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Copyright © 2020 Albuquerque Journal

SANTA FE – The state Supreme Court – in an unprecedented hearing by video link – rejected an emergency petition Tuesday that would have shifted New Mexico’s June 2 primary to an election by mail.

The decision came after more than two dozen of New Mexico’s top election officials – citing danger to public health – pleaded for court permission to close polling sites and conduct the primary election largely through mail-in ballots.

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In a 2½-hour hearing, the justices wrestled with their authority to step in.

They pointedly asked whether granting the petition would usurp the Legislature’s authority to craft election laws. But they also asked whether election officials would have the proper protective equipment to conduct an in-person election safely.

In the end, they ruled unanimously that state law prohibits them from ordering a mail-in election.

Instead, the court directed county clerks throughout the state to mail absentee-ballot applications to voters to encourage people to vote absentee, rather than in person, a step the court said is permitted by law.

“Obviously, this is a very difficult case, which is evidenced by the other branches having chosen not to act,” Chief Justice Judith Nakamura said Tuesday as she announced the decision.

The public health emergency is obvious, she said, but state law prohibits mailing ballots to voters unless they’ve first filled out an application. Consequently, the justices ordered county clerks and Secretary of State Maggie Toulouse Oliver to mail absentee applications – but not the ballots themselves – to voters.

“It is indisputable that in-person voting poses a substantial health risk to the state of New Mexico,” Nakamura said.

The chief justice delivered the ruling to a nearly empty courtroom in Santa Fe.

It was the Supreme Court’s first hearing conducted through videoconferencing. Four justices sat in the courtroom, and another participated by video.

Attorneys addressed the court through a video link.

Tuesday’s ruling doesn’t necessarily preclude New Mexico from moving to a mail-in system for the June 2 primary. But it would take emergency legislative action – in a special session – to change election rules.

Gov. Michelle Lujan Grisham and her attorneys said an immediate special session is unlikely because of the public health risk of a crowded Capitol.

Voting is scheduled to start in three weeks. Absentee ballots can be mailed out starting May 5, and a limited number of sites for in-person early voting open that day.

Broader early voting locations open May 16.

Republicans, Democrats and Libertarians will be picking their nominees for the U.S. Senate and House, legislative seats and many local races.

The general election is Nov. 3.

During Tuesday’s hearing, Justice Edward Chávez, who is retired but heard the case because two justices recused themselves, skeptically questioned attorneys pushing to shift the election largely to mail-in ballots. He noted that the Legislature had required absentee voters to first submit an application before getting a ballot – a potential sign, he said, that lawmakers wanted extra safeguards in place for voting by mail.

“I’m not sure the court can overlook those safeguards,” Chávez said during the hearing.

Justice Michael Vigil, in turn, said it was clear the Legislature permitted mail-in voting in some circumstances, such as in special elections or after an absentee application.

He asked whether it would amount to a “suicide pact” to move forward with an in-person election.

Carter Harrison, an attorney for the Republican Party of New Mexico, which opposed the emergency petition, told the Supreme Court that there were other options.

County clerks, he said, could seek court approval to dramatically reduce in-person polling locations while launching an information campaign to encourage absentee voting. The application process required for absentee voting ensures the ballots get to the right addresses, he said.

“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,” Republican Party Chairman Steve Pearce said in a written statement after the hearing. “We are pleased that the Justices recognized this and that we can proceed with a fair and free election in a safe environment.”

State Democratic Party Chairwoman Marg Elliston said the emergency petition for mail-in ballots was the best option for protecting both public health and the people’s right to vote.

“The Democratic Party of New Mexico remains concerned about how in-person voting could threaten the health and safety of many New Mexicans,” she said in a written statement. “We will continue to do everything possible to help our fellow New Mexicans make their voices heard, including encouraging voters to fill out their absentee ballot applications.”

The 27 county clerks and Toulouse Oliver had told the court that under their plan, they would still offer a limited number of sites where New Mexicans could drop off ballots or vote if absolutely necessary. But they said poll workers are scared to staff their normal precincts and that traditional voting sites, such as schools, are closed anyway – critical barriers to carrying out a tradition election.

The clerks “are not asking this court to legislate,” said Daniel Ivey-Soto, a state senator and attorney who represented the 27 clerks. “Instead, we’re asking this court to respond to a public health emergency.”

The Republican Party and other opponents, meanwhile, slammed the petition as an illegal attempt to bypass the Legislature.

“It’s been unclear whether the Legislature is unable to meet or just unwilling to meet,” Harrison told the court.

Courtroom seating for Tuesday’s hearing was arranged to meet social distancing standards, and video of the hearing was streamed online.

Two retired justices – Chávez and Richard Bosson – participated in place of two current members of the court who recused themselves. Justices Shannon Bacon and David Thomson are on the ballot this year and didn’t participate in Tuesday’s hearing.

Toulouse Oliver immediately encouraged voters Tuesday to update their voter registration to ensure the state has the correct address and to look for an absentee application in the mail. She said her office would comply with the court order and do everything it can to ensure voters can make their voices heard.

“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.