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NM Supreme Court denies request for automatic mail-in primary

SANTA FE, N.M. — The New Mexico Supreme Court on Tuesday unanimously ordered county clerks to mail absentee ballot applications to all registered voters for the upcoming primary elections, while also denying their request for an automatic mail-in election.

The ruling, which followed nearly two-and-a-half hours of constitutional quarreling and a lack of debate over public health consequences, means voters will have to fill out an absentee ballot application, complete the ballot at home and mail it in. 

Otherwise, voters will have to go against the advice of public health experts and Governor Michelle Lujan Grisham’s stay-at-home order to vote in person on June 2.

Bernalillo County Clerk Linda Stover confirmed in a text with the Daily Lobo that county clerks will be sending applications to voters whose voter registration address is up to date and “everything else will remain the same — there will be early and election day voting,” Stover said.

The Supreme Court ruling initially shocked local voting rights organizations.

“This decision by the New Mexico Supreme Court has a disproportionately adverse impact on Native voters, disabled voters and certain communities of rural voters. We hope that voters don’t have to relive the Wisconsin debacle here in New Mexico,” Heather Ferguson, executive director of government watchdog group Common Cause New Mexico, said.

The ruling came just a day after the Chicago Sun-Times reported an election worker died from COVID-19 two weeks after the city conducted an in-person election. At least four Chicago primary poll workers have also tested positive for the coronavirus after the March primary, and hundreds of voters and other election workers have been notified that they might have been exposed at their polling location.

The public health impact on New Mexico primary voters could have similar results if in-person early voting and election day polling proceed as usual in the wake of the court’s decision.

Chief Justice Judith Namakura conceded in the court’s decision that in-person voting posed a “substantial health risk” to New Mexicans, but maintained the court didn’t have the constitutional authority to make election decisions.

65.47% of poll workers in New Mexico are over the age of 60, according to the county clerks’ emergency petition to the Supreme Court. The CDC reported that this is an especially vulnerable age group, with “8 out of 10 COVID-19 deaths in people 65 and older.”

“We would love to have college students step up and work the polls,” Stover said.

Common Cause New Mexico, the Native American Voters Alliance Education Project, the League of Women Voters of New Mexico, the American Civil Liberties Union of New Mexico, Disability Rights of New Mexico and Santo Domingo Pueblo endorsed the clerks’ request for mail-in ballots and remain concerned about the impact the decision will have on voter turnout. 

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“Citizen organizations who supported the more flexible voting approach rejected by the Supreme Court today will be working hard with the clerks to ensure voters are expedited their absentee ballots for June,” Ferguson said.

Twenty-seven of New Mexico’s 33 county clerks approved the emergency petition asking the Supreme Court to allow them to use the mail-in ballot procedures for special elections because of the health and safety risk that COVID-19 presents, according to New Mexico State Senator Daniel Ivey-Soto, the attorney representing the county clerks.

The “Wisconsin debacle” — conducted on April 7 after a last-minute Supreme Court challenge to extend absentee voting failed — suffered from long lines, reduced polling locations and decreased in-person voter turnout. However, absentee ballots surged and constituted over two-thirds of the overall vote count.

“People really were risking their health and their safety and their lives in order to exercise their right to vote,” Jill Karofsky, a district court judge and the winner of the state Supreme Court race, told NPR.

Stover said Bernalillo County will appeal to the 2nd Judicial District Court to drastically reduce polling locations, which would mirror the Wisconsin experience. The Midwestern swing state endured a shortage of experienced poll workers, and traditional polling locations — like schools and community centers — were shuttered due to the pandemic.

Nakamura said it was a “very difficult case,” citing inaction by the legislature and Governor Michelle Lujan Grisham in convening a special session to address changes to the state’s elections code to allow for the vote-by-mail procedure.

“No one can deny the devastating effect this virus has had and continues to have on our community,” Nakamura said in issuing the court’s unanimous decision. “However, the relief that is requested is specifically prohibited by New Mexico statute (election code) section 1-6-5F, which says that a mailed ballot shall not be delivered by the county clerk to any person other than the applicant for the ballot.”

This decision comes in a year where there are a number of undecided primary races. There will be “several contested primaries, including two Republican members of the state House running against incumbents in the state Senate and other open seat races getting multiple candidates from each party,” according to an article in the NM Political Report

A written opinion will be issued at an unspecified later date.

It was the first time in the history of the state’s Supreme Court that a hearing was conducted via video conferencing. Justice Richard Bosson (retired in 2015) and Edward Chavez (retired in 2018) were reinstated to fill the seats of Justice Bacon and Thomson who had recused themselves because they are up for re-election this fall. Justice Barbara Vigil appeared by video.

Justices heard arguments from attorneys for both the secretary of state and the Republican Party on Tuesday before returning their verdict after deliberations.

The New Mexico Republican Party recently echoed President Donald Trump’s unproven assertions that mail-in voting opens the door to large-scale fraud. Party Chairman Steve Pearce contended in a recent interview with KOAT that voting by mail was “fraught with the potential for corruption.”

The evidence suggests otherwise.

According to an investigative analysis of all reported cases of voter fraud in the United States, 491 cases of absentee ballot fraud occurred between 2000 and 2012 — a period in which UC-Irvine election law professor Richard L. Hansen pointed out that “literally billions of votes were cast.” 

The non-partisan law and public policy institute Brennan Center for Justice at the New York University’s Law School noted that “mail ballot fraud is incredibly rare, and legitimate security concerns can be easily addressed.”

Additionally, most Americans — and a majority of Republicans — support the federal government requiring mail-in ballots for the presidential election in November should the coronavirus pandemic continue to threaten public health and safety, according to a Reuters/Ipsos poll conducted on April 6 and April 7.

The New Mexico primary, one of the last in the nation, still appears set for its original date of June 2. Sixteen states have postponed their primaries as of the publication of this article.

Andrew Gunn is a senior reporter and the copy chief at the Daily Lobo. He can be contacted at or on Twitter @agunnwrites

Lissa Knudsen is a public health beat reporter at the Daily Lobo. She can be contacted at or on Twitter @lissaknudsen

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