State agency argues against paid time off for voting

Andrew Oxford
The Santa Fe New Mexican
Employers should not have to pay staff for time they take off work to vote on Election Day, Gov. Susana Martinez's administration says.

Employers should not have to pay staff for time they take off work to vote on Election Day, Gov. Susana Martinez's administration says.

The Republican governor's stand challenges a longstanding interpretation of a New Mexico law that backers say was intended to increase voter participation.

The State Personnel Office is staking out the new position as it appeals a judge's decision that guaranteed New Mexico government employees the right to take paid time off work to vote in Albuquerque's mayoral election last fall.

This could change the rules for employees of private businesses, nonprofit organizations and other public agencies.

And the Martinez administration's interpretation clashes with how judges, voting rights advocates and New Mexico's top election official have interpreted the law.

Secretary of State Maggie Toulouse Oliver, a Democrat, said Tuesday she interprets the law as requiring employers to allow workers to take paid leave to vote.

The disagreement appears to center on what New Mexico law does not say.

State law does not use the words "paid leave." Instead, state statute says a voter "shall not be liable to any penalty" if he or she takes up to two hours off on Election Day to cast a ballot.

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The law says employers may specify when staff can leave work to vote. And the law does not apply if a voter's work schedule would provide the person two hours to cast a ballot before or after a shift.

Last year, the State Personnel Office said the law does not cover municipal elections and denied workers the right to claim paid administrative leave to vote in Albuquerque's mayoral election.

The office has raised concerns in recent years that government employees have abused the policy.

After the 2014 election, the office conducted an audit and said 243 employees across 50 agencies in the executive and judicial branches of state government had claimed administrative leave to vote but never cast a ballot.

Members of the Communication Workers of America Local 7076, which represents some state employees, filed suit over the change in policy and won in state District Court.

But the governor's administration is appealing, arguing that New Mexico law does not require employers to pay staff at all when they take time off to vote in any election.

Instead, the State Personnel Office argued in court filings last week that the law only means that employers cannot penalize or punish workers who take time off to vote.

Judges have interpreted the law more strictly than that.

In the case of Albuquerque's mayoral election, for example, Santa Fe District Judge David Thomson said that not paying an employee and in turn requiring the individual to use vacation pay or lose wages when taking time off work to vote amounts to a penalty.

And in 1985, the state Court of Appeals stated that New Mexico's law is meant "to provide an incentive for workers to vote, without deduction of salary."

Several states have what are known as "pay-while-voting" laws.

Texas guarantees workers what its laws describe as sufficient paid time off to vote on Election Day.

Similar to New Mexico, Utah and Colorado guarantee two hours off if employees would otherwise not have time to vote before or after work.

The League of Women Voters has said that denying workers administrative leave to vote on Election Day is "a blatant and deplorable voter suppression tactic."

But in its appeal, the State Personnel Office states that New Mexico law stands apart from other states because it does not expressly require employers to provide paid time off.

If the Legislature intended that, lawmakers could change the statute, the office said in its filing with the state Court of Appeals.

The office also argues the policy is unnecessary.

"With the availability of absentee voting by mail, early voting, and, in some counties, voting convenience centers, paid time off to vote is no longer prudent," it stated.

Unclear is when the state Court of Appeals might rule. The government's arguments come ahead of the start of voting in Santa Fe's municipal election later this month and a gubernatorial election this year.

Contact Andrew Oxford at 505-986-3093 or aoxford@sfnewmexican.com. Follow him on Twitter at @andrewboxford.