New Mexico Court Denies All-Mail Primary Election During Virus

The New Mexico Supreme Court said no to all-mail voting for the state’s June 2 primary.

The unanimous decision, announced from the bench Tuesday following oral arguments, denied the request by 27 county clerks who argued the change would protect the health of voters and election workers during the coronavirus pandemic.

Republican legislators, several county clerks, and the state Republican Party opposed the petition.

New Mexico joins other states grappling with how to hold elections while avoiding the spread of the coronavirus. The county clerks said that petitioning the state Supreme Court was their last resort given the challenges in reconvening the state Legislature to address election issues.

New Mexico law prohibits the automatic mailing of ballots, Chief Justice Judith Nakamura said. Instead, justices ordered Secretary of State Maggie Toulouse Oliver and county clerks to mail all registered voters an absentee ballot application to request a mail-in ballot.

In-person voting also must comply with all coronavirus-related health and safety orders, Nakamura said. The court will release a written order and opinion later, she said.

Clerks’ Proposal

Toulouse Oliver had supported the county clerks’ petition for an all-mail election. Eligible voters would have automatically received ballots, and a few in-person “service centers” would have opened for people with disabilities or other special circumstances.

Questions from Supreme Court justices during oral arguments focused on whether the court would tread on the power of the Legislature to make the all-mail allowance, considering it’s unlikely lawmakers will reconvene before the election. Gov. Michelle Lujan Grisham (D) is “strongly disinclined” to call a legislative special session because of the health risks of bringing lawmakers and staff to the state Capitol, said Matthew Garcia, the attorney representing her.

County clerks asked the court to address the public health emergency using procedures already in state election law, Daniel Ivey-Soto, the attorney representing them, said during oral arguments. Special elections can already be conducted via mail, and those rules could be applied to the June primary, he said.

“We’re asking you to stay within the election code,” said Ivey-Soto, who is also a Democratic state senator.

Opponents successfully argued that automatically mailing ballots to voters is an unconstitutional change to state election law. The Republican Party of New Mexico was most concerned with automatically sending people ballots without verifying addresses, said attorney Carter Harrison, representing the party.

Instead, county clerks could reduce the number of in-person polling places and send notices to people asking them to request absentee ballots, he said.

The case is State Ex Rel. Riddle V. Oliver, N.M., No. S-1-SC-38228, oral arguments 4/14/20State Ex Rel. Riddle V. Oliver, N.M., No. S-1-SC-38228, oral arguments 4/14/20.

To contact the reporter on this story: Brenna Goth in Phoenix at bgoth@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com