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

SPONSOR SJC

DATE TYPED 3/16/05

HB

SHORT TITLE Election Reform

SB

CS/SRCS/SB678, 680, 718

and 735/aSFl#1/aSFl#2/aSFl#3

Third Party Election Registration Agents, Election Code

Cleanup, Voter Identification and Ballot Counting, and

Absentee Ballot Processing and Records

ANALYST Medina

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to the Election Code

Conflicts with Senate Rules Committee Substitute for Senate Bills 678, 680, 718 and 735; House

Bill 742 and other election reform legislation.

SOURCES OF INFORMATION

LFC Files

Response Received From

Secretary of State (SOS)

SUMMARY

Synopsis of Senate Floor Amendment #3

Senate Floor Amendment # 3 to Senate Judiciary Committee Substitute for Senate Rules Com-

mittee Substitute for Senate Bill 678 et al. relates to third-party registration agents. The amend-

ment clarifies that a person who knowingly registers an ineligible voter is guilty of a fourth de-

gree felony.

Synopsis of Senate Floor Amendment #2

Senate Floor Amendment # 2 to Senate Judiciary Committee Substitute for Senate Rules Com-

mittee Substitute for Senate Bill 678 et al. relates to the county clerks’ responsibility to notify

voters who voted on a provisional ballot that their ballot was not counted. The amendment short-

ens the length of time for notification from ten days to three, and specifies that notification be by

certified mail rather than regular mail, and shortens the length of time for the voters to appeal to

the county canvassing board on the clerks’ rejection of their ballot from ten days to five.

Senate Bill CS/CS/SRCS/SB 678, 680, 718 and 735/aSFl#1/aSFl#2/aSFl#3 -- Page 2

Synopsis of Senate Floor Amendment #1

Senate Floor Amendment # 1 to Senate Judiciary Committee Substitute for Senate Rules Com-

mittee Substitute for Senate Bill 678 et al. relates to voter identification. The amendment

changes the distribution of voter identification from taking place before only primary elections,

rather than prior to each statewide election, clarifying the same voter identification is to be used

for both the primary and general election in a year in which statewide elections are held.

Synopsis of Bill

The Senate Judiciary Committee Substitute for the Senate Rules Committee Substitute for Senate

Bill 678 et al. addresses a number of issues related to voting and elections including voter identi-

fication; ballot counting, processing, and reporting; recounts and audits; registration agents and

officers; and compliance with the federal Help America Vote Act of 2002.

As it relates to voter identification, the definitions of voter identification in this bill require that

the identification show the name and address of the person but does not require that the address

match the voter’s certificate of registration. Furthermore, the bill allows that voters present origi-

nal (written) forms of voter identification or a sworn written statement by the voter of the voter’s

name, year of birth and unique identifier; provided that the statement of the voter’s name also

need not contain the voter’s middle initial or suffix. This is a considerable change from language

in the original bill and does not provide that a verbal statement of the same by the voter be suffi-

cient identification as does SRCS/SB 678 et al.

The bill proposes significant changes to the Election Code as it relates to the recheck of vote re-

turns and the recount of ballots (Section 1-1-6 NMSA 1978). A “recheck” is defined in the bill as

pertaining to electronic voting systems and meaning a verification procedure where a printout of

the electronic record of votes cast in an election is made from each electronic memory device in

the electronic voting system and the results are compared with the results shown on the official

returns. The existing statutory definition of a “recheck” is not as specific as the proposed defini-

tion in this bill. A “recount” is defined in the bill as pertaining to emergency paper ballots, ab-

sentee ballots, provisional paper ballots, optical scan paper ballots, voter verifiable and auditable

paper ballots printed by electronic voting systems and any other paper ballots, and meaning a

verification procedure whereby the voters’ selections on the paper ballots may be counted by

hand and the results compared with the results shown on the official returns. The existing statu-

tory definition of a “recount” only pertains to emergency paper ballots and absentee ballots.

As it relates to ballot counting, processing, and reporting, this bill allows for more acceptable

forms of votes to be counted, including circling the name of the preferred candidate. The bill in-

cludes similar provisions as the bills being substituted.

The bill establishes that only the Secretary of State, and not the counties, is to enter into written

contractual agreements with the election data processors and clarifies that the voter registration

system be in compliance with the Help America Vote Act of 2002.

The bill defines a “registration agent” as a state or federal employee who provides voter registra-

tion at a state agency or any other individual who assists another person in completion of a voter

registration application and expands the term of “registration officer” to include a state employee

performing registration duties in accordance with the National Voter Registration Act of 1993.

Senate Bill CS/CS/SRCS/SB 678, 680, 718 and 735/aSFl#1/aSFl#2/aSFl#3 -- Page 3

Significant Issues

This committee substitute bill does not include the proposed requirement in SRCS/SB 678 et al.

that at least ninety days before an election, the Secretary of State review statewide computerized

voter registration system files for duplicate registrations and notify the voter and update the

voter’s registration if any duplicate registrations are found, allowing that the Secretary of State

correct the state voter file in accordance with federal law in the event that the voter does not re-

spond to the notification.

The bill adds a provision not contained in SRCS/SB 678 et al. requiring the Secretary of State to

establish procedures for handling voter appeals to the canvassing board for cases in which the

county canvassing board makes a decision to reject a voter’s ballot.

The bill proposes new material relating to random voting system checks and recounts. The lan-

guage directs the Secretary of State to select a random sample of one voting system from each

House of Representatives district following the general election to compare by hand the voter

verifiable and auditable paper trail totals with the voting system totals. In addition, in counties

other than class A counties, the county clerk shall select a random sample of one absentee voting

system in each absent voter precinct to compare with the totals of the hand recount of the paper

ballots from that voting system. In a class A county the county clerk is to designate one voting

system as the auditable voting system and the lesser of 3 percent or 500 ballots cast in the absent

voter precinct shall be chosen at random to be registered and counted on that voting system. The

paper ballots registered on that voting system shall be hand counted and the totals compared with

the voting system totals. The check of voting systems is required to occur within three days of

the completion of the county canvass. If the totals from the voting system and the paper trail are

not equal for an office, the county clerk of the county in which the audited voting system is lo-

cated shall conduct hand recount for that office in the precincts of the legislative district in which

the discrepancy occurred.

The bill proposes a provision to require an applicant for a recount to deposit fifty dollars in cash,

or a sufficient surety bond in an amount equal to fifty dollars for each precinct for which a re-

count is demanded with the proper canvassing board or the Secretary of State. The amendment

further requires ten dollars for a similar recheck for each voting machine to be rechecked. The

state canvassing board may condition the issuance of the summons on a receipt of a portion of or

the full estimated costs of the recount or recheck to ensure sufficient security.

FISCAL IMPLICATIONS

Although SRCS/SB 678 et al. includes an appropriation of $1.5 million for the Secretary of State

to carry out the election reforms contained in the legislation, this bill does not contain an appro-

priation.

ADMINISTRATIVE IMPLICATIONS

The Secretary of State notes contends that mandatory audits of voting systems after elections will

increase the duties of staff while they are in the midst of certifying the election.

Senate Bill CS/CS/SRCS/SB 678, 680, 718 and 735/aSFl#1/aSFl#2/aSFl#3 -- Page 4

OTHER SUBSTANTIVE ISSUES

The Secretary of State submits the following substantive issues for consideration. They are listed

by section of the bill:

“Section 2: All voters are to present identification for voting not just new residents.

Section 5: Several states now use a unique identifier, the last 4 digits of a voter’s social

security number. This Section is aligned with the Help America Vote Act of 2002

(HAVA) provisions for identification.

Section 8: This section conflicts with the requirements of the federal National Voter

Registration Act.

Section 19: Pursuant to Section 1-6-4, Subsection B NMSA 1978 the Secretary of State

prescribes the voter registration form. This form is being updated to include a perforated

receipt for both the voter and the 3

rd

party with matching numbers and a line for the 3

rd

party registration agent to sign for tracking purposes.

Section 20: If voter identification is enacted what is the purpose of requiring first time

registrants to show identification to register to vote.

Section 41: Third Party Agents, House Bill 266; Sandoval; allows only the applicant to

deliver, either by mail or in person, the absentee ballot application to the county clerk.

The change was a direct request by the county clerks as many allegations of 3

rd

party

groups not turning in applications to the clerk if they were not of the “correct” party.

These applications are not numbered or dated until they arrive at the county clerk’s of-

fice. The 48-hour delivery after completion cannot be monitored.

Section 42: Under the provisions of Section 1-6-4 NMSA 1978 this form is prescribed by

the federal government.

Section 46: The Secretary of State agrees that identification be required to vote absentee

but that the identification be required at the absentee application level.

Section 56: Under Section 1-9-2 NMSA 1978 a voting machine manufacturer must fed-

erally certify and independently test their voting machines. These same manufacturers

must apply for certification and testing with the Secretary of State prior to June 1

st

of

each odd numbered year. The manufacturer is further required pursuant to Section 1-9-

14 NMSA 1978 to pay for the testing and certification of that voting system in New Mex-

ico.

Section 57: Definition Of A Vote. The definition of a vote was added to the Election

Code based on court cases and recounts held during the 2000 Gore/Bush presidential

election. Section 1-9-4.2 NMSA 1978 clearly defines what constitutes a vote on all paper

ballots. The Secretary of State firmly believes that if circles or other marks, other that

what is currently in statute, are allowed on a ballot, poll officials will try to determine

voter intent. No one other than the voter can determine what the voter intended on the

ballot.

Senate Bill CS/CS/SRCS/SB 678, 680, 718 and 735/aSFl#1/aSFl#2/aSFl#3 -- Page 5

Section 60: This proposal is already covered under the provisions of the Help America

Vote Act.

Section 68: This amendment will delay county and state canvassing and certification of

elections.

Section 73: This section raises concern over the funding to pay for an audit and possibly

a recount. House Voters and Elections Committee substitute for House Bill 1063 in-

cludes language for such an audit contingent on legislative funding. HVEC CS for 1063

also specifies that an audit be conducted only in a general election and for the office of

president or governor.

Language on Page 86, Line 17 also raises concern as the audit does not provide for any

deviation in the tally of votes cast on a voting system versus the paper trail. HVEC CS

1063 provides for an error rate of 1.5%.”

ALTERNATIVES

House Bill 742 proposes that election reform be analyzed during the interim allowing for more

input from voters and others concerned with needed election reform.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

Election reform will be postponed.

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