44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO ELECTIONS; EXPANDING THE ABSENT VOTER ACT TO INCLUDE EARLY VOTING; REPEALING THE ABSENTEE-EARLY VOTING ACT; AMENDING AND REPEALING SECTIONS OF THE ELECTION CODE.

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

Section 1. Section 1-6-2 NMSA 1978 (being Laws 1987, Chapter 327, Section 6, as amended) is amended to read:

"1-6-2. DEFINITIONS.--As used in the Absent Voter Act:

A. "absent uniformed services voter" means:

(1) a member of a uniformed service on active duty who, by reason of such active duty, is absent from the place of residence where the member is otherwise qualified to vote;

(2) a member of the merchant marine who, by reason of service in the merchant marine, is absent from the place of residence where the member is otherwise qualified to vote; or

(3) a spouse or dependent of a member referred to in Paragraphs (1) and (2) of this subsection who, by reason of the active duty or service of the member, is absent from the place of residence where the spouse or dependent is otherwise qualified to vote;

B. "election" means [any] a statewide election, general election, primary election or special election to fill vacancies in the office of United States representative and regular or special school district elections [except as modified by the school election law];

C. "electronic ballot" means a paper ballot or ballot face designed to be used on an electronic voting machine to cast votes;

D. "electronic voting machine" means a computer-controlled machine designed to electronically record and tabulate votes cast;

[C.] E. "federal office" means the office of president, vice president or of [a] senator or representative in congress;

[D.] F. "federal qualified elector" means:

(1) an absent uniformed services voter; or

(2) an absent uniformed [service] services voter who, by reason of active duty or service, is absent from the United States on the date of the election involved;

[E. "marksense ballot" means a paper ballot card used on an optical scan vote tabulating machine;

F.] G. "member of the merchant marine" means an individual other than a member of a uniformed service or an individual employed, enrolled or maintained on the Great Lakes or the inland waterways who:

(1) is employed as an officer or crew member of a vessel documented under the laws of the United States, a vessel owned by the United States or a vessel of a foreign-flag registry under charter to or control of the United States; or

(2) is enrolled with the United States for employment or training for employment or maintained by the United States for emergency relief service as an officer or crew member of any such vessel;

H. "memory cartridge" or "results memory cartridge" means a transportable cassette-type case or memory card used in an electronic voting machine that records and retains the total vote counted and tallied for each candidate on the electronic voting machine;

[G.] I. "overseas voter" means:

(1) a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States; or

(2) a person who resides outside the United States and, but for such residence, would be qualified to vote in the last place in which the person was domiciled before leaving the United States; and

[H.] J. "uniformed services" means the army, navy, air force, marine corps and coast guard and the commissioned corps of the national oceanic and atmospheric administration."

Section 2. Section 1-6-3 NMSA 1978 (being Laws 1969, Chapter 240, Section 129, as amended by Laws 1993, Chapter 19, Section 1 and also by Laws 1993, Chapter 21, Section 1) is amended to read:

"1-6-3. RIGHT TO VOTE BY ABSENTEE BALLOT [RIGHT TO VOTE].--

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

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

Section 3. 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 by a voter on a form prescribed, printed and furnished by the secretary of state to the county clerk of the county in which he 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.

C. Each application for an absentee ballot shall be subscribed by the applicant.

D. The official application form for an absentee ballot shall be mailed only by the county clerk upon the request of the voter."

Section 4. Section 1-6-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 131, as amended by Laws 1993, Chapter 314, Section 43 and also by Laws 1993, Chapter 316, Section 43) is amended to read:

"1-6-5. PROCESSING APPLICATION--ISSUANCE OF BALLOT--[MAKING] 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 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 absentee ballot shall 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 [determined to be] a voter or a federal qualified elector, the county clerk shall mark the application "accepted" and 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. 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 absent voter shall 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 the voter in the county clerk's office or mailing of an absentee ballot to [any] 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 [person] voter who has been [sent] 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 [deliver the] 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 [in the courthouse], sealed in the proper envelopes and otherwise properly executed and returned to the county clerk or his authorized representative before the [applicant] 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. on the fortieth day preceding the election up until 5:00 p.m. on the Saturday immediately prior to the date of the election.

F. In marking the absentee ballot, the voter may be assisted by one person of the voter's [own] choice [upon the execution with the county clerk of an affidavit for assistance stating therein that the voter meets at least one of the conditions for receiving such assistance as is set forth by the provisions of Section 1-12-12 NMSA 1978].

G. Commencing with the twentieth day prior to an election, an absent voter may vote in person at the county clerk's office or on an electronic voting machine at an alternate location established by the county clerk. In class A counties, the county clerk shall establish not less than four alternate locations as a convenience to the voters. Absentee voting may be done at the county clerk's office or an alternate location from the twentieth day prior to 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 alternate location.

[F.] H. Absentee ballots shall be air mailed 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.

[G.] I. No absentee ballot shall be delivered or mailed by the county clerk to any person other than the applicant for such ballot.

[H.] J. 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.

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

"[NEW MATERIAL] PREPARATION OF ELECTRONIC VOTING MACHINES.--

A. Five days before an electronic voting machine is used for absentee voting as provided in Section 1-6-9.1 NMSA 1978, the county clerk may begin to prepare, inspect and seal the voting machine in accordance with the specifications for electronic voting machines adopted by the secretary of state.

B. One day before any electronic voting machine is used for absentee voting, the county clerk shall certify to the secretary of state and all county party chairmen the type and serial number of each voting machine to be used."

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

"[NEW MATERIAL] SECRETARY OF STATE--EMERGENCY AUTHORITY.--The secretary of state shall have emergency authority to prescribe by rule procedures to accommodate the special absentee ballot requirements brought on by activation of the New Mexico national guard and reserve units or for individuals who are overseas voters, and procedures for a special write-in absentee ballot available at least ninety days prior to an election to cover candidates for federal offices."

Section 7. 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 [county] 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 [delivery or] 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 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 or a notice of rejection to the applicant.

C. The absentee ballot register is a public record open to public inspection in the county clerk's office during regular office hours.

D. The county clerk shall deliver to the [absentee] absent voter precinct board on election day a complete list of all absentee ballot applicants with applicable information shown in the absentee ballot register for each applicant up to [noon of the day] 5:00 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 [absentee] 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 immediately following the election."

Section 8. Section 1-6-9.1 NMSA 1978 (being Laws 1991, Chapter 105, Section 13, as amended) is amended to read:

"1-6-9.1. [USING THE MARKSENSE BALLOT.--Any person] VOTING BY ELECTRONIC BALLOT.--An absent voter voting on [the marksense] an electronic ballot shall secretly mark the ballot [by completing the arrow (  ) (  ) in pencil directly to the right of the candidate's name or the proposed question. The voter shall then place the marked ballot in the official inner envelope and securely seal the envelope and 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] in accordance with the instructions on that ballot, and the vote cast shall be recorded on an electronic voting machine."

Section 9. Section 1-6-10 NMSA 1978 (being Laws 1969, Chapter 240, Section 136, as amended) is amended to read:

"1-6-10. RECEIPT OF ABSENTEE BALLOTS BY CLERK.--

A. The county clerk shall mark on each completed official mailing envelope the date and time of receipt in the clerk's office, record this information in the absentee ballot register and safely keep the official mailing envelope unopened in a locked ballot box until it is delivered [on election day] to the proper absent voter precinct board or until it is canceled and destroyed in accordance with law.

B. The county clerk shall accept completed official mailing envelopes until 7:00 p.m. on election day. Any completed official mailing envelope received after that time shall not be delivered to a precinct board but shall be preserved by the county clerk until the time for election contests has expired. In the absence of a restraining order after expiration of the time for election contests, the county clerk shall destroy all late official mailing envelopes without opening or permitting the contents to be examined, cast, counted or canvassed. Before their destruction, the county clerk shall count the numbers of late absentee ballots from voters, federal voters, overseas citizen voters and federal qualified electors and report the number from each category to the secretary of state.

C. At 5:00 p.m. on the Monday immediately preceding the date of election, the county clerk shall record the numbers of the unused absentee ballots and shall publicly destroy in the county clerk's office all such unused ballots. The county clerk shall execute a certificate of such destruction [which] that shall include the numbers on the ballots destroyed. A copy of the certificate of destruction shall be sent to the secretary of state."

Section 10. Section 1-6-11 NMSA 1978 (being Laws 1969, Chapter 240, Section 137, as amended) is amended to read:

"1-6-11. DELIVERY OF ABSENTEE BALLOTS TO ABSENT VOTER PRECINCTS--EARLY PROCESSING OPTION.--

A. Unless the county clerk has chosen the early processing option pursuant to Subsection B of this section, on election day the county clerk shall deliver the absentee ballots received [by him] prior to 7:00 p.m. on election day to the special deputy county clerks for delivery to the absent voter precinct boards. The absentee ballots for each absent voter precinct shall be separately wrapped, and the special deputy county clerk shall issue a receipt for all ballots [taken by him] delivered for the county clerk. Upon delivery of the absentee ballots to the absent voter precinct board, the special deputy county clerk shall remain in the polling place of the absent voter precinct until he has observed the opening of the official mailing envelope, the deposit of the ballot in the locked ballot box and the listing of the names on the official mailing envelope in the signature rosters. Upon such delivery of absentee ballots, the special deputy county clerk shall obtain a receipt executed by the presiding judge and each election judge and he shall return such receipt to the county clerk for filing. The receipts shall specify the number of envelopes received by the special deputy county clerk from the county clerk for each absent voter precinct and the number of envelopes received by the absent voter precinct board from the special deputy county clerk.

B. The county clerk may choose to deliver absentee ballots to the absent voter precinct boards anytime after 7:00 a.m. the Friday immediately preceding election day if the procedures for delivery set out in Subsection A of this section are followed each time the special deputy county clerks deliver absentee ballots to the absent voter precinct boards and the county clerk gives the secretary of state written notice no later than the Monday before the Friday immediately preceding the election. The absent voter precinct boards may then begin processing the absentee ballots on an electronic vote tabulation machine pursuant to Section 1-6-14 NMSA 1978. For the purposes of this section, "processing" means following the procedures in Section 1-6-14 NMSA 1978 that do not require manual counting, tallying or registering of the results of absentee balloting. Absentee ballots that cannot be processed on, or are rejected by, an electronic voting machine shall be placed in a locked ballot box that shall not be opened until election day, at which time the absentee balloting results shall be manually counted or registered.

C. At 7:00 a.m. on election day, the county clerk shall deliver the electronic voting machines used for absentee voting to the absent voter precinct board. The machines shall not be used to vote on or count additional ballots for that election, except that the absent voter precinct board may count and tally any paper absentee ballots on the voting machine after any ballots already counted and tallied have been secured in a locked ballot box and provided a blank memory cartridge is used. A special deputy county clerk shall issue a receipt for each voting machine. Upon delivery of a voting machine, the special deputy shall obtain a receipt executed by the presiding judge and each election judge specifying the serial number and the seal number of the machine and shall verify the public counter number on the machine, and he shall return the receipt to the county clerk for filing. Thereafter, the absent voter precinct board shall proceed as specified in Sections 1-6-14 through 1-6-25 NMSA 1978."

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 any 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 election 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. The accredited challengers 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 citizen 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 envelopes have been properly subscribed and the voters 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 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.

E. Prior to the closing of the polls, the election judges and the presiding election judge may either remove the absentee ballots from the official inner envelopes and count and tally the results of absentee balloting or, under the personal supervision of the presiding election judge and one election judge from each party, [register the results of each absentee ballot on a] count and tally the absentee ballot on an electronic voting machine the same as if the absent voter had been present and voted in person. It [shall be] is unlawful for any person to disclose the results of [such] a count and tally [or such registration on a voting machine] of absentee ballots prior to the closing of the polls.

F. Absentee ballots shall be counted and tallied [or registered on a lever voting machine or] by hand or on an electronic voting machine as provided in the Election Code [provided that any county with a population in excess of one hundred thousand shall count and tally or register absentee ballots on an electronic voting machine].

G. Absent voter precinct polls shall close at the time prescribed by the Election Code for other polling places, and the results of the election shall be certified as prescribed by the secretary of state."

Section 12. Section 1-6-15 NMSA 1978 (being Laws 1977, Chapter 222, Section 13, as amended) is amended to read:

"1-6-15. CANVASS--RECOUNT OR RECHECK--DISPOSITION.--[Where no] If voting machines are not used to register absentee ballots, [such] the absentee 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. [Where] If voting machines are used to register absentee ballots, [such] 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 [absentee] paper ballots shall not be rechecked but the [absentee] paper ballots shall be recounted in the manner provided by the Election Code for the recounting of emergency paper ballots. As used in this section, "voting machines" means [lever voting machines or] electronic voting machines as provided in the Election Code."

Section 13. Section 1-6-16 NMSA 1978 (being Laws 1969, Chapter 240, Section 141, as amended by Laws 1989, Chapter 368, Section 2 and also by Laws 1989, Chapter 392, Section 15) is amended to read:

"1-6-16. VOTING IN PERSON PROHIBITED.--

A. Except as provided in Section 1-6-16.1 NMSA 1978, no person who has been issued an [absent voter] absentee ballot shall vote in person at his precinct poll.

B. At any time prior to 5:00 p.m. on the Monday immediately preceding the date of the election, any person whose absentee ballot application has been accepted and who was mailed an absentee ballot but who has not received the absentee ballot may execute, in the office of the county clerk of the county where he is registered to vote, a sworn affidavit stating that he did not receive or vote his absentee ballot. Upon receipt of the sworn affidavit, the county clerk shall issue the voter a replacement absentee ballot.

C. The secretary of state shall prescribe the form of the affidavit and the manner in which the county clerk shall void the first ballot mailed to the applicant."

Section 14. Section 1-6-16.1 NMSA 1978 (being Laws 1989, Chapter 368, Section 1, as amended) is amended to read:

"1-6-16.1. ABSENTEE BALLOT--CONDUCT OF ELECTION--WHEN NOT TIMELY RECEIVED--EMERGENCY PROCEDURE FOR VOTING AND COUNTING.--

A. [Any applicant] A voter who applies for an absentee ballot [who] but has not received the absentee ballot by mail as of the date of the election may present himself at his assigned [precinct] polling place and, after executing an affidavit of nonreceipt of absentee ballot, shall be permitted to vote on an emergency paper ballot [or a marksense ballot].

B. The completed ballot shall be placed in an official inner envelope substantially as prescribed by Section 1-6-8 NMSA 1978 and sealed. The official inner envelope shall then be placed in an official envelope substantially as prescribed for a transmittal envelope or mailing envelope in Section 1-6-8 NMSA 1978. This envelope shall contain a form on its back that identifies the voter by name and signature roster number and [the] a printed statement to the effect that the voter made application for an absentee ballot but had not received it as of the date of the election and is permitted to vote by emergency paper ballot [or a marksense ballot].

C. The presiding election judge shall put all [such] emergency absentee ballots in a special envelope provided for that purpose by the county clerk, seal it and return it to the county clerk along with the machine tally sheets. The sealed envelope shall not be put in the locked ballot box.

D. Upon receipt of the envelope containing [such] emergency absentee ballots, the county clerk, no later than forty-eight hours after the close of the election, shall remove the transmittal envelopes and, without removing or opening the inner envelopes, determine [that]:

(1) [such] if a voter did in fact make application for an absentee ballot; and

(2) [no such] if an absentee ballot was received by the county clerk from the voter by 7:00 p.m. on election day.

E. Upon making [such] that determination, the county clerk shall remove the inner envelope without opening it, [destroy the transmittal envelope] retain the transmittal envelope with the other election returns and place the unopened inner envelope in a secure [place] container to be transmitted to the county canvassing board to be tallied and included in the canvass of that county for the appropriate precinct.

F. The secretary of state shall prescribe and furnish the necessary envelopes for purposes of this section and shall adopt rules and regulations deemed necessary to preserve the secrecy of [the ballot] emergency paper ballots."

Section 15. REPEAL.--Sections 1-6-5.2, 1-6-17 and 1-6A-1 through 1-6A-12 NMSA 1978 (being Laws 1991, Chapter 105, Section 11, Laws 1969, Chapter 240, Section 142, Laws 1993, Chapter 37, Sections 1 through 9 and Laws 1995, Chapter 165, Sections 4 through 6, as amended) are repealed.