Supreme Court Says No to All-Mail Election

Unanimous decision orders clerks to mail absentee ballot request forms to all voters

New Mexico's primary election is likely to see much more participation via mail than previous years, but the state Supreme Court late Tuesday ruled against a request from election administrators to shut down the polling places and automatically mail ballots to every registered voter.

Chief Justice Judith Nakamura announced the court's unanimous decision just before 6 pm after about two hours of deliberation and a full afternoon of oral arguments—made over digital-video hookups to maintain physical distancing. A written order and opinion will be issued later, Nakamura said.

"Obviously this is a very difficult case, which is evidenced by the fact that the other branches of government have chosen not to act and have come before this court to seek relief. We take judicial notice that the governor has declared a public health emergency and the secretary of health has issued public health orders and no one can deny the devastating effect that this virus has had and continues to have on our community," Nakamura said in the livestreamed hearing.

"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 anyone other than the applicant for the ballot. That being said there is no prohibition regarding the secretary of state or county clerk from mailing out an application for an absentee ballot. Under the circumstance of this pandemic it is indisputable that in-person voting poses a substantial health risk to the state of New Mexico and therefore absentee ballot voting is the preferred method."

The court then ordered the clerks or secretary of state to mail an absentee ballot application to every registered voter. That plan, the chief justice said, ensures education for the voting public. In-person voting must also comply with the state's public health orders.

Twenty-seven of New Mexico's 33 independently elected county clerks and Secretary of State Maggie Toulouse Oliver had asked the court to allow for large-scale mailed ballots to minimize in-person voter contact during the COVID-19 pandemic. But the state Republican Party, four county clerks and a long list of Republican legislators intervened in the case, arguing the proposed changes to the election were unconstitutional.

The GOP claimed victory after the ruling.

"The court's refusal to rewrite New Mexico election law—to allow the unsolicited mailing of live ballots as part of an all vote-by-mail (VBM) election—shows the proper respect for the importance of election integrity, even in the face of the challenges posed by COVID-19," reads a statement from the party.

Toulouse Oliver issued a statement Tuesday indicating she was ready to move forward.

"Though the court today did not agree with the proposal put forward by my office and the state's county clerks for an all-mail primary election in order to protect both the health and the rights of New Mexico voters, voters will still have everything they need to make their voices heard on June 2," she wrote. "My office will comply with the court's order and mail absentee ballot applications to all voters registered with a major political party. That's why it's important that eligible voters register to vote or update their voter registrations by May 5."

The state's election schedule calls for ballots to be mailed to overseas and military voters no later than Saturday. Election workers are supposed to be named by April 21, and early voting at in-person locations is set to begin May 15.
Watch the hearing on the court's YouTube channel.

Letters to the Editor

Mail letters to PO Box 4910 Santa Fe, NM 87502 or email them to editor[at] Letters (no more than 200 words) should refer to specific articles in the Reporter. Letters will be edited for space and clarity.

We also welcome you to follow SFR on social media (on Facebook, Instagram and Twitter) and comment there. You can also email specific staff members from our contact page.