New Mexico High Court Rejects Petition for Mail-In-Only Primary Election

SANTA FE, N.M. (CN) — The New Mexico Supreme Court Tuesday rejected an emergency petition that would have shifted the state’s primary election to happening mostly through the mail.

In a March 30 petition, 27 of the state's 33 county clerks requested permission to close polling places and conduct the scheduled June 2 election primarily through mail-in ballots, considering the fact the state is under a public health order discouraging gatherings of more than five people due to Covid-19. The clerks' petition emphasized the struggle to safely maintain polling locations and facilitate in-person voting, noting that more than 65% of New Mexico's Election Board members and temporary election workers are over the age of 60, placing them at increased risk during the pandemic.

However, the state's Constitution places the time, place, and manner of voting in New Mexico in the hands of the state legislature, which in turn is unable to convene a special session to address election concerns due to the ban on public gatherings and legislative rules which specifically require members' presence to vote. 

Governor Michelle Lujan Grisham declined to issue an order altering the election, as it would be outside executive authority.

This conflict was central to a motion filed by the state's Republican Party on March 31 and supported by an amici curiae brief submitted April 8, which argued that closing all state polling places under a court decision violated the fundamental rights of voters and state law.

In Tuesday's oral arguments, Chief Justice Judith K. Nakamura and Justices Barbara K. Vigil, Michael E. Vigil, and retired Justices Richard Bosson and Edward Chávez — who heard arguments in the place of Justices Shannon Bacon and David Thomson, who are on the ballot this year — questioned the court's authority to intervene in elections. 

The justices asked attorneys on both sides of the issue whether granting the petition would usurp legislative authority. On the other hand, the justices asked, do sufficient resources exist to allow an in-person election to be carried out safely for all involved?

Daniel Ivey-Soto, a New Mexico State Senator and attorney representing the clerks, argued that the clerks were not asking the court to legislate but to respond to a public health emergency.

But Carter B. Harrison IV of Peifer, Hanson & Mullins, arguing for the GOP, pointed out that apart from the constitutional conflict, the state's voter rolls are full of inaccuracies, so sending ballots to all registered voters poses a risk for fraud and for voters to never receive ballots at all. 

It was this point which guided the court's decision. After hearing arguments, the panel retreated to chambers to discuss the issues, and then emerged to give a verbal response. 

Nakamura made clear that the court had come to a unanimous decision on the matter, and pointed out that, “obviously this is a very difficult case, which is evidenced by the fact that the other branches of government have chosen not to act, and have come to the court for relief.” 

“The relief that is requested is specifically prohibited by New Mexico Statute Section 1-6-5F, which says that a mailed ballot shall not be delivered by the county clerk to any person other than the applicant for the ballot,” Nakamura said.

Instead, the court directed the county clerks to mail absentee ballot applications to voters to encourage people to vote that way, rather than in person. 

“Under the circumstances of this pandemic, it is undisputable that in-person voting poses a substantial health risk to the State of New Mexico, and therefore absentee voting is the preferred method,” Nakamura said. 

But in-person voting and early voting at polling places is likely to proceed in New Mexico.

The court will enter a written order later this week.

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