The question of whether New Mexico's primary election will see emergency changes because of COVID-19 could find an answer on Tuesday.
The state Supreme Court is set to hear arguments beginning at 1:30 pm in a case to determine the physical logistics of the June 3 election and its lead-up.
The list of parties to the case alone takes up three pages in each official court document.
Twenty-seven of New Mexico's 33 independently elected county clerks and Secretary of State Maggie Toulouse Oliver asked the court to allow for large-scale mailed ballots to minimize in-person voter contact during the pandemic. But the state Republican Party, four county clerks and a long list of Republican members of the state Legislature intervened in the case and also have filed a "friend of the court" brief from 11 voters who argue the proposed changes to the election are unconstitutional.
The court allowed six additional parties to file a joint brief in support of the election administrators: Santo Domingo Pueblo, the League of Women Voters, Common Cause, American Civil Liberties Union, Disability Rights New Mexico and Native American Voters Alliance. The governor, state Libertarian Party and Democratic Party all filed briefs, too.
Nothing about the case is simple. Unlike a typical day of oral arguments in the dark courthouse and crowded gallery, this day in court is set for a large audience via livestream and participation from attorneys by videoconference.
It might even be a day in which the court hands down a decision.
"It is unusual for appellate courts to rule from the bench, but we are in extraordinary circumstances, and time is of the essence," says Levi Monagle, an attorney for Common Cause who helped author that six-way brief, noting first that the court has its prerogative to take time in deciding and might do so.
The circumstances, however, are mostly calendar-based, and time is marching on. The state's election schedule calls for ballots to be mailed to overseas and military voters no later than Saturday. Election workers are supposed to be named by April 21, and early voting at in-person locations is set to begin May 15.
The stipulated petition filed by the clerks and Toulouse Oliver on March 30 asks the court to order voting rules to allow for mail, absentee and limited in-person locations to permit all voters to exercise their rights while also maintaining the social distance called for by public health orders.
The court's ruling must also consider the issue of its own jurisdiction to change the election rules or whether it falls only on the Legislature, and complicating that, whether the Legislature can or should be convened.
"This petition is being written and submitted to this Court in the midst of a pandemic whose scope and impact continue to escalate; with no known timeframe before it can be determined that we are no longer experiencing a public health emergency," reads the petition.
Hurdles listed for the county clerks include that election workers, many in their 60s and thus vulnerable to the virus, have said they don't want to handle their traditional jobs. Polling places, many of which are schools, are also locked under the public health order.
The state election code contains a provision for conducting a certain class of "special election," and the administrators want the court to declare those methods appropriate now. Voters would have time to update mailing addresses and make plans for assistance at voting center such as county clerk offices.
The Republicans' filed their intervention the next day, supplementing it later with a longer brief detailing the arguments of specific voters. It argues that the election administrators are seeking "little else than pure anarchy that robs both the legislature and the eligible registered voters of New Mexico" the protections of the constitution.
"Whether or not the public has faith in the results of the upcoming primary election will be directly affected by the decision made as a result of this petition," reads the motion from Republican Party lawyer Carter B Harrison IV.
The clerks and secretary of state, say attorneys from the James Bopp firm in Indiana, with a local stamp from Albuquerque attorney Melanie J Rhodes, are attempting to "utilize the national emergency created by the COVID-19 virus as a guise to usurp the constitutionally delegated authority of the legislature and overrule and replace current election laws robust protections against voter fraud with a court-created scheme of mail-in balloting."
That the case has political overtones is something Monagle says he doesn't like.
"Partisan agendas are manifesting themselves in different ways…but Common Cause is a nonpartisan organization. We care deeply about the fundamental right to vote. The preservation of that right and allowing that right to be exercised effectively even in extraordinary circumstances should be everyone's mutual primary objective," he tells SFR.
Alex Curtas, a spokesman for the secretary of state, tells SFR that voter safety is the only agenda at play for election administrators.
"If we leave it the way it is," he says, "we are going to expose a lot of people unnecessarily."
Deputy Elections Director Dylan Lange will represent the administrators in the oral arguments, he says.
He'll be one of several attorneys in the case to appear by video using the Judiciary's audio-video system, with in-person attendance at the hearing "strictly limited to comply with gathering restrictions," according to a news release from the Administrative Office of the Courts. Justice Barbara Vigil is expected to participate by video, with Chief Justice Judith Nakamura, Justice Michael Vigil and retired Justices Richard Bosson and Edward Chávez present in the courtroom of the Supreme Court Building in Santa Fe.
The retired justices were designated to participate in the case after justices C. Shannon Bacon and David K. Thomson recused themselves from the case. The hearing is scheduled to begin at 1:30 pm. In addition to the court's YouTube channel, viewers can also find it on NMPBS.
