SANTA FE, N.M. (KRQE) – The New Mexico Supreme Court has rejected an emergency petition from the Secretary of State and county clerks to send all New Mexico voters a mail-in ballot for the upcoming 2020 primary election.

The court ruled unanimously Thursday evening that state law prohibits the Secretary of State and county clerks from sending every registered voter an absentee ballot for the scheduled June 2 primary.

Petitioners had been seeking a complete shift to a vote-by-mail election in response to the COVID-19 pandemic and the state’s subsequent health orders limiting public gatherings.

As part of its order, the New Mexico Supreme Court is now directing all county clerks to mail absentee ballot applications to voters. Voters will have to complete those ballot applications and send them in to their county clerk’s office in order to receive an absentee ballot in the mail.

The justices also ordered all in-person voting on election day or in early voting to comply with the state’s ongoing public health orders.

The decision made by two retired and three sitting state Supreme Court justices came just before 6 p.m. Tuesday after more than two hours of arguments in a hearing conducted via video conference. The hearing was also the first state Supreme Court proceeding to ever be live-streamed from the high court’s Santa Fe courthouse.

Petitioners supporting the push to send absentee ballots to all voters argued that lawmakers and Governor do not have time to safely convene special session before the June 2 primary to change New Mexico’s voting laws. Legal counsel representing the county clerks requested a “re-application” of New Mexico’s special election laws, which allow vote-by-mail.

The Secretary of State also argued that it does not want to reschedule the June 2 primary.

“We decidedly did not want to move the primary election,” said Dylan Lange, attorney for the New Mexico Secretary of State Maggie Toulouse Oliver. “That we believe is clearly much more of a change to how New Mexicans vote than just mailing out absentee ballots.”

Meanwhile, the New Mexico Republican Party argued against the request to send out absentee ballots to every single voter without an application, claiming that the unusual move would invite voter fraud and violate state law.

“I think the reason the election code has not yet embraced that process which is just the vote by mail process is for some of the practical issues that we, that I discussed in the brief, with the fact that our rolls are really not maintained to the level that is appropriate for the institution of vote by mail,” said Carter Harrison, an attorney representing the Republican Party of New Mexico. “Colorado spent many years and a lot of money getting their rolls in appropriate condition to have automatic distribution.”

While acknowledging the state’s public health orders and continued “devastating effect” of COVID-19, Chief Justice Judith Nakamura announced the justice’s unanimous decision Tuesday evening, denying the emergency petition for an all mail-in election.

“The relief that is requested is specifically prohibited by New Mexico statute section 1-6-5F, which says that a mail ballot shall not be delivered to the county clerk to any person other than the applicant for the ballot,” Nakamura ruled.

However, the justices say there is no law preventing the state or county clerks from mailing applications to voters for absentee ballots. The justices ordered Secretary of State Toulouse Oliver and county clerks are to mail to all registered voters an absentee ballot application.

“Under the circumstances of this pandemic, it is indisputable that in person voting poses a substantial risk to the state of New Mexico, and therefore absentee ballot voting is the preferred method,” Nakamura said.

In a statement responding to the ruling, Secretary of State Maggie Toulouse Oliver says her office will comply with the court’s order.

“Though the court today did not agree with the proposal put forward by my Office and the state’s County Clerks for an all-mail Primary Election in order to protect both the health and the rights of New Mexico voters, voters will still have everything they need to make their voices heard on June 2nd. My Office will comply with the court’s order and mail absentee ballot applications to all voters registered with a major political party. That’s why it’s important that eligible voters register to vote or update their voter registrations by May 5th if they want to vote in the June 2nd Primary Election. Registered voters should be on the lookout for their absentee ballot applications in the mail and follow all guidelines from election administrators about how to promptly and securely return those applications in order to receive a ballot. Voters have until May 28th to apply for an absentee ballot and all absentee ballots must be returned no later than 7 p.m. on June 2, 2020.”

Maggie Toulouse Oliver, New Mexico Secretary of State

The New Mexico Republican Party Chairman Steve Pearce released the following statement Tuesday:

“This decision by the Court ensures that the health and safety of every voter and worker is protected, while making sure that our election will not be susceptible to fraud. We are pleased that the Justices recognized this and that we can proceed with a fair and free election in a safe environment.”

Steve Pearce, New Mexico Republican Party Chairman

The New Mexico Democratic Party released the following statement in response to the decision:

“The Democratic Party of New Mexico remains concerned about how in-person voting could threaten the health and safety of many New Mexicans. We will continue to do everything possible to help our fellow New Mexicans make their voices heard, including encouraging voters to fill out their absentee ballot applications. We regret that the GOP’s efforts to suppress the vote have made it harder to vote and put poll workers at risk, but we will not give up this fight.”

Marg Elliston, Chair, Democratic Party of New Mexico