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Copyright © 2020 Albuquerque Journal

SANTA FE – More than two dozen of New Mexico’s county clerks asked the state Supreme Court on Monday for an emergency order that would allow them to conduct the June 2 primary by mail.

The clerks said they otherwise face an impossible choice – putting voters’ and election workers’ lives at risk or violating their oath of office – amid the coronavirus pandemic.

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“The state of New Mexico faces a public health emergency unprecedented in modern times,” the clerks said in an their petition.

Secretary of State Maggie Toulouse Oliver, New Mexico’s chief election officer, supports the petition, describing the move to mail-in ballots – with some exceptions for in-person voting – as a sensible way to protect public health and the right to vote.

The unusual petition seeks emergency court intervention. The clerks acknowledge that an immediate special session – allowing the governor and legislators to change election laws – is a potential solution.

But it isn’t practical to convene a session amid a virus outbreak that could kill hundreds of New Mexicans in the next few months, the clerks said, citing a projection by University of Washington researchers. The clerks also noted that most of New Mexico’s 112 legislators are 60 or older, putting them most at risk of the disease.

The 27 clerks – mostly Democrats, but including five Republicans – argued that poll workers are scared to work and that election sites, such as schools, are already closed with no plans to re-open, justifying their request for permission to move to mail-in ballots.

They would operate the election largely under procedures already allowed for special elections by mail, with some changes to ensure compliance with federal law for elections involving federal candidates.

Primary election contests for president, seats in the U.S. House and Senate, and both chambers of the Legislature are on the ballot this year. Absentee and early voting are scheduled to begin May 5.

In a 32-page petition, the clerks say they would open a limited number of polling sites to aid voters who must vote in person and for people to drop off ballots. But the election would largely happen by mail, with a ballot sent to each active voter.

“We’re trying to make it as convenient as possible while maintaining social distancing,” said Daniel Ivey-Soto, an attorney representing the 27 clerks in the case.

Ivey-Soto is a Democratic state senator from Albuquerque, but he said he filed the petition in his role as a lawyer, not as a senator.

Toulouse Oliver, a Democrat and former Bernalillo County clerk, supports the proposal.

“The Secretary believes limited in-person services should remain available for voters – for instance, to drop off a ballot, replace a ballot, get language assistance, or get assistance because of a disability,” secretary of state spokesman Alex Curtas said in a written statement.

Special session

Democratic and Republican legislative leaders have been discussing the timing and agenda for a special session. It would be up to Gov. Michelle Lujan Grisham to call the session.

Her administration has focused in recent weeks on slowing the spread of COVID-19, the disease caused by the novel coronavirus. The governor and her Cabinet secretaries have instructed people to stay at home, and they have issued emergency orders closing schools and nonessential businesses.

Health Secretary Kathy Kunkel said in a letter to the clerks Sunday that holding a special session now runs the risk of accelerating community transmission of the disease throughout the state and could harm legislators.

House Speaker Brian Egolf, D-Santa Fe, has asked legislative staff to research the legality of a virtual session, held through an online conferencing program.

House Republican leaders say the Constitution doesn’t permit such a thing.

Lawmakers have also discussed the idea of meeting with the bare minimum number of lawmakers necessary to conduct business, changing rules to avoid having too many lawmakers in the room at the same time, and other possibilities.

Legislators on both sides of the aisle have also expressed concern about the details of carrying out a mail election, such as how to ensure ballots get to the right addresses, combating voter fraud and ensuring the postal system could handle the influx.

The Republican Party of New Mexico said it opposes the clerks’ request. The motion would bypass the legislative process and expose the ballots to tampering, the GOP said.

“While everyone understands and appreciates the health and safety concerns during this pandemic, a (vote by mail) election in New Mexico provides no security and no ability to control who votes once the ballots are mailed to every registered voter,” Republican Party spokesman Mike Curtis said.

Marg Elliston, chairwoman of the state Democratic Party, said Democrats are “open to any process that will expand access while keeping our communities safe.”

Deadlines

The clerks, meanwhile, say they face tremendous challenges in carrying out the election under the current system – in which hundreds of polling locations would be open on Election Day.

Some workers – many of whom are temporary employees – say they are unwilling to participate, the clerks said. About 65% of the workers are older than 60, putting them in the at-risk category for the disease, the clerks say.

Ballots are to be sent to military and overseas voters by April 18.