Former Sandoval County Commissioner Todd Hathorne Allegedly Pretends to be a Lawyer In Otero County; Bullies County Clerk

The Otero County Commission has made quite the stir nationally as the County Commissioners refused to certify the New Mexico 2022 primary elections creating possibly a constitutional crisis. In the end, by a vote of 2-1, the commission certified the New Mexico 2022 primary elections.

While many news sources have reported on the commission and we wrote the interference of the America First Secretary of State Coalition, one small detail has emerged from the June 13 special meeting. 

Otero County Commission Meeting, June 13, 2022

 
Approximately 15 minutes into the meeting, after County Clerk Robyn Holmes explained the New Mexico Election Code requirements to the commission, a voice can be heard off-camera speaking to the Commissioners Gerald Matherly, Vickie Marquardt, and Couy Griffin. Griffin heard an individual calling from the gallery and pointed to the other board members to recognize the voice in the audience. (A transcript of the encounter between Todd Hathorne and Robyn Holmes is available at the end of this post.)

The individual was Todd Hathorne, a former Sandoval County Commissioner. Hathorne introduced himself as an And Justice law representative on Amy Barela's behalf. Hathorne, when assured that the meeting was not under oath, proceeded to bully County Clerk Robyn Holmes about her training, the voting machines, and various processes regarding election law.  

Amy Barela is currently in a 50/50 dead heat with GB Oliver III (Alamagordo Chamber of Commerce director). 

Later, in a radio interview on June 15, Hathorne was introduced as "Amy Barela's attorney, Todd Hathorne."  Hathorne made no statement correcting the radio host.

It is interesting that Hathorne would be present to question Clerk Holmes. Hathorne has never been an attorney. In his LinkedIn profile, Hathorne describes himself as an "office manager and legal assistant for And Justice Law."  

According to Hathorne's LinkedIn, he has minimal actual law experience.

A search of the New Mexico Licensing and Regulatory Department of Todd Hathorne's legal or paralegal license shows no results. 

And Justice Law is a law firm in Albuquerque, New Mexico. According to their website, the firm specializes in divorce, family law, and misdemeanor criminal charges. Further, the principal attorney is Melanie Rhodes. According to Justia.com, Ms. Rhodes was admitted to the New Mexico Bar in 2000.

While our researchers were looking into And Justice Law, they came across this Google Review of the law firm. 

In addition to being the office manager at And Justice Law, Mr. Hathorne is the husband of Melanie Rhodes, owner of the firm. 

More importantly, why was Hawthorne at the meeting; he is not the lawyer representing Amy Barela, just a representative of the firm she has hired? Second, why was Todd worried that the meeting and the information presented were being "under sworn testimony"? Was Hathorne worried his line of questioning was, perhaps, inappropriate?

New Mexico does not have a statute directly related to fraudulently claiming to be a lawyer (intentional or not). Instead, in New Mexico, cases such as this are often prosecuted as a form of fraud. Hathorne's actions at the June 13, Otero County Commission meeting (claiming to represent a firm representing a candidate) and his failure to correct the 95.1 radio host Anthony Lucero on June 15 can be viewed as having committed fraud; Mr.Hathorne apparently doesn't have a law or paralegal license in New Mexico. 

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Transcript of discussion between Todd Hathorne and Otero County Clerk Robyn Holmes.

15 minutes after the start of the meeting

Griffin: "Go ahead, sir."

Voice: "County Commissioner, my name is Todd Hathorne, and I'm with And Justice Law."

Griffin: "And you have questions regarding..."

Hathorne: "I do have questions."

Griffin invites Hathorne to the witness table before the commissioners' bench telling Hathorne he "needs to be on record." At the 16:35 minute mark, Hathorne takes his seat. 

Again, Todd Hathorne repeated his claim, "I'm with And Justice Law, Melanie Rhode's law firm out of Albuquerque. We're here on representation for Ms. [Amy] Barela, and we have a few questions for the Clerk. If we might put those on record. Is that possible?"  

Griffin: "Absolutely. That's what you can do right now."

Hathorne: "Very good. Thank you. Um, just to lay some foundation, if I can... we're not, uh, the information being presented here is not under sworn testimony at this moment. Is that correct?"

Vick Marquardt: "Yes"

Hathorne: "I appreciate that. Madam Clerk, you made some statements before about the vote totals that were presented, and you're asking this commission to certify...  The first question I have is under what auspices are these three people meeting? Is this a county commission meeting, or this is a canvas meeting?"

Clerk: "It's a canvassing board."

Hathorne, looking at commissioners: "Is that correct?"

Commissioner Marquart explains that as commissioners, they serve as the "defacto" canvassing board.

Hathorne: "I understand. Is that the capacity we're meeting in today?"

Marquardt: "We're meetings as the county commission today."

Once again, County Clerk Robyn Holmes explains that the commission is also the canvassing board. 

Hathorne: "So, my question is [if meeting as both a county commission and canvassing board], under what statute do you draw that authority for meeting under both?" 

Marquardt: "I do not know that," referring the question to the county attorney RB. (The statute is New Mexico Election Code section 1.13.13)

After the reply from RB, Hathone responded, "And that says you can meet as both? That simply says, uh, that grants the authority if I'm not mistaken, and I'm just confused." 

Holmes then reads the statute to Hathorne. Hathorne replies, "so that gives you [a] timeframe for the canvas board."

Hawthorne: "Okay, so, the next set of questions is, uh, you're presenting a set of numbers that you said have changed based on provisional and based on additional absentees [ballots], is that correct?"

Holmes: "Not on provisional, none of them were accepted. Yes, there were absentee ballots that were dropped off at the polling locations on election day, but we didn't get them until after the polls closed down at 7. So the process..." is that the absentee board has already gone home for the night and the Clerk's office just continues with the canvassing.

Hathorne: "So you actually made changes to the numbers pretended to the commission?

Holmes: "Um, no. Well, yes, the hand tallies are in here also." She explains that those are ballots that the machines wouldn't take, and the absentee ballots dropped off at the polling sites. 

Hathorne: "and so you added those numbers in? That was not done by the election board, sometimes known as the precinct board?"

Holmes: "Right"

Hathorne: "So you did that." Holmes nods her head and says her staff did it. 

Hathorne: "Yout staff did that? And under what authority did they make those changes? What statute"

Holmes: "Uh, I'll have to look it up...that is the process that we were taught to do through our election training."

Hathorne: "Who teaches that?"

Holmes: "Uh, it is taught by several different people who are all election experts under the Secretary of State's office." She then goes on to talk about their qualifications.

Hathorne: "Do you have any names?"

Holmes: "Not off the top of my head..."

Hathorne: "You don't know any names."

Holmes continues to explain that there are several people who are required to take federal election training that then comes back to teach the county clerks. Holmes does mention Mandy Vigil,  Charlotte, Dylan...

Hathorne: "...So you're talking about Dynal Lang, counsel for Secretary of State.."

Homes nods in agreement.

Hathorne: "Are you telling me that he did training for you?"

Holmes: "What I'm saying is they're all part of a group that does training." 

Hathorne: "So you don't know who did the training?" Holmes explains that she doesn't really know. They have to do the training every 2 years, so each time is it different.

Hathorne: "So my question is who, and you don't have a name." Again, Holmes explains that it is a staff member from the Secretary of State's office.  

Hathorne then interrogates Robyn Holmes regarding the training and the whether or not the election code and authorities are included in the training. Holmes continues to tell Hathorne that she makes her decisions regarding elections based on state law.

Hathorne: "So my question is, is that your training? Holmes replied, "yes."

Hathorne: "It is. Okay, so, they talked to you about what those statutes are?"  Holmes replied, "Yes."

Hathorne: "Okay, and you're familiar with all of the statutes necessary to properly conduct the election?"

Holmes: "I feel like I am."

Hathorne: "Um, in the circumstances regarding this particular election, you're asking the canvassing board to certify, is that correct?"

Holmes: "Yes. They're here to just sign the certification, yes."

Hathorne: "And, do you, what do you understand their ability to address discrepancies, irregularities, ambiguities, errors, voter fraud...what is your understanding of their ability to address these issues."

Holmes tells Hathorne there is a process; once the canvassing board certifies the election, they can ask questions regarding the vote totals or the election in general. Homes continues to tell Hathorne that this is the method the county has taken in the past, it is what is written in state law, and she will continue to work in this manner. 

Hathorne: "So you'll do it the same way you've always done it?"

Holmes: "As long as that is still the state law, yes."

Hathorne: "Okay, so, and if there were any variations or problems in the previous ways that you've done it, would you continue to do it in what way?"

Holmes: "...we still have to follow state statutes."

Hathorne: "You do. I, uh, understand. And that's my question. Are we following state statutes in everything that we are doing here?"

Holmes: I believe we are.

Hathorne: "You believe? When you have questions about that, who do you go to?"

Holmes: "I'll either go to my attorney, or I'll go to Dylan [SoS counsel]or the other county clerks in the whole state."

Hathorne: "There was a lawsuit in 2020 April of 2020 against the Secretary of State's office. There were clerks that were involved in that lawsuit. Are you familiar with that suit?" Holmes claims that she is not familiar with the case.

Hathorne: "You are listed as a defendant in that suit. Do you remember?' 

Holmes: "Uh, are you talking about the one to change the 2020 election."

Hathorne: "Correct."

Holmes: "Yes, yes."

Hathorne: "So you sided with the Secretary of State."

Holmes: "I did."

Hathorne: "Okay, and she was asking for an all mail-in ballot." Holmes nods yes. 

Hathorne: "And that lawsuit actually went in favor of the plaintiffs, isn't that correct?"

Holmes "Yes"

Hathorne: "So you lost?' Holmes responds, "Yes."

Hathorne: "I see, okay. And, in that process, um, did you make any public statements about that?"

Holmes: "I don't believe so. You know, at the time, because of the pandemic, I was one that felt like it would be better to have an all-mail-in ballot because we had a lot of problems bringing people together. Uh, people were getting so sick. I felt in my own heart that it was in the best interests of the people to do that, to have an all mail-in ballot."

Hathorne: "Okay. So, are, were, the [Dominion] machines that were used in this, I'm going to turn back to this [2022 primary]election, the machines that were used in this election cycle, when were they certified?"

Holmes: "Um, you mean the last time they were certified or by the Secretary of State to use them?"

Hathorne: "I've asked an open-ended question, and I'll let you figure out how to answer it."

Holmes: "Okay, so, I believe that we started using them in [20]12. We started using these ballot machines."

Hathorne: "Yeah, but my question was, when were they certified?

Holmes: "They were certified then, and they've been certified every year after that."

Hathorne: "Every year after that?" Holmes nods her head yes.

Hathorne: "So every year after that, so every single year..."

Holmes: "Yes, they come in every year and look, and they do an upgrade, making sure everything is okay, and everything is running well. We certify before each election. We certify the machine with test ballots that are marked, and we certify the machine. Before each election, they are certified"

Hathorne: "And that happened in this election cycle?"

Holmes: "Absolutely."

Hathorne: "You're relying on the numbers from that machine in order to declare winners, isn't that so?"

Holmes: "Yes."

Hathorne: "And as you're using those machines, you're relying on the testing that you did as the Clerk. And that was available to any member of the public to watch?"

Holmes: "Yes. And I invited whoever wanted to come."

Hathorne: "And who showed up to that process?"

Holmes: "Um, well, we did it for several different days, so I wasn't there continually. Selina was definitely there, uh, Matt was there," pointing to people in the audience behind her. 

Selina: "Uh, when we certified our early voting and absentee, we had Jacks (?) there and Matt, and when er certified for election day, no one showed up."

Hathorne: "No one showed up. So, were you there?" pointing at Holmes.

Holmes: "No, I wasn't there the whole time; I would come and go. But I had my technician there that were doing the certifications."

Hathorne: "And are those technicians are county employees?"  Holmes nods yes.

                 "only"

Holmes: "Yes."

Hathorne: "Were there any technicians for any third-party vendors that were available?" Holms shakes her head, "no."

Hathorne: "And where are these machines today?"

Holmes: "They're stored in our warehouse."

Hathorne: "Are they under surveillance?"

Holmes: "They are."

Hathorne: "Okay, and is that 7/24 cameras?"

Holmes: Nods, "Mmhmm"

Hathorne: "And the video is available to the public [on] request?"

Holmes: "Um, yes."

Hathorne: "Okay. And in that process, you have documentation of the testing for each machine?"

Holmes: "Yes."

Hathorne: "And that documentation includes how many ballots through each machine?"

Holmes: nods, "Yes, absolutely."

Hathorne: "How many are the question. How many ballots went through the machine?"

Holmes: "It would depend on how many candidates are on the ballot. Because we do it where like everyone who is a first candidate gets a vote, and then it goes down to the second. There is a process, so I couldn't tell you the number."

Hathorne: "You don't know?"

Holmes: "No. I have no idea."

Hathorne: "Okay. So you didn't set up that process?"

Holmes: "No, no. It's set up by the vendor."

Hathorne: "So the vendor sets it up? And who is the vendor?"

Holmes: "Well, at the time, it was AES."

Hathorne: "Okay, and AES is a contractor or subcontractor to the state or to the county?"

Holmes: "To the state."

Hathorne: "Who owns these machines?"

Holmes: "The State."

Hathorne: "The State of New Mexico?" Holmes nods yes.

                 "Who purchased these machines?"

Holmes: "They were purchased through federal funds that were given to the state, and the state purchased them."

Hathorne: "So my question is 'who,' and your answer is 'the state purchased them.'"

Holmes: "Yes."

Hathorne: "Okay. And in that process of dealing with those ballots, every ballot that you're asking this canvas board to certify has gone through those machines?"

Holmes: "Yes. Not every one, no. Not the hand tallied ones, the ones that could not go through the machine, or the absentee ones that were dropped off at the polls on election day."

Hathorne: "Okay. And the ones that were dropped off; what's the process for someone dropping off a ballot at the polling locations?"

Holmes: "They drop it off in a box, uh, a locked box. And then there is a form that is done. The seals which are locking the box at the time that those ballots come out, they go in a bag that we walk and comes back to our office. 

Hathorne: "How many ballots came in through that process in Ms. Barala's race?"

Holmes asks an assistant behind her: "Did we have um.." Silvia responds, "I don't know if there is a print up just for her race." 

Holmes to Hathorne: "We don't know. there was [sic] 13 total, but I'm not sure who was just for her race."

Hathorne: "When you say total, what do you mean?"

Holmes: "That were collected at the polling location on election day."

Hathorne: "Okay, So they were collected at the polling location. Do you know who dropped off those ballots?"

Holmes: "No."

Hathorne: "Are you familiar with any section of State Statute that requires that there be an identification of the person dropping off the ballot?"

Holmes: "No."

Hathorne: "You're unaware?"

Holmes: "I'm unaware."

Hathorne: "Have you spoken with your attorney about that problem?"

Holmes: "I have not."

Hathorne: "You have not. Okay. Commissioners, thank you for your time. I appreciate the opportunity to get some information on the record. We'll see you soon.

Vicki Mardquart: "Okay, thank you."

Hathorne returns to his seat in the gallery 30 minutes into the meeting.