RELATING TO ELECTIONS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE MUNICIPAL ELECTION CODE TO PROVIDE FOR ABSENTEE VOTING RATHER THAN EARLY VOTING FOR ANY REGULAR OR SPECIAL MUNICIPAL ELECTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 3-8-2 NMSA 1978 (being Laws 1985, Chapter 208, Section 10, as amended) is amended to read:
"3-8-2. DEFINITIONS.--
A. The definitions in Section 3-1-2 NMSA 1978 shall apply to the Municipal Election Code in addition to those definitions set forth in the Municipal Election Code.
B. As used in the Municipal Election Code:
(1) "absentee voter list" means the list prepared by the municipal and county clerks of those persons who have been issued an absentee ballot;
(2) "ballot" means a system for arranging and designating for the voter the names of candidates and questions to be voted on and for the marking, casting or otherwise recording of such votes. "Ballot" includes marksense ballots, absentee ballots, ballot faces, emergency paper ballots and paper ballots used in lieu of voting machines;
(3) "ballot face" means the material placed on the front of the voting machine containing the names of the candidates, the offices the candidates are seeking and a statement of the proposed questions to be voted upon;
(4) "clerk" or "municipal clerk" means the municipal clerk or any deputy or assistant municipal clerk;
(5) "county clerk" means the clerk of the county or his designee within which the municipality is located;
(6) "election returns" means all certificates of the precinct board, including the certificate showing the total number of votes cast for each candidate, if any, and for or against each question, if any, and shall include statements of canvass, signature rosters, registered voter lists, machine printed returns, emergency paper ballots, paper ballots used in lieu of voting machines, absentee ballots, absentee ballot registers and absentee voter lists or absent voter machine printed returns;
(7) "emergency paper ballot" means the paper ballot used when a voting machine becomes disabled so that a voter is unable to cast a vote for all of the candidates and questions of the voter's choice and have such vote correctly recorded by the voting machine and when no substitute voting machine is available;
(8) "marksense ballot" means a paper ballot card used on an optical-scan vote-tabulating machine;
(9) "municipal clerk's office" means the office of the municipal clerk or any other room used in the process of absentee voting, counting and tallying of absentee ballots or canvassing the election results within the confines of the building where the municipal clerk's office is located;
(10) "paper ballot" means a ballot manually marked by the voter and counted by hand without the assistance of a machine or optical-scan vote tabulating device;
(11) "precinct" means a portion of a county situated entirely in or partly in a municipality that has been designated by the county as a precinct for election purposes and that is entitled to a polling place and a precinct board. If a precinct includes territory both inside and outside the boundaries of a municipality, "precinct", for municipal elections, shall mean only that portion of the precinct lying within the boundaries of the municipality;
(12) "consolidated precinct" means the combination of two or more precincts pursuant to the Municipal Election Code;
(13) "precinct board" means the appointed election officials serving a single or consolidated precinct;
(14) "recheck" pertains to voting machines and means a verification procedure where the counter compartment of the voting machine is opened and the results of the balloting as shown on the counters of the machine are compared with the results shown on the official returns; and
(15) "recount" pertains to emergency paper ballots, paper ballots used in lieu of voting machines and absentee ballots and means a retabulation and retallying of individual ballots."
Section 2. Section 3-8-14 NMSA 1978 (being Laws 1985, Chapter 208, Section 22, as amended) is amended to read:
"3-8-14. VOTING MACHINES--ORDERING--PREPARATION--CERTIFICATION--DELIVERY.--
A. If voting machines are to be used, the municipal clerk shall order the machines from the county clerk within fifteen days of the adoption of the election resolution, and the county clerk shall supply such voting machines pursuant to Section 1-9-6 NMSA 1978. The county shall provide voting machine technicians, voting machine programming and voting machine transportation. The municipality shall pay the reasonable fee charged by the county for such services and the use of the voting machines, but in no case in an amount which exceeds the actual cost to the county pursuant to Section 1-9-12 NMSA 1978.
B. If voting machines are to be used, the municipal clerk shall order at least one voting machine for every polling place; provided that the clerk shall order a sufficient number of voting machines to assure that the eligible voters in that polling place shall be able to vote in a timely manner.
C. Programming of electronic machines shall be performed under the supervision of the municipal clerk and the county clerk. The machines shall be programmed so that votes will be counted in accordance with specification for electronic voting machine adopted by the secretary of state.
D. Immediately upon receipt of the notice of date, time and place of inspection and certification, the municipal clerk shall post such notice in the office of the municipal clerk and attempt to telephone the candidates at the phone number listed on the declaration of candidacy to give each candidate notice of the date, time and place of inspection and certification.
E. Inspection and certification shall occur not later than seven days prior to the election and shall be open to the public. If electronic voting machines are to be used for absentee voting, inspection and certification shall occur not later than seven days prior to the beginning of absentee voting and shall be open to the public.
F. At the date, time and place for inspection and certification, in the presence of the county clerk and those municipal candidates present, if any, the municipal clerk shall:
(1) ensure that the correct ballot face has been installed on each voting machine, if ballot faces are to be installed;
(2) test each counter for accuracy by casting votes upon it until it correctly registers each vote cast;
(3) test each voting machine to assure that it has been correctly programmed; and
(4) inform the county clerk when each machine is satisfactory and ready to be certified.
G. If the municipal clerk informs the county clerk that a machine is satisfactory and ready to be certified:
(1) the county clerk shall reset each counter at zero;
(2) the voting machine shall be immediately sealed with a numbered metal seal so as to prevent operation of the machine or its registering counters without breaking the seal;
(3) the municipal clerk shall prepare a certificate in triplicate for each machine that shall:
(a) show the serial number of the voting machine;
(b) state that the voting machine has all of its resettable registering counters set at zero;
(c) state that the voting machine has been tested by voting on each registered counter to prove the counter is in perfect condition;
(d) state that the correct ballot face has been installed on the voting machine, if ballot faces are to be installed;
(e) show the number of the metal seal that has sealed the machine; and
(f) show the number registered on the protective counter;
(4) a copy of the certificate shall be delivered to the county clerk, the original certificate shall be filed in the office of the municipal clerk and one copy shall be posted on the voting machine; and
(5) if the voting machine requires keys, the keys to the voting machine shall be enclosed in a sealed envelope on which shall be written:
(a) the number of the precinct and polling place to which the machine is assigned;
(b) the serial number of the voting machine;
(c) the number of the metal seal that has sealed the voting machine;
(d) the number registered on the protective counter; and
(e) across the seal of the envelope, the signatures of the county clerk, the municipal clerk and all candidates present, if any, at the inspection and certification.
H. After certification of the voting machines, if the voting machines require keys, the county clerk shall keep the keys to the voting machines in his custody and shall deliver the keys to the municipal clerk when the voting machines are delivered for election. The municipal clerk shall secure in the office of the municipal clerk all the envelopes containing the keys to the voting machines until delivered to the presiding judge of the election.
I. An objection to the use of a particular voting machine shall be filed in the district court within two days after the machine has been certified. Any objection so filed shall specify the number of the voting machine objected to and the reason for the objection. Each voting machine shall be conclusively presumed to be properly prepared for the election if it has been certified unless a timely objection has been filed.
J. Voting machines certified in accordance with this section shall be delivered to the assigned precinct polling place no earlier than five days prior to the election and no later than noon on the day prior to the election, provided that any voting machines to be used for absentee voting shall be delivered to the municipal clerk no earlier than five days prior to the beginning of absentee voting and no later than noon on the day prior to the beginning of absentee voting in person in the office of the municipal clerk.
K. The municipal clerk shall refuse to certify any voting machine that the municipal clerk determines is not programmed properly, is not working properly or will not fairly or accurately record votes. Only voting machines that have been certified by the municipal clerk shall be used in the election."
Section 3. Section 3-8-17 NMSA 1978 (being Laws 1985, Chapter 208, Section 25, as amended) is amended to read:
"3-8-17. SAMPLE BALLOTS.--
A. At the same time official ballots are printed for voting with machines or paper ballots, the municipal clerk shall cause sample ballots to be printed, which shall:
(1) be printed in both English and Spanish;
(2) be printed in a total number equal to at least five percent of the number of qualified electors in each precinct or consolidated precinct;
(3) be the same in all respects as the official ballots, except that they shall be printed on colored paper and shall not contain the facsimile signature of the municipal clerk or any endorsement on the sample ballot or the back thereof;
(4) be marked in large black capital letters, "SAMPLE BALLOT"; and
(5) be made available in reasonable quantities to all interested persons for distribution to the voters.
B. Nothing in this section shall prevent any person from having printed at his expense sample ballots, of a different color than the official sample ballot, which comply with the provisions of this subsection, so long as no marks, notations, words or other material are added to, taken from or deface, change or hide the information on or the appearance of the sample ballot as authorized by the municipal clerk."
Section 4. Section 3-8-18 NMSA 1978 (being Laws 1985, Chapter 208, Section 26, as amended) is amended to read:
"3-8-18. ELECTION SUPPLIES.--
A. If paper ballots are to be used in lieu of voting machines, then the municipal clerk shall order to be printed paper ballots and sample paper ballots no later than 5:00 p.m. on the fifty-third day preceding the day of the election. The ballots shall be delivered to the clerk not later than the eighth day preceding the day of the election.
B. No later than 5:00 p.m. on the fifty-third day preceding the day of the election, the municipal clerk shall:
(1) order absentee ballots;
(2) order ballot faces, sample voting machine ballots and emergency paper ballots, if voting machines are to be used; and
(3) order all other election supplies necessary for the conduct of the election.
C. Absentee ballots, emergency paper ballots, ballot faces for the machines and sample voting machine ballots shall be delivered to the municipal clerk not less than thirty-five days prior to the day of the election."
Section 5. Section 3-8-26 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-4, as amended) is amended to read:
"3-8-26. REGULAR MUNICIPAL ELECTION--PUBLICATION OF RESOLUTION--CHOICE OF BALLOTS OR VOTING MACHINES.--
A. Not earlier than one hundred twelve days or later than eighty-four days prior to the date of a regular municipal election, the governing body shall adopt an election resolution calling for the regular municipal election. The election resolution shall be published in both English and Spanish and once within fifteen days of adoption and again not less than sixty days prior to the election or more than seventy-five days prior to the election, as provided in Subsection J of Section 3-1-2 NMSA 1978. In addition, the election resolution shall be posted in the office of the municipal clerk within twenty-four hours from the date of adoption until the date of the election. For information purposes and coordination, one copy of the election resolution shall be mailed within fifteen days of adoption to the secretary of state and the county clerk of the county in which the municipality is located.
B. The election resolution shall state the date when the election will be held, the offices to be filled, the questions to be submitted to the voters, the date and time of the closing of the registration books by the county clerk as required by law, the date and time for filing the declaration of candidacy, the location of polling places, the date and time for absentee voting and the consolidation of precincts, if any, notwithstanding any conflicting provisions of
Section 1-3-5 NMSA 1978. Any question to be submitted to the voters in addition to the election of municipal officers may be included in the election resolution, but such inclusion shall not substitute for any additional or separate resolution or publication thereof as required by law.
C. In those municipalities allowed by law to use paper ballots, the election resolution shall also state whether paper ballots or voting machines will be used in the election."
Section 6. 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 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 the municipality 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) 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 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 (4) 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 7. Section 3-8-43 NMSA 1978 (being Laws 1985, Chapter 208, Section 51, as amended) is amended to read:
"3-8-43. CONDUCT OF ELECTION--CHALLENGES--REQUIRED CHALLENGES--ENTRIES--DISPOSITION.--
A. A challenge may be interposed by a member of the precinct board or by a challenger for the following reasons, which shall be stated in an audible tone by the person making the challenge:
(1) the person offering to vote is not registered;
(2) the person offering to vote is listed among those persons in the precinct to whom an absentee ballot was issued;
(3) the person offering to vote is not a qualified elector;
(4) the person offering to vote is not listed on the signature roster or voter registration list;
(5) in the case of an absentee ballot, if the official mailing envelope containing an absentee ballot has been opened prior to delivery of absentee ballots to the absent voter precinct board; or
(6) the person offering to vote is a qualified elector of the municipality but does not reside in the district where he is offering to vote.
B. When a person has offered to vote and a challenge is interposed and the person's name appears in the signature roster or his name has been entered in the signature roster pursuant to Subsection C of Section 3-8-40 NMSA 1978, the election clerk shall write the word "challenged" above the person's signature in the signature roster.
(1) If the challenge is unanimously affirmed by the election judges:
(a) the election clerk shall write the word "affirmed" above the person's signature next to the challenge notation in the signature roster;
(b) the person shall nevertheless be furnished a paper ballot, whether or not voting machines are being used at the polling place, and the election clerk shall write the number of the ballot so furnished next to the person's signature in the signature roster;
(c) the person shall be allowed to mark and prepare the ballot. He shall return the paper ballot to an election judge who shall announce the person's name in an audible tone and in his presence place the challenged ballot in an envelope marked "rejected", which shall be sealed and the person's name shall be written on the envelope; and
(d) the envelope containing the rejected ballot shall then be deposited in the ballot box and shall not be counted.
(2) If the challenge is not unanimously affirmed by the election judges:
(a) the election clerks shall write the words "not affirmed" above the person's signature next to the challenge notation in the signature roster; and
(b) the person shall be allowed to vote in the manner allowed by law as if the challenge had not been interposed.
C. A required challenge shall be interposed by the precinct board when a person attempts to offer himself to vote and demands to vote and his name does not appear on the signature roster and cannot be entered pursuant to Subsection C of Section 3-8-40 NMSA 1978. A required challenge shall be interposed by the precinct board as follows:
(1) the election judge shall cause the election clerks to enter the person's name and address under the heading "name and address" in the signature roster in the first blank space immediately below the last name and address that appears in the signature roster;
(2) the election clerk shall immediately write the words "required challenge" above the space provided for the person's signature in the signature roster;
(3) the person shall sign his name in the signature roster;
(4) the person shall nevertheless be furnished a paper ballot, whether or not voting machines are being used at the polling place, and the election clerk shall write the number of the ballot so furnished next to the person's signature in the signature roster; and
(5) the person shall be allowed to mark and prepare the ballot. He shall return the paper ballot to an election judge who shall announce his name in an audible tone and in his presence place the required challenge ballot in an envelope marked "rejected--required challenge" that shall be sealed. The person's name shall be written on the envelope and the envelope containing the rejected ballot shall then be deposited in the ballot box and shall not be counted."
Section 8. Section 3-8-65 NMSA 1978 (being Laws 1985, Chapter 208, Section 73, as amended) is amended to read:
"3-8-65. CONTEST OF ELECTIONS--PRESERVATION OF BALLOTS--BALLOTS DEFINED--APPLICATION FOR ORDER--DEPOSIT.--
A. Either the contestant or contestee, within the time provided by the Municipal Election Code for the preservation of ballots, shall give notice by certified mail to the municipal clerk that a contest is pending in a designated court, and it is the duty of the municipal clerk to preserve the ballots of all precincts named in the notice of contest and to notify the county clerk to impound the ballot faces and voting machines used in all of the precincts named in the notice of contest until the contest has been finally determined.
B. "Ballots", as used in Subsection A of this section, includes signature rosters, registered voter lists, machine-printed returns, voting machine permits, paper ballots, marksense ballots, absentee ballots, absentee ballot outer envelopes, statements of canvass, absentee ballot applications, absentee ballot registers and absentee voter lists.
C. Any contestant or contestee may petition the district court for an order impounding ballots in one or more precincts or consolidated precincts. The petition shall state what specific items of ballots are requested to be impounded. Upon receipt of the petition, along with a cash deposit of twenty-five dollars ($25.00) per precinct or consolidated precinct, the court may issue an order of impoundment."
Section 9. Section 3-8-69 NMSA 1978 (being Laws 1985, Chapter 208, Section 77, as amended) is amended to read:
"3-8-69. RECOUNT--RECHECK--PROCEEDINGS.--
A. Immediately after filing of the application for recount or recheck, the municipal clerk shall issue a summons directed to the precinct board of each precinct or consolidated precinct specified in the application commanding it to appear at the office of the municipal clerk on a day fixed in the summons, which date shall not be more than ten days after the filing of the application for recount or recheck. A copy of the summons shall be forwarded to the county clerk of the concerned county.
B. The municipal clerk shall deliver the summons to a sheriff or state police officer who shall forthwith personally serve it upon each of the precinct board members. The municipal clerk shall send notices by registered mail of the date, time and place fixed for recount or recheck to the district judge and county clerk.
C. The precinct board, district judge or the district court judge's designee, county clerk and the municipal clerk shall meet on the date, time and places fixed for the recount or recheck, and the ballot boxes or voting machines of the precinct or consolidated precinct involved in the recount or recheck shall be opened. The precinct boards shall recount and retally the paper ballots used in lieu of voting machines or emergency paper ballots or recheck the votes cast on the voting machine, as the case may be, and recount and retally the absentee ballots for the office in question in the presence of the municipal clerk, the county clerk, district judge or person designated to act for the judge and any other person who may desire to be present.
D. During the recount or recheck, the precinct board of a precinct or consolidated precinct where emergency paper ballots, paper ballots used in lieu of voting machines or absentee ballots were used shall recount and retally only the ballots that the election judge accepted and placed in the ballot box at the time they were cast or received, as the case may be.
E. After completion of the recount or recheck, the precinct board shall replace the emergency paper ballots, paper ballots used in lieu of voting machines or absentee ballots in the ballot box and lock it, or the voting machines shall be locked and resealed, and the precinct board shall certify to the municipal clerk the results of the recount or recheck. The district judge or the person designated to act for the judge, the county clerk and the municipal clerk shall also certify that the recount or recheck was made in their presence."
Section 10. Section 3-8-71 NMSA 1978 (being Laws 1985, Chapter 208, Section 79, as amended) is amended to read:
"3-8-71. PRESERVATION OF ELECTION INFORMATION.--
A. The municipal clerk shall retain for two years after each municipal election:
(1) the absentee ballot register, application for absentee ballots, absentee voter lists and affidavits of destruction;
(2) signature roster and registered voter list;
(3) the machine-printed returns;
(4) oaths of office of the precinct board;
(5) declarations of candidacy and withdrawals;
(6) copies of all election material required to be published or posted;
(7) a copy of all sample ballots and ballot faces;
(8) voting machine permits;
(9) certificates submitted by voters;
(10) copies of all affidavits and certificates prepared in connection with the election;
(11) all results of recounts, rechecks, contests and recanvass; and
(12) all other significant election materials.
B. The district court shall retain for forty-five days after each municipal election all election materials sent by the precinct board. Thereafter, the material may be destroyed unless needed by the court in connection with a contest or other case or controversy.
C. The municipal clerk shall destroy election records two years after the election by shredding, burning or otherwise destroying."
Section 11. Section 3-8-74 NMSA 1978 (being Laws 1985, Chapter 208, Section 82, as amended) is amended to read:
"3-8-74. UNLAWFUL POSSESSION OF KEYS--ABSENTEE BALLOT--PENALTY.--
A. Unlawful possession of keys consists of the possession at any time by any person of any key to a voting machine or ballot box or possession of an imitation or duplicate thereof or making or causing to be made any imitation or duplicate thereof unless authorized by the Municipal Election Code.
B. A person who commits unlawful possession of keys is guilty of a fourth degree felony.
C. Unlawful possession of an absentee ballot consists of the possession by any person at any time of absentee ballot materials when not authorized by the Municipal Election Code to be in the possession of such materials or when such materials were obtained in an unlawful manner. As used in this section, "absentee ballot materials" means an absentee ballot, absentee ballot envelopes, the absentee ballot register or absentee ballot return.
D. A person who commits unlawful possession of an absentee ballot is guilty of a fourth degree felony."
Section 12. Section 3-8-75 NMSA 1978 (being Laws 1985, Chapter 208, Section 83, as amended) is amended to read:
"3-8-75. FALSE VOTING--FALSIFYING ELECTION DOCUMENTS--FALSE SWEARING--PENALTY.--
A. False voting consists of:
(1) voting or offering to vote with the knowledge of not being a qualified elector;
(2) voting or offering to vote in the name of any other person;
(3) knowingly voting or offering to vote in any precinct except that in which one is registered;
(4) voting or offering to vote more than once in the same election;
(5) inducing, abetting or procuring or attempting to induce, abet or procure a person known not to be a qualified elector to vote; or
(6) inducing, abetting or procuring or attempting to induce, abet or procure a person who has voted once in any election to vote or attempt to vote again at the same election.
B. A person who commits false voting is guilty of a fourth degree felony.
C. Falsifying election documents consists of performing any of the following acts willfully and with knowledge and intent to deceive or mislead any voter, precinct board, municipal clerk or other election official:
(1) printing, causing to be printed, distributing or displaying false or misleading instructions pertaining to voting or the conduct of the election;
(2) printing, causing to be printed, distributing or displaying any official ballot, absentee ballot, marksense ballot, sample ballot, facsimile diagram, ballot face or pretended ballot that includes the name of any person not entitled by law to be on the ballot or omits or defaces the name of any person entitled by law to be on the ballot or otherwise contains false or misleading information or headings;
(3) defacing, altering, forging, making false entries in or changing any election document, including election returns, a certificate of election registration record or signature rosters, affidavits, certificates or any other election document except as authorized in the Municipal Election Code;
(4) withholding any certificate of election, registered voter list, signature roster, election return or any other election document required by or prepared and issued pursuant to the Municipal Election Code; or
(5) preparing or submitting any false certificate of election, signature roster, registered voter list, election return or any other election document.
D. A person who falsifies election documents is guilty of a fourth degree felony.
E. False swearing consists of knowingly taking or giving any oath required by the Municipal Election Code with the knowledge that the thing or matter sworn to is not a true and correct statement.
F. A person who falsely swears is guilty of a fourth degree felony."
Section 13. Section 3-9-1 NMSA 1978 (being Laws 1973, Chapter 375, Section 2, as amended) is amended to read:
"3-9-1. DEFINITIONS.--As used in Chapter 3, Article 9 NMSA 1978:
A. "absentee voting" means the casting of a vote by a qualified elector for any candidate or question prior to election day, by mail on an absentee ballot, in person on an absentee ballot or in person on a voting machine;
B. "federal qualified elector" means a qualified elector covered under the provisions of the Federal Voting Assistance Act of 1955;
C. "federal voter" means a voter covered under the provisions of the Federal Voting Assistance Act of 1955;
D. "covered under the provisions of the Federal Voting Assistance Act of 1955" means:
(1) members of the armed forces while in the active service and their spouses and dependents;
(2) members of the merchant marine of the United States and their spouses and dependents; and
(3) citizens of the United States temporarily residing outside the territorial limits of the United States and the District of Columbia and their spouses and dependents when residing with or accompanying them;
E. "armed forces" means the army, navy, air force, marine corps, coast guard, environmental science services administration and public health service;
F. "members of the merchant marine" means persons other than members of the armed forces:
(1) employed as officers or members of crews of vessels documented under the laws of the United States or of vessels owned by the United States or of vessels of foreign registry under charter to or control of the United States; or
(2) enrolled with the United States for employment or training for employment or maintained by the United States for emergency relief service as officers or members of crews of any such vessels, but does not include great lakes or inland waterways service;
G. "voter" means a qualified elector of the municipality; and
H. "election" means a regular or special municipal election."
Section 14. 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 application for an absentee ballot may be obtained by the voter from the municipal clerk. An application for an absentee ballot may be requested by the voter in person, by telephone or by mail, and any voter may request an application for an absentee ballot for an immediate family member. For purposes of this section, "immediate family" means spouse, children, parents, brothers and sisters.
D. A list containing the names and addresses of voters requesting absentee ballot applications shall be kept and shall be made a part of the absentee 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 application does not set forth the applicant's social security number or date of birth;
(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 the municipality; 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 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, or allow the voter to cast a vote on the voting machine. Absentee ballots may be marked in person beginning at 8:00 a.m. on the twenty-seventh day before the election at the municipal clerk's office during the regular hours and days of business until 5:00 p.m. on the Friday immediately prior to the date of election. An absent voter may vote in person on a paper ballot, or on an electronic voting machine, at the municipal clerk's office beginning at 8:00 a.m. on the twentieth day prior to the election until 5:00 p.m. on the Friday immediately before the 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 Friday 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 the Friday 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 15. Section 3-9-7 NMSA 1978 (being Laws 1973, Chapter 375, Section 8, as amended) is amended to read:
"3-9-7. MANNER OF VOTING--USE OF AN ELECTRONIC VOTING DEVICE.--
A. Any person voting an absentee ballot under the provisions of the Municipal Election Code shall secretly mark the ballot in the manner provided in the Municipal Election Code for marking emergency paper ballots, remove any visible number on the ballot, place the ballot in the official inner envelope and securely seal the envelope. The person voting shall then place the official inner envelope inside the official mailing envelope and securely seal the envelope. The person voting shall then fill in the form on the reverse of the official mailing envelope.
B. Federal voters and federal qualified electors shall either deliver their ballots in person or mail the official mailing envelope to the municipal clerk of their municipality of residence or deliver it to a person designated by federal authority to receive executed ballots for transmission to the municipal clerk of the municipality of residence. Voters shall either deliver or mail the official mailing envelope to the municipal clerk of their municipality of residence. The municipal clerk shall not accept an official outer envelope that is delivered in person to the municipal clerk's office from any person other than the voter signing the official outer envelope.
C. Any person voting on the marksense 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.
D. When an electronic voting device is used by the voter to cast an absentee vote, the municipal clerk shall ensure that each absentee voting machine is located within the office of the municipal clerk. The area shall be secured by lock and key. Each day during the time the absentee voting machine is used for absentee voting, the municipal clerk shall, in the presence of one other employee of the municipality, unlock the office where the voting machine is located. Each day, at the close of regular office hours, the municipal clerk shall, in the presence of one other municipal employee, secure the office where the voting machine is located. Each day immediately after unlocking or locking the office where the voting machine is located, the municipal clerk and the employee present shall sign or initial the absentee voting daily report. The municipal clerk shall prescribe the form of the absentee voting daily report, which shall include the following information:
(1) the voting machine serial number;
(2) beginning and ending public counter number for the day;
(3) beginning and ending protective counter number for the day;
(4) closing seal number, if any;
(5) the total number of voters for the day; and
(6) a place for the date and signature of the municipal clerk and the municipal employee.
E. Voting shall be conducted substantially in the manner provided in the Municipal Election Code. The absentee voting daily report shall be submitted to the absent voter precinct on election day, along with any voting machines used."
Section 16. Section 3-9-8 NMSA 1978 (being Laws 1973, Chapter 375, Section 9, as amended) is amended to read:
"3-9-8. CARE OF ABSENTEE BALLOTS--DESTRUCTION OF UNUSED BALLOTS BY MUNICIPAL CLERK.--
A. The municipal clerk shall mark on each completed official outer envelope the date and time of receipt in his office, record this information in the absentee ballot register and safely and securely keep the official outer envelope unopened until it is delivered on election day to the proper precinct board or until it is canceled and destroyed in accordance with law. Once a ballot is officially accepted by the municipal clerk and recorded in the absentee ballot register, it cannot be returned to the voter for any reason.
B. The municipal clerk shall accept completed official outer envelopes received by mail or delivered in person to the municipal clerk's office by the voter signing the official outer envelope or by members of the voter's immediate family until 7:00 p.m. on election day. For purposes of this section, "immediate family" means spouse, children, parents, brothers and sisters. Any completed outer envelope received after that time and date shall be marked as to the time and date received, shall not be delivered to the precinct board and shall be preserved until the time for election contests has expired. In the absence of a court order, after the expiration of the time for election contests, the municipal 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 municipal clerk shall count the numbers of late ballots from voters, federal voters and federal qualified electors and record the number from each category in the absentee ballot register.
C. After 5:00 p.m. and not later than 8:00 p.m. on the Thursday immediately preceding the date of the election, the municipal clerk shall record the numbers of the unused absentee ballots and shall publicly destroy in the municipal clerk's office all such unused ballots. The municipal clerk shall execute a certificate of such destruction, which shall include the numbers on the ballots destroyed, and such certificate shall be placed within the absentee ballot register.
D. At 7:00 p.m. on the day of the election, the municipal clerk shall determine the number of ballots that were mailed and have not been received and execute a "certificate of unreceived absentee ballots". Such certificate shall be placed in the absentee ballot register and shall become an official part of the register. The municipal clerk shall determine the form of the certificate of unreceived absentee ballots."
Section 17. Section 3-9-10 NMSA 1978 (being Laws 1985, Chapter 208, Section 98, as amended) is amended to read:
"3-9-10. DELIVERY OF ABSENTEE BALLOTS TO ABSENT VOTER PRECINCT.--After 7:00 a.m. on election day, the municipal clerk shall deliver to the absent voter precinct board the absentee ballot register and the absent voter ballots received by the clerk, any electronic voting machines used and all absentee voting daily reports. Prior to 7:00 p.m. on election day, the municipal clerk shall deliver any ballots received on election day to the absent voter precinct board and the precinct board shall note the receipt of ballots in the absentee ballot register and on the absentee voter list. On delivery of the ballots, the municipal clerk or his designee shall remain in the presence of the absent voter precinct board until the clerk has observed the opening of all official mailing envelopes, the deposit of all ballots in the locked ballot box and the listing of the names on all of the official mailing envelopes in the absentee voter list. All functions of the absent voter precinct board shall be conducted in the place designated as the absent voter precinct."
Section 18. Section 3-9-13 NMSA 1978 (being Laws 1973, Chapter 375, Section 11, as amended) is amended to read:
"3-9-13. VOTING IN PERSON PROHIBITED.--
A. No person who has been issued an absentee ballot shall vote in person at that person's regular precinct polling place on election day except as otherwise provided in the Municipal Election Code.
B. At any time prior to 5:00 p.m. on the Friday 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 municipal clerk of the municipality where that person is registered to vote, a sworn affidavit stating that the person did not receive or vote his absentee ballot. Upon receipt of the sworn affidavit, the municipal clerk shall issue the voter a replacement absentee ballot.
C. The municipal clerk shall prescribe the form of the affidavit and the manner in which the municipal clerk shall void the first ballot mailed to the applicant."
Section 19. A new section of the Municipal Election Code is enacted to read:
"ABSENTEE BALLOT--CONDUCT OF ELECTION--WHEN NOT TIMELY RECEIVED--EMERGENCY PROCEDURE FOR VOTING AND COUNTING.--
A. A voter who has submitted an application for an absentee ballot that was accepted by the municipal clerk but who has not received the absentee ballot by mail as of the date of the election may present himself at his assigned polling place and, after executing an affidavit of non-receipt of absentee ballot, shall be issued an emergency paper ballot in lieu of an absentee ballot by the presiding judge, and shall be allowed to mark the ballot.
B. The voter shall place the completed emergency paper ballot issued in lieu of an absentee ballot in an official inner envelope, substantially in the form prescribed pursuant to Section 3-9-6 NMSA 1978, which shall be sealed by the voter. The official inner envelope shall then be placed by the voter, in the presence of the presiding judge, in an official outer envelope substantially as prescribed for a transmittal envelope or mailing envelope pursuant to Section 3-9-6 NMSA 1978. The presiding judge shall fill in the information on the back of the envelope that identifies the voter by name and signature roster number and contains the printed affidavit that the voter made application for an absentee ballot, which the voter believes to have been accepted by the municipal clerk, that the voter swears an absentee ballot had not been received as of the date of the election and that the voter was issued an emergency paper ballot in lieu of an absentee ballot, and that the ballot was marked by the voter and submitted to the presiding judge.
C. The presiding judge shall place all emergency paper ballots issued in lieu of absentee ballots in a special envelope provided for that purpose by the municipal clerk, seal the envelope and return it to the municipal clerk along with the machine tally sheets after the closing of the polls. The sealed envelope shall not be placed in the locked ballot box.
D. The municipal clerk shall, upon receipt of the envelope containing emergency paper ballots in lieu of absentee ballots, and no later than forty-eight hours after the close of the polls for the election, remove the transmittal envelopes and without removing or opening the inner envelopes, determine:
(1) if the voter did in fact make application for an absentee ballot that was accepted by the municipal clerk;
(2) if an absentee ballot was mailed by the municipal clerk to the voter; and
(3) whether an absentee ballot was received by the municipal clerk from the voter by 7:00 p.m. on election day.
E. If the municipal clerk determines that the emergency paper ballot in lieu of absentee ballot is valid, that an absentee ballot was mailed to the voter and that no absentee ballot was received from the voter by the municipal clerk, the municipal clerk shall remove the inner envelope without opening it, retain the transmittal envelope with the other election returns and place the inner envelope, unopened, in a secure and locked container to be transmitted to the canvassing board to be tallied and included in the canvass of the election returns for the municipality.
F. If the municipal clerk determines that the emergency paper ballot in lieu of absentee ballot is not valid because the application for absentee ballot was rejected and no ballot was mailed to the voter, or that a ballot was received from the voter by the municipal clerk not later than 7:00 p.m. on election day, the municipal clerk shall write "rejected invalid ballot" on the front of the transmittal envelope and the transmittal envelope shall not be sent to the canvassing board for counting and tallying. The municipal clerk shall retain the unopened transmittal envelope in a safe and secure manner and shall notify the district attorney in writing of the alleged violation of the Municipal Election Code. A copy of the notification to the district attorney shall be sent by first class mail to the voter and to the secretary of state.
G. The municipal clerk shall furnish and shall prescribe the form of the necessary envelopes to be used in accordance with the purposes of this section, and shall take steps to preserve the secrecy of any ballots cast pursuant to this section."
Section 20. REPEAL.--Sections 3-8-81 through 3-8-83,
3-8-83.1 and 3-8-84 through 3-8-95 NMSA 1978 (being Laws
1999, Chapter 278, Sections 37 through 39, Laws 2001,
Chapter 197, Section 11 and Laws 1999, Chapter 278,
Sections 40 through 44 and 46 through 52, as amended) are
repealed.