State rejects primary by mail

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.

In a 2 1/2 -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.