April 14, 2020

State Supreme Court rejects petition for all-mail primary election

Andy Lyman

The New Mexico Supreme Court

In a ruling that will impact the quickly approaching primary elections, the state Supreme Court denied a petition to move to primarily mail-in voting in light of the COVID-19 pandemic and the state’s public health emergency. Instead, the high court ordered that the county clerks and the Secretary of State send absentee ballot applications to all registered voters.

In-person voting will also remain open, though it “must proceed and comply with the governor’s executive orders and the New Mexico Department of Health’s public health emergency order.”

Currently, the public health emergency order only allows gatherings of five people in most instances. Grocery stores and other retail operations that remain open after being deemed ‘essential’ can only have 20 percent of their maximum capacity. 

The order came after about two hours of deliberations. The oral arguments took nearly two and a half hours.

According to Chief Justice Judith Nakamura, the unanimous decision was based on state law. 

Nakamura cited a section of the election code that says, in part, “A mailed ballot shall not be delivered by the county clerk to any person other than the applicant for the ballot.”

“No one can deny the devastating effect that this virus has had and continues to have on our community,” she said in announcing the decision.

Nakamura said a written decision will be issued later this week, with a written opinion issued at a later date.

Nakamura said that by sending out absentee ballot applications to all registered voters, “It ensures the education of the voting public that it is safer for them and others to vote absentee.”

Most of the state’s county clerks and the Secretary of State petitioned the court to ask that they allow election administrators to send ballots to every registered voter and to not allow in-person voting. They said voting assistance centers, which would allow for people to drop off ballots or receive translation help, assistance for handicapped voters and other services would be open.

Daniel Ivey-Soto, an attorney for the county clerks, had argued that the request asked the court to apply a portion of the election code that allowed for some elections—which do not have candidates on the ballot—to be conducted by mail to the upcoming primaries to protect voters as COVID-19 continues to spread across the world.

Carter B. Harrison IV, the counsel for the Republican Party of New Mexico, legislators and six county clerks, argued that the Supreme Court didn’t have the power to do what the petitioners had asked for.

“What the petition is actually asking to do is not for this court to interpret the law, but to go and make something legal that would not be legal in the absence of a writ,” Harrison said.

He cited the same part of the election code that Nakamura did in her announcement Tuesday afternoon.

The Republican Party had also argued that the state’s voter rolls had too many inaccuracies and it could lead to voter fraud. They argued the two-step absentee voting process was safer.

Ivey-Soto said the option of sending out absentee voter applications to all voters would result in more work and possible delays for elections administrators.

“What is being asked by this is if we’re expecting around 300,000 people to vote in this primary election,” he said, the clerks would not just need to process 300,000 ballots, but that “the county clerk would have to do an additional at least 300,000 if not 400,000 transactions in the county clerks’ office. They don’t have the time to do it. They don’t have the staffing to do it.”

Another question was whether or not the Legislature could meet during the pandemic. Thomas Hnasko, the counsel for the Legislative Council, said there were practicable hurdles, namely that the state constitution says the Legislature must meet and have a “presence” in the capital, and that each chamber had rules that require legislators to take action while on their respective floors.

To change those rules would require either a two-thirds vote of the chamber, or for a committee to meet and approve of rule changes—then a majority to vote to agree to the rule changes.

These would be impractical under the public health emergency order provisions, Hnasko said.

Even if the Legislature met and passed the rule changes, it would require an emergency clause to go into effect in time to impact the elections; emergency clauses require two-thirds votes from each chamber.

After the decision, a spokesman for the governor reiterated in a statement that it would not be safe to hold a special session.

Senate President Pro Tem Mary Kay Papen, D-Las Cruces, threw more cold water on the idea of the Legislature meeting.

“While the legislature cannot convene now, we will meet to address the serious issues facing our state as soon as it is safe to do so,” Papen said in a statement. “I am confident we can find a solution allowing for a productive in-person session that adequately protects legislators and legislative staff while providing a safe venue for public participation.”


“In-person voting poses a grave threat of heightened transmission of the virus,” Gov. Michelle Lujan Grisham said. “I remain confident our state’s primary election can be conducted almost entirely if not entirely through mail to ensure the safest possible exercise of New Mexicans’ right to vote.”

Secretary of State Maggie Toulouse Oliver encouraged voters to register to vote or update their voter registrations by May 5 and to vote via absentee ballot.

“My office will be working with all County Clerks to ensure that all of the polling places we are required by law to staff and equip have the personal protection equipment needed to make in-person voting as safe as possible for all New Mexicans who choose to utilize it,” Toulouse Oliver said. “Lastly, the disinformation that has been circulating about this case in recent days also obliges me to reinforce the point that if voters have questions about voting or elections, now or in the future, they should always turn to trusted sources of election information like my Office or their County Clerk.”

The Republican Party of New Mexico celebrated the decision.

“This decision by the Court ensures that the health and safety of every voter and worker is protected, while making sure that our election will not be susceptible to fraud,” said party chair Steve Pearce. “We are pleased that the Justices recognized this and that we can proceed with a fair and free election in a safe environment.”

Democratic Party of New Mexico chair Marg Elliston said the party will encourage voters to fill out absentee voter registrations.

“We regret that the GOP’s efforts to suppress the vote have made it harder to vote and put poll workers at risk, but we will not give up this fight,” Elliston said.

Common Cause New Mexico said they and other groups that supported the petition “will work to ensure voters are expedited absentee ballots. This decision has a disproportionate adverse impact on tribal and rural voters. We hope NM voters don’t experience the Wisconsin debacle.”

Impacts of COVID-19

The hearing itself was impacted by the public health emergency. The oral arguments took place with attorneys and one justice participating through a video conference. The other four justices were in the chambers, and each had a bottle of hand sanitizer in front of them.

The arguments were webcast by New Mexico PBS.

While the primary election date is June 2, early in-person voting will begin on May 5. Military and overseas voters also get their ballots sooner.

Hanging over the proceedings are changes made, or not made, in other states. The Wisconsin primaries that took place last week received a high amount of scrutiny after that state’s Supreme Court went forward with in-person elections. The U.S. Supreme Court reversed a lower federal court decision that would have allowed voters in the state an extra six days to return absentee ballots.

Other states have delayed the dates of their primaries.

Nakamura asked Dylan Lange, the attorney for the Secretary of State’s office, why that option was not on the table.

Lange said the Secretary of State’s office believes that is “clearly much more of a change to how New Mexicans vote” than sending out ballots. 

He also said he didn’t believe the court had the authority to do so, since it was not in the election code.