SENATE BILL 1065
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Cisco McSorley
AN ACT
RELATING TO ELECTIONS; SETTING STANDARDS FOR THE PURCHASE AND USE OF VOTING SYSTEMS; REQUIRING A VOTER-VERIFIABLE PAPER BALLOT; PROVIDING FOR COUNTING AND CANVASSING PROCEDURES; ALLOWING DISQUALIFIED VOTERS TO CORRECT THEIR BALLOTS AFTER ELECTION DAY; REQUIRING AUTOMATIC RECOUNTS; PROVIDING FOR AN ADDITIONAL AUDIT OF ELECTION RETURNS; CREATING A COMMISSION TO CALL FOR AND CERTIFY ELECTION RECOUNTS AND AUDITS AND TO CALL FOR NEW ELECTIONS IN PROBLEM AREAS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 1, Article 9 NMSA 1978 is enacted to read:
"[NEW MATERIAL] VOTING SYSTEMS--CODE REQUIREMENTS--PERFORMANCE GUARANTEE--TESTING--VERIFIABLE PAPER BALLOT.--
A. The secretary of state shall not approve a voting system that does not use open-source software in all parts of the voting system that use software, including vote tabulating machines.
B. All voting systems purchased for use in elections in New Mexico shall have a performance guarantee and enforceable remedy if the voting system does not perform as guaranteed.
C. Voting systems shall be open to independent audits or investigations as may be required by recounts.
D. The secretary of state shall approve for purchase only voting systems that have a voter-verifiable paper ballot."
Section 2. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] POST ELECTION DUTIES--MEMORY CARTRIDGES--COPIES.--After certification of the election results by the county canvassing board, the county clerk shall print out the memory cartridge and the redundant memory within the voting systems, and shall retain both a hard copy and a copy on a compact disc. The county clerk shall also hand deliver both a hard copy and a compact disc with the election results to the secretary of state. Election data shall not be transmitted over the internet or by other electronic means."
Section 3. A new section of Chapter 1, Article 12 NMSA 1978 is enacted to read:
"[NEW MATERIAL] PAPER BALLOT OPTION.--A voter shall have the right to request and use a paper ballot instead of an electronic or other type of voting system. The vote shall be counted."
Section 4. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] ABSENTEE BALLOT PROCESSING--CANVASSING--OBSERVATION.--The county chairs of all parties with candidates on the ballot shall be notified thirty-six hours in advance of where they may send representatives to observe the processing, opening or counting of absentee ballots, as well as the canvassing process."
Section 5. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] REMEDIES FOR DISQUALIFIED VOTERS.--
A. The county clerk shall notify all voters whose ballots have been disqualified and allow those voters to correct deficiencies so that their ballots may be counted.
B. The county clerk shall contact by telephone or letter those registered voters whose ballots were disqualified. If the county clerk is unable to contact disqualified voters because of the lack of address or telephone number, the county clerk shall publish the disqualified voters' names in newspapers of record in each county on the two Sundays following the election.
C. Voters shall have until seventeen days after the election to correct the deficiencies in their ballots. Corrected ballots shall then be counted and added to the totals for the proper precinct."
Section 6. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] ELECTION AUDIT REQUIREMENTS.--
A. After an election, an independent audit of the election returns shall be conducted using a random sample of ten percent of the precincts in each county. The random sample shall be generated by a computer program chosen by the chair of each political party represented on the ballot.
B. A blinded supervised recount shall occur in the selected precincts, which requires that those conducting the recount are unaware of the official tally. The cause of errors in an individual precinct shall be investigated if the official tally and recount for that precinct differ by:
(1) at least four votes for precincts with fewer than four hundred total votes; and
(2) at least one percent of the votes for precincts with four hundred or more total votes.
C. The audit shall compare the total vote tallies and recounts from the sampled precincts, focusing on differences between them in the gap between the vote for putative winner and the second-place candidate.
D. Standard statistical tests shall be used that account for the reductions in precision that result from clustering within precincts to:
(1) estimate the strength of the evidence for rejecting the hypothesis of no systematic difference based on the tallies and the hand recounts; and
(2) produce a ninety percent confidence interval for the statewide gap.
E. If, after conclusion of the first phase of sampling, it remains plausible that the electoral outcome could be reversed through recounts, the state shall conduct additional random sampling of precincts in a number to be determined by statistical sampling calculations, to be likely sufficient to resolve the inconsistency. If agreement on this number cannot be agreed upon prospectively, then all precincts shall be recounted by hand.
F. If the audit shows uncorrectable errors above two percent of the statewide vote, or shows substantial disenfranchisement in any single precinct, the election shall be reheld in the appropriate precincts, counties or statewide.
G. If the margin of victory in any race is one percent or less, a full hand recount of that race shall automatically be triggered at the expense of the governmental district."
Section 7. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] ELECTION COMMISSION--CREATED--DUTIES.--
A. The "election commission" is created. The commission is composed of the following ex-officio members or their designees and public members:
(1) the secretary of state, who shall be the chair of the commission;
(2) the attorney general;
(3) the chief justice of the supreme court;
(4) the executive director of the New Mexico association of counties; and
(5) three nonpartisan public members appointed by the governor and confirmed by the senate:
(a) one of whom is an expert in statistics; and
(b) two of whom represent different nonpartisan voter information or education organizations.
B. The commission shall meet after each statewide election. The affirmative vote of at least a majority of the members shall be necessary for an action to be taken by the commission.
C. Each public member of the commission appointed by the governor shall be appointed to a four-year term. To provide for staggered terms, two of the initially governor-appointed public members shall be appointed for terms of two years and one member for a term of four years. Thereafter, all governor-appointed members shall be appointed for four-year terms. Vacancies shall be filled by appointment by the governor for the remainder of the unexpired term. Appointed members may be removed only for incompetence, neglect of duty or malfeasance in office.
D. Public members of the board shall be reimbursed for attending meetings of the board as provided for nonsalaried public officers in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.
E. Public members of the board are appointed public officials of the state while carrying out the duties and activities of the commission.
F. The commission shall:
(1) establish explicit criteria for electoral quality;
(2) following each election, in a time-frame consistent with identifying errors prior to certification, create and disseminate public-use, precinct-level, analytic files;
(3) conduct routine quality audits and publish regularly scheduled, standard reports from those audits;
(4) examine the possibility that disenfranchisement rates are correlated with race or income;
(5) when evidence merits, share its findings with prosecutors;
(6) certify the election recount by a unanimous vote;
(7) certify the results of the audit; and
(8) force a recount of the results in any questionable precinct, county or race, or if a recount already occurred, call for a new election in the problem areas."
Section 8. Section 1-2-4 NMSA 1978 (being Laws 1969, Chapter 240, Section 25, as amended) is amended to read:
"1-2-4. SECRETARY OF STATE--INSTRUCTIONS TO PRECINCT BOARDS, OBSERVERS AND CHALLENGERS.--
A. The secretary of state shall provide written instructions for the precinct board, which shall include a brief nontechnical explanation of their duties as required by the Election Code.
B. When any specific duty is imposed by the instructions issued under the Election Code, the duty shall be deemed to be a requirement of the law.
C. Written instructions shall be made available in each place observers or challengers are allowed to be present."
Section 9. Section 1-2-12 NMSA 1978 (being Laws 1969, Chapter 240, Section 32, as amended) is amended to read:
"1-2-12. PRECINCT BOARD--NUMBER FOR EACH PRECINCT--
MULTIPARTISAN.--
A. When absentee ballots are counted, the precinct board shall consist of:
(1) [a] two presiding [judge] judges who shall be of different political parties;
(2) one election judge from each of the major political parties;
(3) one clerk from each of the major political parties; and
(4) if a major party has no registered, qualified elector who is able to fill the position as election judge or election clerk, a registered, qualified elector from another major party, chosen by the county clerk to fill the vacant position.
B. When one voting machine is to be used in a precinct, the precinct board shall consist of:
(1) [a] two presiding [judge] judges who shall be of different political parties;
(2) two election judges who shall be of different political parties; and
(3) one election clerk [who shall be of a different political party than the presiding judge].
C. When two voting machines are to be used in a precinct, the precinct board shall consist of:
(1) [a] two presiding [judge] judges who shall be of different political parties;
(2) two election judges who shall be of different political parties; and
(3) two election clerks who shall be of different political parties.
D. When three voting machines are used in a precinct, the precinct board shall consist of:
(1) [a] two presiding [judge] judges who shall be of different political parties;
(2) two election judges who shall be of different political parties; and
(3) three election clerks, not more than two of whom shall belong to the same political party.
E. If the county clerk determines that additional election clerks are needed in a precinct, the clerk may appoint such additional election clerks as he deems necessary; provided, however, that such appointments shall be made in the manner that provides for representation from all major political parties.
F. In addition to the members of the precinct board provided for in this section, the county clerk may appoint an additional election clerk for the purpose of making changes in the certificate of registration of any voter who has voted in that election at the polling place."
Section 10. Section 1-9-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 188, as amended) is amended to read:
"1-9-5. REQUIREMENT TO PURCHASE AND USE VOTING
SYSTEMS.--
A. Voting systems shall be used in all precincts in all statewide elections.
B. The county clerk of each county shall provide one voting system in each precinct for use in the general and primary elections when the total number of registered voters in that precinct amounted to fewer than [six] four hundred at the close of registration.
C. At least one additional voting system shall be provided in such precinct for every [six] four hundred registered voters in that precinct.
D. When authorized by the state board of finance, the board of county commissioners may acquire new or previously owned voting or electronic vote tabulating systems, as tested and approved by the secretary of state pursuant to the provisions of Section 1-9-14 NMSA 1978, which systems may be used in any election for public office. The acquisition of these systems may be in excess of the number provided in this section.
E. Except for intercounty acquisitions of equipment approved by the secretary of state, a previously owned voting or electronic vote tabulating system shall have a warranty equal to the warranty required of a new voting or electronic vote tabulating system."
Section 11. Section 1-11-8 NMSA 1978 (being Laws 1969, Chapter 240, Section 218, as amended) is amended to read:
"1-11-8. VOTING MACHINES--NOTICE OF TESTING AND SEALING.--
A. Before testing and preparing any type of voting machine for an election, the county clerk shall send written notice to the county chairman of each political party having a candidate on the ballot in the election. The notice shall state the times when and places where the voting machines will be prepared.
B. Party and organization representatives and candidates may be present at the testing, preparation, inspection and sealing of the voting machines to insure compliance with the Election Code."
Section 12. Section 1-13-2 NMSA 1978 (being Laws 1969, Chapter 240, Section 304, as amended) is amended to read:
"1-13-2. POST-ELECTION DUTIES--MISSING RETURNS.--
A. If at the time the county canvassing board meets it appears that a precinct board has not delivered the election returns to the county clerk, the county canvassing board shall immediately issue a summons to bring before it the delinquent precinct board together with the missing election returns. The summons shall be served by the sheriff, without cost to the county, and the members of the precinct board shall not be paid for their service on election day.
B. If within [ten] eighteen days after the date of the election the secretary of state has not received the election returns of any precinct, the secretary of state may send a special messenger to the county and precinct to secure and convey the missing returns to the secretary of state."
Section 13. Section 1-13-13 NMSA 1978 (being Laws 1969, Chapter 240, Section 316, as amended) is amended to read:
"1-13-13. POST-ELECTION DUTIES--COUNTY CANVASSING BOARD--CERTIFYING RESULTS.--
A. The county canvassing board shall complete the canvass of the returns and declare the results within [ten] eighteen days from the date of the election.
B. On the [thirty-first] thirty-sixth day after any primary, general or district special election, the county canvassing board shall issue to those candidates entitled by law election certificates, or certificate of nomination in the case of the primary election, to all county officers, magistrates and to members of the legislature elected from districts wholly within the county. In addition, the county canvassing board shall declare the results, immediately after completion of the canvass, of the election and of all questions affecting only the county.
C. The county canvassing board, immediately after completion of the canvass, shall also certify to the state canvassing board the number of votes cast for all other candidates and questions respectively and shall immediately deliver to the county chairman of each political party that participated in the election a certificate showing the total number of votes cast for each candidate in the election in the county."
Section 14. Section 1-13-15 NMSA 1978 (being Laws 1969, Chapter 240, Section 318, as amended) is amended to read:
"1-13-15. POST-ELECTION DUTIES--STATE CANVASS.--The state canvassing board shall meet in the state capitol on the [third] fifth Tuesday after each election and proceed to canvass and declare the results of the election or nomination of each candidate voted upon by the entire state and by the voters of more than one county. The state canvassing board shall also canvass and declare the result of the vote on any constitutional amendment or any question voted upon by the voters of more than one county. Upon the completion of the state canvass, the secretary of state shall notify each county clerk of that fact."
Section 15. Section 1-13-16 NMSA 1978 (being Laws 1969, Chapter 240, Section 319, as amended) is amended to read:
"1-13-16. POST-ELECTION DUTIES--STATE CANVASS METHOD.--
A. The state canvass shall be made from the election returns transmitted directly to the secretary of state from each of the precinct boards and, in the case of candidates voted upon by a district composed of two or more counties, from the certificates transmitted by the county canvassing boards.
B. Upon the completion of the canvass, but not sooner than the [thirty-first] thirty-sixth day after any primary, general or district special election, the state canvassing board shall issue to those candidates entitled by law the appropriate certificate of election or, in the case of a primary election, a certificate of nomination.
C. The state canvassing board may designate a person or persons to compare the totals appearing on the election returns, statements of canvass and certificates and to certify the results of their findings to the state canvassing board."
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