46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CONSERVANCY DISTRICTS; REQUIRING ALL ELECTIONS WITHIN CERTAIN CONSERVANCY DISTRICTS TO BE BY MAIL-IN BALLOTS; PROHIBITING CERTAIN CONSERVANCY DISTRICTS FROM INCURRING CERTAIN DEBTS WITHOUT THE APPROVAL OF THE QUALIFIED ELECTORS OF THAT DISTRICT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 73-14-20 NMSA 1978 (being Laws 1975, Chapter 262, Section 3, as amended) is amended to read:

"73-14-20. DEFINITIONS.--As used in Sections 73-14-18 through [73-14-32] 73-14-30 NMSA 1978:

[A. "absent voter" means a qualified elector who has requested an absentee ballot forty days prior to an election;

B. "absentee-early voter" means a qualified elector who has voted early, prior to election day, on an electronic voting machine at a designated absentee-early voter precinct;

C.] A. "benefited area" means that area described by a property appraisal that receives a benefit as a result of the creation of a district for any of the purposes specified in Section 73-14-4 NMSA 1978;

[D.] B. "election director" means the person whom the board of directors may request to provide election services by a contract approved by the secretary of state;

[E.] C. "election officer" means a person appointed by the board of directors to conduct the election in the absence of an election director and who performs all election services required by statute;

[F.] D. "list compiler" means a contractor approved by the board of directors to compile and produce a qualified elector list for a conservancy district;

[G.] E. "qualified elector" means an individual who owns real property within the benefited area of the conservancy district and who has provided proof of an ownership interest to one of the sources specified in Subsection B of Section 73-4-20.1 NMSA 1978 within the required time period, or who resides on and owns legal or equitable title in tribal lands and who is over the age of majority;

[H.] F. "qualified [elector's] elector list" means the list compiled before each election that contains the individual names of all qualified electors; and

[I.] G. "residence" means a dwelling that lies partially or completely within the benefited area."

Section 2. Section 73-14-20.1 NMSA 1978 (being Laws 1990, Chapter 48, Section 1, as amended) is amended to read:

"73-14-20.1. QUALIFIED ELECTOR LIST.--

A. The board of directors of [the] a conservancy district may contract for a list compiler before each election to compile and produce a qualified [elector's] elector list for the district. The list compiler shall deliver the completed list to the election director no later than forty-five days prior to a district election. An individual who purchases property ninety days prior to an election and whose name does not appear on the qualified [elector's] elector list shall not vote in that election. The individual may become certified to vote in a future election by filing his deed of title with the appropriate county clerk at least ninety days before the next conservancy district election.

B. Names of qualified electors shall be obtained from the records of the county clerk of the appropriate county, the appropriate county assessor of the appropriate county, records of the conservancy district or from the census bureau and enrollment records provided by the pueblos. The county assessor of the appropriate county, the county clerk of the appropriate county and the tribal representatives of the appropriate pueblos shall deliver to the election director all records regarding qualified electors of the benefited area no later than the last day of each March before a district election.

C. Updating the qualified [elector's] elector list shall consist of adding, for any new qualified elector who has purchased property in the district, the name, address and description of all property owned by the qualified elector in the benefited area and removing the name of any elector who is deceased or [is no longer a qualified elector because he] who no longer owns property within the benefited area.

D. Proof of ownership of land within the benefited area requires one of the following:

(1) a recorded deed or real estate contract indicating current ownership of land within the benefited area;

(2) an individual's name on county clerk records indicating a description of property the individual owns within the benefited area;

(3) an individual's name on a list compiled by the governing body of a pueblo within the benefited area indicating that the individual named is residing on and has legal or equitable title in the pueblo; or

(4) a current property tax bill indicating ownership of land within the benefited area.

E. [The election officer or the election director shall distribute to each polling place a current qualified elector's list for the appropriate county. The election officer or the election director shall distribute the qualified elector's list to each polling place within a pueblo located within the benefited area. A qualified elector may vote at any one polling place in the pueblo or county where he owns land.] An individual who seeks to cast his vote but [finds his] whose name is not on the qualified [elector's] elector list shall not be allowed to vote in that election."

Section 3. Section 73-14-24 NMSA 1978 (being Laws 1975, Chapter 262, Section 7, as amended) is amended to read:

"73-14-24. TIME AND PROCEDURE FOR ELECTION.--

A. On the first Tuesday after the first Monday in January prior to the middle Rio Grande conservancy district election, an election proclamation shall be published that includes a list of the offices for which a candidate may file, the date and place at which declarations of candidacy shall be filed and the date of the election. The election proclamation shall be published once in a newspaper of general circulation in the counties in which the election shall be held.

B. The members of the boards of directors created pursuant to the provisions of Sections 73-14-18 through

[73-14-32] 73-14-30 NMSA 1978 shall be elected by mail-in ballot at an election [held] on the first Tuesday after the first Monday in June [in 2001 and] in each odd-numbered year [thereafter].

C. The elections for the members of the board of directors of [the] a conservancy district shall be conducted, counted and canvassed as provided in Sections 73-14-18 through [73-14-32] 73-14-30 and 73-14-84 through 73-14-86 NMSA 1978. [The polls may be opened and closed in the same manner as provided for the general election under the Election Code.

D. If only one candidate has filed a declaration of candidacy for a position to be filled at an election, no declared write-in candidate has filed for a position and there are no questions or bond issues on the ballot, only one polling place for the election may be designated. The one polling place may be located in the office of the election director or in the office of the middle Rio Grande conservancy district.]"

Section 4. Section 73-14-27 NMSA 1978 (being Laws 1975, Chapter 262, Section 10, as amended) is amended to read:

"73-14-27. ELECTION--[LOCATION OF POLLING PLACES] NOTICE OF ELECTION [CREATION OF ABSENT VOTER PRECINCT].--

[A.] For every conservancy district election, [the board of directors shall provide for adequate polling places within the boundaries of the conservancy district. In addition, the board of directors shall provide a polling place at the main office of the conservancy district and may provide such other locations as it deems necessary. The board of directors may also create absentee-early voter and absent voter precincts.

B.] notice of the election shall be published three times in a newspaper of general circulation within each county of the district. [Each] The notice shall state the time [place] and purpose of the election and that each qualified elector will receive a mail-in ballot prior to the election. The notice shall be published twenty, ten and five days before the election."

Section 5. Section 73-14-28 NMSA 1978 (being Laws 1975, Chapter 262, Section 11, as amended) is amended to read:

"73-14-28. ELECTION JUDGES.--The election officer or [the] election director shall select [two or more] three election judges for [each polling place established within the] a conservancy district. [The election officer or the election director shall also appoint absentee-early voter and absent voter precinct boards.]"

Section 6. Section 73-14-28.1 NMSA 1978 (being Laws 1996, Chapter 42, Section 12) is amended to read:

"73-14-28.1. ELECTION.--The board of directors of [the] a conservancy district shall conduct the election pursuant to [Chapter 73, Article 14] Sections 73-14-18 through 73-14-30 NMSA 1978 and other applicable election laws or shall select an election director [as defined in Section 73-14-20 NMSA 1978] to provide election services. The election director shall operate pursuant to a contract approved by the secretary of state. The election [may] shall be conducted by [emergency paper ballot, electronic voting machine or any other state-certified tabulating voting machine] mail-in ballot only."

Section 7. Section 73-14-29 NMSA 1978 (being Laws 1975, Chapter 262, Section 12, as amended) is amended to read:

"73-14-29. FORM OF [BALLOT] ELECTION MATERIALS.--The election officer or [the] election director shall oversee the preparation and printing of the [ballots] election materials for a conservancy district election. [Ballots] Election materials shall be prepared and printed at the expense of the conservancy district. [The election officer or the election director shall oversee the preparation of a separate ballot for each county within the conservancy district or the preparation of one ballot for use within the entire conservancy district.] The board of directors shall approve the form of the [ballot. The ballot shall contain the numbered position or positions as the case may be to which directors are to be elected at the election, with the names of all candidates for each position listed under that designation] election materials. Election materials shall include:

A. ballots. The election officer or election director may prepare a separate ballot for each county within the conservancy district or one ballot for use within the entire conservancy district. For elections at which directors are selected, the ballot shall contain the numbered positions to which directors are to be elected at the election, with names of all candidates for each position listed under that designation;

B. official inner envelopes for use in sealing completed ballots;

C. official mailing envelopes for use in returning the official inner envelopes to the election officer or election director. The reverse of each official mailing envelope shall contain a form, to be executed by the qualified elector completing the ballot, that contains such affirmations as the election officer or election director shall prescribe;

D. ballot instructions describing how to complete and return ballots; and

E. official transmittal envelopes for use by the election officer or election director in mailing ballot materials."

Section 8. A new Section 73-14-29.1 NMSA 1978 is enacted to read:

"73-14-29.1. [NEW MATERIAL] MAILED BALLOTS--QUALIFIED ELECTOR LIST.--

A. The election officer or election director shall enter the following on the qualified elector list:

(1) the date of the mailing of the ballot to the qualified elector; and

(2) the date and time the completed ballot was received from the qualified elector by the election officer or election director.

B. No later than thirty days prior to the date of a conservancy district election, the election officer or election director shall mail a set of election materials to each qualified elector.

C. The qualified elector list is a public record open to public inspection in the election officer's or election director's office during regular office hours."

Section 9. A new Section 73-14-29.2 NMSA 1978 is enacted to read:

"73-14-29.2. [NEW MATERIAL] MAILED BALLOTS--MANNER OF VOTING.--A qualified elector voting in a conservancy district election shall secretly mark the ballot, place it in the official inner envelope and securely seal the envelope. The elector shall then:

A. place the official inner envelope inside the official mailing envelope and securely seal the envelope; and B. complete the form on the reverse of the official mailing envelope, which shall include an affirmation by the elector under penalty of perjury that the facts stated in the form are true."

Section 10. A new Section 73-14-29.3 NMSA 1978 is enacted to read:

"73-14-29.3. [NEW MATERIAL] MAILED BALLOTS--RECEIPT OF BALLOTS BY ELECTION OFFICER OR ELECTION DIRECTOR.--

A. The election officer or election director shall:

(1) mark on each completed official mailing envelope the date and time of receipt;

(2) record this information in the qualified elector list; and

(3) safely keep the official mailing envelope unopened in a locked and sealed ballot box until it is transmitted to the election judges on election day or until it is canceled and destroyed in accordance with law.

B. The election officer or election director shall accept completed official mailing envelopes until 7:00 p.m. on election day. A completed official mailing envelope received after that time shall not be opened but shall be preserved by the officer or director until the time for election contests has expired. In the absence of a restraining order after expiration of the time for election contests, the election officer or election director shall destroy all late official mailing envelopes without opening or permitting the contents to be examined, cast, counted or canvassed.

C. At 5:00 p.m. on the Monday immediately preceding the date of election, the election officer or election director shall record the numbers of the unused ballots and shall publicly destroy all such unused ballots. The officer or director shall execute and maintain a certificate of destruction, which shall include the numbers on the ballots destroyed."

Section 11. A new Section 73-14-29.4 NMSA 1978 is enacted to read:

"73-14-29.4. [NEW MATERIAL] HANDLING OF BALLOTS BY ELECTION JUDGES.--

A. Before opening an official mailing envelope, the election judges shall determine that the required information has been completed on its reverse.

B. If the qualified elector's signature is missing, the presiding judge shall write "Rejected" on the front of the official mailing envelope. The election officer or election director shall enter the qualified elector's name in the signature rosters and shall write the notation "Rejected - Missing Signature" in the "Notations" column of the signature rosters. The presiding judge shall place the official mailing envelope unopened in an envelope provided for rejected ballots, seal the envelope and write the qualified elector's name on the front of the envelope and deposit it in the locked ballot box.

C. An accredited challenger may examine the official mailing envelope and may challenge the ballot of any qualified elector because the official mailing envelope has been opened prior to being received by the election judges. Upon the challenge of a ballot, the election judges shall follow the same procedure as when ballots are challenged pursuant to the Election Code when a person attempts to vote in person. If a challenge is upheld, the official mailing envelope shall not be opened but shall be placed in an envelope provided for challenged ballots. The same procedure shall be followed in canvassing and determining the validity of challenged ballots pursuant to this section as with other challenged ballots.

D. If the official mailing envelopes have been properly subscribed and the qualified electors have not been challenged:

(1) the election judges shall open the official mailing envelopes and deposit the ballots in their still-sealed official inner envelopes in the locked ballot box; and

(2) the election officer or election director shall enter the voter's name and residence address as shown on the official mailing envelope in the signature rosters.

E. Prior to 7:00 p.m. on the day of the election, the election judges may either remove the ballots from the official inner envelopes and count and tally the results or count and tally the ballots on an electronic voting machine the same as if the qualified elector had voted in person. It is unlawful for any person to disclose the results of a count and tally or the registration on a voting machine of ballots prior to 7:00 p.m. on the day of the election."

Section 12. A new Section 73-14-29.5 NMSA 1978 is enacted to read:

"73-14-29.5. [NEW MATERIAL] CANVASS--RECOUNT OR RECHECK--DISPOSITION.--If electronic voting machines are not used to register the mailed ballots, the ballots shall be canvassed, recounted and disposed of in the manner provided by the Election Code for the canvassing, recounting and disposition of emergency paper ballots. If voting machines are used to register the ballots, the ballots shall be canvassed and rechecked in the manner provided by the Election Code for the canvassing and recheck of ballots cast on a voting machine; provided, in the event of a contest, voting machines used to register the ballots shall not be rechecked but the ballots shall be recounted in the manner provided by the Election Code for the recounting of emergency paper ballots. A contest shall be conducted pursuant to the contest provisions of the Election Code."

Section 13. A new Section 73-14-29.6 NMSA 1978 is enacted to read:

"73-14-29.6. [NEW MATERIAL] VOTING WHEN NO MAILED BALLOT RECEIVED.--

A. Except as provided in this section, no person shall vote in person in a conservancy district election subject to the provisions of Sections 73-14-18 through 73-14-30 NMSA 1978.

B. At any time prior to 5:00 p.m. on the Monday immediately preceding the date of the election, a qualified elector who has not received a mailed ballot may execute, in the office of the conservancy district, a sworn affidavit stating that he did not receive the ballot. Upon receipt of the sworn affidavit, the election officer or election director shall issue the qualified elector a replacement ballot.

C. The election officer or election director, no later than forty-eight hours after the close of the election, shall remove the outer envelopes of the replacement ballots and, without removing or opening the inner envelopes, determine if a mailed ballot from a qualified elector was received by 7:00 p.m. on election day. Upon making that determination, the officer or director shall remove the inner envelope without opening it, retain the outer envelope with the other election returns and place the inner unopened envelope in a secure container to be transmitted to the election judges to be tallied and included in the election results.

D. The election officer or election director shall prescribe and furnish the affidavits, replacement ballots and necessary envelopes for purposes of this section."

Section 14. Section 73-18-2 NMSA 1978 (being Laws 1939, Chapter 148, Section 2) is amended to read:

"73-18-2. ADDITIONAL POWERS--DUTIES OF BOARD--CONTRACT INDEBTEDNESS A GENERAL OBLIGATION.--

[(1)] A. Except as provided in Section 73-18-9.2 NMSA 1978, any district, in addition to all other powers [heretofore] previously conferred by law upon districts, is empowered to cooperate with the United States under the reclamation law, and in the exercise of [such] that power, may enter into a reclamation contract [or contracts] for the purpose of the construction of irrigation works, including ancillary works and drainage works to maintain the irrigability of lands within any such district; for the purchase, extension, operation or maintenance of constructed works; for the assumption as principal or guarantor of indebtedness to the United States on account of the cost of construction or operation and maintenance of irrigation, drainage and ancillary works; for rental of water or otherwise securing a water supply for district lands; for acceptance of appointment or designation of the district as fiscal agent of the United States to make collections of [monies] money for or on behalf of the United States in connection with any federal reclamation project; or for [all or] any one [or more] of [said] those purposes [and]. All payments to become due to the United States under any reclamation contract [heretofore or hereafter] entered into between a district and the United States shall be paid by revenue derived from an annual assessment upon the real property of the district [and]. All the real property in the district [shall be and remain] is liable to be assessed for such payments until fully made. It [shall be] is the duty of the board of a contracting district, notwithstanding any other provision of the Conservancy Act, to make and establish all levies, assessments, tolls or charges to meet each year the contract indebtedness and obligation as [the same] they may be provided for in any reclamation contract [heretofore or hereafter] entered into by a contracting district and to do [any and] all acts necessary to carry out the provisions of any [such] reclamation contract.

[(2)] B. A contracting district may:

[(a) may] (1) convey to the United States land or water rights or any interest [therein] in them, either without monetary consideration [therefor] for them or in partial consideration of the privileges derived from a reclamation contract or for other consideration;

[(b) may, and] (2) if so agreed in a reclamation contract, shall withhold water from lands which under the terms of the reclamation law, a reclamation contract or rules and regulations thereunder are not entitled to receive water, and from water users or the lands of water users delinquent in the payment of any assessment, toll, rental or other charge, but this remedy shall be in addition to all other remedies available for the enforcement of a reclamation contract or collection of assessments, tolls, rentals or other charges; and

[(c) may] (3) accept the provisions of any existing or future act of congress applicable to [such] the district.

[(3)] C. The board of directors of [any] a contracting district is [hereby] vested with all powers necessary and requisite for the accomplishment of the purposes for which the district is organized and for which the reclamation contract has been entered into by the district and capable of being delegated to it by the New Mexico legislature [of the state of New Mexico and]. No enumeration of particular powers in the Conservancy Act or in [this] the Conservancy District-Reclamation Contract Act granted shall be construed to impair any general grant of power [herein] contained [nor] in the Conservancy District-Reclamation Contract Act or to limit any such grant to power [or powers] of the same class [or classes] as those so enumerated."

Section 15. A new section of the Conservancy District-Reclamation Contract Act, Section 73-18-9.2 NMSA 1978, is enacted to read:

"73-18-9.2. [NEW MATERIAL] CONTRACTING DEBT TO BE PAID THROUGH AD VALOREM ASSESSMENTS--ELECTION REQUIRED.--A conservancy district created prior to 1930, situate in four or more counties and consisting of more than one hundred thousand acres shall not enter into an agreement, including a reclamation contract, issue bonds or otherwise incur any debt that will be repaid, in whole or in part, by receipts from ad valorem assessments levied by the district unless the question is first approved by the qualified electors of that district in a mail-in ballot election conducted pursuant to the provisions of Sections 73-14-18 through 73-14-30 and 73-14-84 through 73-14-86 NMSA 1978. An election required by this section may be held in conjunction with a regular conservancy district election at the time prescribed in Subsection B of Section 73-14-24 NMSA 1978 or may be a special election called for that purpose by the board of the conservancy district."

Section 16. Section 73-18-24 NMSA 1978 (being Laws 1939, Chapter 148, Section 25) is amended to read:

"73-18-24. [Designation of Act. This Act] SHORT TITLE.--Sections 73-18-1 through 73-18-24 NMSA 1978 may be cited as the "Conservancy District-Reclamation Contract Act"."

Section 17. REPEAL.--Sections 73-14-31 through 73-14-31.3 NMSA 1978 (being Laws 1975, Chapter 262, Section 14, Laws 1996, Chapter 42, Sections 15 and 16 and Laws 1999, Chapter 168, Section 8, as amended) are repealed.

Section 18. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.