Justices rule sending ballots to all registered voters violates a state statute
By Morgan Lee
Associated Press
SANTA FE, N.M. (AP) — The New Mexico Supreme Court on Tuesday ordered state and local election authorities to distribute absentee ballot applications to all registered voters while rejecting a petition to scale back in-person voting in response to the coronavirus.
The court ruled unanimously in rejecting a petition from a majority of county clerks to send ballots without request to nearly all registered voters and scuttle traditional in-person voting in the June 2 primary.
The pace of coronavirus infections in New Mexico is expected to peak in late May under recent modeling presented by state health officials. That puts the pandemic on a collision course with New Mexico’s primary, amid a state-by-state partisan legal fight over how voters can safely cast their ballots if the coronavirus outbreak persists into the November election.
The rejected proposal, supported by Democratic Secretary of State Maggie Toulouse Oliver and the state Democratic Party, would have provided so-called voting service centers in about 170 locations for registered voters to turn in absentee ballots by hand, fill out replacement and provisional ballots and seek other assistance.
The Republican Party and affiliated state lawmakers intervened in the case to insist that state law allows for the distribution of absentee ballots by request only. Attorney Carter Harrison, representing the GOP, said the practice of distributing ballots directly to all verified addresses for registered voters is limited by law to special elections involving ballot initiatives and that the Supreme Court would overstep its authority by ordering that procedure, infringing on the authority of lawmakers.
“No one can deny the devastating effect that this virus has had and continues to have on our community,” Chief Justice Judith Nakamura said from the courtroom via videoconference. “However the relief that is requested is specifically prohibited by New Mexico statute ... which says that a mail ballot shall not be delivered by the county clerk to any person other than the applicant for the ballot.”
Nakamura is the only justice who joined the five-member court as a Republican. Two justices running for election this year as Democrats recused themselves form Tuesday’s decision and were substituted by longtime Democrats.
In-person voting and early voting must comply with the governor’s executive orders and Health Department orders relating to the pandemic, the court ruled. A stay-at-home order that bans public gathering of more than five people expires on April 30 but is likely to be extended, according to Matthew Garcia, an attorney for Gov. Michelle Lujan Grisham.
Toulouse Oliver, the state’s top election regulator, acknowledged in a statement that her voting proposal had been rejected and said “voters will still have everything they need to make their voices heard on June 2.” She highlighted the state’s May 5 registration deadline for the primary.
Lujan Grisham said in a statement that in-person voting “poses a grave threat of heightened transmission of the virus” and that she is confident the primary can be conducted almost entirely through mail.
Wisconsin experienced a major jump in mail-in voting in its election last week — from 12% of votes cast last year to 72% — amid widespread allegations that Republicans were seeking to suppress votes by forging ahead with a chaotic election.
The Democrat-led Legislature shied away from convening a special or extraordinary session to rewrite voting regulations, citing the risk of transmitting the virus by meeting at the Statehouse along with legal uncertainties surrounding remote videoconferencing — concerns shared by the governor in her court briefing.
Announcing the court’s decision, Nakamura described 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 this court for relief.”
Republicans including state party Chairman Steve Pearce viewed the case as precedent-setting for future elections as they advocated for absentee mail-in balloting by request only.
The state’s Democratic primary is likely to decide who succeeds U.S. Rep. Ben Ray Luján in the Democrat-dominated 3rd Congressional District in northern New Mexico. Luján is the presumed Democratic nominee to succeed retiring Sen. Tom Udall.
Republican primary voters are deciding between two contenders who hope to retake a congressional swing district seat held by U.S. Rep. Xochitl Torres Small in southern New Mexico. The entire Legislature is up for elections this year, with an upswing in primary-election challenges.
