HOUSE BILL 686
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Mary Helen Garcia
AN ACT
RELATING TO ELECTIONS; PROVIDING ADDITIONAL PROCEDURES FOR PROCESSING PROVISIONAL BALLOTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 1-6-16 NMSA 1978 (being Laws 1969, Chapter 240, Section 141, as amended) is amended to read:
"1-6-16. VOTING IN PERSON PROHIBITED.--
A. Except as provided in Section 1-6-16.1 NMSA 1978, no person who has been issued an absentee ballot shall vote in person at his precinct poll.
B. At any time prior to 5:00 p.m. on the Monday immediately preceding the date of the election, a person whose absentee ballot application has been accepted and who was mailed an absentee ballot but who has not received the absentee ballot may execute, in the office of the county clerk of the county where he is registered to vote, a sworn affidavit, which shall be printed on the outer envelope of a provisional ballot, stating that he did not receive or vote his absentee ballot. Upon receipt of the sworn affidavit, the county clerk shall issue the voter a [replacement absentee] provisional paper ballot.
C. The secretary of state shall prescribe the form of the affidavit and the manner in which the county clerk shall void the first ballot mailed to the applicant."
Section 2. Section 1-6-16.1 NMSA 1978 (being Laws 1989, Chapter 368, Section 1, as amended) is amended to read:
"1-6-16.1. ABSENTEE BALLOT--CONDUCT OF ELECTION--WHEN NOT TIMELY RECEIVED--EMERGENCY PROCEDURE FOR VOTING AND COUNTING.--
A. A voter who applies for an absentee ballot but 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 nonreceipt of absentee ballot, which shall be printed on the outer envelope of the provisional ballot, shall be permitted to vote on [an emergency] a provisional paper ballot.
B. The completed ballot shall be placed in an official inner envelope substantially as prescribed by Section 1-6-8 NMSA 1978 and sealed. The official inner envelope shall then be placed in an official envelope substantially as prescribed for a transmittal envelope or mailing envelope in Section 1-6-8 NMSA 1978. This envelope shall contain a form on its back that identifies the voter by name and signature roster number and a printed statement to the effect that the voter made application for an absentee ballot but had not received it as of the date of the election and is permitted to vote by [emergency] provisional paper ballot.
C. The presiding election judge shall put [all absentee] the ballots in a special envelope provided for that purpose by the county clerk, seal it and return it to the county clerk along with the machine tally sheets. The sealed envelope shall not be put in the locked ballot box.
D. Upon receipt of the envelope containing [absentee] the ballots, the county clerk, no later than forty-eight hours after the close of the election, shall remove the transmittal envelopes and, without removing or opening the inner envelopes, determine [that]:
(1) if a voter did in fact make application for an absentee ballot; and
(2) if an absentee ballot was received by the county clerk from the voter by 7:00 p.m. on election day.
E. Upon making that determination, the county clerk shall [remove the inner envelope without opening it, retain the transmittal envelope with the other election returns and place the inner unopened envelope in a secure container to be transmitted to the county canvassing board] indicate on the transmittal envelope the recommendation to count the ballot or not, and why, and then send the unopened transmittal envelopes to the absent voter precinct board to be tallied [and included in the canvass of that county] for the appropriate precinct.
F. The secretary of state shall prescribe and furnish the necessary envelopes for purposes of this section and shall adopt rules [and regulations] deemed necessary to preserve the secrecy of the [emergency] provisional paper ballots."
Section 3. Section 1-12-25.3 NMSA 1978 (being Laws 2003, Chapter 356, Section 6) is amended to read:
"1-12-25.3. PROVISIONAL PAPER BALLOTS--REQUIRED INFORMATION.--
A. At a minimum, the following information shall be printed on the outer envelope for a provisional paper ballot:
(1) the name and signature of the voter;
(2) the voter's registered address, both present and former if applicable;
(3) the voter's date of birth;
(4) the reason for using the ballot;
(5) the precinct and the polling place at which the voter has voted;
(6) the voter's social security number; [and]
(7) sufficient space to list the disposition of the ballot after review by the county clerk;
(8) the line number the voter signed on the signature roster; and
(9) notice that intentionally making a false statement is punishable as a fourth degree felony.
B. A provisional paper ballot shall not be rejected for lack of the information required by this section as long as the voter provides a valid signature and sufficient information to determine eligibility."
Section 4. Section 1-12-25.4 NMSA 1978 (being Laws 2003, Chapter 356, Section 7) is amended to read:
"1-12-25.4. PROVISIONAL PAPER BALLOTS--DISPOSITION.--
A. Upon closing of the polls, provisional paper ballots shall be delivered to the county clerk, who shall determine if the ballots will be counted prior to certification of the election.
B. A provisional paper ballot shall not be counted if the registered voter did not sign either the signature roster or the ballot's envelope.
C. If there is no record of the voter ever having been registered in the county, the voter shall be offered the opportunity to register and the provisional paper ballot shall not be counted.
D. If the voter was registered in the county, the registration was later canceled and the county clerk determines that the cancellation was in error, the voter's registration shall be immediately restored and the provisional paper ballot counted.
E. If the county clerk determines that the cancellation was not in error, the voter shall be offered the opportunity to register at the voter's correct address, and the provisional paper ballot shall not be counted.
F. If the voter is a registered voter in the county, but has voted on a provisional paper ballot at a polling place other than the voter's designated polling place, the absent voter precinct board and county canvassing board shall ensure that only those votes for the positions or measures for which the voter was eligible to vote are counted.
G. If the county clerk finds that the voter who voted on a provisional paper ballot at the polls has also voted an absentee ballot in that election, the provisional paper ballot shall not be counted.
H. Upon completing the assessment of provisional ballots, the county clerk shall convene the absent voter precinct boards to review the county clerk's determinations, count and tally votes from the valid ballots and report the results to the county clerk; provided, however, that at least twenty-four hours have elapsed since the absent voter precinct board last met to count and tally votes. By a majority vote of the precinct board members, and in accordance with the provisions of Subsections B through G of this section, a determination of the county clerk on how a provisional ballot will be treated may be changed.
[H.] I. The county canvassing board shall prepare a tally displaying the number of provisional paper ballots received, the number found valid and counted, the number rejected and not counted and the reason for not counting the ballots as part of the canvassing process and forward it to the secretary of state immediately upon certification of the election.
[I.] J. The secretary of state shall issue rules to ensure securing the secrecy of the provisional paper ballots and protecting against fraud in the voting process."
Section 5. Section 1-12-28 NMSA 1978 (being Laws 1969, Chapter 240, Section 283, as amended) is amended to read:
"1-12-28. CONDUCT OF ELECTION--ELECTION CERTIFICATE.-- A. Immediately upon the closing of the polls, the precinct board shall complete and sign a certificate which shall state: "We certify the ________________ election complete with the voting of voting machine number __________by voter number _______________on the signature roster.".
B. The precinct board shall also certify the following:
(1) number of paper ballots destroyed and their ballot numbers;
(2) number and ballot numbers of spoiled ballots;
(3) total emergency ballots voted;
(4) total provisional ballots voted and subtotals for provisional ballots voted on due to registration questions and for absentee ballot replacements;
(5) total votes cast;
(6) number of voters who signed the signature roster; and
(7) an explanation if the totals for Paragraphs (5) and (6) of this subsection are not equal to each other."
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