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Court filings cast doubt on virtual session

The Roundhouse in Santa Fe.

Copyright © 2020 Albuquerque Journal

SANTA FE – Attorneys for the Legislative Council and Gov. Michelle Lujan Grisham say legislative rules appear to prohibit the possibility of convening a special session remotely without lawmakers entering the Capitol.

They addressed the question in legal filings with the state Supreme Court, which is considering arguments on how to proceed with the June 2 primary election amid the virus pandemic.

One option the justices asked the parties to address: Would it be legal for the Legislature to meet electronically?

Attorneys for the Legislative Council – a panel that includes high-ranking legislators of both parties – said in their response that legislative rules require the physical presence of lawmakers to convene a session.

Changing the rules is possible, they said, but would require a two-thirds vote in person, or just a majority if committees recommended the changes first.

Legislative Council attorneys also noted that taking emergency action to change election laws in time for the June 2 primary would also require two-thirds approval of the House and Senate. They said the council couldn’t predict the outcome if votes were held to change legislative rules or election laws.

But Thomas Hnasko and Michael Browde, representing the Legislative Council, told the Supreme Court that “it’s unlikely that any such legislative action could be implemented in a ‘timely’ manner to accommodate” the primary election.

Matthew Garcia and Jonathan Guss, attorneys for Lujan Grisham’s office, meanwhile, offered a similar interpretation of legislative rules, arguing that they appear to require a physical presence of lawmakers in the House and Senate. They said it’s less clear whether the Constitution and state laws would also preclude a remote session.

As for the election itself, the governor’s attorneys said the Supreme Court has broad discretion to order changes to New Mexico’s election procedures to safeguard public health and the right to vote amid an unprecedented health emergency.

The justices, they said, are empowered to craft “equitable relief” that could include postponing the June 2 primary for three to five weeks or directing election officials to mail ballots to voters.

The Supreme Court is considering an emergency petition by 27 county clerks who want to shift the primary largely to an election by mail. They say poll workers – most of whom are older than 60 – are scared to work amid the pandemic and that many of the voting sites are closed to protect public health.

The Republican Party of New Mexico and 29 GOP legislators, in their own filing, have slammed the clerks’ proposal as an inappropriate attempt to bypass the legislative process. They say New Mexico’s voter rolls are riddled with inaccuracies and that mailing out ballots would open the door to fraudulent votes.

The Republicans suggest encouraging people to cast absentee ballots – a two-step process in which people would request a ballot and provide their address – or calling a special legislative session to craft new election procedures.

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