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

RELATING TO ELECTIONS; RESTRICTING ABSENTEE VOTING; CHANGING THE HOURS FOR EARLY VOTING; PROVIDING PROCEDURES FOR VOTER ASSISTANCE; PRESCRIBING PENALTIES; AMENDING AND ENACTING SECTIONS OF THE ELECTION CODE.

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

Section 1. Section 1-6-3 NMSA 1978 (being Laws 1969, Chapter 240, Section 129, as amended) is amended to read:

"1-6-3. RIGHT TO VOTE BY ABSENTEE BALLOTS.--

[A. Any voter may vote by absentee ballot for all candidates and on all questions appearing on the ballot as if he were able to cast his ballot in person at his regular polling place on election day.]

A. A voter may vote by absentee ballot for all candidates and on all statewide questions appearing on the ballot at the voter's precinct poll as if the voter were able to cast the ballot in person at the precinct poll if the voter:

(1) cannot be present at the precinct poll on election day, because of illness, injury or disability;

(2) will be absent from his county of residence because his duties, occupation, business or vacation requires him to be elsewhere; or

(3) cannot be present at the precinct poll because he is a prisoner in a jail, detention home or penitentiary and has not been convicted of a felony.

B. [Any] A federal qualified elector may register absentee and vote by an absentee ballot for any federal office."

Section 2. Section 1-6-4 NMSA 1978 (being Laws 1969, Chapter 240, Section 130, as amended) is amended to read:

"1-6-4. ABSENTEE BALLOT APPLICATION.--

A. Application by a federal qualified elector for an absentee ballot shall be made on the official postcard form prescribed or authorized by the federal government to the county clerk of the county of his residence.

B. Application by a voter for an absentee ballot shall be made only on a form prescribed, printed and furnished by the secretary of state to the county clerk of the county in which the voter resides. The form shall identify the applicant and contain information to establish his qualification for issuance of an absentee ballot under the Absent Voter Act; provided that on the application form for a general election ballot there shall be no box, space or place provided for designation of the voter's political party affiliation.

Only the county clerk shall mail an application to a voter. The county clerk shall not mail applications to a permanent class of voters.

C. The secretary of state shall make a universal, downloadable absentee ballot application form available on-line. A person may distribute an application to a voter or return an application to the county clerk for a voter. Each application for an absentee ballot shall be subscribed by the applicant.

D. An application form for an absentee ballot shall include spaces for the applicant to indicate by check mark the reason the voter qualifies for an absentee ballot. The county clerk shall not send an absentee ballot to a voter who does not subscribe the application and indicate the reason that the voter qualifies for an absentee ballot."

Section 3. Section 1-6-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 131, as amended by Laws 2001, Chapter 49, Section 1 and by Laws 2001, Chapter 58, Section 1) is amended to read:

"1-6-5. PROCESSING APPLICATION--ISSUANCE OF BALLOT--MARKING AND DELIVERY OF BALLOT IN PERSON.--

A. The county clerk shall mark each completed absentee ballot application with the date and time of receipt in the clerk's office and enter the required information in the absentee ballot register. The county clerk shall then determine if the applicant is a voter, an absent uniformed services voter or an overseas voter.

B. If the applicant [has no] does not have a valid certificate of registration on file in the county and he is not a federal qualified elector or if the applicant states he is a federal qualified elector but his application indicates he is not a federal qualified elector, [no] an absentee ballot shall not be issued and the county clerk shall mark the application "rejected" and file the application in a separate file from those accepted.

C. The county clerk shall notify in writing each applicant of the fact of acceptance or rejection of his application and, if rejected, shall explain why the application was rejected.

D. If the county clerk finds that the applicant is a voter [or] other than a federal qualified elector or overseas voter, the county clerk shall mark the application "accepted" and, beginning twenty-five days before the election, deliver an absentee ballot to the voter in the county clerk's office or mail to the applicant an absentee ballot and the required envelopes for use in returning the ballot. If the county clerk finds that the applicant is a federal qualified elector or overseas voter, the county clerk shall mark the application "accepted" and beginning forty-five days before the election, mail to the applicant an absentee ballot and the required envelopes for use in returning the ballot. Acceptance of an application of a federal qualified elector constitutes registration for the election in which the ballot is to be cast. Acceptance of an application from an overseas voter who is not an absent uniformed services voter constitutes a request for changing information on the certificate of registration of any such voter. [No] An absent voter shall not be permitted to change his party affiliation during those periods when change of party affiliation is prohibited by the Election Code. Upon delivery of an absentee ballot to a voter in the county clerk's office or mailing of an absentee ballot to an applicant who is a voter, an appropriate designation shall be made on the signature line of the signature roster next to the name of the voter who has been provided or mailed an absentee ballot.

E. If an application for an absentee ballot is delivered in person to the county clerk and is accepted, the county clerk shall provide the voter an absentee ballot and it shall be marked by the applicant in a voting booth of a type prescribed by the secretary of state, sealed in the proper envelopes and otherwise properly executed and returned to the county clerk or his authorized representative before the voter leaves the office of the county clerk. The act of marking the absentee ballot in the office of the county clerk shall be a convenience to the voter in the delivery of the absentee ballot and does not make the office of the county clerk a polling place subject to the requirements of a polling place in the Election Code other than is provided in this subsection. It shall be unlawful to solicit votes, display or otherwise make accessible any posters, signs or other forms of campaign literature whatsoever in the clerk's office. Absentee ballots may be marked in person [during the regular hours and days of business] at the county clerk's office from [8:00 a.m.] 7:30 a.m. to 7:30 p.m. each day, except Sundays, beginning on the [fortieth] tenth day preceding the election up until [5:00 p.m.] 7:30 p.m. on the Saturday immediately prior to the date of the election. In marking the absentee ballot, the voter, pursuant to the provisions of Section 1-12-15 NMSA 1978, may be assisted by one person of the voter's choice.

F. Commencing with the [twentieth] tenth day prior to an election, an absent voter may vote in person, on an electronic voting machine at the county clerk's office or at an alternate location established by the county clerk [provided, a county clerk may allow an absent voter to vote on an electronic voting machine beginning on the fortieth day before an election]. In class A counties, the county clerk shall establish not less than four alternate voting locations as a convenience to the voters. Absentee voting may be done at the county clerk's office or an alternate location [during the regular hours of business from 8:00 a.m. on the twentieth day prior to the election until 5:00 p.m. on] from 7:30 a.m. to 7:30 p.m., each day, except Sundays, beginning ten days before the election through the Saturday immediately prior to the election. The county clerk shall ensure that procedures established for processing an absent voter application and for voting by absentee ballot are complied with at each [alternative] alternate location.

G. Absentee ballots shall be [air mailed] airmailed to applicants temporarily domiciled inside or outside the continental limits of the United States not later than on the Thursday immediately prior to the date of the election.

H. [No] An absentee ballot shall not be delivered or mailed by the county clerk to any person other than the applicant for such ballot.

I. The county clerk shall accept and process, with respect to a primary or general election for any federal office, any otherwise valid voter registration application from an absent uniformed services voter or overseas voter if the application is received not less than thirty days before the election. The county clerk shall also accept and process federal write-in absentee ballots from overseas voters in general elections for federal offices in accordance with the provisions of Section 103 of the federal Uniformed and Overseas Citizens Absentee Voting Act.

J. The secretary of state and each county clerk shall make reasonable efforts to publicize and inform voters of the times and locations for absentee voting."

Section 4. Section 1-6-6 NMSA 1978 (being Laws 1969, Chapter 240, Section 132, as amended) is amended to read:

"1-6-6. ABSENTEE BALLOT REGISTER.--

A. For each election, the county clerk shall keep an "absentee ballot register", in which he shall enter:

(1) the name and address of each absentee ballot applicant;

(2) the date and time of receipt of the application;

(3) whether the application was accepted or rejected;

(4) the date of issue of an absentee ballot in the county clerk's office or at an alternate location or the mailing of an absentee ballot to the applicant;

(5) the applicant's precinct;

(6) whether the applicant is a voter, a federal voter, a federal qualified elector or an overseas [citizen] voter; and

(7) the date and time the completed absentee ballot was received from the applicant by the county clerk or the absent voter voted early in person in the county clerk's office or at an alternate location.

B. [Within twenty-four hours] After receipt of a voter's application for an absentee ballot, the county clerk shall mail either the ballot, if it is within twenty-five days of election day or within forty-five days of election day in the case of a federal qualified elector or overseas voter, or a notice of rejection to the applicant within twenty-four hours of receipt.

C. The absentee ballot register is a public record open to public inspection in the county clerk's office during regular office hours. The county clerk shall have an updated absentee ballot register available for public inspection Monday through Friday during regular office hours.

D. The county clerk shall deliver to the absent voter precinct on election day a complete list of all absentee ballot applicants and early voters with applicable information shown in the absentee ballot register for each applicant and early voter up to [5:00 p.m.] 7:30 p.m. on the [Thursday] Saturday preceding the election. The county clerk shall deliver a signature roster containing the same information as the lists to the absent voter precinct board.

E. The county clerk shall transmit to the secretary of state and to the county chairman of each of the major political parties in the county a complete copy of entries made in the absentee ballot register. Such transmissions shall be made once each week beginning four weeks immediately prior to the election. A final copy shall be transmitted on the [Friday] Saturday immediately following the election."

Section 5. A new section of the Absent Voter Act is enacted to read:

"[NEW MATERIAL] ABSENTEE BALLOT--ASSISTING A VOTER.--

A. An absentee voter requiring assistance in voting may be assisted in accordance with the provisions of Section 1-12-15 NMSA 1978 and shall sign a statement that the voter meets at least one of the conditions for receiving such assistance as set forth by the provisions of Section 1-12-12 NMSA 1978. The person assisting the absentee voter, if other than an election official or a person assisting voters pursuant to a federal voting rights consent decree, shall also sign a statement indicating that the person has not assisted more than three voters in that election.

B. It is a fourth degree felony for a person assisting an absentee voter to not follow the instructions of the voter or attempt to influence the voter to vote in a particular manner or for a particular candidate.

C. It is a fourth degree felony for a person other than an absentee voter to handle or mark an unsealed absentee ballot if that person is not legally assisting the voter or is an election official handling the ballot during canvassing."

Section 6. A new section of the Absent Voter Act is enacted to read:

"[NEW MATERIAL] ABSENTEE BALLOT--DELIVERY TO COUNTY CLERK.--A person may deliver an absentee ballot to the county clerk in person or by mail. If a person other than an absentee voter takes possession of the voter's absentee ballot, that person shall deliver or mail the ballot to the county clerk within twenty-four hours of taking possession, unless the person takes possession within twenty-four hours of a weekend, in which case the ballot shall be delivered the following Monday. The person taking possession shall sign his name on the outer mailing envelope of the ballot attesting that the ballot was sealed before the person took possession and the ballot was delivered or mailed within the allowed time period." Section 7. Section 1-12-15 NMSA 1978 (being Laws 1969, Chapter 240, Section 267, as amended) is amended to read:

"1-12-15. CONDUCT OF ELECTION--PERSONS WHO MAY ASSIST VOTER.--In any primary, general or statewide special election, if a voter who has requested assistance in marking his ballot is [blind] visually impaired, has a physical disability, has an inability to read or write or is a member of a language minority who has requested assistance pursuant to Subsection D of Section 1-12-12 NMSA 1978, he may be accompanied into the voting machine [only] by:

A. a person of his own choice other than the voter's employer or an agent of that employer, an officer or agent of the voter's union or a candidate whose name appears on the ballot in this election; provided that a person who assists another voter pursuant to this subsection shall not assist more than three voters in one election;

B. two election judges who are not members of the same political party; or

C. a person assisting voters pursuant to a federal voting rights consent decree."