NMSC Explains Its Order Requiring Absentee Ballot Applications to be Mailed to All Voters for June 2020 Primary

On May 6, 2021, the New Mexico Supreme Court issued another COVID-related decision. In State ex rel. Riddle v. Toulouse Oliver, the Court looked at whether the Secretary of State could mail absentee balllots to all voters for the June 2020 primary election. (The court issued the writ on April 16, 2020, but did not release the formal opinion until over a year later). If you were wondering last year why you received so many applications–and whether they were real or fake–this opinion is the reason.

Background

By now, everyone is familiar with the COVID-19 pandemic. But in the months before the June 2020 primary, much was unknown. Faced with an apparently highly contagious, deadly virus, county clerks were reluctant to run in person voting as usual for the June 2020 primary. But the Election Code required them to do so, and the legislators who could change it would not meet for another year. Furthermore, the Governor, citing the risk of spreading the virus, declined to call a special session. Faced with this difficult situation, the clerks petitioned the Court for a writ of mandamus requiring the Secretary of State to mail absentee ballots to all voters. The Secretary stipulated to this plan.

The day after the petition was filed, the Republican Party sought to intervene. They argued that only the legislature had the power to change the Election Code, and that a writ would violate the separation of powers. The Republicans suggested a compromise that they believed was lawful: the Secretary could mail absentee ballot applications to all voters and encourage them to request absentee ballots.

The Court sought input from a variety of groups. The Governor indicated that she agreed with the clerks and the Secretary, and implied that she would not call a special session. The legislative council, which speaks for the legislature when it is not in session, indicated that it could not proceed remotely and could not change its rules to allow remote proceedings absent a special session. Importantly, even if it was not paralyzed by its own rules, it did not have enough time to change the Election Code prior to the June 2020 primaries.

Analysis

The petition sought a remedy known as “mandamus,” which is an order compelling performance of an official act by a public officer. In other words, it allows the Court to order an official to do her job. Here, it was not clear that what the clerks sought was an order to do their job, but rather an order that would provide them with legal cover for violating the Election Code.

As you might expect, mandamus is a drastic remedy that is invoked only in extraordinary circumstances. It can only be used when there is a clear legal right against one having a clear legal duty to perform an act and where there is no other plain, speedy and adequate remedy in the ordinary course of law. In particular, mandamus is appropriate when when the petitioner presents a purely legal issue concerning the non-discretionary duty of a government official that (1) implicates fundamental constitutional questions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal.

The Court easily determined those factors were met. No constitutional question, it stated, could have greater importance than the conduct of elections. Moreover, the facts were not in dispute. And, although the Republican Party argued that a resolution was available through a special session, the Court noted that even if such a session were called, there was insufficient time to change the Election Code before the primaries.

The Election Code Did Not Permit Mailing Ballots to Voters Who Had Not Requested Them

Because mandamus was appropriate, the Court turned to whether the Secretary had a non-discretionary duty it could be ordered to perform. It concluded that she had a duty to ensure elections are conducted in compliance with the Election Code. But the Code did not allow the relief sought by the parties.

It was clear that the Election Code did not allow the Secretary to mail ballots to voters without a prior request. But the Clerks and the Secretary argued that the Court could use its inherent equitable powers to craft a remedy that departed from the statutory scheme in order to protect public health. It was equally clear, however, that the Court’s equitable powers did not extend to ordering a public official to violate the law. The Court therefore agreed with the Republican Party that to do so would violate the separation of powers.

Executive Orders Limited the Secretary’s Discretion

The Court did not simply end its analysis there and deny the petition. Instead, it went further, holding that the Secretary had a duty to mail applications (not ballots) to all voters. It did so by looking to the executive orders the Governor had issued. The Governor had ordered all public officials to “use every means at their disposal to contain the spread of COVID-19.” The Court saw in her orders a duty to “help people stay at home and self-isolate as much as possible.” And, as applied to the Secretary and the election, it found “an affirmative duty arising from the pandemic-related executive and public health orders to mail absentee ballot applications to all eligible New Mexico voters.”

This result feels somewhat odd. Neither party had asked for it (though the Republican Party suggested it). Nor did the Governor, whose input the Court sought, appear to have viewed her orders in the way the Court did. And the leap from a duty to help to the conclusion that there was a clear legal duty to perform a specific action not mentioned in the Election Code, the executive orders, or the petition seems a bit of a stretch, bordering on the very separation of powers concerns the Court relied on to deny the relief the clerks had sought.

The facts of this case also raise serious questions about our state government’s ability to respond to a crisis like the pandemic in the future. This issue could have been easily addressed had the governor called for a special session, but she was reluctant to do so in light of the risk. And the legislature has no mechanism for meeting other than in person. Our legislature is only in session for a few weeks per year, making it largely unavailable to respond to a crisis like COVID. Justice Thomson touched on this in Grisham v. Romero, suggesting that at some point the executive power must give way to the legislative branch, but at least in this case neither branch had the will to make that happen.

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