HOUSE BILL 527
47th legislature - STATE OF NEW MEXICO - second session, 2006
INTRODUCED BY
Edward C. Sandoval
FOR THE ELECTION REFORM TASK FORCE
AN ACT
RELATING TO ELECTIONS; PROVIDING FOR PRECINCT BOARD TRAINING MANUALS; CHANGING REGISTRATION PROCEDURES AND REQUIREMENTS; ELIMINATING PROVISIONS FOR ELECTRONIC TRANSMISSION OF ABSENTEE BALLOTS; REPEALING PROVISIONS ALLOWING ABSENTEE VOTERS TO DELIVER THEIR ABSENTEE BALLOTS TO THEIR PRECINCT ON ELECTION DAY; CLARIFYING WHEN THE ABSENT VOTER PRECINCT POLLING PLACES MAY BE OPEN; EXTENDING THE DEADLINE FOR PURCHASE OF VOTING SYSTEMS; ALLOWING AUDITORY VERIFICATION OF BALLOT CHOICES BY DISABLED OR ALTERNATIVE LANGUAGE VOTERS; PROVIDING FOR SECURITY OF VOTER VERIFIABLE AND AUDITABLE PAPER TRAILS; CHANGING THE DISTRIBUTION REQUIREMENTS FOR VOTER IDENTIFICATION CARDS; REQUIRING REPORTING OF FAILED REGISTRATIONS FOR INVESTIGATION OR PROSECUTION; REQUIRING THE SECRETARY OF STATE TO INFORM A VOTER OF APPEAL PROCEDURES FOR COUNTY CLERK DECISIONS CONCERNING THE COUNTING OF THE VOTER'S PROVISIONAL BALLOT; AMENDING AND REPEALING SECTIONS OF THE ELECTION CODE; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. 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--TRAINING AND INSTRUCTIONS TO PRECINCT BOARDS--TRAINING MANUAL.--
A. The secretary of state shall provide: (1) instructions for the precinct board, which shall include a brief nontechnical explanation of their duties as required by the Election Code; and
(2) a single training manual containing standard guidelines for the operations and processes of statewide elections, including pre-election day activities, election-day activities and post-election-day activities [and county and state canvassing processes]. Separate manuals for voting systems may be provided for each county, or if the single training manual is in a loose-leaf binder format, sections for the voting systems used in a given county may be inserted in the training manual for that county.
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."
Section 2. Section 1-4-5.1 NMSA 1978 (being Laws 1993, Chapter 314, Section 7 and Laws 1993, Chapter 316, Section 7, as amended) is amended to read:
"1-4-5.1. METHOD OF REGISTRATION--FORM.--
A. A qualified elector may apply for registration by mail, in the office of the secretary of state or county clerk or with a registration agent or officer.
B. A person may request certificate of registration forms [may be requested] from the secretary of state or any county clerk in person, by telephone or by mail for [oneself] that person or for [others] other persons.
C. Except as provided in Subsection D of this section, a qualified elector who wishes to register to vote shall fill out completely and sign the certificate of registration. The qualified elector may seek the assistance of any person in completing the certificate of registration.
D. A qualified elector who has filed for an order of protection pursuant to the provisions of the Family Violence Protection Act and who presents a copy of that order from a state or tribal court to the registration officer shall not be required to provide address information on the certificate of registration.
E. Completed certificates of registration may be mailed or presented in person by the registrant or any other person to the secretary of state or presented in person by the registrant or any other person to the county clerk of the county in which the registrant resides.
F. If the registrant wishes to vote in the next election, the completed and signed certificate of registration shall be delivered or mailed and postmarked at least twenty-eight days before the election.
G. Upon receipt of a certificate of registration, the secretary of state shall send the certificate to the county clerk in the county where the qualified elector resides.
H. Only when the certificate of registration is properly filled out, signed by the qualified elector and accepted for filing by the county clerk as evidenced by the county clerk's signature or stamp and the date of acceptance thereon and when notice has been received by the registrant shall it constitute an official public record of the registration of the qualified elector.
I. The secretary of state shall prescribe the form of the certificate of registration, which form shall be a postpaid mail-in format and shall be printed in Spanish and English. The certificate of registration form shall be clear and understandable to the average person and shall include brief but sufficient instructions to enable the qualified elector to complete the form without assistance. The form shall also include:
(1) the question "Are you a citizen of the United States of America?" and boxes for the applicant to check to indicate whether the applicant is or is not a citizen;
(2) the question "Will you be at least eighteen years of age on or before election day?" and boxes for the applicant to check to indicate whether the applicant will be eighteen years of age or older on election day;
(3) the statement "If you checked 'no' in response to either of these questions, do not complete this form.";
(4) a statement informing the applicant that:
(a) if the form is submitted by mail by the applicant and the applicant is registering for the first time in New Mexico, the applicant must submit with the form a copy of: 1) a current and valid photo identification [or voter identification card]; or 2) a utility bill, bank statement, government check, paycheck, student identification card or other government document, including identification issued by an Indian nation, tribe or pueblo, that shows the name and address of the applicant; and
(b) if the applicant does not submit the required identification, [he] the applicant will be required to do so when voting in person or absentee; and
(5) a statement requiring the applicant to swear or affirm that the information supplied by the applicant is true."
Section 3. Section 1-6-4 NMSA 1978 (being Laws 1969, Chapter 240, Section 130, as amended) is amended to read:
"1-6-4. ABSENTEE BALLOT APPLICATION--FEDERAL QUALIFIED ELECTOR--OVERSEAS VOTER.--
A. Application by a federal qualified elector or an overseas voter for an absentee ballot shall be made on the official postcard form prescribed or authorized by the federal government to the county clerk of the county of [his] the applicant's residence. The form shall allow the applicant to receive an absentee ballot for all elections within an election cycle.
B. Application by a voter for an absentee ballot shall be made only on a form prescribed by the secretary of state in accordance with federal law. The form shall identify the applicant and contain information to establish [his] the applicant's qualification for issuance of an absentee ballot under the Absent Voter Act; provided that on the application form for a general election ballot there shall be no box, space or place provided for designation of the voter's political party affiliation.
C. Each application for an absentee ballot shall be subscribed by the applicant and shall require the applicant's printed name, year of birth and unique identifier to be supplied by the applicant, which shall constitute the required form of identification, except for new registrants [that] who have registered by mail and at that time did not provide acceptable identification; provided, however, that absent uniformed services voters, overseas voters and voters with disabilities shall not be required to submit any identification other than their printed name, year of birth and unique identifier.
D. An application for an absentee ballot by a federal qualified elector or an overseas voter shall be accepted at any time preceding the general election."
Section 4. Section 1-6-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 131, as amended) is amended to read:
"1-6-5. PROCESSING APPLICATION--ISSUANCE OF BALLOT.--
A. The county clerk shall mark each completed absentee ballot application with the date and time of receipt in the clerk's office and enter the required information in the absentee ballot register. The county clerk shall then determine if the applicant is a voter, an absent uniformed services voter or an overseas voter.
B. If the applicant does not have a valid certificate of registration on file in the county and is not a federal qualified elector or if the applicant states that the applicant is a federal qualified elector but the application indicates the applicant is not a federal qualified elector, an absentee ballot shall not be issued and the county clerk shall mark the application "rejected" and file the application in a separate file from those accepted.
C. The county clerk shall notify in writing each applicant of the fact of acceptance or rejection of the application and, if rejected, shall explain why the application was rejected.
D. If the applicant has on file with the county a valid certificate of registration that indicates that the applicant is a voter who is a new registrant and who registered by mail without submitting the required voter identification, the county clerk shall notify the voter that the voter must submit with the absentee ballot the required physical form of identification. The county clerk shall note on the absentee ballot register and signature roster that the applicant's absentee ballot must be returned with the required identification.
E. If the county clerk finds that the applicant is a voter other than a federal qualified elector or overseas voter, the county clerk shall mark the application "accepted" and, beginning twenty-eight days before the election, deliver an absentee ballot to the voter in the county clerk's office or mail to the applicant an absentee ballot and the required envelopes for use in returning the ballot. If the county clerk finds that the applicant is a federal qualified elector or overseas voter, the county clerk shall mark the application "accepted" and beginning forty-five days before the election, mail to the applicant an absentee ballot and the required envelopes for use in returning the ballot. Acceptance of an application of a federal qualified elector constitutes registration for the election in which the ballot is to be cast. Acceptance of an application from an overseas voter who is not an absent uniformed services voter constitutes a request for changing information on the certificate of registration of any such voter. An absent voter shall not be permitted to change party affiliation during those periods when change of party affiliation is prohibited by the Election Code. Upon delivery of an absentee ballot to a voter in the county clerk's office or mailing of an absentee ballot to an applicant who is a voter, an appropriate designation shall be made on the signature line of the signature roster next to the name of the voter who has been provided or mailed an absentee ballot.
F. If an application for an absentee ballot is delivered in person to the county clerk and is accepted, the county clerk shall provide the voter an absentee ballot and it shall be marked by the applicant in a voting booth of a type prescribed by the secretary of state, sealed in the proper envelopes and otherwise properly executed and returned to the county clerk or [his] the clerk's authorized representative before the voter leaves the office of the county clerk. The act of marking the absentee ballot in the office of the county clerk shall be a convenience to the voter in the delivery of the absentee ballot and does not make the office of the county clerk a polling place subject to the requirements of a polling place in the Election Code other than is provided in this subsection. It is unlawful to solicit votes, display or otherwise make accessible any posters, signs or other forms of campaign literature whatsoever in the clerk's office or alternate voting location. Absentee ballots may be marked in person at the county clerk's office during the regular hours and days of business beginning on the twenty-eighth day preceding the election and from 10:00 a.m. to 6:00 p.m. on the Saturday immediately prior to the date of the election. In marking the absentee ballot, the voter, pursuant to the provisions of Section 1-12-15 NMSA 1978, may be assisted by one person of the voter's choice.
G. Absentee ballots shall be [airmailed or, if so requested, electronically transmitted] mailed to applicants [temporarily domiciled inside or outside the continental limits of the United States] not later than on the Friday immediately prior to the date of the election.
H. An absentee ballot shall not be delivered or mailed by the county clerk to any person other than the applicant for such ballot.
I. The secretary of state and each county clerk shall make reasonable efforts to publicize and inform voters of the times and locations for absentee voting; provided, however, that notice is provided at least ten days before early voting begins.
J. The secretary of state shall establish procedures for the submittal, when required by federal law, of required voter identification with mailed-in absentee ballots."
Section 5. Section 1-6-10 NMSA 1978 (being Laws 1969, Chapter 240, Section 136, as amended) is amended to read:
"1-6-10. RECEIPT OF ABSENTEE BALLOTS BY CLERK.--
A. The county clerk shall mark on each completed official mailing envelope the date and time of receipt in the clerk's office, record this information in the absentee ballot register and safely keep the official mailing envelope unopened in a locked and number-sealed ballot box until it is delivered to the proper absent voter precinct board or until it is canceled and destroyed in accordance with law.
B. The county clerk shall accept completed official mailing envelopes until 7:00 p.m. on election day [and the absent voter precinct board shall accept completed official mailing envelopes from precincts within the county of the voters who turned in their absentee ballots at their precinct by the close of polls on election day]. Any completed official mailing envelope received after that time shall not be delivered to a precinct board but shall be preserved by the county clerk until the time for election contests has expired. In the absence of a restraining order after expiration of the time for election contests, the county clerk shall destroy all late official mailing envelopes without opening or permitting the contents to be examined, cast, counted or canvassed. Before their destruction, the county clerk shall count the numbers of late ballots from voters, federal voters, overseas citizen voters and federal qualified electors and report the number from each category to the secretary of state.
C. At 5:00 p.m. on the Monday immediately preceding the date of election, the county clerk shall record the numbers of the unused absentee ballots and shall publicly destroy in the county clerk's office all such unused ballots. The county clerk shall execute a certificate of destruction, which shall include the numbers on the absentee ballots destroyed. A copy of the certificate of destruction shall be sent to the secretary of state."
Section 6. Section 1-6-14 NMSA 1978 (being Laws 1971, Chapter 317, Section 11, as amended) is amended to read:
"1-6-14. HANDLING ABSENTEE BALLOTS BY ABSENT VOTER PRECINCT BOARDS.--
A. Before opening an official mailing envelope, the presiding judge and the election judges shall determine that the required information has been completed on the reverse side of the official mailing envelope.
B. If the voter's signature is missing, the presiding judge shall write "Rejected" on the front of the official mailing envelope. The election clerks shall enter the voter's name in the signature rosters and shall write the notation "Rejected--Missing Signature" in the "Notations" column of the signature rosters. The presiding judge shall place the official mailing envelope unopened in an envelope provided for rejected ballots, seal the envelope and write the voter's name on the front of the envelope and deposit it in the locked ballot box.
C. A lawfully appointed challenger may examine the official mailing envelope and may challenge the ballot of any absent voter for the following reasons:
(1) the official mailing envelope has been opened prior to being received by the absent voter precinct board; or
(2) the person offering to vote is not a federal voter, federal qualified elector, overseas voter or voter as provided in the Election Code.
Upon the challenge of an absentee ballot, the election judges and the presiding election judge shall follow the same procedure as when ballots are challenged when a person attempts to vote in person. If a challenge is upheld, the official mailing envelope shall not be opened but shall be placed in an envelope provided for challenged ballots. The same procedure shall be followed in canvassing and determining the validity of challenged absentee ballots as with other challenged ballots.
D. If the official mailing envelope has been properly subscribed and the voter has not been challenged:
(1) the election clerks shall enter the absent voter's name and residence address as shown on the official mailing envelope in the signature rosters and shall mark the notation "AB" opposite the voter's name in the "Notations" column of the signature rosters; and
(2) only between 8:00 a.m. and 5:00 p.m. on the five days preceding election day, including Saturday and Sunday, and beginning at 7:00 a.m. on election day, under the personal supervision of the presiding election judge, shall the election judges open the official mailing envelope and the official inner envelope and insert the enclosed ballot into an electronic voting machine to be registered and retained until votes are counted and canvassed following the closing of the polls on election night.
E. It is unlawful for a person to disclose the results of a count and tally or the registration on a voting machine of absentee ballots prior to the closing of the polls.
F. Absentee ballots shall be counted and tallied on an electronic voting machine as provided in the Election Code.
G. Absent voter precinct polls shall close [at the time prescribed by the Election Code for other polling places] in accordance with Section 1-6-23 NMSA 1978, and the results of the election shall be certified as prescribed by the secretary of state.
H. If an absentee ballot does not contain the identification required pursuant to Subsection D of Section 1-6-5 NMSA 1978, it shall be handled as a provisional paper ballot in accordance with the Election Code."
Section 7. Section 1-6-23 NMSA 1978 (being Laws 1975, Chapter 255, Section 95, as amended) is amended to read:
"1-6-23. ABSENT VOTER PRECINCT POLLING PLACE--HOURS ON ELECTION DAY AND SUBSEQUENT DAYS.--The county clerk or statutorily appointed supervisor of the election shall determine the hours between 8:00 a.m. and 5:00 p.m. during which the absent voter precinct polling place shall be open for delivery and registering of absentee ballots on the five days preceding election day and the hours during which the absent voter precinct polling place shall be open for the delivery, registering and counting of ballots on election day and subsequent days until all ballots are counted; provided that the absent voter precinct polling place opens at 7:00 a.m. on election day."
Section 8. Section 1-9-7.1 NMSA 1978 (being Laws 2005, Chapter 270, Section 56) is amended to read:
"1-9-7.1. VOTING SYSTEM--VOTER VERIFIABLE AND AUDITABLE PAPER TRAIL.--
A. All voting systems used in elections covered by the Election Code shall have a voter verifiable and auditable paper trail; provided, however, that:
(1) voting systems owned or used by a county on [the effective date of this 2005 act] July 1, 2005 that do not have a voter verifiable and auditable paper trail may be used until the first occurrence of the following:
[(1)] (a) sufficient federal, state or local funds are available to replace the voting system; or
[(2)] (b) December 31, [2006] 2007; and
(2) a voting system purchased to meet federal requirements for alternative languages accessibility and for accessibility for individuals with disabilities may employ an auditory system to allow the voter to verify ballot choices in lieu of the voter verifiable and auditable paper trail.
B. In any event, no voting system shall be used that has not been certified by the secretary of state.
C. The voter verifiable and auditable paper trail shall be considered a ballot for purposes of the Election Code, and the secretary of state shall promulgate rules to ensure the secrecy and security of the voter verifiable and auditable paper trail that is accorded to other types of ballots authorized by the Election Code.
[C.] D. As used in this section:
(1) "voting system" includes a paper ballot system in which the voter physically marks the paper ballot to indicate the voter's choices; and
(2) "voter verifiable and auditable paper trail" means a paper record of the voter's choices, viewable prior to casting the ballot, which may be the paper ballot itself; the paper trail shall be used by the state or its contractor to check either the veracity of a machine count or the count itself, or may be used in a recount proceeding, and in case of a discrepancy, the voter verifiable and auditable paper trail shall be considered the true and correct record of the voter's choices."
Section 9. Section 1-11-12.1 NMSA 1978 (being Laws 2005, Chapter 270, Section 9) is amended to read:
"1-11-12.1. VOTER IDENTIFICATION CARDS--DISTRIBUTION.--
A. Between sixty and [forty] seventy-five days before each [primary] general election, the [county clerk] secretary of state shall send to each registered voter in [the] each county a voter identification card indicating the voter's name, address and voting precinct and the name of the current county clerk in that county; provided, however, that a registrant shall still be sent a voter identification card upon filing of the registrant's certificate of registration with the county clerk as provided in Section 1-4-12 NMSA 1978.
[B. The county clerk may apply to the office of the secretary of state for reimbursement of costs related to supplying voter identification cards.
C.] B. The secretary of state shall promulgate rules to ensure that all registered voters receive a voter identification card before each [primary] general election [and reimburse the county for the costs of supplying and distributing the cards]."
Section 10. Section 1-12-8.1 NMSA 1978 (being Laws 2005, Chapter 270, Section 62) is amended to read:
"1-12-8.1. CONDUCT OF ELECTION--USE OF VOTER'S [COPY] RECEIPT OF CERTIFICATE OF REGISTRATION--PROCEDURES.--If a voter whose name is not in the signature roster presents the voter's [duplicate] receipt of the voter's certificate of registration, the voter shall be allowed to vote on a provisional ballot in the proper precinct in accordance with the provisions of Section 1-5-10 NMSA 1978. The election judge shall inform the voter that the voter will be notified by the county clerk to provide a copy of the receipt of the certificate of registration to the county clerk if the original certificate is not located. A note shall be entered on the signature roster indicating that the voter's certificate of registration should be checked by the county clerk. For the purposes of investigation or prosecution, the county clerk shall provide the district attorney and the secretary of state with the person's name and address and the corresponding receipt number of the person's certificate of registration for each person whose certificate of registration is not located."
Section 11. Section 1-12-25.2 NMSA 1978 (being Laws 2003, Chapter 356, Section 3, as amended) is amended to read:
"1-12-25.2. CONDUCT OF ELECTION--PROVISIONAL VOTING--INFORMATION TO VOTER--STATUS OF VOTER'S BALLOT.--
A. If a voter is required to vote on a provisional paper ballot, the election judge shall give the voter written instructions on how the voter may determine whether the vote was counted and, if the vote was not counted, the reason it was not counted.
B. The [county clerk] secretary of state shall establish a free access system, such as a toll-free telephone number or internet web site, that a voter who casts a provisional paper ballot may access to ascertain whether the voter's ballot was counted and, if the vote was not counted, the reason it was not counted and how to appeal that decision to the secretary of state. Access to information about an individual voter's provisional ballot is restricted to the voter who cast the ballot.
[C. Beginning with the closing of the polls on election day through the tenth day following the election, the county clerk shall notify by certified mail each person whose provisional ballot was not counted of the reason the ballot was not counted. The voter shall have until the Friday prior to the meeting of the state canvassing board to appeal to the county clerk a decision to reject the voter's ballot. The secretary of state shall establish procedures for handling appeals to the county clerk.]"
Section 12. Section 1-14-22 NMSA 1978 (being Laws 2005, Chapter 270, Section 76) is amended to read:
"1-14-22. CONTESTS AND RECOUNTS [AND RECHECKS]--PROVISIONAL, ABSENTEE AND OTHER PAPER BALLOTS.--The secretary of state shall issue rules governing and allowing procedures for reviewing the qualification of provisional ballot envelopes, absentee and other paper ballots in the case of a contest or recount [or recheck] of election results. All rejected provisional paper ballot envelopes shall be included in any contest or recount [or recheck] of election results, and a review of the qualification of provisional ballot envelopes shall occur in a recount."
Section 13. REPEAL.--Sections 1-6-4.3 and 1-12-8.2 NMSA 1978 (being Laws 2005, Chapter 270, Sections 41 and 60) are repealed.
Section 14. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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