Emergency powers included in legislation Gov. Michelle Lujan Grisham is expected to sign into law could allow for an all-mail general election in certain areas of the state with public health concerns from the pandemic, according to lawmakers and the Governor’s Office.
Senate Bill 4, which the Legislature sent to Lujan Grisham’s desk Saturday night, was not intended to create a statewide, all-mail election. And a provision that would have allowed county clerks to send absentee ballots to all registered voters — not just those who made a formal request for one — was stripped from the bill in a Senate committee.
But broad emergency powers in the bill provide a path for a range of measures, on a county-by-county basis, to protect public health.
That could include shutting down polling locations in November, allowing drive-thru voting or requiring all-mail voting without an absentee ballot, according to the bill’s sponsors.
“There is no plan [to do that] because we don’t know what’s going to happen,” said Sen. Daniel Ivey-Soto, D-Albuquerque, one of the sponsors.
“Nothing is off the table,” Ivey-Soto added.
For any emergency election change to occur in a county, state Health Secretary Kathy Kunkel would first have to declare an ongoing public health emergency as the election draws near. Then Secretary of State Maggie Toulouse Oliver would make recommendations to a bipartisan legislative panel outlined in the bill. The panel would decide whether to adopt or amend those recommendations.
No one knows how prevalent COVID-19 will be in November, but some public health experts have suggested there could be a more severe second wave of the virus in fall and winter.
With that in mind, Democratic lawmakers argued in the House during the recent special legislative session that county clerks need the tools to keep voters safe from the virus.
An early draft of the legislation before it cleared the state House and Senate would have allowed all New Mexico voters to receive a ballot in the mail without first applying for one. That provision was removed following concern from all Republicans and two Democrats on a Senate committee that the shortcut could lead to increased voter fraud.
But the Governor’s Office, Ivey-Soto and other legislative leaders say the bill keeps that option open. Nora Meyers Sackett, a spokeswoman for the Governor’s Office, said in an email Tuesday the legislation will soon be signed into law, and “it is more than fair to say the state retains the option to protect the health and safety of voters and election workers.”
If Kunkel issues an order related to the general election on or before the 60th day prior to it, Sackett said, Toulouse Oliver and clerks will make changes meant to protect the health and safety of staff, election board members and voters. “That order would, as is outlined in the bill, include evidence-based recommendations to mitigate the health issues described therein,” Sackett continued.
Rep. Greg Nibert, R-Roswell, expressed concern on the House floor that the bill would grant too much authority to the health secretary over the administration of elections.
His concern, he said in an interview Tuesday, was broader than just allowing a potential back door to an all-mail election.
“I hope that the secretary of state and the representatives that were bringing forth this legislation are accurate in their portrayal of the limitations on the secretary of health’s involvement in the election process,” Nibert said.
But he said the language in the bill “seems to be broader than what their statements were on the floor of the House.”
Ivey-Soto emphasized Tuesday any decision on a request for emergency election procedures meant to protect public health would ultimately be made by a six-member legislative task force consisting of House and Senate leadership.
In an interview Saturday night, House Speaker Brian Egolf, D-Santa Fe, said he could not speculate on what possible measures the health secretary and secretary of state might suggest ahead of the general election.
Senate Majority Leader Peter Wirth confirmed an election by mail remains an option. Wirth and Egolf would be among the legislators on the task force.
Toulouse Oliver’s office said prior to the special session last week that she supported the more explicit mail ballot option that was taken out of the bill.