HOUSE BILL 500
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Edward C. Sandoval
AN ACT
RELATING TO ELECTIONS; UPDATING OUTDATED LANGUAGE IN ARTICLES 4 AND 5 OF THE ELECTION CODE; MAKING LANGUAGE IN THE ELECTION CODE CONSISTENT WITH FEDERAL LAW; AMENDING, RECOMPILING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] USE OF VOTER DATA.--Voter data or any information derived from voter registration shall not be used by any federal, state or local government for the prosecution or enforcement of laws other than violations of the Election Code."
Section 2. Section 1-4-23 NMSA 1978 (being Laws 1969, Chapter 240, Section 79, as amended) is amended to read:
"1-4-23. REVIEW OF REGISTRATION--BOARD OF REGISTRATION--INACTIVE VOTER LIST CREATION.--Beginning on the third Monday of March of each odd-numbered year, the board of registration shall review all certificates of registration [for failure of the voter to vote] and, based on that review, shall establish a list of inactive voters [Voters who fail to vote in at least one statewide or local election in a two-year period shall be placed on an inactive voter list] in accordance with the provisions of the federal National Voter Registration Act of 1993. The secretary of state shall issue rules on list maintenance in accordance with the provisions of the federal National Voter Registration Act of 1993."
Section 3. Section 1-5-1 NMSA 1978 (being Laws 1969, Chapter 240, Section 103, as amended) is amended to read:
"1-5-1. SHORT TITLE.--[Sections 3-5-l through 3-5-34 NMSA 1953] Chapter 1, Article 5 NMSA 1978 may be cited as the "[Automated] Voter Records System Act"."
Section 4. Section 1-5-2 NMSA 1978 (being Laws 1969, Chapter 240, Section 104, as amended) is amended to read:
"1-5-2. DEFINITIONS.--As used in the Election Code:
A. "county" means any county in this state;
[B. "county register" means an official file of original certificates of registration of the county or any precinct thereof;
C. "voter list" means any prepared list of voters;
D. "signature roster" means a copy of a voter list with space provided opposite each voter's name for the voter's signature or witnessed mark;
E. "active data processing media" means magnetic discs, magnetic tape or functionally similar devices containing data capable of being read and processed by computer for the eventual preparation of voter lists;
F. "intermediate records" means records on active data processing media;
G. "voter file" means all voter registration information required by law and by the secretary of state that has been extracted from the certificate of registration of each voter in the county, stored on active data processing media and certified by the county clerk as the source of all information required by the Automated Voter Records System Act;
H. "program records" means the necessary detailed program and instructions for carrying out and controlling machine processing of information derived from the voter file. Program records shall exist in written English or coded form and they may exist on active data processing media;
I. "mailing labels" means prepared mailing labels of selected voters arranged in the order in which requested and providing only the name and address of the voter;
J. "special voter lists" means prepared lists of selected voters arranged in the order in which requested;
K. "statistical data" means information derived from the voter file;
L. "voter data" means selected information derived from the voter file;
M. "data processor" means a data processing facility and associated employees and agents thereof contracted to provide data processing services required by the Automated Voter Records System Act;
N. "file maintenance list" means any prepared listing that reflects additions, deletions or changes to the voter file;
O. "precinct voter list" means a voter list arranged in alphabetical order of voter surname within and for each precinct;
P. "county voter list" means a voter list arranged in alphabetical order of voter surname within and for each county;
Q. "unofficial election canvassing file" means the compilation by the county clerk of the results of any election prior to official certification of the election results;
R. "unofficial election canvassing system" means the automated data processing computer program used to create the unofficial election canvassing file;
S. "election campaign purposes" means relating in any way to a campaign in an election conducted by a federal, state or local government; and
T. "governmental purposes" means noncommercial purposes relating in any way to the structure, operation or decision-making of a federal, state or local government]
B. "county register" means an official file of original certificates of registration of the county or any of its precincts;
C. "county voter list" means a voter list arranged in alphabetical order of voter surname within and for each county;
D. "data processor" means a data processing facility and its associated employees and agents contracted to provide data processing services required by the Voter Records System Act;
E. "data recording media" means a manual, electronic or other device containing data capable of being read and processed by any means for the eventual preparation of voter lists;
F. "election campaign purposes" means relating in any way to a campaign in an election conducted by a federal, state or local government;
G. "file maintenance list" means any prepared listing that reflects additions, deletions or changes to the voter file;
H. "governmental purposes" means noncommercial purposes relating in any way to the structure, operation or decision-making of a federal, state or local government;
I. "mailing labels" means prepared mailing labels of selected voters arranged in the order in which requested and providing only the name and address of the voter;
J. "precinct voter list" means a voter list arranged in alphabetical order of voter surname within and for each precinct;
K. "signature roster" means a copy of a voter list with space provided opposite each voter's name for the voter's signature or witnessed mark;
L. "special voter list" means a prepared list of selected voters arranged in the order in which requested;
M. "voter data" means selected information derived from the voter file;
N. "voter file" means all voter registration information required by law and by the secretary of state that has been extracted from the certificate of registration of each voter in the county, stored on data recording media and certified by the county clerk as the source of all information required by the Voter Records System Act; and
O. "voter list" means any prepared list of voters."
Section 5. Section 1-5-3 NMSA 1978 (being Laws 1969, Chapter 240, Section 105, as amended by Laws 1993, Chapter 314, Section 33 and also by Laws 1993, Chapter 316, Section 33) is amended to read:
"1-5-3. ACT IS MANDATORY AND SUPPLEMENTAL TO ELECTION CODE.--
A. [Effective January 1, 1984] The [Automated] Voter Records System Act is mandatory and supplemental to the provisions of the Election Code. The provisions of that act shall be implemented in all counties by order of the [board of county commissioners of the county in all precincts of a county] secretary of state in accordance with the provisions of the federal Help America Vote Act of 2002.
B. The secretary of state shall maintain [a current registration list of state voters] the official state voter file based on county [voter lists and] registers and provide access to the file to the county clerks. The secretary of state shall prescribe any rules, forms and instructions necessary [for the orderly transition to and the efficient implementation of] to implement procedures required by the [Automated] Voter Records System Act and federal law. The secretary of state shall maintain a log, which shall be public, containing all transactions regarding requests for current registration lists of state voters. The log shall indicate the requesting party, the date of the request, the date of fulfilling the request, charges made and any other information deemed advisable by the secretary of state. Requests for registration lists in printed or [magnetic] electronic form shall be fulfilled within a period of ten working days.
C. All registration records required by the Election Code shall be maintained for each of the precincts in addition to those records required by the [Automated] Voter Records System Act [but the procedures of that act shall be used in lieu of others prescribed in the Election Code] and federal law."
Section 6. Section 1-5-6 NMSA 1978 (being Laws 1969, Chapter 240, Section 108, as amended) is amended to read:
"1-5-6. PRECINCT VOTER LISTS--SIGNATURE ROSTER PREPARATION.--The county clerk shall provide for preparation of precinct voter lists and signature rosters generated from the official state voter file for any precincts. The precinct voter lists and signature rosters shall be used at any election for which registration of voters is required in lieu of bound original certificates of registration and poll books."
Section 7. Section 1-5-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 109, as amended) is amended to read:
"1-5-7. PRECINCT VOTER LISTS--SIGNATURE ROSTERS--CONTENTS.--
A. The precinct voter lists and signature rosters for any precinct shall contain for each voter, as shown in the county register:
(1) [his] name;
(2) gender;
(3) place of residence;
(4) last four digits of the voter's social security number;
(5) year of birth;
(6) party affiliation, if any; and
(7) precinct of residence.
B. In addition, the names on each precinct voter list and signature roster shall be numbered consecutively beginning with the number "1".
C. On each page of each precinct voter list and on each signature roster there shall be printed the page number and the date and name of the election for which they are to be used.
[D. For those counties who, prior to June 18, 1993, utilized voter files that do not contain telephone numbers of registered voters, the provisions of Subsections J and L of Section 1-5-2 NMSA 1978 and Paragraph (4) of Subsection A of Section 1-5-7 NMSA 1978 regarding dissemination of voter telephone numbers shall apply only to individuals registering to vote after January 1, 1994.]"
Section 8. Section 1-5-8 NMSA 1978 (being Laws 1969, Chapter 240, Section 110, as amended) is amended to read:
"1-5-8. PRECINCT VOTER LISTS--SIGNATURE ROSTERS--NUMBER-- DISTRIBUTION.--
A. One copy of the signature roster shall be prepared for each precinct. On the cover of [such] the signature roster shall be printed the words, "Copy for the County Clerk". Upon its preparation and certification as to its accuracy and completeness, the county clerk shall deliver the copy of the signature roster to the precinct board [in lieu of the poll book].
B. The county clerk shall prepare three copies of the precinct voter list for each precinct. Of the three copies prepared, one copy shall not include voter social security numbers; [He] the other two shall include only the last four digits of the voter's social security number. The county clerk shall deliver two of the copies to each precinct board [in lieu of bound certificates of registration]. One copy of the precinct voter list shall be retained by the county clerk for verification purposes on election day and one copy for the secretary of state shall be marked to verify those voters on the list who voted.
C. Two copies of the county voter list, arranged in alphabetical order, shall be prepared for election day for verification purposes only."
Section 9. Section 1-5-14 NMSA 1978 (being Laws 1969, Chapter 240, Section 118, as amended) is amended to read:
"1-5-14. FILE MAINTENANCE LISTS.--
A. At least once a month the county clerk shall have made from the state voter file a file maintenance list of additions, deletions and changes, if any, to the county register.
[B. The county clerk shall be furnished with two copies of the file maintenance lists.
C.] B. One copy of the list shall be stored by the county clerk for at least one year.
[D.] C. The county clerk shall also [be furnished with] furnish copies of the list to [give to] the county chairman of each of the major political parties in the county. The copy of the chairman's list shall indicate whether each item is an addition, deletion or change. The file maintenance list shall not include the voter's social security number, codes used to identify the agency where the voter registered, the voter's day and month of birth or the voter's telephone number, if prohibited by the voter.
[E. Beginning the first Monday of February of an election year and every month thereafter, the county clerks shall furnish the secretary of state with a copy of the voter file, except that during the months of April and September of an election year, the county clerks shall furnish a copy of the voter file to the secretary of state at least one time each week. The final copy shall be furnished to the secretary of state by the county clerks within seven days of the close of registration.]"
Section 10. Section 1-5-17 NMSA 1978 (being Laws 1969, Chapter 240, Section 122, as amended) is amended to read:
"1-5-17. [PROGRAM RECORDS] VOTER REGISTRATION SYSTEM SOFTWARE--INSTRUCTIONS--STATUS--PROTECTION.--
A. [Program records] Voter registration system software and instructions for [their] its use in controlling the processing of information derived from the voter file shall be verified functionally, identified and approved by the secretary of state.
[B. Program records and instructions for their use shall remain the property of the designated data processor.
C.] B. Verified, identified and approved [program records] voter registration system software and instructions shall be safeguarded at all times against loss or damage. The designated data processor shall be in charge of these safeguards subject to approval by the secretary of state."
Section 11. Section 1-5-18 NMSA 1978 (being Laws 1969, Chapter 240, Section 124, as amended) is amended to read:
"1-5-18. LIST AND ROSTER PREPARATION--COMPATIBLE DUPLICATE MEANS.--
A. The [county clerk] secretary of state shall [employ such] provide means to the county clerk for preparation of voter lists and signature rosters [as can be functionally duplicated elsewhere with reasonable cost and convenience].
B. At least one compatible duplicate means shall be provided for on a standby basis, and it shall be capable of performing the preparation of voter lists and signature rosters with minimum delay in case the original means is unable to perform.
C. The [county clerk] secretary of state shall procure and preserve sufficient duplicate [program information] voter registration system software and operating instructions [with each duplicate program record] so that in case of disaster the duplicate master record and the duplicate [program record and the duplicate additional program information] voter registration system software and operating instructions will be all that will be required for another compatible facility to prepare registered voter lists and signature rosters with minimum delay."
Section 12. Section 1-5-21 NMSA 1978 (being Laws 1975, Chapter 255, Section 75, as amended) is amended to read:
"1-5-21. DATA PROCESSOR--CUSTODY AND PROTECTION OF VOTER FILE--DELIVERY OF VOTER FILE AND PROGRAM RECORDS.--
A. The designated data processor shall provide the secretary of state, county clerk or county with data processing services in the implementation and maintenance of the [Automated] Voter Records System Act and in carrying out such other services as are reasonably related to providing [automated] data processing of the voter records system.
B. The designated data processor [shall be responsible for the identification of the voter file and program records and parts thereof and] shall preserve and safeguard [them] voter files and voter registration system software from loss, damage, unauthorized alteration, unauthorized access [thereto] and unauthorized reproduction [thereof] and shall [insure] ensure their continued use and accessibility while [such file and records] they are in the data processor's custody.
C. No copies of the voter file or information or listings derived therefrom shall be furnished by the data processor to any person other than the secretary of state, county clerk or [his] their designated [agent] agents.
[D. The designated data processor shall provide the county clerk of the county with data processing services in the implementation and maintenance of the unofficial election canvassing system.
E. The unofficial election canvassing system shall be tested by the secretary of state at least thirty days prior to an election.
F. The secretary of state shall certify the unofficial election canvassing system of any county at least twenty days prior to an election.]"
Section 13. Section 1-5-22 NMSA 1978 (being Laws 1975, Chapter 255, Section 76) is amended to read:
"1-5-22. UNLAWFUL DISPOSITION OF VOTER FILE--PENALTY.--
A. Unlawful disposition of voter file consists of the willful selling, loaning, providing access to or otherwise surrendering of the voter file, duplicates of [such] the file or a part [thereof] of the file by any of the following persons:
(1) a data processor;
(2) his agent or employee;
(3) a state or county officer;
(4) his deputy or assistant; or
(5) his employee or agent
to anyone not authorized by the [Automated] Voter Records System Act to have possession of [such] the file.
B. For purposes of this section, a file maintenance list shall be considered a voter file or a part [thereof] of a voter file.
C. Any data processor, officer, deputy, assistant, agent or employee who commits unlawful disposition of voter file is guilty of a fourth degree felony."
Section 14. Section 1-5-23 NMSA 1978 (being Laws 1975, Chapter 255, Section 77) is amended to read:
"1-5-23. UNLAWFUL DESTRUCTION OR ALTERATION OF [ACTIVE] DATA [PROCESSING] RECORDING MEDIA, VOTER FILE, FILE MAINTENANCE LIST, [PROGRAM RECORDS] VOTER REGISTRATION SYSTEM SOFTWARE, INSTRUCTIONS AND VOTER LISTS--PENALTY.--
A. Unlawful destruction or alteration of [active] data [processing] recording media, voter file, file maintenance list, [program records] voter registration system software, instructions or voter lists consists of the unauthorized destruction of, or the unauthorized alteration of, or the erasure of information from, or the rendering unusable for their lawfully intended purpose of such media, files, [records] software, instructions and lists or parts thereof by any person.
B. Any person who commits unlawful destruction or alteration of [active] data [processing] recording media, voter file, file maintenance lists, [program records] voter registration system software, instructions or voter lists is guilty of a fourth degree felony."
Section 15. Section 1-5-24 NMSA 1978 (being Laws 1975, Chapter 255, Section 78, as amended) is amended to read:
"1-5-24. REQUESTS FOR [STATISTICAL DATA] VOTER DATA, MAILING LABELS OR SPECIAL VOTER LISTS.--
A. The county clerk or secretary of state shall [authorize the data processor to] furnish [statistical data] voter data, mailing labels or special voter lists only upon written request to the county clerk or secretary of state and after compliance with the requirements of this section; provided, however, all requesters shall be treated equally [by the data processor] in regard to the charges and the furnishing of the materials.
B. In furnishing voter data, mailing labels or special voter lists, the county clerk or secretary of state shall not provide data or lists that include voters' social security numbers, codes used to identify agencies where voters have registered, voter's day and month of birth or voters' telephone numbers if prohibited by voters.
C. Each requester of voter data, mailing labels or special voter lists shall sign an affidavit that the voter data, mailing labels and special voter lists shall be used for governmental or election and election campaign purposes only and shall not be made available or used for unlawful purposes.
[D. Each requester of statistical data shall sign an affidavit that such statistical data shall be used for information or research purposes only and shall not be made available or used for unlawful purposes.
E.] D. The secretary of state shall prescribe the form of the affidavit."
Section 16. Section 1-5-25 NMSA 1978 (being Laws 1975, Chapter 255, Section 79, as amended) is amended to read:
"1-5-25. [UNLAWFUL USE OF STATISTICAL DATA] UNLAWFUL USE OF VOTER DATA, MAILING LABELS OR SPECIAL VOTER LISTS--PENALTIES.--
[A. Unlawful use of statistical data consists of use of statistical data in such a manner as to derive information, the use or possession of which would be otherwise prohibited under the Automated Voter Records System Act.
B.] A. Unlawful use of voter data, mailing labels or special voter lists consists of the knowing and willful use of such information for purposes prohibited by the [Automated] Voter Records System Act.
[C.] B. Any person, organization or corporation or agent, officer, representative or employee thereof who commits unlawful use of [statistical data] voter data, mailing labels or special voter lists is guilty of a fourth degree felony and upon conviction shall be fined one hundred dollars ($100) for each and every line of voter information which was unlawfully used.
[D.] C. Each and every unlawful use of [statistical data] voter data, mailing labels or special voter lists constitutes a separate offense."
Section 17. Section 1-5-26 NMSA 1978 (being Laws 1975, Chapter 255, Section 80) is amended to read:
"1-5-26. CONTRACTUAL AGREEMENT REQUIRED WITH DATA PROCESSOR.--[A. Each county implementing the Automated Voter Records System Act] The secretary of state shall enter into a written contractual agreement with the data processor notwithstanding the fact that the data processor may be a department of [county, municipal or] state government. [Parties to the contractual agreement shall be the county, the county clerk and the data processor.
B. All contractual agreements shall be approved by the secretary of state, with the assistance of the automated voter records system advisory committee, before they are valid.
C. The secretary of state shall provide by regulation the contractual provisions necessary for approval.]"
Section 18. Section 1-5-30 NMSA 1978 (being Laws 1989, Chapter 298, Section 1) is amended to read:
"1-5-30. SECRETARY OF STATE--ESTABLISHMENT OF STATEWIDE COMPUTERIZED VOTER REGISTRATION SYSTEM.--
A. The secretary of state shall develop, implement, establish and supervise a statewide computerized voter registration system that complies with the federal Help America Vote Act of 2002 to facilitate voter registration and to provide a central database containing voter registration information for New Mexico.
B. The statewide computerized voter registration system shall:
(1) provide for the establishment and maintenance of a central database for all voter registration information;
(2) permit the offices of all county clerks to add, modify and delete county information from the system to provide for accurate and up-to-date records;
(3) permit the offices of the county clerks and the bureau of elections to have access to the central database for review and search capabilities;
(4) provide security and protection for all information in the central database and monitor the central database to ensure the prevention of unauthorized entry;
(5) provide procedures for entering data into the central database; and
(6) provide a centralized system for each county to [identify] enter the precinct to which a voter should be assigned for voting purposes [and
(7) prescribe a procedure for phasing in or converting existing computerized records generated and maintained pursuant to the Automated Voter Records System Act.]"
Section 19. Section 1-5-31 NMSA 1978 (being Laws 1989, Chapter 298, Section 2) is amended to read:
"1-5-31. UNIFORM PROCEDURES FOR COUNTIES.--The secretary of state shall:
A. assist county clerks by devising uniform procedures and forms that are compatible with the statewide computerized voter registration system;
B. [develop and] provide to each county clerk the computer software necessary for the use and maintenance of the statewide computerized voter registration system; and
C. adopt such rules and regulations as are necessary to establish and administer the statewide computerized voter registration system and to require deadlines and time limits for updating of voter files [and to provide for the update of voter files at each polling place for the next election]."
Section 20. Section 1-5-10 NMSA 1978 (being Laws 1969, Chapter 240, Section 112, as amended) is recompiled as Section 1-12-7.1 NMSA 1978 and is amended to read:
"1-12-7.1. VOTER LISTS--SIGNATURE ROSTERS--USE DURING ELECTION.--
A. Each precinct board using voter lists shall post securely at or near the entrance of the polling place one copy of the precinct voter list for use of the voters prior to voting. The posted copy shall not contain a listing of voter social security numbers.
B. The presiding judge of the precinct board shall assign one judge of the board to be in charge of one copy of the precinct voter list, which shall be used to confirm the registration and voting of each person offering to vote.
C. The presiding judge of the precinct board shall assign one election clerk to be in charge of the signature roster.
D. The judge assigned to the precinct voter list used for confirmation of registration and voting shall determine that each person offering to vote is registered and, in the case of a primary election, that the voter is registered in a party designated on the primary election ballot. If the person's registration is confirmed by the presence of [his] the person's name on the precinct voter list [or if the person presents a certificate under the seal and signature of the county clerk showing that he is entitled to vote in the election and to vote in that precinct], the judge shall announce to the election clerks the list number and the name of the voter as shown on the voter list.
E. The election clerk shall locate that list number and name on the signature roster and shall require the voter to sign his usual signature or, if unable to write, to make his mark opposite his printed name. If the voter makes his mark, it shall be witnessed by one of the judges of the precinct board. If the signature roster indicates that the voter is required to present a form of identification before voting, the election judge shall ask the voter for a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows and matches the name and address of the voter as indicated on the signature roster. If the voter does not provide the required identification, he shall be allowed to vote on a provisional paper ballot.
F. The election judge shall follow the procedures provided for in Sections [1-5-12] 1-12-7.2 and 1-12-8 NMSA 1978 if a person whose name does not appear on the signature list requests to vote or a person is required to vote on a provisional paper ballot.
G. A voter shall not be permitted to vote until he has properly signed his usual signature or made his mark in the signature roster.
H. After the poll is closed, the election clerk in charge of a signature roster shall draw a single horizontal line in ink through each signature space in the signature roster where no signature or mark appears."
Section 21. Section 1-5-11 NMSA 1978 (being Laws 1969, Chapter 240, Section 113, as amended) is recompiled as Section 1-12-30.1 NMSA 1978 and is amended to read:
"1-12-30.1. VOTER LISTS--SIGNATURE ROSTERS--DISPOSITION AFTER THE POLLS CLOSE.--
A. After the polls are closed, the signature roster shall be properly certified by the precinct board and returned to the county clerk with the election returns destined for the county clerk. The precinct voter list marked for the secretary of state shall be returned to the secretary of state with the election returns destined for the secretary of state.
B. The signed and certified signature rosters used in any election shall be considered a part of the election returns and treated accordingly. They shall be preserved and finally disposed of in the same manner as provided in the Election Code [for poll books] and 42 U.S.C. 1974.
C. [The punishment for willful destruction, defacement, unauthorized alteration or improper disposition] Whoever willfully destroys, defaces, alters without authorization or improperly disposes of signature rosters used in an election [shall be the same as for similar treatment of poll books] is guilty of a fourth degree felony."
Section 22. TEMPORARY PROVISION--RECOMPILATION.--Section 1-5-12 NMSA 1978 (being Laws 1969, Chapter 240, Section 114, as amended) is recompiled as Section 1-12-7.2 NMSA 1978.
Section 23. REPEAL.--Sections 1-5-9, 1-5-13, 1-5-15, 1-5-20 and 1-5-27 through 1-5-29 NMSA 1978 (being Laws 1969, Chapter 240, Sections 111, 115 and 120, Laws 1977, Chapter 222, Section 11 and Laws 1975, Chapter 255, Sections 81 through 83, as amended) are repealed.
Section 24. EFFECTIVE DATE.--The effective date of the provisions of this act is May 19, 2004.
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