Copyright © 2020 Albuquerque Journal
SANTA FE – New Mexico voters this fall might cast their ballots at drive-thru sites, fill them out during expanded early-voting hours or even receive them by mail.
The extra flexibility is part of complex election legislation signed into law Friday by Gov. Michelle Lujan Grisham.
Under the legislation, any new procedures will have to be designed to protect public health amid the coronavirus pandemic. Procedures must be consistent with federal guidelines or be “otherwise evidence-based.” The rules could vary by county, depending on the severity of the outbreak in different parts of New Mexico.
The legislation, Senate Bill 4, won Senate approval 40-2 last week and passed the House 44-26.
Lujan Grisham’s office said the new law will protect voting rights and create flexibility that might be needed in a public health emergency.
“There is no solution excluded nor is there a secret plan to go to a particular solution,” said Sen. Daniel Ivey-Soto, an Albuquerque Democrat and co-sponsor of the bill.
The goal, he said, is to create options for health and election officials because of uncertainty over whether the virus will surge or abate as the Nov. 3 general election approaches. The new law doesn’t mention potential emergency options or rule any out.
But plenty of ideas emerged ahead of the June 2 primary election, Ivey-Soto said, such as curbside voting or mailing ballots to every voter.
Much of the legislative debate focused on voting by mail. Senate Bill 4 initially would have authorized county clerks to mail ballots directly to voters – without first requiring the person to fill out an application – but that provision was quickly removed. The bill, however, still includes a section opening the door to new election procedures, based on public health orders. The section applies only to the 2020 general election.
House Minority Whip Rod Montoya, R-Farmington, said earlier this week that the bill leaves too much to be decided later. Voters deserve to know the rules ahead of time, he said, and have assurances that their ballot will be counted.
“I’m very concerned,” Montoya said Wednesday. “Who knows what other creative ideas there are other than all-mail-in ballots? That’s not the way you do election law.”
Democratic legislators, he said, repeatedly assured him during debate on the measure that they don’t intend to move to an election by mail. Consequently, Montoya said, any future move to all-mail ballots would result in a legal challenge.
“If they go to use that provision,” he said, “it’s going to end up in court because I think we can prove legislative intent.”
But Democratic leaders aren’t ruling out voting by mail or any other option.
Before the primary election, Secretary of State Maggie Toulouse Oliver and most county clerks sought permission to mail ballots to voters, a request rejected by the state Supreme Court.
The justices said the election code permitted the mailing of absentee ballot applications – a step they ordered – but not the mailing of ballots without a request.
Plenty of other ideas surfaced – but weren’t enacted – ahead of the primary.
They included offering curbside voting through drive-thru polling locations or allowing the tabulation of absentee ballots that are mailed by Election Day but don’t arrive on time.
Ivey-Soto said health conditions might warrant expanded early voting to limit crowds. That could mean continuing the operation of early-voting sites through the Monday before Election Day, rather than closing them down on Saturday, as usual.
Toulouse Oliver, a Democrat, testified in favor of the legislation during the special session.
“Our office feels this flexibility, along with the appropriate oversight, are both warranted and give our office as well as the county clerks the ability to respond quickly and effectively to issues as they may arise in the run-up to Election Day,” Toulouse Oliver spokesman Alex Curtas said. “The most important thing is to ensure that New Mexicans are able to vote.”
Lujan Grisham spokeswoman Nora Meyers Sackett said this week that the legislation “will ensure that the state retains the option to protect the health and safety of voters and election workers.”
Potential changes to election procedures would start with an order by the state Department of Health.
The bill calls for any orders issued by the health secretary to specify which parts of the state the order will apply in, outline the severity of the health danger that justifies the order and make specific recommendations to address the health issue.
The recommendations must be consistent with guidelines issued by the U.S. Centers for Disease Control and Prevention “or be otherwise evidence-based.”
If the order comes 60 days before the election, the secretary of state and county clerks would carry out the recommendations “only to the extent necessary” to safeguard the health of election workers and voters.
If the order is within 60 days of the election, the secretary of state can call a meeting of a legislative task force – composed of leaders of both parties in both chambers – to authorize election changes based on the public health order to protect people’s safety.
Some changes are already outlined in the bill, aside from any potential public health order. The legislation includes safeguards intended to protect Native American voting locations, allows clerks to mail absentee ballot applications to voters and requires bar codes for the tracking of ballots in the mail.
Senate Bill 4 includes one potentially permanent change to the election code – a provision that would permit independent voters to change their party affiliation at a voting site, allowing them to participate in primary electionsBut House Speaker Brian Egolf, D-Santa Fe, and others have suggested the change to the primary system will be revisited in coming legislative sessions. The next primary election is in 2022.