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F I S C A L I M P A C T R E P O R T

SPONSOR Fox-Young

DATE TYPED 1/31/05

HB 29

SHORT TITLE Provisional Ballot Counting Requirements

SB

ANALYST Medina

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to elections and HB 25

SOURCES OF INFORMATION

LFC Files

Responses Received From

Secretary of State

SUMMARY

Synopsis of Bill

House Bill 29 repeals Section 1-12-25.4 (F) NMSA 1978, which provides for the county can-

vassing board to ensure that only those votes for the positions or measures for which a voter who

votes on a provisional ballot at a polling place other than the voter’s designated polling place is

eligible. It requires that a voter’s eligibility for receiving a provisional paper ballot be determined

at the precinct level rather than at the county level as current law dictates.

The bill includes a provision for the county clerk to not count a voter’s provisional paper ballot if

the clerk finds that the voter who voted by provisional paper ballot also voted by absentee ballot.

The bill also includes the provision that the county canvassing board will prepare and display a

tally of the number of provisional paper ballots received, those found valid and counted, and of

those rejected and not counted (with an explanation) and forward this tally to the Secretary of

State upon certification of the election. Finally, the bill requires the Secretary of State to issue

rules to ensure the security and secrecy of the provisional paper ballots.

Significant Issues

According to the Secretary of State:

House Bill 29 -- Page 2

“New Mexico is required by law to conform to the provisions of the federal Help Amer-

ica Vote Act (HAVA) of 2002. Section 302 of HAVA is clear:

‘If an individual declares that such individual is a registered voter in the jurisdiction in

which the individual desires to vote and that the individual is eligible to vote in an elec-

tion for Federal office, but the name of the individual does not appear on the official list

of eligible voters for the polling place or an election official asserts that the individual is

not eligible to vote, such individual shall be permitted to cast a provisional paper ballot as

follows:

(1)

An election official at the polling place shall notify the individual that the in-

dividual cast a provisional ballot in the election.

(2)

The individual shall be permitted to cast a provisional ballot at that polling

place upon the execution of written affirmation by the individual before an

election official at the polling place stating that the individual is-

(A)

a registered voter in the jurisdiction in which the individual desires to

vote; and

(B)

eligible to vote in that election.

(3)

An election official at the polling place shall transmit the ballot cast by the in-

dividual or the voter information contained in the written affirmation executed

by the individual under paragraph (2) to an appropriate State or local election

official for prompt verification under paragraph (4).

(4)

If the appropriate State or local election official to whom the ballot or voter

information is transmitted under paragraph (3) determines that the individual

is eligible under State law to vote, the individual’s provisional ballot shall be

counted as a vote in that election in accordance with State law.’

Numerous voters on Election Day, for a myriad of reasons, show up at the wrong precinct

within their county. Therefore, allowing such persons wishing to vote to complete a pro-

visional paper ballot provides them with an alternative to vote without having to locate

and transport themselves to their designated polling place.

The intent of provisional ballots is to provide voters with an alternative as most of them

will not vote if they have to find their proper location due to time constraints with their

work schedule, work location relative to their precinct location or the inconvenience in

finding their designated polling location.

Mandating that voters must be in their designated precinct for a provisional paper ballot

to be counted will only serve to suppress the vote.”

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The current law concerning the use of provisional ballots, especially the HAVA of 2002 will

prevail.

POSSIBLE QUESTIONS

Does this bill comply with the provisions of the Help America Vote Act of 2002.

DXM/yr