44th legislature - STATE OF NEW MEXICO - second session, 2000

RELATING TO MUNICIPALITIES; AMENDING THE MUNICIPAL CODE TO PROVIDE THAT "QUALIFIED ELECTOR" MAY, UNDER CERTAIN CIRCUMSTANCES, INCLUDE A RESIDENT OF A MUNICIPALITY'S EXTRATERRITORIAL PLANNING AND PLATTING JURISDICTION.

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

Section 1. Section 3-1-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-1-2, as amended) is amended to read:

"3-1-2. DEFINITIONS.--As used in the Municipal Code:

A. "acquire" or "acquisition" means purchase, construct, accept or any combination of purchasing, constructing or accepting;

B. "business" means any person, occupation, profession, trade, pursuit, corporation, institution, establishment, utility, article, commodity or device engaged in making a profit, but does not include an employee;

C. "census" means any enumeration of population of a municipality conducted under the direction of the government of the United States, the state of New Mexico or the municipality;

D. "county" means the county in which the municipality or land is situated;

E. "district court" means the district court of the district in which the municipality or land is situated;

F. "governing body" means the city council or city commission of a city, the board of trustees of a town or village, the council of incorporated counties and the board of county commissioners of H class counties;

G. "municipal" or "municipality" means any incorporated city, town or village, whether incorporated under general act, special act or special charter, incorporated counties and H class counties;

H. "municipal utility" means sewer facilities, water facilities, gas facilities, electric facilities, generating facilities or any interest in jointly owned generating facilities owned by a municipality and serving the public. A municipality that owns both electric facilities and any interest in jointly owned generating facilities may, by ordinance, designate such interest in jointly owned generating facilities as part of its electric facilities. Generating facilities shall be considered as part of a municipality's electric facilities unless the municipality designates, by ordinance, the generating facilities as a separate municipal utility, such designation being conclusive subject to any existing property rights or contract rights;

I. "public ground" means any real property owned or leased by a municipality;

J. "publish" or "publication" means printing in a newspaper that maintains an office in the municipality and is of general circulation within the municipality or, if such newspaper is a nondaily paper that will not be circulated to the public in time to meet publication requirements or if there is no newspaper that maintains an office in the municipality and is of general circulation within the municipality, then "publish" or "publication" means posting in six public places within the municipality on the first day that publication is required in a newspaper that maintains an office in the municipality and is of general circulation within the municipality. One of the public places where posting shall be made is the office of the municipal clerk who shall maintain the posting during the length of time necessary to comply with the provisions relating to the number of times publication is required in a newspaper of general circulation within the municipality. The municipal clerk may, in addition to posting, publish one or more times in a newspaper of general circulation in the municipality;

K. "qualified elector" means any person whose affidavit of voter registration has been filed by the county clerk, who is registered to vote in a general election precinct established by the board of county commissioners that is wholly or partly within the municipal boundaries or, if appropriate, the planning and platting jurisdiction and who is either a resident of the municipality or, unless the municipality has a population over two hundred thousand persons or has in effect an ordinance enacted pursuant to Subsection C of Section 3-19-5 NMSA 1978, a resident of the municipality's extraterritorial planning and platting jurisdiction; provided, that a person who is a qualified elector under this section solely because of residency in an extraterritorial planning and platting jurisdiction shall not be a qualified elector in an election to incur a debt pursuant to Article 9, Section 12 of the constitution of New Mexico. Persons who would otherwise be qualified electors if land on which they reside is annexed to a municipality shall be deemed to be qualified electors:

(1) upon the effective date of the municipal ordinance effectuating the terms of the annexation as certified by the board of arbitration pursuant to Section

3-7-10 NMSA 1978;

(2) upon thirty days after the filing of an order of annexation by the municipal boundary commission pursuant to Sections 3-7-15 and 3-7-16 NMSA 1978 if no appeal is filed or, if an appeal is filed, upon the filing of a nonappealable court order effectuating the annexation; or

(3) upon thirty days after the filing of an ordinance pursuant to Section 3-7-17 NMSA 1978 if no appeal is filed or, if an appeal is filed, upon the filing of a nonappealable court order effectuating the annexation;

L. "revenue producing project" means any municipally owned self-liquidating projects that furnish public services to a municipality and its citizens, including but not necessarily limited to public buildings; facilities and equipment for the collection or disposal of trash, refuse or garbage; swimming pools; golf courses and other recreational facilities; cemeteries or mausoleums or both; airports; off-street parking garages; and transportation centers, which may include but are not limited to office facilities and customary terminal facilities for airlines, trains, monorails, subways, intercity and intracity buses and taxicabs [but]. "Revenue producing facilities" does not mean a municipal utility as defined in Subsection H of this section;

M. "street" means any thoroughfare that can accommodate pedestrian or vehicular traffic, is open to the public and is under the control of the municipality;

N. "warrant" means a warrant, check or other negotiable instrument issued by a municipality in payment for goods or services acquired by the municipality or for the payment of a debt incurred by the municipality;

O. "mayor" means the chief executive officer of municipalities having the mayor-council form of government. In municipalities having other forms of government, the presiding officer of the governing body and the official head of the government, without executive powers, may be designated mayor by the governing body. Wherever the Municipal Code requires an act to be performed by the mayor with the consent of the governing body, in municipalities not having the mayor-council form of government, the act shall be performed by the governing body;

P. "generating facility" means any facility located within or outside the state necessary or incidental to the generation or production of electric power and energy by any means and includes:

(1) any facility necessary or incidental to the acquisition of fuel of any kind for the production of electric power and energy, including the acquisition of fuel deposits, the extraction of fuel from natural deposits, the conversion of fuel for use in another form, the burning of fuel in place and the transportation and storage of such fuel; and

(2) any facility necessary or incidental to the transfer of the electric power and energy to the municipality, including without limitation step-down substations or other facilities used to reduce the voltage in a transmission line in order that electric power and energy may be distributed by the municipality to its retail customers;

Q. "jointly owned generating facility" means any generating facility in which a municipality owns any undivided or other interest, including without limitation any right to entitlement or capacity; and

R. "joint participant" means any municipality in New Mexico or any other state; any public entity incorporated under the laws of any other state having the power to enter into the type of transaction contemplated by the Municipal Electric Generation Act; the state of New Mexico; the United States; Indian tribes; and any public electric utility, investor-owned electric utility or electric cooperative subject to general or limited regulation by the [New Mexico public utility] public regulation commission or a similar commission of any other state."

Section 2. Section 3-8-40 NMSA 1978 (being Laws 1985, Chapter 208, Section 48, as amended) is amended to read:

"3-8-40. CONDUCT OF ELECTION--PERSONS NOT PERMITTED TO VOTE--CERTIFICATE VOTING--FRAUDULENT AND DOUBLE VOTING.--

A. No person shall vote in a municipal special or regular election unless that person is a qualified elector and he has appeared to vote at the polling place in the precinct or consolidated precinct [which] that encompasses his place of residence as shown on the signature roster.

B. Notwithstanding the provisions of Subsection A of this section, a person shall be permitted to vote even though that person's name cannot be found in the signature roster, provided:

(1) his residence is within the boundaries of either the municipality or, unless the municipality has a population over two hundred thousand persons or has enacted an ordinance pursuant to Subsection C of Section 3-19-5 NMSA 1978, the municipality's extraterritorial planning and platting jurisdiction and within the boundaries of the precinct and the district, if applicable, in which he offers to vote;

(2) his name is not listed as having been issued an absentee ballot;

(3) his name is not listed as having voted during early voting;

(4) he presents a certificate bearing the seal and signature of the county clerk stating that his affidavit of registration is on file at the county clerk's office, that he has not been purged from the voter rolls and that he shall be permitted to vote in the precinct and election specified therein; provided that such authorization shall not be given orally by the county clerk; and

(5) he executes a statement swearing or affirming to the best of his knowledge that he is a qualified elector resident of the municipality, currently registered and eligible to vote in that precinct and has not cast a ballot or voted in the election.

C. Upon compliance with the requirements of Subsection B of this section, the election judge shall cause the election clerks to:

(1) write the person's name and address, as shown on the certificate, in the signature roster under the heading for name and address in the first blank space immediately below the last name and address appearing in the signature roster;

(2) insert the person's ballot number or voter number as shown on the public counter of the voting machine on the certificate and on his executed sworn statement;

(3) retain the completed certificate and the executed sworn statement, which shall be returned to the municipal clerk with the election returns; and

(4) comply with all relevant requirements of Section 3-8-41 NMSA 1978.

D. After canvass, the municipal clerk shall in writing notify the county clerk of the names of all individuals voting on certificates.

E. A person who knowingly executes a false statement required by Paragraph (5) of Subsection B of this section is guilty of perjury as provided in the Criminal Code, and voting on the basis of such falsely executed statement constitutes fraudulent voting.

F. A person not entitled to vote who fraudulently votes or a person who votes or offers to vote more than once at any election is guilty of a fourth degree felony."

Section 3. Section 3-8-40.1 NMSA 1978 (being Laws 1999, Chapter 278, Section 45) is amended to read:

"3-8-40.1. CERTIFICATE VOTING.--

A. No person shall vote in a municipal special or regular election unless that person is a qualified elector, in accordance with the provisions of Subsection K of Section 3-1-2 NMSA 1978, for the precinct or consolidated precinct that encompasses his place of residence as shown on the signature roster.

B. A person shall be permitted to vote even though that person's name cannot be found in the signature roster, provided:

(1) his residence is within the boundaries of either the municipality or, unless the municipality has a population over two hundred thousand persons or has enacted an ordinance pursuant to Subsection C of Section 3-19-5 NMSA 1978, the municipality's extraterritorial planning and platting jurisdiction and within the boundaries of the precinct, and district if applicable, in which he offers to vote;

(2) his name [in] is not listed as having been issued an absentee ballot;

(3) he presents a certificate bearing the seal and signature of the county clerk stating that his affidavit of registration is on file at the county clerk's office, that he has not been purged from the voter rolls and that he shall be permitted to vote in the precinct and election specified therein, provided that such authorization shall not be given orally by the county clerk; and

(4) he executes a statement swearing or affirming to the best of his knowledge that he is a qualified elector, a resident of the municipality, currently registered and eligible to vote in that precinct and has not cast a ballot or voted in the election.

C. Upon compliance with the requirements of Subsection B of this section, the person shall be permitted to vote."

Section 4. Section 3-8-85 NMSA 1978 (being Laws 1999, Chapter 278, Section 41) is amended to read:

"3-8-85. EARLY VOTING APPLICATION.--

A. Application by a voter for early voting shall be made only in person by the voter on a form prescribed and furnished by the municipal clerk of the municipality in which the voter is registered to vote. The municipal clerk shall prescribe the form of the early voting application.

B. The voter shall fill out the application to vote early in the office of the municipal clerk. Upon the receipt of a properly completed early voting application, the municipal clerk shall verify that the applicant is a qualified elector of the municipality.

C. The municipal clerk shall reject an early voting application for any of the following reasons:

(1) [if] the applicant has no valid affidavit of registration on file with the county clerk and is not a federal qualified elector or federal voter;

(2) [if] the applicant has a valid affidavit of registration on file with the county clerk, but is not a resident of either the municipality or, unless the municipality has a population over two hundred thousand persons or has enacted an ordinance pursuant to Subsection C of Section 3-19-5 NMSA 1978, the municipality's extraterritorial planning and platting jurisdiction, or district if applicable, of the municipality;

(3) the applicant has been issued an absentee ballot;

(4) [if] the applicant is a federal qualified elector or federal voter, but is not entitled to vote in the municipal election; or

(5) the applicant cannot comply with Paragraph (1), (2) or (3) of this subsection pursuant to Subsection B of Section 3-8-40 NMSA 1978.

D. The reverse side of each early voting application shall contain a form to be signed by the person completing the application. The form shall be signed by the applicant and shall contain the following oath: "I will not vote in this election other than by early ballot. I will not receive or offer any compensation or reward for giving or withholding any vote.".

E. If the municipal clerk rejects the early voter application pursuant to Subsection C of this section, then the municipal clerk shall refuse to permit the voter to vote and shall mark the application "rejected" and enter "rejected" in the early voting register and file the application in a separate file.

F. If the application for early voting is accepted, the municipal clerk shall:

(1) mark the application "accepted";

(2) enter the required information in the early voting register; and

(3) permit the voter to vote by issuing the voter an early voter ballot if the ballots are to be counted and canvassed by hand; or

(4) issue the voter an early voting marksense ballot if the marksense voting device is being used in the election; or

(5) permit the voter to cast his vote on the voting machine if a voting machine is being used in the election.

G. The municipal clerk shall notify the county clerk who shall enter "early voter" on the signature line of the signature roster next to the name of the person who has cast an early voting ballot. Names of individuals that have been labeled "early voter" shall appear on a separate list called the "early voter list". This list shall be submitted to the municipal clerk by the county clerk in the same manner as provided in Subsection B of Section 3-8-7 NMSA 1978."

Section 5. Section 3-9-4 NMSA 1978 (being Laws 1973, Chapter 375, Section 3, as amended) is amended to read:

"3-9-4. ABSENTEE BALLOT APPLICATION--REJECTION--ACCEPTANCE--ISSUANCE OF ABSENTEE BALLOT.--

A. Application by a federal qualified elector or federal voter shall be made on the federal postcard application form to the municipal clerk.

B. The municipal clerk shall prescribe the form of the absentee ballot application.

C. An absentee ballot application shall be furnished by the municipal clerk by mail or in person in the office of the municipal clerk to the voter upon request by the voter.

D. A list containing the names and [address] addresses of voters requesting absentee ballot applications shall be kept and shall be made a part of the absent ballot register.

E. Upon receipt of a properly completed and delivered application for an absentee ballot, the municipal clerk shall contact the county clerk to determine if the applicant is a qualified elector of the municipality.

F. The municipal clerk shall reject an absentee ballot application for any of the following reasons:

(1) the application is not made on the form provided by the municipal clerk;

(2) the application does not set forth the applicant's full name and address;

(3) the applicant has voted early;

(4) the application is not signed by the applicant; or

(5) the applicant:

(a) has no valid affidavit of registration on file with the county clerk and is not a federal qualified elector or federal voter;

(b) has a valid affidavit of registration on file with the county clerk, but is not a resident of either the municipality or, unless the municipality has a population over two hundred thousand persons or has enacted an ordinance pursuant to Subsection C of Section 3-19-5 NMSA 1978, the municipality's extraterritorial planning and platting jurisdiction; or

(c) is a federal qualified elector or federal voter, but is not entitled to vote in the municipal election; and

(d) cannot comply with Subparagraph (a), (b) or (c) of this paragraph pursuant to Subsection B of Section 3-8-40 NMSA 1978.

G. If the municipal clerk rejects the absentee ballot application pursuant to Subsection F of this section, then the municipal clerk shall refuse to issue an absentee ballot and shall mark the application "rejected" and enter "rejected" in the absentee ballot register and file the application in a separate file. The municipal clerk shall, within twenty-four hours of rejection of the application, notify the applicant of the reasons for rejection of the application. Upon rejection of the application, the municipal clerk shall determine the method of notification to the voter. Notification shall only be made by courier with return receipt or certified mail, return receipt requested. The person whose application has been rejected shall have ten days from receipt of notice to appeal or show cause why the application should be accepted. In addition, if the application is incomplete, the clerk shall mail immediately a new application for absentee ballot.

H. If the application for absentee ballot is accepted, the municipal clerk shall:

(1) mark the application "accepted";

(2) enter the required information in the absentee ballot register; and

(3) issue to the applicant an absentee ballot.

I. The municipal clerk shall deliver the absentee ballot to the applicant in the office of the municipal clerk if the application for absentee ballot has been accepted and if the application is submitted in person by the applicant or mail an absentee ballot to any qualified elector, federal qualified elector or federal voter whose application for an absentee ballot was received by mail and has been accepted. The municipal clerk shall notify the county clerk who shall write "absentee ballot" on the signature line of the signature roster next to the name of the person who has been sent an absentee ballot. Names of individuals [which] that have been labeled "absentee ballot" shall appear on a separate list called the "absentee voter list". This list shall be submitted to the municipal clerk by the county clerk in the same manner as provided in Subsection B of Section 3-8-7 NMSA 1978.

J. It is the duty of the municipal clerk to verify the signature roster and absentee voter list to ensure that all names of individuals who have been issued absentee ballots have been labeled "absentee ballot" on the signature roster and their names listed on the absentee voter list. If not, the municipal clerk shall write "absentee ballot" on the signature line of the signature roster next to the name of the person who has been sent an absentee ballot. The municipal clerk shall then enter the name and all required information on the absentee voter list.

K. If the application for an absentee ballot is delivered in person to the municipal clerk during regular hours and days of business and is accepted, the municipal clerk shall issue the voter the absentee ballot and it shall be marked by the applicant in a voting booth in the municipal clerk's office, sealed in the proper envelopes and otherwise properly executed and returned to the municipal clerk or the clerk's authorized representative before the applicant leaves the office of the municipal clerk. Absentee ballots may be cast in person beginning on the twenty-seventh day before the election at the municipal clerk's office until 5:00 p.m. on the Thursday immediately prior to the date of election.

L. The act of marking the absentee ballot in the office of the municipal clerk shall be a convenience to the voter in the delivery of the absentee ballot and does not make the office of the municipal clerk a polling place subject to the requirements of a polling place in the Municipal Election Code other than is provided in this subsection. During the period of time between the date a person may first apply in person for an absentee ballot and the final date for such application and marking of the ballot in the office of the municipal clerk, it is unlawful to solicit votes or display or otherwise make accessible any posters, signs or other forms of campaign literature whatsoever in the clerk's office.

M. Absentee ballots shall be air mailed to federal qualified electors and federal voters whose applications have been accepted not earlier than thirty-five days prior to the election and not later than 5:00 p.m. on the Thursday immediately prior to the date of the election.

N. Absentee ballots shall be mailed to voters whose applications have been approved not earlier than thirty-five days prior to the election and not later than 5:00 p.m. on Thursday immediately prior to the date of the election.

O. No absentee ballot shall be delivered or mailed to any person other than the applicant for such ballot."

Section 6. Section 3-19-5 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-18-5, as amended) is amended to read:

"3-19-5. PLANNING AND PLATTING JURISDICTION.--

A. Each municipality shall have planning and platting jurisdiction within its municipal boundary. Except as provided in Subsection B or C of this section, the planning and platting jurisdiction of a municipality:

(1) having a population of twenty-five thousand or more persons includes all territory within five miles of its boundary and not within the boundary of another municipality; or

(2) having a population of [less] fewer than twenty-five thousand persons includes all territory within three miles of its boundary and not within the boundary of another municipality.

B. A municipality having a population over two hundred thousand persons located in a class A county shall have planning and platting jurisdiction within five miles of the boundary of the municipality shared with the county and not within the boundary of another municipality through the extraterritorial land use commission that shall make recommendations to the extraterritorial land use authority.

C. The governing body of a municipality with a population of two hundred thousand or fewer may, by ordinance, decline to exercise power in its extraterritorial planning and platting jurisdiction. An ordinance enacted pursuant to this subsection shall apply to all powers within the extraterritorial planning and platting jurisdiction that the municipality would otherwise have and shall not be amended or repealed for a period of at least two years.

[C.] D. If territory not lying within the boundary of a municipality is within the planning and platting jurisdiction of more than one municipality, the planning and platting jurisdiction of each municipality shall terminate equidistant from the boundary of each municipality unless one municipality has a population of [less] fewer than two thousand five hundred persons and another municipality has a population of more than two thousand five hundred persons according to the most recent census. Then the planning and platting jurisdiction of the municipality having the greatest population extends to such territory."

Section 7. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2001.