Twenty-seven of New Mexico’s 33 county clerks petitioned the state Supreme Court to allow a mostly mail-in vote for the June 2 primary election.
That number included county clerks in Bernalillo, Santa Fe, and Torrance counties. The state’s Republican Party and others were granted standing by the Court, and are opposing the Petition.
The Petition lays out concerns for the health and safety of pollworkers, voters, and staff who run elections, citing the “stay at home” emergency order in the face of the ongoing novel coronavirus pandemic.
April 21 is the deadline for county clerks to appoint election boards. There are approximately 774 Election Boards appointed throughout the state, the petition says.
“For those election workers who do agree to receive their appointments, County Clerks are faced with a dilemma, as their most reliable and experienced workers come from an identified high risk population,” the petition says.
“County Clerks have a choice: (a) follow the provisions of the Election Code for the conduct of a statewide election and risk the lives of their staff and those community members supporting the election process, not to mention the voters exercising their franchise; or (b) violate their oath of office in order to protect the health and safety of their community, their voters, their staffs, and themselves. No public official should be placed in this position,” the petition says.
The petitioners asked the governor to call a special session of the Legislature to approve “either a change in the manner of voting for the 2020 Primary Election or a statute delegating to the Executive the ability to make limited changes to the election process in the face of a disaster or emergency,” but that request was denied, the petition says.
“The in-person convening of our 112 state legislators has the high likelihood of spreading this dangerous virus among individual legislators and may hav ethe effect of further spreading this disease to every cornedr of the state upon the return of each legislator to their respective districts,” wrote Kathyleen Kunkel, health secretary, in a letter denying that request.
The Supreme Court “is the last resort to both conduct a lawful election and preserve the public health,” the petitioners argued, adding, “the Parties have come to this Court to fashion a constitutional solution to proceed with the 2020 Primary Election in a manner that protects election workers and the public while honoring democracy.”
The petitioning county clerks asked the Court to allow them to follow procedures for special elections in state law. County clerks mail out ballots to each voter whose election-related mail has not been returned.
That includes a postage-paid return envelope. All voters could be issued provisional ballot if requested. In-person voting would be allowed for some, including those requesting provisional ballots, or people with disabilities, court documents say.
The Republican Party of New Mexico, along with the remaining six county clerks and 29 state legislators, filed to intervene in the case “so that they may directly advocate to the Court their interests and the legal justifications to reject the Petition in this matter,” court documents say.
“Even if it were true that the Legislature cannot convene – which has not been established and is from all appearances simply untrue – and that a dramatic move from in-person voting to mail-in voting were necessary to promote public health, the Petition says not one word about why the simpler and safer approach of circulating absentee ballot applications to the public and encouraging them to voluntarily vote absentee would not suffice,” the Republican Party argued.
“There is no legal basis for this Court to grant relief sought by the Petition, and no factual basis that the Legislature – the indisputably and undisputedly appropriate body for making the changes to the Election Code the Petitioners request – is incapable of convening in a special or extraordinary session,” argued the group.
The Republican Party further argued that teleconferencing and videoconferencing are not prohibited by state law.
The Court granted the motion to intervene, and further ordered that a response to the Petition is requested from the governor, the Legislature, the state’s Democratic and Libertarian parties, and the League of Women Voters, with an April 8 deadline.
The Court asked those respondents to address the question of whether the Legislature may legally convene and vote remotely.
Oral arguments will be heard in the matter on April 14, “by audio-video connection as directed by the Clerk of Court,” the documents say.