Unprecedented measures for unprecedented times.
The state Supreme Court on Tuesday will hold a hearing via videoconference for the first time.
And if justices give the green light to a recent request by 27 county clerks, New Mexico will see more unusual measures for the June 2 election.
The court is set to hear an emergency petition filed by the clerks seeking an order to conduct the upcoming primary election by mail in an effort to prevent further spread of the novel coronavirus.
The Tuesday proceedings will follow the same trend much of the state’s official business has taken since the outbreak of the virus. As with the Facebook news briefings by the governor and Zoom conferences with legislative leaders, the court’s oral arguments will be livestreamed.
While four justices, including Chief Justice Judith Nakamura, will be present for the hearing at the Supreme Court Building in Santa Fe, Justice Barbara Vigil and the attorneys in the case will participate by video using the judiciary’s audio-video system, the Administrative Office of the Courts said Monday.
Justices Shannon Bacon and David Thomson recused themselves from the case since they will appear on the ballot this year, and the court has designated retired justices Edward Chavez and Richard Bosson in their place. Lujan Grisham named Bacon and Thomson to fill vacancies on the court last year.
The court will limit in-person attendance in compliance with Gov. Michelle Lujan Grisham’s public health orders. Seating in the courtroom will be dictated by social-distancing requirements.
The proceedings will be streamed on New Mexico PBS’ YouTube channel.
At issue will be the petition filed by the clerks late last month, which argued it was impossible to carry out a normal election during the pandemic and that to do so would “violate their oath of office in order to protect the health and safety of their community.”
Soon after their request, the state’s Republican Party intervened with an attempt to block the clerks’ effort — arguing an election by mail could lead to voter fraud and instead calling for maintaining traditional absentee voting.
Republicans say the secretary of state and county clerks should decide if and when polling places would be open, and they also have said polling places would be just as crowded as supermarkets or big box stores that have been allowed to stay open during the health crisis.
New Mexico Secretary of State Maggie Toulouse Oliver has responded that leaving polling places open would pose risks to voters as well as poll workers, who often are over the age of 60 and at higher risk of developing a severe case of COVID-19, the respiratory illness caused by the new coronavirus.
Since the original petition, the court has called on key parties to issue opinions on the mail-in ballot question, as well as on whether it’s possible for the Legislature to host a special session virtually — rather than in person — to vote on a change in the election code that would allow mail-only voting.
Lujan Grisham’s office said in its response the court should “properly invoke its equitable powers” to modify the voting process for the primary in order to minimize public health risks.
In its brief, the state Democratic Party voiced its support for the clerks’ request for voting by mail and added “disregard for human life and disregard for the fundamental right to vote is front and center in the Republican Party brief.”
The Navajo Nation also submitted a brief saying it would support the petition for voting by mail if additional measures were put in place “to ensure Navajo voters will have adequate opportunities to cast a ballot.”
Santa Fe County Clerk Geraldine Salazar, who supported the petition, said Monday an “all-mail ballot election” would provide “a broader opportunity” for people in the county to vote because it would provide them with more access. She added her office has been preparing for both scenarios — a mail-in election and an in-person vote — but would move forward with an all-mail procedure should the court rule in favor of the clerks’ petition.
“The more access to the ballot, the more opportunities [by absentee voting and an all-mail ballot election] for voters to participate and avoid the spread of COVID-19 to our voters, poll workers, my staff and our community,” Salazar said.
The Legislative Council Service weighed in on the question of a virtual legislative session, saying the state constitution requires legislators to be “present” on the House and Senate floors to pass bills. Lawmakers would have to convene in person to change each chamber’s rules to allow for a remote special session.
House Speaker Brian Egolf said Monday he believed it was “unlikely” social-distancing measures would be rescinded enough to hold an in-person special session in June, which is when legislators may convene to address an expected huge decline in state revenue.
He said legislators were working on the possibility of having a “very short” in-person meeting at the Roundhouse just to change House and Senate rules in order to allow for a virtual special session.
The session itself could then take place with the speaker as the sole legislator physically present in the House chamber and only Lt. Gov. Howie Morales present in the Senate, Egolf said.
Videoconferencing technology would be used for all other legislators to join committee meetings and floor votes.
Egolf said, however, that other legislators and Senate members have opinions on the matter as well, and Republican lawmakers do not support the idea of a virtual session.
“We’re going to have to get more legislators open to the possibility of meeting virtually,” said Egolf, D-Santa Fe.
Egolf said it remained to be seen whether the Supreme Court decision on the mail-in ballot might affect logistics and plans for a special session.