State Ex Rel. Riddle v. Toulouse Oliver

Office of the Director New Mexico
11:51:30 2022.07.26 Compilation
'00'06- Commission

THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-018

Filing Date: May 6, 2021

No. S-1-SC-38228

STATE OF NEW MEXICO, ex rel.
M. KEITH RIDDLE, in his official capacity
as Clerk of Catron County, and Chair of
the New Mexico County Clerks Affiliate;
SHELLY K. TRUJILLO, in her official capacity
as Clerk of Sierra County, and Chair Elect of the
New Mexico County Clerks Affiliate;
LINDA STOVER, in her official capacity
as Clerk of Bernalillo County, and Vice President
of the New Mexico Association of Counties;
MICHELLE E. DOMINGUEZ, in her official capacity
as Clerk of Cibola County;
RAYETTA M. TRUJILLO, in her official capacity
as Clerk of Colfax County;
ROSALIE A. GONZALES JOINER, in her official capacity
as Clerk of De Baca County;
AMANDA LOPEZ ASKIN, in her official capacity
as Clerk of Dona Ana County;
ROBIN VAN NATTA, in her official capacity
as Clerk of Eddy County;
MARISA CASTRILLO, in her official capacity
as Clerk of Grant County;
PATRICK Z. MARTINEZ, in his official capacity
as Clerk of Guadalupe County;
C.J. GARRISON, in her official capacity
as Clerk of Harding County;
MELISSA K. DE LA GARZA, in her official capacity
as Clerk of Hidalgo County;
NAOMI D. MAESTAS, in her official capacity
as Clerk of Los Alamos County;
ANDREA RODRIGUEZ, in her official capacity
as Clerk of Luna County;
HARRIETT K. BECENTI, in her official capacity
as Clerk of McKinley County;
CARLOS ARELLANO, in his official capacity
as Clerk of Mora County;
ROBYN HOLMES, in her official capacity
as Clerk of Otero County;
ELLEN L. WHITE, in her official capacity
as Clerk of Quay County;
LINDA J. PADILLA, in her official capacity
as Clerk of Rio Arriba County;
GERALDINE E. GUTIERREZ, in her official capacity
as Clerk of San Miguel County;
EILEEN GARBAGNI, in her official capacity
as Clerk of Sandoval County;
GERALDINE SALAZAR, in her official capacity
as Clerk of Santa Fe County;
BETTY SAAVEDRA, in her official capacity
as Clerk of Socorro County;
ANNA MARTINEZ, in her official capacity
as Clerk of Taos County;
LINDA JARAMILLO, in her official capacity
as Clerk of Torrance County;
MARY LOU HARKINS, in her official capacity
as Clerk of Union County; and
PEGGY CARABAJAL, in her official capacity
as Clerk of Valencia County,

Petitioners,

v.

MAGGIE TOULOUSE OLIVER,
in her official capacity as Secretary of State,

Respondent,

and

REPUBLICAN PARTY OF NEW MEXICO,
DAVE KUNKO, Chaves County Clerk,
KEITH MANES, Lea County Clerk,
WHITNEY WHITTAKER, Lincoln County Clerk,
TANYA SHELBY, San Juan County Clerk,
Senator STUART INGLE,
Senator CRAIG BRANDT,
Senator BILL BURT,
Senator GREGG FULFER,
Senator GAY KERNAN,
Senator MARK MOORES,
Senator STEVE NEVILLE,
Senator CLIFF PIRTLE,
Senator SANDER RUE,
and Senator WILLIAM SHARER,
Representative JIM TOWNSEND,
Representative PHELPS ANDERSON,
Representative GAIL ARMSTRONG,
Representative RACHEL BLACK,
Representative PAUL BANDY,
Representative CATHRYNN BROWN,
Representative JACK CHATFIELD,
Representative ZACH COOK,
Representative RANDAL CROWDER,
Representative CANDY EZZELL,
Representative DAVID GALLEGOS,
Representative JASON HARPER,
Representative TIM LEWIS,
Representative ROD MONTOYA,
Representative GREG NIBERT,
Representative JANE POWDRELL CULBERT,
Representative BILL REHM,
Representative GREGG SCHMEDES,
Representative LARRY SCOTT,
Representative JAMES STRICKLER, and
Representative MARTIN ZAMORA,

Intervenors.

ORIGINAL PROCEEDING

Released for Publication June 15, 2021.

In Accord, PC
Daniel A. Ivey-Soto
Albuquerque, NM

for Petitioners

Office of the Secretary of State
Tonya Noonan Herring, General Counsel
Albuquerque, NM

Dylan Kenneth Lange, Special Assistant Attorney General
Santa Fe, New Mexico

for Respondent

Harrison & Hart, LLC
Carter B. Harrison IV
Albuquerque, NM
for Intervenors

Office of the Governor
Matthew L. Garcia, Chief General Counsel
Jonathan Jacob Guss, Deputy General Counsel
Santa Fe, NM

for Governor Michelle Lujan Grisham

Hinkle Shanor LLP
Thomas M. Hnasko
Santa Fe, NM

Michael B. Browde
Albuquerque, NM

for The New Mexico Legislative Council

Elsner Law & Policy, LLC
Gretchen Elsner
Santa Fe, NM

for The Democratic Party of New Mexico

Stephen P. Curtis Attorney at Law, PC
Stephen P. Curtis
Albuquerque, NM

for The Libertarian Party of New Mexico

Felicia L. Orth
Los Alamos, NM

for Amicus Curiae League of Women Voters of New Mexico

Hall & Monagle, LLC
Levi A. Monagle
Albuquerque, NM

Preston Michael Sanchez
Albuquerque, NM

Tim Gardner
Albuquerque, NM

Sara K. Berger
Portland, OR

Leger Law & Strategy
Teresa Isabel Leger
Santa Fe, NM, NM

for Amici Curiae Like-Minded Organizations Joining the League of Women
Voters Amicus Brief: Common Cause, American Civil Liberties Union of New
Mexico, Disability Rights of New Mexico, Native American Voters Alliance
Education Project, and Santo Domingo Pueblo

Antoinette M. Sedillo Lopez
Albuquerque, NM

for Amicus Curiae University of New Mexico Constitutional Law Professors

And Justice Legal, LLC, dba And Justice Law
Melanie Joyce Rhodes
Albuquerque, NM

The Bopp Law Firm, PC
James Bopp, Jr.
Corinne L. Youngs
Amanda L. Narog
Terre Haute, IN

for Amici Curiae Ronnie Cisneros, Darryl Dunlap, Stacie Ewing,
Lynn Lewis, Jessica Sanders, Joe Delk, Dan Banks, Carolyn Banks,
David Cheek, Timothy Burke, and Joye Burke

Navajo Nation Department of Justice
Doreen M. McPaul
Paul W. Spruhan
Window Rock, AZ

for Amicus Curiae Navajo Nation

OPINION

VIGIL, Chief Justice.

{1} Petitioners are twenty-seven county clerks who sought an emergency writ to
compel Respondent, Secretary of State Maggie Toulouse Oliver, to mail absentee
ballots directly to all registered voters in lieu of conducting in-person voting in the June
2020 primary election. They requested this extraordinary relief because the primary
election was scheduled amidst a global pandemic and national and statewide public
health emergency: COVID-19, a new, potentially fatal, viral disease was spreading
unchecked throughout the population. Petitioners alleged that in-person voting could not
be conducted safely under those circumstances, and they urged us to hold that the
requested relief was necessary to protect the health of election workers, voters, and the
general public. Respondent stipulated to the petition.

{2} We allowed the intervention of the Republican Party of New Mexico, thirty-one
state legislators, and other county clerks, who argued that the Election Code, NMSA
1978, §§ 1-1-1 to 1-26-6 (1969, as amended through 2020) (noting that all 2020
amendments take effect on January 1, 2023), does not allow elections to be conducted
entirely by mail and that it would violate separation of powers principles for a
nonlegislative branch of government to implement an alternative election procedure. We
requested responses from the Governor of New Mexico, the New Mexico Legislature,
the Democratic Party of New Mexico, and the Libertarian Party of New Mexico. We also
granted leave to file amicus curiae briefs to the University of New Mexico Constitutional
Law Professors, Ronnie Cisneros et al., the Navajo Nation, and the League of Women
Voters of New Mexico joined with Common Cause, American Civil Liberties Union of
New Mexico, Disability Rights New Mexico, Native American Voters Alliance Education
Project, and Santo Domingo Pueblo.

{3} We conclude that the Election Code does not permit the Secretary of State to
mail absentee ballots directly to voters without a prior request from the voter. However,
the Election Code permits the Secretary to mail absentee ballot applications to voters to
encourage and facilitate absentee voting. We further conclude that, under the
circumstances created by the COVID-19 pandemic, including the clear and present risk
to public health presented by mass gatherings and the executive orders mandating that
all branches of government take all lawful steps to mitigate that risk, the Secretary of
State had a duty to exercise her power to the fullest extent of the law to promote the
safety of election workers and voters while conducting the June 2020 primary election.
Therefore, we issued a writ of mandamus ordering the Secretary of State to mail
absentee ballot applications to eligible voters to encourage absentee voting and
minimize the health risk to the public. This remedy promotes the public health goals
mandated by the Governor while not infringing on the Legislature’s plenary power to
establish election procedures. We issue this opinion to explain our reasoning.

I. BACKGROUND

A. The COVID-19 Pandemic and the Executive Response

{4} This case arose in the spring of 2020, when New Mexicans faced the prospect of
holding their first election since the outbreak of the COVID-19 pandemic. At the time we
issue this opinion, the pandemic is ongoing. The public is intimately aware of the origins
and early development of the pandemic, as the details of these events have indelibly
marked the lives of those who witnessed them unfold. Nevertheless, we recount some
salient facts here to provide context for the events at issue in this case. 1

1We take judicial notice of facts which are generally known within our jurisdiction or that “can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Rule
11-201(B)(2), (C) NMRA; see also Grisham v. Romero, 2021-NMSC-009, ¶ 7, 483 P.3d 545 (taking
judicial notice of “(1) the serious health risks posed by COVID-19, a highly contagious and potentially fatal
{5} COVID-19 is the name of the disease caused by the virus SARS-CoV-2, a novel
coronavirus first detected in Wuhan, China, in December 2019. World Health
Organization (WHO), Coronavirus disease (COVID-19), What is COVID-19? (Oct. 12,
2020). 2 It produces a wide range of symptoms including fever, chills, cough, shortness
of breath or difficulty breathing, fatigue, muscle or body aches, headache, loss of taste,
loss of smell, sore throat, congestion, runny nose, nausea or vomiting, diarrhea,
persistent pain or pressure in the chest, confusion, inability to wake or stay awake, and
bluish lips or face. Centers for Disease Control and Prevention (CDC), Symptoms of
Coronavirus (Feb. 22, 2021). 3 While some people who contract the virus experience no
symptoms, others can develop severe pneumonia, experience neurological problems
including seizures, and suffer blood clots and strokes. Harvard Medical School, COVID-
19 basics (Mar. 9, 2021). 4 Of those who develop symptoms, “[a]bout 15% become
seriously ill and require oxygen and 5% become critically ill and need intensive care.”
WHO, Coronavirus disease (COVID-19), What happens to people who get COVID-19?
(Oct. 12, 2020). 5 COVID-19 complications that can lead to death “include respiratory
failure, acute respiratory distress syndrome (ARDS), sepsis and septic shock,
thromboembolism, and/or multiorgan failure, including injury of the heart, liver, or
kidneys.” Id. As of the filing of this opinion, COVID-19 has caused 2,801,695 deaths
worldwide; 550,930 deaths in the United States; and 3,932 deaths in New Mexico.
Johns Hopkins University, COVID-19 Dashboard (Mar. 30, 2021). 6

{6} COVID-19 spread rapidly after its emergence in December 2019, with the first
case detected in the United States on January 21, 2020. CDC, First Travel-related Case
of 2019 Novel Coronavirus Detected in United States (Jan. 21, 2020). 7 Ten days later,
the United States Department of Health and Human Services declared the COVID-19
outbreak a nationwide public health emergency. U.S. Dep’t of Health & Human Servs.,
Determination that a Public Health Emergency Exists (Jan. 31, 2020). 8 On March 11,
2020, the World Health Organization announced that COVID-19 had become a
pandemic and called on all nations “to take a whole-of-government, whole-of-society
approach, built around a comprehensive strategy to prevent infections, save lives and
minimize impact.” WHO, Timeline of WHO’s Response to COVID-19 (June 29, 2020). 9

disease, (2) the disease’s transmission within New Mexico, and (3) the emergency orders issued by
Governor Grisham and the Secretary [of Health]” (internal quotation marks and citation omitted)).
2Available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-
hub/q-a-detail/coronavirus-disease-covid-19 (last visited Mar. 31, 2021).
3Available at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited
Mar. 31, 2021).
4Available at https://www.health.harvard.edu/diseases-and-conditions/covid-19-basics (last visited Mar.
31, 2021).
5Available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-
hub/q-a-detail/coronavirus-disease-covid-19 (last visited Mar. 31, 2021).
6Available at https://www.arcgis.com/apps/opsdashboard/index.html#/bda
7594740fd40299423467b48e9ecf6 (last visited Mar. 30, 2021).
7Available at https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html (last
visited Mar. 31, 2021).
8Available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/
2019-nCoV.aspx (last visited Mar. 31, 2021).
9Available at https://www.who.int/news-room/detail/29-06-2020-covidtimeline (last visited Mar. 31, 2021).
{7} On that same day, the first cases of COVID-19 were detected in New Mexico.
State of N.M., Executive Order 2020-004, 2 (Mar. 11, 2020) (EO 2020-004). 10 Governor
Michelle Lujan Grisham issued an executive order invoking the All Hazard Emergency
Management Act, NMSA 1978, §§ 12-10-1 to -10 (1959, as amended through 2007),
and proclaiming a public health emergency under the Public Health Emergency
Response Act, NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through 2015). EO
2020-004, 2. Declaring that “it is necessary for all branches of State government to take
immediate action to minimize the spread of COVID-19 and to minimize the attendant
physical and economic harms,” Governor Lujan Grisham mandated that all branches of
state government, all political subdivisions, all public health officials, and all cabinets,
departments and agencies comply with the order. Id. 2-3. The order specifically directed
several departments and agencies to take enumerated actions in furtherance of the
following stated goals: “to provide resources and services necessary to minimize
physical and economic harm and . . . to protect lives”; “to assist in the emergency
purchase of all goods and services necessary to contain, respond, and mitigate the
spread of COVID-19 in New Mexico”; to expend funds “to protect the public health,
safety, and welfare”; and “to provide those resources and services necessary to avoid
or minimize economic or physical harm.” Id. 2-4.

{8} At that time, much was unknown about the virus. There was “no known cure, no
effective treatment, and no vaccine.” South Bay United Pentecostal Church v. Newsom,
___ U.S. ___, ___, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in denial of
application for injunctive relief from restrictions on public gatherings) (mem.). Thus the
only means available to halt the spread of the virus were basic public health measures
to break the chain of viral transmission: measures such as social distancing,
quarantining and isolating, washing hands, disinfecting surfaces, and wearing masks.
See Grisham, 2021-NMSC-009, ¶ 2; CDC, How to Protect Yourself & Others (Mar. 8,
2021). 11 To implement those public health measures, the Secretary of the New Mexico
Department of Health issued a series of public health orders limiting mass gatherings,
reducing or prohibiting certain business operations, and “strongly advis[ing]” New
Mexicans “to stay at home and undertake only those outings absolutely necessary for
their health, safety, or welfare.” N.M. Dep’t of Health, Pub. Health Emergency Order to
Limit Mass Gatherings Due to COVID-19 (Mar. 31, 2020) (PHO 3-16-20) (emphasis
omitted), available at https://cv.nmhealth.org/public-health-orders-and-executive-orders/
(follow hyperlink to “03-16-2020 ˗ Public Health Order”) (last visited Mar. 31, 2021); see
generally N.M. Dep’t of Health, Public Health Orders and Exec. Orders, available at
https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (last visited Mar. 31,
2021) (showing that the Secretary of Health issued fourteen public health orders
between the beginning of the statewide emergency and the June 2020 primary).

10Available at https://www.governor.state.nm.us/wp-content/uploads/2020/
03/Executive-Order-2020-004.pdf (last visited Mar. 31, 2021).
11Available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last
visited Mar. 31, 2021).
B. Preparations for the June 2020 Primary Election

{9} The primary election was set for June 2, 2020, less than three months into the
spread of the pandemic in New Mexico. See § 1-8-11. Because it was a presidential
election year, a presidential primary election was to be held concurrently with the state
primary contests. See § 1-15A-2. New Mexico is a closed primary state, meaning that a
voter who votes during the primary election must be affiliated with a major political party
and may only vote for candidates of the party that is designated on the voter’s
registration certificate. See § 1-12-7. Statewide, there were 129 Democratic, 122
Republican, and 23 Libertarian primary races on the ballot in the June 2020 primary
election. New Mexico Sec’y of State, Voting and Elections, Election Results 2020, 2020
Primary Election Results. 12 Of those races, fifty-seven were contested. Id.

{10} The June 2020 primary required a great deal of logistical preparation and
coordination between the Secretary of State, county clerks, and thousands of election
workers. “The secretary of state is the chief election officer of the state,” whose
responsibilities include supervising elections, maintaining uniform election operations,
and advising county clerks “as to the proper methods of performing their duties
prescribed by the Election Code.” Sections 1-2-1 to -2. In turn, county clerks oversee
the appointment of approximately 774 election boards throughout the state, each of
which consists of one presiding judge, two election judges, and a number of election
clerks who are appointed to assist the judges. See § 1-2-12. County clerks may also
assign their own employees “to provide support to an election board or polling location”
as needed. Section 1-2-12(E). Other election workers may include messengers to
deliver “election supplies,” § 1-2-20(A); voting system technicians, § 1-9-13; and
interpreters to assist voters who speak a recognized minority language, §§ 1-2-19, 1-6-
5.6(C).

{11} In total, Petitioners planned to hire 3,733 election workers for the June 2020
primary. Most of those election workers were older adults. Over 65% of them—2,444
election workers statewide—were over the age of 60. And in eleven New Mexico
counties, over 80% of election workers were over the age of 60. People in that age
group are at higher risk of becoming severely ill or dying from COVID-19. CDC, Older
Adults (Mar. 17, 2021) 13 (“Older adults are at greater risk of requiring hospitalization or
dying if they are diagnosed with COVID-19. . . . [Eight] out of 10 COVID-19 deaths
reported in the U.S. have been in adults 65 years old and older.”).

C. The Stipulated Petition

{12} Petitioners and Respondent filed their stipulated petition on March 30, 2020,
asserting that it would be impossible to safely conduct in-person voting in the June 2020
primary election. They pointed to problems, with their workforce and with polling
locations, due to the COVID-19 crisis. They alleged that “many experienced election

12Available at https://www.sos.state.nm.us/voting-and-elections/election-results/election-results-2020/
(follow hyperlink to “2020 Primary Candidate Summary Results Report”) (last visited Mar. 31, 2021).
13Available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (last
visited Mar. 31, 2021).
workers are unwilling to work” the June 2020 primary election due to health concerns
related to the COVID-19 pandemic and that “their most reliable and experienced
workers come from an identified high risk population” due to their age group. They also
stated that “many” of the 736 election-day and early-voting polling locations were
“currently closed with no definitive plans on when they will reopen,” placing in jeopardy
the county clerks’ ability to comply with their statutory duty to “physically inspect” each
polling location at least “thirty days” before an election. See § 1-3-18(B). They
concluded that county clerks faced an untenable choice between “(a) follow[ing] the
provisions of the Election Code for the conduct of a statewide election and risk[ing] the
lives of their staff and those community members supporting the election process . . . or
(b) violat[ing] their oath of office in order to protect the health and safety of their
community, their voters, their staffs, and themselves.”

{13} Petitioners and Respondent acknowledged that the Legislature has plenary
power over election procedures, and thus “a decision by the Governor or the Secretary
of State to change the manner in which elections are held—even in the face of a deadly
pandemic—would . . . violate separation of powers.” Petitioners and Respondent argued
that “[t]he solution, of course, is for the Governor to call the Legislature into Special
Session” to allow the Legislature to promulgate new election procedures. Petitioners
and Respondent explained that they had queried the Executive about calling a special
session of the Legislature, and that they received a reply indicating that a special
session would be disfavored because “[t]he in-person convening of our 112 state
legislators has the high likelihood of spreading this dangerous virus among individual
legislators and may have the effect of further spreading this disease to every corner of
the state upon the return of each legislator to their respective districts.” They further
noted that there is no provision for the Legislature to convene telephonically.

{14} Therefore, “[g]iven the public health crisis, the inability of the Legislature to meet
in-person at this time, and the consequences of maintaining the status quo,” Petitioners
and Respondent proposed an alternative election procedure adapted from the statutes
governing special elections. See § 1-24-3(A) (“All special elections in this state shall be
conducted absentee.”). Under this proposal for the June 2020 primary election: (1) there
would be no in-person voting except in limited, enumerated circumstances, (2) all
election-day polling places would be closed, (3) all ballots would be mailed directly to
each voter, without prior voter request, provided that the voter’s election-related mail
had not been returned and the voter was not on the inactive voter list, (4) any voter who
did not qualify for a direct-mail ballot would be sent notice that the voter could take
certain steps to request a ballot, and (5) early voting locations would remain open as
“service centers” to assist voters who needed special services such as access to a
replacement ballot, a provisional ballot, an updated voter registration, accommodation
of a disability, or oral language interpretation.

{15} Petitioners and Respondent asked us to “issu[e] a writ” directing Respondent to
adopt the above-described procedures. Although Petitioners and Respondent did not
specify the type of writ they sought, they argued under State ex rel. Clark v. Johnson,
1995-NMSC-048, ¶¶ 17, 50, 120 N.M. 562, 904 P.2d 11 (issuing the writ of mandamus),
that we had original jurisdiction to hear this case because it presented a purely legal
issue involving a fundamental question of great public concern and that the matter
should be resolved expeditiously. Thus, Petitioners and Respondent invoked our
mandamus jurisdiction and, as the relief requested is in the nature of mandamus, we
viewed their request as a petition for writ of mandamus. See II(A), infra. (discussing
mandamus).

D. The Response in Intervention

{16} The day after Petitioners and Respondent filed their March 30, 2020, stipulated
petition, Intervenors filed a response in intervention that decried the petition as an
“audacious” and “open[] entreat[y] . . . to violate separation of powers.” Intervenors
argued that under the Election Code, all statewide primary and general elections must
offer both in-person voting and absentee voting options. The type of vote-by-mail
scheme proposed by Petitioners and Respondents is only authorized, Intervenors
contended, under two circumstances, neither of which was applicable to the June 2020
primary. Those circumstances are (1) “special elections” in which “only ballot questions,
not candidates,” are determined and (2) individual precincts that have been designated
as “mail ballot election precincts” due to their low population. Intervenors argued that
the Legislature was “the indisputably and undisputedly appropriate body for making the
changes to the Election Code” requested in the petition and that the Legislature could
convene to make such changes either at the request of the Governor or on its own
motion if approved by three-fifths of each chamber. N.M. Const. art. IV, § 6. In the
absence of legislative action, Intervenors argued, any attempt by the Executive or the
Judiciary to implement an election procedure not prescribed by the Election Code would
violate constitutional separation of powers. N.M. Const. art. III, § 1.

{17} Intervenors offered an alternative proposal for relief that would, in their
estimation, reduce the risks associated with in-person voting while still comporting with
the Election Code: “circulating absentee ballot applications to the public and
encouraging them to voluntarily vote absentee.” Intervenors argued that this solution
would “be perfectly legal” and would effectively reduce in-person voting while still
providing voters with that option, as required by the Election Code.

E. Arguments of Governor and Legislative Council

{18} Due to the importance of this case, we sought input from our coequal branches
of government and other interested groups on two issues: (1) the merits of the parties’
arguments and (2) whether it would be possible for the Legislature to convene through
remote, electronic means in order to timely address the questions presented here. The
Governor substantially agreed with Petitioners and Respondent on the merits and
argued that the public health emergency empowered this Court to craft an appropriate
remedy “to reconcile the constitutional directive that citizen participation in election[s] is
to be encouraged with the public safety considerations attendant to [the] COVID-19
pandemic.” The Governor implied that she would not call a special session of the
Legislature to enact special voting procedures because doing so would endanger public
health.
A special session would require 112 legislators from all parts of the State
to congregate in an enclosed area along with members of the public,
media, and other interested parties during the predicted apex of the
epidemic. Caucus meetings, conferences with members of the Governor’s
staff, and all other attendant gatherings would greatly increase the
potential for transmission of the virus. Further, a special session would
necessitate the presence of workers such as security guards, custodial
services, and aides, all of whom would also face health risks from
potential exposure to the COVID-19 virus.

The Governor did not take a position on whether legislative rules would allow the
Legislature to convene remotely because the interpretation of legislative rules was not
within executive authority.

{19} The New Mexico Legislative Council responded on behalf of the Legislature. The
Legislative Council represents the entire Legislature while that body is not in session,
and it is prohibited “from advocating or opposing the introduction or passage of
legislation.” NMSA 1978, § 2-3-1 (1978); NMSA 1978, § 2-3-3 (1978). Due to that
limitation, the Legislative Council took no position on the merits of this case. On whether
the Legislature could convene remotely to timely address the issues presented in the
petition, the Legislative Council ultimately concluded that doing so was not feasible. It
noted that under Senate and House rules, legislators were required to be physically
present in chambers to vote on any bill, resolution, or rule change. While the Legislature
could amend its own rules to allow for remote proceedings, the Legislative Council
argued that the onus was on the Governor to issue a proclamation convening a special
session of the Legislature so that it could vote on such rule changes. The Legislative
Council noted that convening the Legislature under the existing public health orders
would be inherently difficult because the Legislature did not “possess a methodology for
health screening, the prevention of contagion, or the enforcement of appropriate social
distancing.” Therefore, the Legislative Council concluded that there was no “practical
means to assemble a quorum.” Moreover, even if it were possible to convene in special
session, the Legislative Council concluded that the Election Code could not be
amended in time to affect the June 2020 primary.

F. Our Writ of Mandamus

{20} After oral argument, we issued a writ of mandamus and an order directing
Respondent “to mail an application for an absentee ballot to every major party
registered voter in New Mexico who has not already submitted an absentee ballot
application for the 2020 primary election” and also to conduct in-person voting in
compliance with the election code and applicable executive orders and public health
orders.
II. DISCUSSION

A. Mandamus Is an Appropriate Remedy

{21} Article VI, Section 3 of the New Mexico Constitution gives this Court “original
jurisdiction in . . . mandamus against all state officers” and the “power to issue writs of
mandamus . . . and all other writs necessary or proper for the complete exercise of its
jurisdiction.” 14

{22} “Mandamus is a common law writ to compel an inferior tribunal, body or person
to perform a public duty [when that] duty results from operation of law or from the office,
trust or official position of the party to whom the command is directed.” 1 Chester James
Antieau, The Practice of Extraordinary Remedies § 2.01 (Oceana Publ’ns Inc. 1987). In
its original form, the writ was “a mere letter missive from the King to a subordinate
functionary, commanding the performance of his duty.” Forrest G. Ferris & Forrest G.
Ferris, Jr., The Law of Extraordinary Legal Remedies § 187 (Thomas Law Book Co.
1926); see also Charles T. Dumars & Michael B. Browde, Mandamus in New Mexico, 4
N.M. L. Rev. 155, 155 (1974) (“Although the common law origins of the writ of
mandamus are somewhat obscure, mandamus apparently began as nothing more than
a royal wish or direction conveyed to subordinates regarding something the King wished
done.” (footnote omitted)). Since the Magna Carta, mandamus has been used “as the
great writ to protect the rights of the people when no other remedy is available . . . and
justice requires protection.” Antieau, supra, § 2.01; see also, e.g., Marbury v. Madison,
5 U.S. 137, 169 (1803) (noting that mandamus “ought to be used upon all occasions
where the law has established no specific remedy, and where in justice and good
government there ought to be one” (quoting Lord Mansfield in King v. Baker, 3 Burrows
1265, 1267 (1762) (internal quotation marks omitted)). The writ of mandamus “is from
its very nature . . . a remedy that cannot be hampered by any narrow or technical
bounds.” Antieau, supra, § 2.01 (quoting T. & B. C. R. Co. v. Iosco Cir. Judge, 7 N.W.
65, 66-67 (1880) (internal quotation marks and citation omitted)).

{23} Our jurisprudence on mandamus reflects these common law origins. “We have
long recognized that mandamus is ordinarily the proper remedy to compel the
performance of an official act by a public officer.” State ex rel. Richardson v. Fifth
Judicial Dist. Nominating Comm’n, 2007-NMSC-023, ¶ 9, 141 N.M. 657, 160 P.3d 566

14By statute, the district court also has “exclusive original jurisdiction in all cases of mandamus . . . .”
NMSA 1978, § 44-2-3 (1884). As we noted in Clark, Article VI, Section 3’s grant of original mandamus
jurisdiction to the Supreme Court and Section 44-2-3’s grant of exclusive original mandamus jurisdiction
to the district court are seemingly contradictory. Clark, 1995-NMSC-048, ¶ 16. Yet because our
jurisdiction arises from the Constitution, it cannot be removed by statute. See Albuquerque Rape Crisis
Ctr. v. Blackmer, 2005-NMSC-032, ¶ 5, 138 N.M. 398, 120 P.3d 820 (“[A]ny legislative measure which
affects pleading, practice or procedure in relation to a power expressly vested by the Constitution in the
judiciary, such as quo warranto, cannot be deemed binding.” (internal quotation marks and citation
omitted)); see also, e.g., State v. Lynch, 2003-NMSC-020, ¶ 21, 134 N.M. 139, 74 P.3d 73 (“Our basic
premise is that the New Mexico Constitution is the supreme law and each department of government
must comply with it.” (brackets omitted) (internal quotation marks citation omitted)); City of Las Cruces v.
Sanchez, 2007-NMSC-042, ¶ 20, 142 N.M. 243, 164 P.3d 942 (noting that a constitutional provision
“trumps” a statute in conflict with the provision).
(internal quotation marks and citation omitted). Mandamus may be used either “to
compel the performance of an affirmative act . . . where the duty to perform the act is
clearly enjoined by law,” or it may be used “in a prohibitory manner to prohibit
unconstitutional official action.” State ex rel. Sugg v. Oliver, 2020-NMSC-002, ¶ 7, 456
P.3d 1065 (internal quotation marks and citations omitted). Mandamus is often utilized
to restrain one branch of government from encroaching on the powers reserved to
another branch. See, e.g., State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-
019, ¶ 11, 127 N.M. 272, 980 P.2d 55 (analyzing a claimed separation of powers
violation under mandamus framework); Clark, 1995-NMSC-048, ¶¶ 2, 20 (same).
However, “[m]andamus is a drastic remedy to be invoked only in extraordinary
circumstances” and will lie “only to force 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.” Richardson, 2007-NMSC-023, ¶ 9 (internal
quotation marks and citation omitted); see also NMSA 1978, § 44-2-5 (1884) (stating
that a writ of mandamus “shall not issue in any case where there is a plain, speedy and
adequate remedy in the ordinary course of law”).

{24} We have summarized these various considerations in a multifactor test, which we
first articulated in Sandel, 1999-NMSC-019, ¶ 11. Under the Sandel test, mandamus will
lie

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.

Id.; see also, e.g., Sugg, 2020-NMSC-002, ¶¶ 7-8, 11 (applying these factors); State ex
rel. Egolf v. N.M. Pub. Regul. Comm’n, 2020-NMSC-018, ¶¶ 15-19, 476 P.3d 896
(same).

{25} Yet mandamus is a discretionary writ and flexible by nature, and thus we do not
apply those factors in an overly formalistic way. “This Court has never insisted upon a
technical approach to the application of mandamus where there is involved a question
of great public import and where other remedies might be inadequate to address that
question.” Clark, 1995-NMSC-048, ¶ 18 (brackets omitted) (ellipsis omitted) (internal
quotation marks and citation omitted); see, e.g., Unite N.M. v. Oliver, 2019-NMSC-009,
¶ 2, 438 P.3d 343 (determining that mandamus was proper solely because the issue
involved the separation of powers under Article III, Section 1 of the New Mexico
Constitution); State ex rel. League of Women Voters of N.M. v. Advisory Comm. to the
N.M. Compilation Comm’n, 2017-NMSC-025, ¶ 10, 401 P.3d 734 (analyzing the
propriety of mandamus only for whether the question presented a purely legal issue
involving a fundamental constitutional question of great public importance); State ex rel.
League of Women Voters v. Herrera, 2009-NMSC-003, ¶¶ 11-13, 145 N.M. 563, 203
P.3d 94 (determining mandamus was appropriate because the issue was of great public
importance and involved the enforcement of a state officer’s statutory duty); County of
Bernalillo v. N.M. Pub. Regul. Comm’n (In re Adjustments to Franchise Fees), 2000-
NMSC-035, ¶ 6, 129 N.M. 787, 14 P.3d 525 (conditioning a mandamus inquiry on
whether “the case presents a purely legal issue that is a fundamental constitutional
question of great public importance”).

{26} In this case, we conclude that the enumerated Sandel factors are easily met and
therefore discuss them first. We focus the rest of our analysis on what is presented as
the threshold issue in the Sandel test: whether the case involves a nondiscretionary
duty of a government official.

1. This case involves a fundamental constitutional question of great public
importance that can be answered on the basis of virtually undisputed facts
and requires an expeditious resolution

{27} The sole question in this case was the proper way to conduct the June 2020
primary election, which implicates a fundamental constitutional question of great public
importance. Our democratic form of government derives its legitimacy from the will of
the people, as expressed through their vote. See N.M. Const. art. II, § 2 (“All political
power is vested in and derived from the people: all government of right originates with
the people, is founded upon their will and is instituted solely for their good.”). Thus our
Constitution, laws, and courts zealously guard both the right to vote and the legitimacy
of the processes through which those votes are cast and counted. N.M. Const. art. II, §
8 (“All elections shall be free and open, and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of suffrage.”); N.M. Const. art. VII, §
1(B) (“The legislature shall have the power to . . . regulate the manner, time and places
of voting. The legislature shall enact such laws as will secure the secrecy of the ballot
and the purity of elections and guard against the abuse of elective franchise.”); N.M.
Const. art. VII, § 3 (“The right of any citizen of the state to vote . . . shall never be
restricted, abridged or impaired on account of religion, race, language or color, or
inability to speak, read or write the English or Spanish languages.”); §§ 1-1-1 to 1-26-6
(establishing detailed election procedures); see also, e.g., Valdez v. Herrera, 1944-
NMSC-013, ¶ 25, 48 N.M. 45, 145 P.2d 864 (“[T]his court in a long line of decisions has
shown a disposition to be ever zealous in upholding the effective exercise of the
individual’s right of franchise.” (internal quotation marks and citation omitted)).

{28} No constitutional question could be more fundamental or have greater public
import than the conduct of elections. See League of Women Voters of N.M., 2017-
NMSC-025, ¶ 1 (“[T]he elective franchise . . . is among the most precious rights in a
democracy.”); Cobb v. State Canvassing Board, 2006-NMSC-034, ¶ 39, 140 N.M. 77,
140 P.3d 498 (“[T]he issue of clarifying our Election Code, especially in the current
political climate, make[s] this a case of great public importance.”); see also Wesberry v.
Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious in a free country than that of
having a voice in the election of those who make the laws under which, as good
citizens, we must live.”). Thus the first Sandel factor is satisfied here.

{29} Additionally, this case could be decided on the basis of virtually undisputed facts.
The parties did not dispute the operative facts including the procedure prescribed by the
Election Code, the plenary power of the Legislature to determine election procedures,
Respondent’s duty to conduct elections in conformity with the Election Code, and the
exigent circumstance of the COVID-19 pandemic. Because there was no factual
dispute, the issue before us is a legal one.

{30} Similarly, there is no question that this case demanded a speedy resolution that
could only come through the exercise of mandamus. Petitioners and Respondent
brought this case on March 30, 2020, just sixty-four days before the June 2, 2020,
primary election. With the election only weeks away and the public health emergency
unabated, the matter of ascertaining what election procedures were lawful could not
wait for resolution on direct appeal. Cf. Gunaji v. Macias, 2001-NMSC-028, ¶¶ 7, 9, 130
N.M. 734, 31 P.3d 1008 (recognizing that an election issue originally litigated in district
court had become moot by the time it reached this Court). “[I]n mandamus cases, when
issues of sufficient public importance are presented which involve a legal and not a
factual determination, we will not hesitate to accept the responsibility of rendering a just
and speedy disposition.” State ex rel. King v. Lyons, 2011-NMSC-004, ¶ 23, 149 N.M.
330, 248 P.3d 878 (internal quotation marks and citation omitted).

{31} Moreover, although Intervenors suggested that the Legislature might convene to
provide relief, no legislative remedy was in fact available. The Governor indicated that
she would not convene a special session of the Legislature because it could not be
done safely, and the Legislative Council indicated that even if a special session were
called, no bill could be passed in time to change the procedures for the June 2020
primary election. Thus, this Court was the only governmental actor that could timely
resolve this important issue.

{32} Because this case implicated a fundamental constitutional question of great
public importance, involved a legal rather than factual dispute, and required an
expeditious resolution, the three enumerated Sandel factors are met. We now turn to
the critical question of whether Respondent had a nondiscretionary duty in this case.

2. Respondent has a nondiscretionary duty to ensure that elections are
conducted in compliance with the Election Code and all other applicable
law

{33} In a motion for rehearing, Petitioners challenged our issuance of the writ of
mandamus on the grounds that it was within Respondent’s discretion to mail absentee
ballot applications. We disagree. We hold that under the unique circumstances of this
case, Respondent had a nondiscretionary duty to mail every eligible voter in New
Mexico an application for an absentee ballot in the June 2020 primary election. In this
section we explain that Respondent’s nondiscretionary duties with respect to that
election arose from two sources: the Election Code and the executive orders and public
health orders in place at the time. Because Respondent was constrained by her duty
arising under the Election Code to conduct primary elections in accordance with the
procedures mandated by that Code, we could not order the relief requested. And
because Respondent was compelled by her duty arising under the executive orders and
public health orders to conduct the election in a maximally safe manner, we ordered the
relief herein described. Our reasoning follows.

a. The nondiscretionary duty requirement

{34} That a matter brought in mandamus must concern a public official’s
nondiscretionary duty flows from the nature of the writ. “The purpose of the writ of
mandamus is to enforce performance of a public duty after it has been otherwise
established, and not to establish legal rights and duties.” Antieau, supra, § 2.01. Thus,
“[a] writ of mandamus . . . cannot control discretion lawfully vested in the official
functions of a state official.” Egolf, 2020-NMSC-018, ¶ 14. But “mandamus is
appropriate to determine the outer bounds of that discretion.” King, 2011-NMSC-004, ¶
28. We have described a nondiscretionary duty in various ways: as “a ministerial duty
that is clear and indisputable,” Am. Fed’n of State, Cnty. & Mun. Emps. v. Martinez,
2011-NMSC-018, ¶ 4, 150 N.M. 132, 257 P.3d 952; as a “duty . . . [that] is clearly
enjoined by law,” Lovato v. City of Albuquerque, 1987-NMSC-086, ¶ 6, 106 N.M. 287,
742 P.2d 499; and as “an act or thing” that a public official “is required to perform by
direction of law upon a given state of facts being shown to exist, regardless of [the
official’s] own opinion as to the propriety or impropriety of doing the act in the particular
case,” El Dorado at Santa Fe, Inc. v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 1976-
NMSC-029, ¶ 5, 89 N.M. 313, 551 P.2d 1360 (internal quotation marks and citation
omitted).

{35} That a duty is nondiscretionary does not preclude the exercise of judgment on
the part of the public official. “The border line between judicial discretion and ministerial
duty is not clearcut. It is frequently a matter of degree⸻a shading from black to white
or a grey area which can only be determined in each particular case.” Sender v.
Montoya, 1963-NMSC-220, ¶ 13, 73 N.M. 287, 387 P.2d 860, overruled on other
grounds by State ex rel. Reynolds v. Molybdenum Corp. of Am., 1972-NMSC-027, ¶¶
12-14, 25, 83 N.M. 690, 496 P.2d 1086. Often, a nondiscretionary duty arises only after
a public official uses his or her judgment to determine whether a given set of facts
exists. See, e.g., King, 2011-NMSC-004, ¶ 30 (explaining that the Land Commissioner
had a nondiscretionary duty to comply with statutory requirements for land sales after
he decided to sell public lands even though the decision to sell land in the first instance
was entirely discretionary); Lorenzino v. State ex rel. James, 1913-NMSC-071, ¶¶ 3-5,
18 N.M. 240, 135 P. 1172 (explaining that the liquor control board had a
nondiscretionary duty to revoke a liquor license after it determined the licensee was
operating outside of the licensed location even though it had to exercise judgment in
making the initial determination). Thus, language in our cases, “to the effect that
mandamus is inappropriate where interpretation and judgment are necessary, must be
considered in context, not as an inflexible rule.” King, 2011-NMSC-004, ¶ 28 (quoting
Sender, 1963-NMSC-220, ¶ 13 (internal quotation marks omitted)).
b. Respondent had a nondiscretionary duty to conduct elections in full
compliance with the Election Code, and equity is not available to
circumvent an express statutory scheme

{36} The statutory framework makes “clear that the Secretary [of State] must follow
the Election Code, and does not have the power to change its mandatory provisions.”
Herrera, 2009-NMSC-003, ¶ 12; see, e.g., § 1-2-1(B) (stating that the Secretary’s
responsibilities as chief election officer include “obtain[ing] and maintain[ing] uniformity
in the application, operation and interpretation of the Election Code” and “mak[ing] rules
pursuant to the provisions of, and necessary to carry out the purposes of, the Election
Code”); §§ 1-2-2(B)-(D) (stating that the Secretary’s election-related duties include
“supervis[ing] all elections by administering the Election Code,” advising county clerks
and election officials and workers “as to the proper methods of performing their duties
prescribed by the Election Code,” and “report[ing] possible violations of the Election
Code” to prosecuting authorities). Petitioners and Respondent agree that Respondent is
“duty-bound to follow the Election Code.”

{37} The relief that Petitioners and Respondent sought—mailing ballots to voters
without prior request—is not available under the Election Code provisions for primary
elections. Petitioners sought to adapt the procedures for special elections, as set forth in
Section 1-24-3, to the June 2020 primary election. See § 1-24-3(A) (“All special
elections in this state shall be conducted absentee. Mailed ballots shall be used
exclusively for voting in special elections.”). But the statutes governing special elections
plainly cannot apply to primary elections. First, special elections cannot be held
concurrently with a primary election, meaning that they are mutually exclusive types of
elections. See § 1-24-1(C) (“No special election shall be held beginning the seventieth
day prior to any statewide election and until . . . the seventieth day following a major
political party primary.”). Second, special elections may be used to decide ballot
questions only. See § 1-24-2(A)(2)(c) (stating that a special election proclamation must
contain “the text of the ballot question or ballot questions to be voted on”); § 1-1-5.6 (“As
used in the Election Code, ‘ballot question’ means a question submitted to the voters
. . . on a ballot . . . and does not include a candidate nomination.”). In contrast, primary
elections decide the candidates who will be on the ballot in the general election, § 1-8-
17(A), and “[n]o bond issue or other question shall be voted upon at any primary
election,” § 1-8-17(B). Finally, in a special election, ballots must be mailed to voters
without prior request, but in a primary election, a ballot may only be mailed to a voter
upon the voter’s request. Compare § 1-24-3(B) (requiring county clerks to mail ballots
directly to voters in special elections “[w]ithout requiring a voter to file an application to
receive a ballot”), with § 1-6-5(F) (“A mailed ballot shall not be delivered by the county
clerk to any person other than the applicant for the ballot.”).

{38} Despite the requested relief being contrary to the Election Code, Petitioners and
Respondent nevertheless argued that we should rely on our inherent equitable powers
to craft a remedy that departed from the statutory scheme in order to protect public
health. That view of equity is overbroad. “New Mexico courts do not distinguish between
actions brought at law or suits brought in equity.” Sims v. Sims, 1996-NMSC-078, ¶ 27,
122 N.M. 618, 930 P.2d 153. While we “retain preexisting inherent equity jurisdiction,”
we do not rely on equity as “a distinct and self-sufficient juristic system designed to
overrule or correct other law.” Id. ¶¶ 29-30 (internal quotation marks and citations
omitted). Rather, equity “functions as a supplement to the rest of the law where its
remedies are inadequate to do complete justice.” Id. (internal quotation marks and
citation omitted). Thus, “in the absence of a clear and valid legislative command . . . ,
the full scope of [a court’s] jurisdiction [in equity] is to be recognized and applied.” Id.
(quoting Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)). On the other hand,
when legislation governs an area of law, our equitable powers are “concurrent or
supplemental to the legal remedy created by statute.” Id. ¶ 29. In those situations, we
can only fashion a remedy that “fill[s] in the interstices” of the legislation “in accordance
with those legal concepts, principles, or objectives which may apply to the situation and
that are in harmony and legally compatible with” the legislation. Gunaji, 2001-NMSC-
028, ¶ 21 (internal quotation marks omitted) (quoting State ex rel. Olson v. Bakken, 329
N.W.2d 575, 580 (N.D. 1983)).

{39} Our decision in Gunaji illustrates this distinction. In that case, we remedied an
election problem that was not addressed in the Election Code by “draw[ing] an analogy
from a section of the Election Code covering cases closely related to the instant one.”
Id. ¶ 1. In Gunaji, the wrong candidates’ names had been printed on ballots in one
precinct, and sixty-six people cast their votes on the incorrect ballots before the error
was discovered. Id. ¶¶ 2-3. The Election Code did not prescribe a remedy for that
particular problem, so we looked to analogous statutes to determine that the results of
the entire precinct should be rejected rather than a new election called. Id. ¶¶ 30-35.
While we explained the benefits of looking to analogous statutes as a helpful source of
law when crafting remedies in the absence of explicit statutory mandates, id., we also
made clear that this process could not be used to override a statute that establishes a
procedure or remedy, id. ¶¶ 21-26.

{40} Unlike in Gunaji, where no statute mandated the steps to be taken if votes were
cast on misprinted ballots, in this case the procedure for conducting primary elections in
New Mexico is set forth in detail in Article 8 of the Election Code. Thus, while in Gunaji
we could craft a remedy by analogizing to similar statutes, here the existing statutory
scheme controls. Our equitable powers do not extend so far as to allow us to disregard
procedures set forth by statute or to rearrange the Election Code. To do so would
violate the separation of powers. State v. Roy, 1936-NMSC-048, ¶ 73, 40 N.M. 397, 60
P.2d 646 (“We are committed by our Constitution to the doctrine of separation of
powers. It is fundamental that no one of the three branches of government can
effectively delegate any of the powers which peculiarly and intrinsically belong to that
branch. The power to make law is reserved exclusively to the Legislature.”). Therefore,
we conclude that Respondent had a nondiscretionary duty to follow the primary election
procedures set forth in the Election Code, and we cannot order relief that deviates from
those procedures.
c. Respondent had a nondiscretionary duty to comply with all executive
orders

{41} Respondent’s duty to comply with the Election Code was hardly her only duty as
a public official. See N.M. Sec’y of State, Secretary of State Duties, available at
https://www.sos.state.nm.us/about-new-mexico/nm-government/secretary-of-state-
duties/ (last visited Mar. 31, 2021) (describing the many duties of the Secretary of State,
including “perform[ing] all of the functions of the governor” when the Governor and
Lieutenant Governor are out of the state). During the pandemic, Respondent had a duty
to comply with the Governor’s pandemic-related executive orders, as did every other
public official. See EO 2020-004, 3. In the first of those orders, the Governor imposed
an affirmative duty on all public officials to use every means at their disposal to contain
the spread of COVID-19 and mitigate its harms. See EO 2020-004, 2 (stating that “it is
necessary for all branches of State government to take immediate action to minimize
the spread of COVID-19” and that “[a]ll branches of State government shall . . . provide
resources and services necessary to minimize physical and economic harm and . . .
protect lives”). Therefore, a fortiori, that order also imposed on Respondent an
affirmative duty to take all lawful steps to minimize the spread of COVID-19 and protect
lives. In her role as the state’s chief election officer, that duty governed her
management of the primary election.

{42} The series of executive orders and public health orders issued thereafter
demonstrated that protecting lives, in this context, required that opportunities for close
contact between people be drastically curtailed. For example, schools and nonessential
businesses were closed. See State of N.M., Executive Order 2020-005 (Mar. 13,
2020); 15 N.M. Dep’t of Health, Pub. Health Emergency Order Closing all Businesses
and Non-Profit Entities Except for those Deemed Essential (Mar. 23, 2020) (PHO 3-23-
20). 16 Mass gatherings were prohibited. See PHO 3-16-20, 3; PHO 3-23-20, 4 ¶ 1. And
all New Mexicans were directed “to stay at home and undertake only those outings
absolutely necessary for their health, safety, or welfare.” PHO 3-16-20, 3; PHO 3-23-20,
5. In implementing these measures, the Secretary of Health stated that her intent was
“to ensure that our State’s citizens are self-isolating to the maximum extent possible in
order to minimize the transmission of . . . COVID-19” and that the “core directive
underlying this Order is that New Mexicans should not leave their homes unless
absolutely necessary or to access essential services.” N.M. Dep’t of Health, Amended
Pub. Health Order, 1 (Mar. 19, 2020) (PHO 3-19-20). 17 These orders demonstrate that,
in this context, a public official’s general duty to protect lives carried with it a specific
duty to help people stay at home and self-isolate as much as possible.

15Order Directing the Closure of All Public Schools Until April 6, 2020, available at
https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (follow hyperlink to “Executive Order
2020-005”) (last visited Mar. 31, 2021).
16Available at https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (follow hyperlink to “03-
16-2020 ˗ Public Health Emergency Order”) (last visited Mar. 31, 2021).
17Available at https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (follow hyperlink to “03-
19-2020 ˗ Public Health Order”) (last visited Mar. 31, 2021).
{43} Therefore, as the chief election officer of the state, Respondent had a duty to
manage the election in a manner that minimized the risk of spreading COVID-19 and
protected lives by helping voters stay home as much as possible. As discussed above,
the Election Code does not allow for direct mailing of primary ballots. But nothing in the
Election Code prevents the Secretary of State from encouraging voters to exercise their
right to vote by mail and facilitating absentee voting. See § 1-6-4. Thus, Respondent
had an affirmative duty arising from the pandemic-related executive and public health
orders to mail absentee ballot applications to all eligible New Mexico voters.

B. The Remedy in This Case

{44} We issued our writ of mandamus to compel Respondent to mail absentee ballot
applications to every eligible voter in New Mexico because of the extraordinary public
health emergency presented by the COVID-19 pandemic. This remedy promoted the
health of the voting public and election workers by making it easier for voters to cast
their ballots from the safety of their own homes. 18 We also honored the separation of
powers by preserving the Legislature’s plenary power to set election procedures. The
writ we issued was designed to protect public health, promote free and open elections,
and preserve the rule of law.

III. CONCLUSION

{45} For the foregoing reasons, we granted the writ of mandamus.

{46} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice

WE CONCUR:

BARBARA J. VIGIL, Justice

RICHARD C. BOSSON, Justice, Retired
Sitting by designation

EDWARD L. CHÁVEZ, Justice, Retired
Sitting by designation

18Voters availed themselves of this option in record numbers in the June 2020 primary election. See Rick
Nathanson & Ryan Boetel, Election day turnout light as predicted, Albuquerque Journal (June 3, 2020,
1:52 a.m.) (noting that voters cast over 250,000 absentee ballots in the June 2020 primary, in comparison
with 23,000 absentee ballots in the 2016 primary), available at https://www.abqjournal.com/
1462151/primary-voter-turnout-light-as-predicted.html (last visited Mar. 31, 2021). Absentee ballots
accounted for almost 60% of all votes cast in the June 2020 primary election. Zainab Ali, et al., New
Mexico’s 2020 Primary in the Wake of the Coronavirus, Lawfare (Sept. 18, 2020, 11:37 a.m.), available at
https://www.lawfareblog.com/new-mexicos-2020-primary-wake-coronavirus (last visited Mar. 31, 2021).
The increase in absentee voting caused an increase in voter turnout overall. Id.
JUDITH K. NAKAMURA, Justice, Retired
Sitting by designation