By Marjorie Childress / New Mexico In Depth
The COVID-19 pandemic rapidly upended the lives of New Mexicans in the past month. And if a majority of the state’s county clerks get their way, their primary election will be upended as well, with widespread voting by mail rather than traditional voting at polling sites.
The pandemic, which has swept the globe and so far led to more than 20,000 American deaths, is picking up speed in New Mexico.
Over the past month, Governor Michelle Lujan Grisham through a series of emergency executive orders has largely closed down the state’s economy and ordered New Mexicans to stay home. Public health officials project that the number of illnesses in New Mexico will peak in mid to late May. No New Mexico public officials to date predict when the measures mandating New Mexicans stay home and congregate in groups no more than five will be lifted.
A majority of county clerks (27 of the 33 clerks statewide) want to mail ballots directly to registered voters, rather than endanger the health of election workers and voters by holding a statewide election with more than 700 polling sites on June 2. Secretary of State Maggie Toulouse Oliver supports the idea.
But the state Republican party, along with 31 Republican lawmakers and six county clerks, say a better option to directly mailing ballots to voters would be to promote widespread use of absentee voting, a two-step process available to all New Mexico voters, so that there are many fewer people showing up to the polls in person.
In the middle is the state Supreme Court, which will hear arguments for and against a petition by the county clerks Tuesday. A key question for the Supreme Court justices is whether they have the authority to make a decision that normally would fall to the state Legislature. A key argument of the Republican opposition is they do not.
Safety and adequate access to voting spur concerns
In their petition, the county clerks make clear a big concern is whether they could provide the hundreds of polling sites normally staffed during elections. Most election workers are 65 years or older, the county clerks said, a group particularly vulnerable to COVID-19. Even if county clerks thought it was a good idea to ask their regular workers to staff polling sites, many might not agree.
A notable example occurred last week in Milwaukee, Wisconsin, after a sharply partisan tangle over how to handle the primary.
Wisconsin Governor Tony Evers, a Democrat, lost his fight to delay that state’s election, with the Republican Legislature refusing to make changes to the state’s in-person election process.
The state supreme court, characterized by the Milwaukee Journal Sentinel as having a conservative majority, blocked the governor’s efforts to take executive action on his own. And the U.S. Supreme Court nixed an extension of the deadline for postmarking absentee ballots, at the urging of the Republican National Committee.
The result — blasted in images across the country —- was extremely long lines in Milwaukee, the largest city and epicenter of the state’s COVID-19 outbreak. So many poll workers refused to work that the normal 180 polling sites were cut to 5. And there were numerous claims by voters that their absentee ballots never arrived.
Similar debates or efforts have cascaded across the country. Multiple states have delayed their primaries, or taken steps to make absentee voting easier. Some of those decisions were made by Republicans. But Republican officials have rejected attempts to loosen restrictions or expand vote by mail procedures in North Carolina. And there’s currently an argument in Arizona between a Democratic secretary of state and a Republican legislature over going to an all-mail election, a state where 80% of voters already vote by mail.
At issue in New Mexico, beyond whether the Supreme Court can make a change to election laws in an emergency, is a distinction between two types of vote by mail in state statute.
The petitioning county clerks in New Mexico want to send all active voters a ballot directly, following current procedures already provided in state law for special elections. Because the primary isn’t a special election, the clerks ask the Court to make an exception for the 2020 primary.
There would still be a limited number of voting centers for people who need to vote in-person or to drop off ballots (Notably, the Navajo Nation filed a brief in support of changes due to the health emergency, but urged the Court to ensure adequate in-person voting centers in Navajo communities if it granted the county clerks’ petition).
The Republican opposition says widespread absentee voting is a better option, as it’s already something New Mexicans can do without changes to the law that only the Legislature can make. The Court would infringe on the rights of the Legislature by making changes to the election process, the Republican group said in a brief, something it doesn’t have the authority to do.
Widespread absentee voting would require educating voters about the two-step process with sufficient time for voters to apply and receive a ballot in the mail before the primary.
University of New Mexico Political Science Professor Lonna Atkeson said which of the two options is the best approach depends on priorities. The problem, she said, is to not reduce turnout when fewer polling sites are open.
Absentee voting requires voters to apply through mail for a ballot, and then vote. New Mexico’s special election process allows ballots to simply be mailed to all registered voters. “That’s why they want to send ballots to everyone,” she said.
“…if health is the only thing we care about then we should send mail ballots to everybody. If that’s the most important thing, an argument can be made, in an emergency situation that makes sense,” Atkeson said.
But, if election integrity is a priority as well “there is more if you don’t send ballots to everyone on your list,” she said, noting that New Mexico is a very mobile state, with “so many moving and changing places.”
Atkeson said that New Mexico’s special election provision for sending ballots automatically to all voters is relatively new. The state has yet to implement advanced all-mail election procedures used by the handful of states that conduct all elections by mail, she said. Those procedures place voter list maintenance and signature reading software at the forefront.
Arrayed on either side of the debate are a range of public officials and interest groups who’ve filed their own briefs with the court.
The Libertarian party agrees with Republicans, stating that if the current election procedures on the books aren’t sufficient, the Legislature should meet to change them. Libertarians argue the claim the Legislature can’t meet for safety reasons is “…specious and insulting to all the grocery and pharmacy clerks, medical professionals, truckers, delivery drivers and others that are doing their jobs in this time of pandemic.”
Noting the state constitution calls for the Legislature to meet at the “seat of government,” which is widely construed to mean in Santa Fe, Libertarians said lawmakers could easily drive to Santa Fe and meet electronically while separated in their respective offices.
But the Legislature itself, through its Legislative Council Service, said the rules of both the Senate and House require lawmakers to be present on the floor of their chambers in order to vote.
The secretary of state noted county clerks face high stakes to ensure “…all voters have the broadest opportunity to vote in the Primary Election without violating the Executive and Public Health Orders,” and argued the court has the right to make the decision during an emergency when the Legislature can’t convene in person.
And the governor introduced an additional option. The Court, her attorneys said, could take a more limited action by simply delaying the primary by three to five weeks, which 15 other states have done.