SENATE BILL 179
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Cisco McSorley
FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO ELECTIONS; ESTABLISHING RANDOM VOTING SYSTEM CHECK PROCEDURES; REQUIRING HAND RECOUNTS OF PAPER BALLOTS TO CHECK THE ACCURACY OF ELECTRONIC VOTE TABULATOR SYSTEMS; CREATING AN ELECTION COMMISSION; PRESCRIBING POWERS AND DUTIES; REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] ELECTION COMMISSION--MEMBERSHIP--DUTIES.--
A. The "election commission" is created and is administratively attached to the office of the secretary of state. The commission is composed of the following members:
(1) the director of the bureau of elections, who shall serve as chair of the commission;
(2) the attorney general or the attorney general's designee;
(3) the state auditor or the state auditor's designee; and
(4) three public members appointed by the governor and confirmed by the senate, one of whom is an expert in statistics and two of whom represent different nonpartisan voter information or voter education organizations.
B. Public members shall serve for terms of four years, beginning January 1, 2008, and may be removed by the governor only for malfeasance, misfeasance or neglect of duty. Vacancies shall be filled by appointment of the governor for the remainder of the unexpired term.
C. The election commission shall meet as often as it deems necessary on the call of the chair or any three members of the commission. Actions of the commission shall be by majority vote of the members of the commission.
D. The secretary of state shall provide the commission with staff, record-keeping and related administrative and clerical assistance as necessary.
E. Public members of the commission are entitled to receive per diem and mileage pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance."
Section 2. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] ELECTION COMMISSION--POWERS--DUTIES.--
A. The election commission shall:
(1) promulgate rules necessary for carrying out random voting system checks in accordance with provisions of the Election Code;
(2) oversee random voting system checks following general elections in accordance with the provisions of Sections 3 and 4 of this 2007 act; and
(3) establish standards and procedures to ensure the reliability and integrity of random voting system checks.
B. The election commission may:
(1) request expert technical advice from federal and state agencies; and
(2) contract with public or private universities for statistical analyses and other technical services."
Section 3. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] POST-ELECTION DUTIES--RANDOM VOTING SYSTEM CHECK.--
A. Following a general election, the election commission shall oversee a random voting system check of precinct electronic vote tabulators, alternate voting location electronic vote tabulators and absent voter precinct electronic vote tabulators. The election commission shall select in a public drawing a random sample of precinct electronic vote tabulators, alternate voting location electronic vote tabulators and a proportionate number of absentee ballots from absent voter precincts as soon as practicable after the completion of the county canvasses. The size of the random sample shall be determined so that it will ensure, with at least a ninety percent probability for statewide races, that faulty tabulators would be detected if they would change the outcome of the election for a selected office.
B. The election commission shall request the state canvassing board to direct the appropriate county clerks to compare the vote totals for candidates for selected offices from the randomly selected precinct level and alternate voting location electronic vote tabulators with the respective vote totals of a hand recount of the paper ballots counted by those electronic vote tabulators in accordance with election commission rules. In addition, the election commission shall request the state canvassing board to direct the county clerks to compare the vote totals for the selected candidates from a hand recount of a proportionate number of paper ballots from the randomly selected absent voter precincts with an electronic vote tabulator recount of those ballots in accordance with election commission rules.
C. For the purposes of this section, "selected offices" means the offices of governor or president, the statewide elective office for which the winning candidate won by the narrowest margin of all candidates for statewide elective office and the federal elective office for which the winning candidate won by the narrowest margin of all federal candidates for federal office in New Mexico.
D. In its request to the state canvassing board for a random voting system check, the election commission shall specify the precincts where the selected precinct electronic vote tabulators are to be checked and which absent voter precincts and alternate voting locations are to be included in the random voting system check.
E. If the total votes for each candidate from the hand counts and the electronic vote tabulator counts are the same, or the election commission determines that the differences indicate that there is a less than ten percent chance that the winning candidate would change as a result of a recount, the county canvass shall be confirmed as the official vote tally if the county canvass is not otherwise amended or challenged pursuant to the provisions of the Election Code.
F. If the total votes for a candidate from the hand counts and the electronic vote tabulator counts differ, the election commission shall determine the reason for the difference. If the difference is due to fraud or electronic vote tabulator error, the election commission shall determine if further sampling and hand recounts need to be conducted in a given county or statewide to determine the accuracy of the county canvasses.
G. A full recount for a race shall be conducted if the election commission finds after the initial voting system check or upon further sampling and hand recounts that there is at least a ten percent chance that the winning candidate would change as a result of the recount. The state shall pay for the costs of the recount.
H. An electronic vote tabulator that is found to have been in error shall not be used in an election again until the reason for the error is identified and corrected and the electronic vote tabulator has been recertified."
Section 4. A new section of the Election Code is enacted to read:
"[NEW MATERIAL] POST-ELECTION DUTIES--RANDOM VOTING SYSTEM CHECK--RECOUNT PROCEEDINGS--COSTS.--
A. The election commission shall file with the state canvassing board a request for a random voting system check after each general election.
B. Immediately after filing of the request for a random voting system check, the state canvassing board shall issue a summons directed to the precinct board of each precinct specified in the request commanding it to appear at the county seat of the county where the precinct is situated on a day fixed in the summons, which date shall not be more than five days after the filing of the application for a random voting system check. The summons shall be forwarded to the county clerk of the concerned county.
C. Upon receipt of the summons, the county clerk shall deliver it to the county sheriff, who shall forthwith personally serve it upon each of the precinct board members. The county clerk shall thereupon send notices by registered mail of the date fixed for the random voting system check to the district judge for the county and to the county chair of each of the political parties that participated in the election in that precinct.
D. The precinct boards, district judge or the district judge's designee and the county clerk shall meet at the county courthouse at 10:00 a.m. on the date fixed for the random voting system check and the ballot boxes and electronic vote tabulators of the precincts involved in the random voting system check shall be opened. The precinct boards shall recount by hand the paper ballots from the selected precinct or alternate voting site electronic vote tabulators, or the absentee ballots, as the case may be, for the office in question in the presence of the county clerk, the district judge, or the district judge's designee, and the county canvass observers for that election who may desire to be present. The precinct board shall compare the vote totals for candidates for the selected offices from the selected precinct electronic vote tabulators and alternate voting site tabulators with the respective vote totals of a hand recount of the paper ballots counted by those electronic vote tabulators in accordance with procedures established by the election commission. An absent voter precinct board shall compare the vote totals from a hand recount of the selected number of absentee ballots for candidates for the selected offices with an electronic vote tabulator recount of those ballots in accordance with procedures established by the election commission. The precinct board shall note and explain any discrepancies between the hand recount and the electronic vote tabulator count of the ballots.
E. During the random voting system check, the precinct board of a precinct where paper ballots or absentee ballots are being recounted shall recount only the ballots that the presiding judge accepted and placed in the ballot box as legal ballots at the time they were cast or received, as the case may be, and that were counted by electronic vote tabulators.
F. After completion of the random voting system check, the precinct board shall replace paper ballots or absentee ballots in the ballot box and lock it, the electronic vote tabulators shall be locked and resealed and the precinct board shall certify to the election commission the results of the random voting system check. The district judge, or the district judge's designee, and the county clerk shall also certify that the random voting system check was made in their presence.
G. All costs for a random voting system check shall be paid by the state."
Section 5. REPEAL.--Section 1-14-13.1 NMSA 1978 (being Laws 2005, Chapter 270, Section 75) is repealed.
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