March 30, 2020

County clerks ask NM Supreme Court to allow primarily mail-in election

County clerks petitioned the state Supreme Court for an emergency order that would allow the state to move to a primarily mail-in election for the June 2 primary. The clerks, and Secretary of State, say that conditions under the COVID-19 restrictions make it “impossible to lawfully administer” this year’s primary elections.

The petition, signed by 27 of the state’s 33 clerks, including five Republicans, said running a regular election would force clerks to decide between following the Election Code or protecting “the health and safety of their community, their voters, their staffs, and themselves.”

To do so, the petition asks for each county clerk to be able to send voters ballots by mail, along with a pre-paid envelope to respond. Voters would still be eligible for replacement of provisional ballots.

It would also provide for alternative locations for those who require in-person assistance, such as those with disabilities or those who require language interpretation assistance. It would also allow voters to drop off their ballots at locations.

Changing election law through a special session would not be feasible, the petition states. The petition quotes a letter from Secretary of Health Kathyleen Kunkel to Keith Riddle, the chair of the state County Clerks Affiliate, which said that “The in-person convening of our 112 state legislators has the high likelihood of spreading this dangerous virus among individual legislators and may have the effect of further spreading this dangerous virus among individual legislators and may have the further effect of further spreading this disease to every corner of the state upon the return of each legislator to their respective districts.”

Kunkel also wrote that she supported mail-in elections.

Clerks’ concerns for public safety

One concern is the age of election workers.

Election workers are largely older than the general population.The petition notes that over 65 percent of election workers statewide are 60 years of age or older. In some counties, that number is over 90 percent. 

Some election workers in other states did not show up on primary days held earlier this month, likely out of fear of contracting or spreading COVID-19.

The closure of facilities regularly used as Election Day and/or early polling locations also poses a challenge. County clerks must do a physical inspection of each voting location at least 30 day before a statewide election, but might not have access to the facilities.

And elections are coming sooner than many expect: While Election Day is June 2, the ballots must be delivered to military and overseas voters by April 18. And early voting at County Clerk’s offices begins on May 5. 

Secretary of State agrees

Secretary of State Maggie Toulouse Oliver signed onto the petition as well. She has encouraged voters to sign up for absentee ballots and opened up the state’s online absentee voter portal a month early. Thousands of New Mexicans have already requested absentee ballots.

“The Secretary supports using primarily mail-in-ballot procedures for the 2020 Primary Election in order to protect the health and safety of voters in light of COVID-19 health concerns and in-person voting,” SOS spokesman Alex Curtas said in a statement. “Using mail-in ballots is a secure way for people to practice social distancing while also exercising their civic duty.”

Curtas also said that Toulouse Oliver believes that “limited in-person services should remain available for voters,” including for people to drop off ballots or get assistance for language or because of a disability.

Five states currently conduct all elections by mail, according to the National Conference of State Legislatures. And other states have made big changes to their elections this year, including delaying primary election dates for weeks or even months.

Some local New Mexico elections can be conducted entirely by mail already, after a law change in 2018.

The Daily Lobo first reported on the petition, Monday morning.