Mail-in election petition rejected

About 4,800 voters in Quay County soon will receive by mail an application for an absentee ballot for the June 2 primary election because of a New Mexico Supreme Court decision last week.

The high court unanimously rejected a petition by 27 county clerks to hold a mail-in primary election in June because of health and logistical concerns over the ongoing coronavirus pandemic. The justices ordered the state instead to mail absentee-ballot applications to all registered voters in addition to holding in-person voting.

The Republican Party of New Mexico, which opposed the clerks’ petition, acknowledged the danger of COVID-19 during oral arguments before the high court but said the request violated state election laws. It advocated that voters request applications for mailed absentee ballots instead.

Quay County Clerk Ellen White said during a telephone interview Friday the state’s clerks still are seeking clarification from the court on whether the clerks or the New Mexico Secretary of State would mail absentee-ballot applications to voters.

“Frankly, my choice, as cumbersome as it would be, would be for us to do it,” she said. “I would just as soon deal with our postal service than things be generated elsewhere and expect to get here in one piece. But that’s not my decision.”

Even before the applications are mailed, White said area voters can request an absentee ballot by calling her office at 575-461-0510 or going to the Secretary of State’s website at NMvote.org. White said applications should be received by the clerk before May 28 for voters to receive a ballot for the primary.

Regardless of who mails the applications, White said the court’s decision would roughly double the taxpayer cost of the primary. She noted the state received $4 million in federal funds for elections. However, the ruling would raise the statewide primary’s price tag from $2 million to $4 million.

“It will use every bit of that (federal money) because we’ll have to secure PPE for every polling site,” White said, referring to personal protection equipment to shield election workers from the virus.

Lawyers during state Supreme Court arguments noted that several counties would have to scale down staffs for each polling place and election center. Heavily populated counties also would reduce the number of precincts in anticipation of lower in-person turnout.

However, White said primary voting would remain mostly the same in Quay County. Early voting would go from May 5 to May 30 as scheduled at the courthouse, and polling places would open during the June 2 election at the Tucumcari Convention Center and sites in Forrest, San Jon, House, Logan and Nara Visa.

Quay County offices have been open only by appointment only during the pandemic, but that would change at the clerk’s office once early voting begins.

“We need to do marriage license filings and research and a number of other things at our office,” White said. “On top of that, we’ll have to handle early voting and the traffic from that. It’s going to be quite a challenge.”

One change will be the number of workers at Quay County polling sites. Public-gathering rules during the pandemic allow no more than five people in one place.

White said Quay County typically has four people at each polling site and 10 at voting centers. She said she’d reduce staff to three or four at each polling site. At a voting center, there would be a total of seven workers with three teams of two people at spread-out check-in sites that can accommodate three voters at a time. Each site also will be sanitized, and White said voters will be encouraged to wear protective masks or be provided ones.

“It’s going to have to work,” White said. “We’re going to be ordered to follow whatever health orders are in place at that time.”

White said the state’s clerks are seeking additional primary-voting guidelines from Gov. Michelle Lujan Grisham before April 30.

Even with in-person voting present for the primary, White said the high court and clerks are urging voters to cast absentee ballots to reduce the risk of the virus’ spread.

“We all are encouraging absentee voting,” she said. “The whole state is highly encouraging people to vote at home through the application process.”

The high court’s oral arguments last week were broadcast over the internet by public television station KNME. Justices peppered pointed questions to lawyers on both sides of the debate.

Daniel Ivey-Soto, lawyer for the petitioners, said: “The clerks are not asking to legislate. The clerks are asking to act during a public health emergency.”

He also cited long lines at polling places in Wisconsin during its recent primary and its voters receiving absentee ballots after the election.

Carter Harrison IV, lawyer for the state GOP, said the petition runs afoul of election codes and that voter “rolls are not maintained to a level to support vote-by-mail,” noting 50,000 undeliverable ballots during a recent Albuquerque Public Schools special election.

Justice Barbara Vigil asked Harrison whether hewing to the election code for the primary during a pandemic would constitute “a suicide pact.”

Matthew Garcia, lawyer for the governor, told the court it was “very unlikely” she would lift public restrictions when they expire April 30 and noted the pandemic’s severity likely would peak in early May.

Justice Richard Bosson, noting social-distancing requirements, asked: “How does a citizen show up to vote without violating the law?”

Gretchen Elsner, a lawyer for the state’s Democratic Party, said lawmakers had the ability to meet in a special session to address the primary voting issue but declined to do so, citing the public-health hazards of the virus.

“The Legislature is punting,” Elsner told the justices. “It is now squarely in your lap.”

Justice Michael Vigil noted New Mexico has a closed primary system, and “I can’t see how it would benefit one party over the other” with the petition.

Dylan Lange, a lawyer for Secretary of State Maggie Toulouse Oliver, said closing polling centers and restricting a primary to absentee ballots only would disenfranchise voters. He said all counties already had experience with mailing ballots during previous special elections.

After about two hours of deliberation, the Supreme Court said the petition violated state law but ordered the mailing of absentee-ballot applications to all voters.

White expressed relief she and other clerks finally have direction on how to proceed with the primary.

“I don’t think they had much of a choice,” she said of the justices’ decision. “The people who had the opportunity to change that and fix that, the legislators, chose not to have a special session that could have addressed it. They weren’t willing to compromise their own health to meet and discuss those items at length.”