New Mexico Supreme Court Rejects Invitation to Switch to Mail-In Ballots; Only the Legislature Can Do That

Pandemics and quarantines seem to bring out the worst in public officials attempting to deal with “situations” they want to “fix.” Even if they’re operating in good faith, the knee-jerk reaction to a problem is to bypass (or simply ignore) the Constitution (or state constitution) if it interferes with what the public official wants to get done.

Case in point. Over two dozen county clerks and the New Mexico Secretary of State saw a problem: How can we hold a primary election on June 2, they asked themselves, when the law requires in-person voting – which might expose people to the coronavirus, or frighten away precinct volunteers who are critically important to process. The absentee ballot alternative provided by law didn’t seem to the clerks and Secretary of State like an efficient alternative, since voters are required to request them. Many voters would inevitably lose the opportunity to vote because they forgot to – or couldn’t figure how – to request an application.

Most importantly, the New Mexico legislature was out of session and the state officials thought it unwise, for health reasons, to ask the Governor to call a special session to handle the voting issue. So they petitioned the state Supreme Court to take the extreme step of declaring that under the current health emergency, the state could create a mail-in ballot scheme where the Secretary of State would simply mail ballots to the state’s eligible voters to ensure that they could vote safely and avoid coming to a polling place to vote.

Simple, right? Not so fast.

The state supreme court unanimously rejected the officials’ petition for one simple reason: The state constitution leaves the question of how elections are conducted up to the state legislature. There is no “emergency” clause in the New Mexico Constitution that allows judges to shape amendments to state statutes or to the constitution itself.

The case was argued to the five justices on the state’s high court via telephone, and the decision was rendered verbally afterwards. A written decision will be made available this week.

According to news reports, the justices felt there were other ways to address the problem rather than to request the supreme court to usurp the legislature’s authority to decide election procedures.

The court did order the Secretary of State or county clerks to mail applications for absentee ballots to all registered voters. Such a minor change in the election procedure did not violate either state law or a constitutional provision. Registered voters would still technically be “requesting” an absentee ballot, but it would alleviate any difficulties voters might have figuring out “how” to request such a ballot.

The court also ordered that polling places remain open on election day, since that is a requirement of state law.

If New Mexicans are currently not registered and wish to vote in the June 2 primary, they must register or update their voter registration by May 5 and have until May 28 to apply for an absentee ballot.​