SENATE FLOOR SUBSTITUTE FOR
SENATE RULES COMMITTEE SUBSTITUTE FOR
SENATE BILL 685, HOUSE BILL 42, HOUSE BILL 487 AND
HOUSE VOTERS AND ELECTIONS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 91
49th legislature - STATE OF NEW MEXICO - first session, 2009
AN ACT
RELATING TO ELECTIONS; PROVIDING FOR ABSENTEE VOTING IN LIEU OF ESTABLISHING A POLLING PLACE IN SMALL, ISOLATED PRECINCTS; CHANGING PROVISIONS FOR THE DELIVERY AND HANDLING OF ABSENTEE BALLOTS; PROVIDING STANDARDS FOR THE OPERATION OF ALTERNATE EARLY VOTING LOCATIONS; AMENDING REQUIREMENTS FOR ALTERNATE EARLY VOTING LOCATIONS ON INDIAN NATION, TRIBAL OR PUEBLO LANDS; CHANGING PROVISIONS FOR EARLY ABSENTEE VOTING; REMOVING A RESTRICTION ON THE TYPE OF BALLOT THAT MAY BE SENT TO ABSENTEE OVERSEAS VOTERS; PROVIDING FOR ELECTRONIC TRANSMISSION OF ABSENTEE BALLOTS TO AND FROM FEDERAL QUALIFIED ELECTORS AND OVERSEAS VOTERS; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2003.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] MAIL BALLOT ELECTION PRECINCT--ABSENTEE VOTING IN LIEU OF POLLING PLACE.--
A. Notwithstanding the provisions of Section 1-1-11 NMSA 1978, a board of county commissioners may designate a precinct as a mail ballot election precinct if, upon a written request of the county clerk, it finds that the precinct has fewer than fifty voters and the nearest polling place for an adjoining precinct is more than thirty miles driving distance from the polling place designated for the precinct in question.
B. If a precinct is designated a mail ballot election precinct, in addition to the notice required pursuant to Section 1-3-8 NMSA 1978, the county clerk shall notify by registered mail all voters in that precinct at least forty days before an election that each voter will be sent an absentee ballot twenty-eight days before the election and that there will be no polling place for the precinct on election day. The county clerk shall include in the notice a card informing the voter that if the voter does not want to receive an absentee ballot, the voter should return the card before the date the county clerk is scheduled to mail out absentee ballots. The card shall also inform the voter that a voting system equipped for persons with disabilities will be available at all early voting sites before election day and in the office of the county clerk on election day in case the voter prefers to vote in person and not by mail.
C. The county clerk shall mail each voter in the mail ballot election precinct an absentee ballot on the twenty-eighth day before an election, unless the voter has requested otherwise, along with a notice that there will be no polling place in that precinct on election day.
D. The county clerk shall keep a sufficient number of ballots from a mail ballot election precinct such that if a voter from that precinct does not receive an absentee ballot before election day, the voter may vote on an absentee ballot in the office of the county clerk on election day in lieu of voting on the missing ballot."
Section 2. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] EARLY VOTING--NATIVE AMERICAN EARLY VOTING LOCATIONS.--A county clerk shall provide at least one alternate early voting or mobile alternate voting location on Indian nation, tribal or pueblo land when requested by the Indian nation, tribe or pueblo in the county; provided that:
A. the Indian nation, tribe or pueblo submits a written request to the county clerk no later than the first Monday in November of each odd-numbered year;
B. the alternate early voting or mobile alternate voting location may operate for less than the full early voting period, to be decided upon between the Indian nation, tribe or pueblo and the county clerk;
C. the county clerk may limit voting to precincts on and near the Indian nation, tribe or pueblo;
D. the location of the alternate early voting or mobile alternate voting location on Indian nation, tribal or pueblo land conforms to the requirements for alternate early voting locations, except as specified in this section;
E. the county clerk provides federally mandated language translators at the alternate early voting or mobile alternate voting locations;
F. the Indian nation, tribe or pueblo provides the facility and services for the alternate early voting or mobile alternate voting location; and
G. the costs of voting equipment and personnel for the alternate early voting or mobile alternate voting locations on Indian nation, tribal or pueblo land pursuant to this section are reimbursed to the county by the secretary of state."
Section 3. Section 1-3-2 NMSA 1978 (being Laws 1969, Chapter 240, Section 51, as amended) is amended to read:
"1-3-2. PRECINCTS--DUTIES OF COUNTY COMMISSIONERS.--
A. Not later than the first Monday in November of each odd-numbered year, the board of county commissioners shall by resolution:
(1) designate the polling place of each precinct that shall provide individuals with physical mobility limitations an unobstructed access to at least one voting machine;
(2) create additional precincts to meet the requirements of Section 1-3-1 NMSA 1978 or upon petition pursuant to Section 4-38-21 NMSA 1978;
(3) create additional polling places in existing precincts as necessary pursuant to Section 1-3-7.1 NMSA 1978; [and]
(4) divide any precincts as necessary to meet legal and constitutional requirements for redistricting; and
(5) designate any mail ballot election precincts.
B. The county clerk shall notify the secretary of state in writing of any proposed changes in precincts or the designation of polling places made by the board of county commissioners and shall furnish a copy of the map showing the current geographical boundaries, designation and word description of each new polling place and each new or changed precinct.
C. The secretary of state shall review all new or changed precinct maps submitted pursuant to this section for compliance under the Precinct Boundary Adjustment Act. Any necessary precinct boundary adjustments shall be made and submitted to the secretary of state no later than the first Monday in December of [that] each odd-numbered year. Upon approval of the new or changed precincts by the secretary of state, the precincts and polling places as changed by the resolution of the boards of county commissioners and approved by the secretary of state shall be the official precincts and polling places for the next succeeding primary and general elections."
Section 4. Section 1-3-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 57, as amended) is amended to read:
"1-3-7. POLLING PLACES.--
A. No less than one polling place shall be provided for each precinct that is not a mail ballot election precinct.
B. The board of county commissioners shall designate as the polling place or places, as the case may be, in each precinct, other than a mail ballot election precinct, the most convenient and suitable public building or public school building in the precinct that can be obtained.
C. If no public building or public school building is available, the board of county commissioners shall provide some other suitable place, which shall be the most convenient and appropriate place obtainable in the precinct, considering the purpose for which it is to be used pursuant to the Election Code.
D. If, in a precinct that is not a mail ballot election precinct, there is no public building or public school building [is] available in the precinct, and [if] there is no other suitable place obtainable in the precinct, the board of county commissioners may designate as a polling place for the precinct the most convenient and suitable building or public school building nearest to that precinct that can be obtained. [Provided] No polling place shall be designated outside the boundary of the precinct as provided in this subsection until such designated polling place is approved by written order of the district court of the county in which the precinct is located.
E. Upon application of the board of county commissioners, the governing board of any school district shall permit the use of any school building or a part thereof for registration purposes and the conduct of any election, provided [however] that the building or the part used for the election complies with the standards set out in the federal Voting Accessibility for the Elderly and Handicapped Act [(Public Law 98-435)].
F. Public schools may be closed for elections at the discretion of local school boards."
Section 5. Section 1-6-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 131, as amended) is amended to read:
"1-6-5. PROCESSING APPLICATION--ISSUANCE OF BALLOT.--
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 does not have a valid certificate of registration on file in the county and is not a federal qualified elector or if the applicant states that the applicant is a federal qualified elector but the application indicates the applicant is not a federal qualified elector, 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 the application and, if rejected, shall explain why the application was rejected.
D. If the applicant has on file with the county a valid certificate of registration that indicates that the applicant is a voter who is a new registrant and who registered by mail without submitting the required voter identification, the county clerk shall notify the voter that the voter must submit with the absentee ballot the required physical form of identification. The county clerk shall note on the absentee ballot register and signature roster that the applicant's absentee ballot must be returned with the required identification.
E. If the county clerk finds that the applicant is a voter other than a federal qualified elector or overseas voter, the county clerk shall mark the application "accepted" and, beginning twenty-eight 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. An absent voter shall not be permitted to change 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.
F. 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 the clerk's 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 is unlawful to solicit votes, display or otherwise make accessible any posters, signs or other forms of campaign literature whatsoever in the clerk's office or alternate voting location. 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.
G. Absentee ballots may be marked in person at the county clerk's office during the regular hours and days of business beginning on the twenty-eighth day preceding the election and from 10:00 a.m. to 6:00 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.] If the county clerk establishes an additional alternate voting location near the clerk's office, absentee ballots may be marked in person at that location during the regular hours and days of business beginning on the twenty-eighth day preceding the election and during the hours for voting at alternate voting locations commencing on the third Saturday prior to the election through the Saturday immediately prior to the election.
[G.] H. Absentee ballots shall be sent to applicants not later than on the Friday immediately prior to the date of the election.
[H.] I. An absentee ballot shall not be delivered or mailed by the county clerk to any person other than the applicant for such ballot.
[I.] 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; provided, however, that notice is provided at least ten days before early voting begins.
[J.] K. The secretary of state shall establish procedures for the submittal, when required by federal law, of required voter identification with mailed-in absentee ballots."
Section 6. Section 1-6-5.1 NMSA 1978 (being Laws 1991, Chapter 105, Section 10, as amended) is amended to read:
"1-6-5.1. [FEDERAL] ABSENTEE BALLOT DISTRIBUTION TO FEDERAL QUALIFIED ELECTORS AND OVERSEAS VOTERS.--In the distribution of [federal] absentee ballots, [A.] federal qualified electors [and], including members of the uniformed services and overseas voters, shall receive the entire ballot [and
B. all other overseas voters shall receive only ballots for federal candidates]."
Section 7. Section 1-6-5.6 NMSA 1978 (being Laws 2003, Chapter 357, Section 6, as amended) is amended to read:
"1-6-5.6. EARLY VOTING--ALTERNATE VOTING LOCATIONS--PROCEDURES.--The secretary of state shall adopt rules to:
A. ensure that voters have adequate access to alternate locations for early voting in each county, taking into consideration population density and travel time to the location of voting;
B. ensure that early voters are not allowed to vote in person on election day;
C. ensure that adequate interpreters are available at alternate early voting locations in those precincts having a majority of qualified electors who are part of a recognized language minority; and
D. allow for mobile alternate voting locations in rural areas of the state that may be set up temporarily in specified precincts of the county during the period when early voting is allowed at alternate voting locations [and
E. require county clerks to provide at least one alternate early voting location on Indian nation, tribal or pueblo land when requested by the Indian nation, tribe or pueblo if that Indian nation, tribe or pueblo is more than fifteen miles from an office of the county clerk]."
Section 8. Section 1-6-5.7 NMSA 1978 (being Laws 2005, Chapter 270, Section 40) is amended to read:
"1-6-5.7. EARLY VOTING--USE OF ABSENTEE VOTING PROCEDURES--ALTERNATE VOTING LOCATIONS.--
A. Commencing on the third Saturday prior to an election and ending on the Saturday immediately preceding the election, an early voter may vote in person on a voting system at an alternate voting location established by the county clerk.
B. In class A counties with more than two hundred thousand registered voters, the county clerk shall establish not [less] fewer than twelve alternate voting locations as a convenience to the voters. For class A counties with two hundred thousand registered voters or fewer, the county clerk shall establish not [less] fewer than four alternate voting locations. In non-class A counties with more than ten thousand registered voters, the county clerk shall establish at least one alternate voting location. In non-class A counties with ten thousand registered voters or fewer, early voting shall be conducted in the office of the county clerk or at such [alternative] alternate locations as may be designated by the county clerk. [Early voting may be done at an alternate location from 12:00 p.m. to 8:00 p.m., Tuesday through Friday, and 10:00 a.m. to 6:00 p.m., Saturday through the Saturday immediately prior to the election.
B.] C. Not later than ninety days before each primary and general election, the county clerk shall publicly fix the hours of operation for alternate voting locations in the county, which shall open no earlier than 7:00 a.m. and shall close no later than 9:00 p.m. Within ninety days of a primary or general election, a county clerk may modify the hours of operation of alternate voting locations with the written approval of the secretary of state. Alternate voting locations shall be open each day of early voting for at least eight consecutive hours. Alternate voting locations may be closed Sundays and Mondays during the early voting period.
D. Each alternate voting location shall comply with the following provisions, unless the county clerk receives a written waiver from the secretary of state specifying the location and specific provision being waived:
(1) have ballots available for voters from every precinct in the county;
(2) have at least one optical scan tabulator programmed to read every ballot style in the county;
(3) have at least one voting system available to assist disabled voters to cast and record their votes;
(4) have a broadband internet connection;
(5) have sufficient spaces for at least five voters to simultaneously and privately mark their ballots, with at least one of those spaces wheelchair-accessible;
(6) have a secure area for storage of ballots or storage of a ballot on demand printing system; and
(7) be in a location that is accessible and compliant with the requirements of the federal Americans with Disabilities Act of 1990.
E. When voting early, the voter shall provide the required voter identification to the county clerk or the clerk's authorized representative. If the voter does not provide the required voter identification, the voter shall be allowed to vote on a provisional ballot. If the voter provides the required identification, the voter shall be allowed to vote after subscribing an application to vote in accordance with secretary of state rules. The county clerk or the clerk's authorized representative shall make an appropriate designation on the signature roster next to the voter's name indicating that the voter has voted early."
Section 9. Section 1-6-6 NMSA 1978 (being Laws 1969, Chapter 240, Section 132, as amended by Laws 2003, Chapter 356, Section 21 and by Laws 2003, Chapter 357, Section 3) 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] the county clerk 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 voter;
(7) whether the voter is required to submit identification pursuant to Section 1-6-5 NMSA 1978; and
(8) 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] Absentee ballots shall be sent to applicants beginning twenty-eight days before the election. For each application for an absentee ballot received twenty-three or more days before the election, the county clerk shall send either the ballot or a notice of rejection to the applicant as soon as practicable, provided it is sent not later than twenty-two days before the election. Within twenty-two days of election day, the county clerk shall [mail] send either the ballot [if it is within twenty-eight days of election day] or a notice of rejection to the applicant within twenty-four hours after receipt of the voter's application for an absentee ballot.
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 6:00 p.m. on the 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. Upon request, the county clerk shall transmit to [the secretary of state and to] the county [chairman] chair 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 Saturday immediately following the election.
F. If the county clerk has available the technology to do so, at the request of a candidate or chair of a political party of the county, the county clerk shall electronically transmit to the candidate or chair via the internet the information, when updated, on the absentee ballot register indicating voters who have requested absentee ballots, returned their absentee ballots or voted early in person."
Section 10. Section 1-6-9 NMSA 1978 (being Laws 1969, Chapter 240, Section 135, as amended) is amended to read:
"1-6-9. MANNER OF VOTING--ALTERNATE DELIVERY METHODS.--
A. Except as provided in Subsection B of this section or Section 1-6-5.7 NMSA 1978, a person voting pursuant to the Absent Voter Act shall secretly mark the absentee ballot in the manner provided in the Election Code for marking paper ballots, place it in the official inner envelope and securely seal the envelope. The voter shall then place the official inner envelope inside the official mailing envelope and securely seal the envelope. The voter shall then complete the form on the reverse of the official mailing envelope, which shall include [an affirmation] a statement by the voter under penalty of perjury that the facts stated in the form are true and the voter's name, registration address and year of birth. Voters shall either deliver or mail the official mailing envelope to the county clerk of their county of residence.
B. Federal qualified electors and overseas voters shall either deliver or mail the official mailing envelope or, in accordance with Subsection C of this section, electronically transmit the absentee ballot to the county clerk of their county of residence or deliver it to a person designated by federal authority to receive executed ballots for transmission to the county clerk of the county of residence or former residence as the case may be. [Voters shall either deliver or mail the official mailing envelope to the county clerk of their county of residence.]
C. A federal qualified elector or overseas voter may return an absentee ballot by electronic transmission if:
(1) the voter signs a statement under penalty of perjury waiving the right of secrecy of the voter's ballot;
(2) the voter transmits the statement with the absentee ballot; and
(3) the transmission of the absentee ballot and statement are received by the county clerk no later than 7:00 p.m. on election day."
Section 11. Section 1-6-14 NMSA 1978 (being Laws 1971, Chapter 317, Section 11, as amended) is amended to read:
"1-6-14. HANDLING ABSENTEE BALLOTS BY ABSENT VOTER PRECINCT BOARDS.--
A. Before opening an official mailing envelope, the presiding judge and the election judges shall determine that the required information has been completed on the reverse side of the official mailing envelope.
B. If the voter's signature is missing, the presiding judge shall write "Rejected" on the front of the official mailing envelope. The election clerks shall enter the voter'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 voter's name on the front of the envelope and deposit it in the locked ballot box.
C. A lawfully appointed challenger may examine the official mailing envelope and may challenge the ballot of any absent voter for the following reasons:
(1) the official mailing envelope has been opened prior to being received by the absent voter precinct board; or
(2) the person offering to vote is not a federal voter, federal qualified elector, overseas voter or voter as provided in the Election Code.
Upon the challenge of an absentee ballot, the election judges and the presiding election judge shall follow the same procedure as when ballots are challenged 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 absentee ballots as with other challenged ballots.
D. If the official mailing envelope has been properly subscribed and the voter has not been challenged:
(1) the election clerks shall enter the absent voter's name and residence address as shown on the official mailing envelope in the signature rosters and shall mark the notation "AB" opposite the voter's name in the "Notations" column of the signature rosters; and
(2) only between 8:00 a.m. and [5:00] 10:00 p.m. on the five days preceding election day, including Saturday and Sunday, and beginning at 7:00 a.m. on election day, under the personal supervision of the presiding election judge, shall the election judges open the official mailing envelope and the official inner envelope and insert the enclosed ballot into an electronic voting machine to be registered and retained until votes are counted and canvassed following the closing of the polls on election night.
E. It is unlawful for a person to disclose the results of a count and tally or the registration on a voting machine of absentee ballots prior to the closing of the polls.
F. Absentee ballots shall be counted and tallied on an electronic voting machine as provided in the Election Code.
G. Absent voter precinct polls shall close in accordance with Section 1-6-23 NMSA 1978, and the results of the election shall be certified as prescribed by the secretary of state.
H. If an absentee ballot does not contain the identification required pursuant to Subsection D of Section 1-6-5 NMSA 1978, it shall be handled as a provisional paper ballot in accordance with the Election Code."
Section 12. Section 1-12-18 NMSA 1978 (being Laws 1969, Chapter 240, Section 270) is amended to read:
"1-12-18. CONDUCT OF ELECTION--DISCLOSURE OF VOTE.--An election official, a member of the precinct board, a watcher or a challenger shall not disclose the name of any candidate for whom any voter has voted."
Section 13. REPEAL.--Section 1-6-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 133, as amended) is repealed.
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