High court: secretary of state can send ballot applications but not conduct election by mail

New Mexico News

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SANTA FE, N.M. (KRQE) – The state Supreme Court announced in a press release Friday their opinion on why they ordered the state’s top election official to mail applications for absentee ballots to all eligible primary election voters during last year’s election. This started two months prior to the June 2 election when 27 of the state’s 33 county clerks asked the court to use its equitable powers to require the secretary of state to conduct the election by mail.


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Following oral arguments in April 2020, the court directed Secretary of State Maggie Toulouse Oliver to mail applications for absentee ballots to all major party voters in the primary election. In Friday’s opinion, the court explained that election laws do not provide for a statewide primary election conducted exclusively through a vote-by-mail arrangement and the secret of state cannot “mail absentee ballots directly to voters without a prior request from the voters.”

However, the decision states that nothing in the Election Code prohibits the secretary of state from “encouraging voters to exercise their right to vote by mail and facilitating absentee voting” by sending every eligible primary election voter an application that could be used to request a ballot.

The release says the secretary of state is required during the pandemic to comply with provisions of the governor’s public health order and has “a duty to manage the election in a manner that minimized the risk of spreading COVID-19 and protected lives by helping voters stay home as much as possible,” according to the court’s decision.

The court concluded the secretary of state “had an affirmative duty arising form the pandemic-related executive and public health orders to mail absentee ballot applications to all eligible New Mexico voters.” The decision is available online.

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