April 9, 2020

Briefs filed in case over whether NM will move to vote-by-mail primaries during coronavirus emergency

Andy Lyman

The New Mexico Supreme Court

Parties involved in the dispute over a petition asking the state Supreme Court to allow election administrators to conduct this June’s elections by primarily mail-in voting filed their responses ahead of next week’s oral arguments. The Supreme Court had set Wednesday as the deadline for the briefs.

At its heart, the state Supreme Court must decide whether it is practicable for the state Legislature to meet to make changes to the state’s election code in the midst of the COVID-19 pandemic and, if not, whether the court could legally order an all-mail election under the circumstances.

Many states have delayed their primaries because of the pandemic. And after the state and federal Supreme Courts denied attempts to ease absentee voting rules in Wisconsin, critics called the elections “disturbing” and a “travesty” after in-person voting continued.

Last month, 27 county clerks and the Secretary of State filed the emergency petition to the state high court asking for the order for mail-in elections. Republican legislators and the state party quickly opposed the petition and sought a Supreme Court hearing.

On Wednesday, an attorney for Gov. Michelle Lujan Grisham said in a court filing that the state Supreme Court should order changes to how elections are conducted “otherwise, with the specter of the COVID-19 pandemic looming over a June primary, New Mexicans may well be forced to choose between jeopardizing their health (and the health of their communities) or exercising the right to vote.”

The Secretary of State’s office said in its filing that Secretary Maggie Toulouse Oliver is not legally able to unilaterally make a change to mail-in elections, and argued the state Supreme Court must make the change under the extreme circumstances.

The Republican Party of New Mexico has argued that absentee ballots are more secure and would allow voters to cast ballots without being in-person. And they argued that having an in-person voting option should also be considered.

Republican party chairman Steve Pearce told the Santa Fe New Mexican, “Well, if you have bothered to go the Walmart or the supermarket during these times, I suspect that the crowd there is just as dense as it would be at any single polling place.”

The Democratic Party of New Mexico argued that portions of the election code already allow for mail-in elections and that the court could “cut and paste” from that portion of the election code in its ruling. That section of the election code allows for local special elections with no candidates on the ballot, such as bond elections, to be conducted through primarily mail-in means.

The Republican Party had argued that such an election for Albuquerque Public Schools resulted in thousands of ballots returned as undeliverable and said there could have been fraud in that case. DPNM called the talk of voter fraud “speculative” and “unsubstantiated.”

The Democratic Party, citing President Donald Trump’s statements on the Fox News program “Fox & Friends,” said Republicans opposed widespread mail-in elections for partisan advantage.

The Libertarian Party of New Mexico, the third major party in the state, said they believe the Legislature must meet to change the law and argued that legislators could be in Santa Fe and “meet by electronic means” from their own offices, which would fulfill the constitutional phrase of meeting in the “seat of government.” 

The Libertarian Party also said that, if necessary, all legislators could be outfitted “with a full isolation suit.”

Daniel Ivey-Soto, an attorney for the County Clerks and a state senator, quoted Eddy County Clerk Robin Van Natta, from an election seminar for county clerks and other elections personnel conducted by teleconference this week, in a supplemental brief filed on Wednesday.

“What keeps me up at night more than anything else is the safety of my staff, my poll workers, and the voters. I can’t in good conscience ask people to show up to work the election and then me being responsible for someone getting this and they die.”

Can the Legislature meet remotely?

The Legislative Council, an interim committee that includes legislative leadership from both chambers and is in proportion to legislative partisan makeup, responded to whether the Legislature could make changes to the Election Code during a special or extraordinary legislative session. The council addressed whether such a session could be done remotely to avoid the need to gather so many legislators in one location during the public health emergency in which the governor banned gatherings of more than five people in nearly all cases.

The council did not take a specific stance on any change, but highlighted potential hiccups, including that for any potential change in law to go into effect it would need to have an “emergency clause” attached, which would require a two-thirds majority.

The legislative council also says that rules of both chambers currently require the physical presence of legislators, with rules in each chamber using the word “present” many times. To change these rules it would require a two-thirds vote in each chamber or for the House Rules and Order of Business Committee and Senate Rules Committee to first meet and recommend changes; this would allow the chambers to pass rule changes by a simple majority.

A special session would require the governor to call the Legislature into session, while an extraordinary session would require three-fifths members of each chamber to sign onto a petition to call themselves into a session.