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No mail-in primary, N.M. high court rules, but absentee voting encouraged

New Mexico did not last long at the center of the campaign to make voting by mail the default setting for elections during the coronavirus pandemic.

What had loomed as a protracted partisan battle over the rules for the state's primaries, similar to the one that caused chaos last week in Wisconsin, was settled decisively Tuesday at the state Supreme Court. The justices unanimously rejected a plan to restrict in-person voting while sending mail-back ballots to almost all registered voters.

The pace of Covid-19 infections in New Mexico is on course to peak within two weeks of the June 2 primary, meaning thousands who don't request and receive an absentee ballot in time could be confronted with a tough choice between exercising their civic duty and guarding their health.


A dozen other states across the county have primaries set for that day. The only contests before then are in Oregon, Idaho and Kansas, and all are relying on voting by mail.

In New Mexico, four of the five people on the high court panel that decided the case are Democrats, and after a four-hour hearing and two hours of deliberations they agreed with the Republicans that state law would be violated under the vote-by-mail proposal.

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Instead, the court ordered state and local election authorities to distribute absentee ballot applications to all who have registered to vote by the May 5 deadline. That will be about 1 million registered Republicans and Democrats, because primaries in the state are closed to independents.

In theory, four weeks would be plenty of time to request, receive, complete and return such a bar-coded form.

Democratic Secretary of State Maggie Toulouse Oliver, the state Democratic Party and 27 of the state's 33 county clerks wanted instead to proactively deliver the ballots and then open 170 polling stations on election day for turning in the votes, completing provisional ballots, and seeking language or disability assistance.

"No one can deny the devastating effect that this virus has had and continues to have on our community," Chief Justice Judith Nakamura said in announcing the court's decision on a videoconference. "However the relief that is requested is specifically prohibited by New Mexico statute ... which says that a mail ballot shall not be delivered by the county clerk to any person other than the applicant for the ballot."

Democrtatic Gov. Michelle Lujan Grisham said late Tuesday her government would work to minimize the number of people who would be compelled to vote or work at the polls on primary day because such behaviors would pose "a grave threat of heightened transmission of the virus."

With the Democratic presidential contest effectively ended, the turnout will mainly affect close races for nominations to judicial positions, the Legislature and Congress, particularly an expensive and hotly contested campaign for an open and reliably blue House seat centered on Santa Fe.

Nakamura is the only justice who joined the court as a Republican. Two justices running for re-election this fall as Democrats recused themselves and were replaced for the case by lower-court Democrats.

A special session of the Legislature to change the law was not a viable option in light of the statewide stay-at-home order that's very likely to be extended through next month.

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