling it an “electoral death penalty” that gives Gonzales little more than “write-in-like odds of victory.”

The campaign has wasted months fighting for more money than they would be able to spend in the last 55 days of this race, all the while foregoing the one option that was there for them all along — which is to seek private donations from voters.

There are three candidates on the ballot in November: Keller, Gonzales, and Republican challenger Eddy Aragon. So far only one of them has managed to qualify for the ballot without having any signatures rejected. Only one is not employed by local government. And only one has sought to finance his campaign through private donations — though Gonzales may soon realize that that’s the only option he has left.

The question is whether it’s too late to matter.

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