House Bill text for HB0251

HOUSE BILL 251

48th legislature - STATE OF NEW MEXICO - second session, 2008

INTRODUCED BY

Justine Fox-Young

AN ACT

RELATING TO ELECTIONS; REQUIRING IN-PERSON VOTERS TO PRESENT PHOTO IDENTIFICATION BEFORE VOTING; REQUIRING VOTERS WHO VOTE BY MAIL-IN ABSENTEE BALLOTS TO SEND IDENTIFICATION WITH THE BALLOT; PROVIDING FOR SUBMITTAL OF IDENTIFICATION AFTER THE POLLS CLOSE.

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] VOTER PHOTO IDENTIFICATION CARDS.--

A. The county clerk shall issue without charge a voter photo identification card to a person who:

(1) presents any two of the following identification documents containing the name and address of the person:

(a) a state-issued identification card;

(b) a social security card;

(d) a library card;

(e) an insurance card;

(f) a selective service card;

(g) a union card;

(h) a professional association card;

(i) a utility bill;

(j) a bank statement; or

(k) a government check or paycheck; or (2) if unable to present the required documents to the clerk, affirms under penalty of perjury in an affidavit that the person is registered to vote and the county clerk confirms that the person is registered to vote.

B. The voter photo identification card shall state on its face that it is not valid identification for other than the purpose of voting in a state election and shall not be valid if the voter is subsequently purged from the voter rolls."

Section 2. A new section of the Election Code is enacted to read:

"[NEW MATERIAL] REQUIRED PHOTO IDENTIFICATION--RELIGIOUS OBJECTION--PROVISIONAL BALLOTS.--If a voter who cast a provisional ballot because the voter did not provide the required voter identification affirms under penalty of perjury in an affidavit within two days following the election that the voter has a religious objection to being photographed, the voter shall not be required to submit photo identification and the voter's ballot shall be counted if it is otherwise valid and the voter provides the election official with a government-issued identification document."

Section 3. Section 1-1-24 NMSA 1978 (being Laws 2005, Chapter 270, Section 6) is amended to read:

"1-1-24. REQUIRED VOTER IDENTIFICATION.--As used in the Election Code, "required voter identification" means [any of the following forms of identification as chosen by the voter: A. a physical form of identification, which may be: (1)] an original or copy of a current and valid photo identification [with or without an address, which address is not required to match the voter's certificate of registration or a voter identification card; or

(2) an original or copy of 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 person, the address of which is not required to match the voter's certificate of registration; or

B. a verbal or written statement by the voter of the voter's name, year of birth and unique identifier; provided, however, that the statement of the voter's name need not contain the voter's middle initial or suffix] that contains the voter's name and photograph and that may be a card issued by a government agency, a driver's license, a student identification card, a commercial transaction card, such as a credit or debit card, an insurance card, a union card, a professional association card or a voter photo identification card issued by the county clerk or secretary of state."

Section 4. 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 from the secretary of state or any county clerk in person, by telephone or by mail for that person or for 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 physical residence 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 2) a current 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 current address of the applicant; and

(b) if the applicant does not submit the required identification] the applicant will be required to [do so] present the required voter identification 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 5. 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 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 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 and year of birth [and unique identifier] to be supplied by the applicant [which shall constitute the required form of identification, except for new registrants who have registered by mail and at that time did not provide acceptable identification]. The secretary of state shall issue rules to exempt voters from submitting identification only as required by federal law and shall review and, if necessary, update these rules no later than March 15 of even-numbered years.

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 6. 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.] D. 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.] E. 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 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.] F. Absentee ballots shall be sent to applicants not later than on the Friday immediately prior to the date of the election.

[H.] G. An absentee ballot shall not be delivered or mailed by the county clerk to any person other than the applicant for such ballot.

[I.] H. 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.] I. 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 7. Section 1-6-5.7 NMSA 1978 (being Laws 2005, Chapter 270, Section 40) is amended to read:

"1-6-5.7. EARLY VOTING--USE OF ABSENTEE VOTING PROCEDURES--ALTERNATE VOTING LOCATIONS.--

A. Commencing on the third Saturday prior to an election, an early voter may vote in person on a voting system at an alternate voting location established by the county clerk. In class A counties with more than two hundred thousand registered voters, the county clerk shall establish not less than twelve alternate voting locations as a convenience to the voters. For class A counties with two hundred thousand registered voters or fewer, the county clerk shall establish not less than four alternate voting locations. In non-class A counties with more than ten thousand registered voters, the county clerk shall establish at least one alternate voting location. In non-class A counties with ten thousand registered voters or fewer, early voting shall be conducted in the office of the county clerk or at such [alternative] alternate locations as may be designated by the county clerk. Early voting may be done at an alternate location from 12:00 p.m. to 8:00 p.m., Tuesday through Friday, and from 10:00 a.m. to 6:00 p.m., Saturday through the Saturday immediately prior to the election.

B. When voting early, the voter shall provide the required voter identification to the county clerk or the clerk's authorized representative. If the voter does not provide the required voter identification, the voter shall be allowed to vote on a provisional ballot. Provisional ballots issued pursuant to the provisions of this subsection shall be counted only if:

(1) the voter presents to the county clerk no later than three days following election day the required voter identification;

(2) the voter did not vote elsewhere in that election; and

(3) the voter was registered to vote in the election.

C. If the voter provides the required identification, the voter shall be allowed to vote after subscribing an application to vote in accordance with secretary of state rules. The county clerk or the clerk's authorized representative shall make an appropriate designation on the signature roster next to the voter's name indicating that the voter has voted early."

Section 8. Section 1-6-8 NMSA 1978 (being Laws 1969, Chapter 240, Section 134, as amended) is amended to read:

"1-6-8. ABSENTEE BALLOT ENVELOPES.--

A. The secretary of state shall prescribe the form of, procure and distribute to each county clerk a supply of:

(1) official inner envelopes for use in sealing the completed absentee ballot;

(2) official mailing envelopes for use in returning the official inner envelope to the county clerk; provided the official mailing envelope for absentee ballots in a general election shall contain no designation of party affiliation;

(3) absentee ballot instructions, describing proper methods for completion of the ballot and returning it; and

(4) official transmittal envelopes for use by the county clerk in mailing absentee ballot materials.

B. Official transmittal envelopes and official mailing envelopes for transmission of absentee ballot materials to and from the county clerk and federal qualified electors shall be printed in red in the form prescribed by the federal Uniformed and Overseas Citizens Absentee Voting Act. Official transmittal envelopes and official mailing envelopes for transmission of absentee ballot materials to and from the county clerk and voters shall be printed in black in substantially similar form. All official inner envelopes shall be printed in black.

C. The reverse of each official mailing envelope shall contain a form to be executed by the voter completing the absentee ballot. The form shall identify the voter and shall contain the following statement: "I will not vote in this election other than by the enclosed ballot. I will not receive or offer any compensation or reward for giving or withholding any vote.".

D. The official mailing envelope shall contain a space for the voter to record the voter's [unique identifier] year of birth and name and a window slot to hold the copy of the required voter identification. The envelope shall have a security flap to cover this information."

Section 9. Section 1-6-9 NMSA 1978 (being Laws 1969, Chapter 240, Section 135, as amended) is amended to read:

"1-6-9. MANNER OF VOTING.--

A. A person voting pursuant to the Absent Voter Act shall secretly mark the absentee ballot in the manner provided in the Election Code for marking emergency paper ballots, place it in the official inner envelope and securely seal the envelope. The voter shall then place the official inner envelope inside the official mailing envelope and securely seal the envelope. The voter shall then complete the form on the reverse of the official mailing envelope, which shall include an affirmation by the voter under penalty of perjury that the facts stated in the form are true and the voter's name, year of birth and [unique identifier] required voter identification.

B. Federal qualified electors and overseas voters shall either deliver or mail the official mailing envelope or electronically transmit the absentee ballot to the county clerk of their county of residence or deliver it to a person designated by federal authority to receive executed ballots for transmission to the county clerk of the county of residence or former residence as the case may be. Voters shall either deliver or mail the official mailing envelope to the county clerk of their county of residence."

Section 10. 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. If the required voter identification is not under the flap or in the window pocket under the flap on the official mailing envelope, the presiding judge shall place the official mailing envelope unopened in an envelope provided for ballots lacking the required voter identification. A list of all voters who mailed in absentee ballots without the required voter identification shall be posted by the county clerk in the county clerk's office on the first day after election day. Absentee ballots received by the county clerk without the required voter identification shall not be counted unless the voter provides the county clerk with the required voter identification within three days after posting of the list and the county clerk determines that the voter did not vote elsewhere in that election.

[C.] D. 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.] E. 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.] F. 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.] G. Absentee ballots shall be counted and tallied on an electronic voting machine as provided in the Election Code.

[G.] H. Absent voter precinct polls shall close 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 11. Section 1-12-7.1 NMSA 1978 (being Laws 1969, Chapter 240, Section 112, as amended) is amended to read:

"1-12-7.1. VOTER LISTS--SIGNATURE ROSTERS--USE DURING ELECTION.--

A. Each precinct board using voter lists shall post securely at or near the entrance of the polling place one copy of the precinct voter list for use of the voters prior to voting. The posted copy shall not contain a listing of voter social security numbers.

B. The presiding judge of the precinct board shall assign one judge of the board to be in charge of one copy of the precinct voter list, which shall be used to confirm the registration and voting of each person offering to vote.

C. The presiding judge of the precinct board shall assign one election clerk to be in charge of the signature roster.

D. The judge assigned to the precinct voter list used for confirmation of registration and voting shall determine that each person offering to vote is registered and, in the case of a primary election, that the voter is registered in a party designated on the primary election ballot. If the person's registration is confirmed by the presence of the person's name on the precinct voter list and the voter provides the required voter identification, the judge shall announce to the election clerks the list number and the name of the voter as shown on the precinct voter list. If the voter does not provide the required voter identification, the voter shall be allowed to vote on a provisional ballot in accordance with the provisions of Section 1-12-8 NMSA 1978 and shall provide the required voter identification to the county clerk's office [before the county canvass begins] within three days of the closing of the polls, or to the precinct board before the polls close, or the voter's provisional ballot shall not be qualified. If the required voter identification is provided, the voter's provisional ballot shall be qualified and the voter shall not vote on any other type of ballot.

E. The election clerk shall locate that list number and name on the signature roster and shall require the voter to sign the voter's usual signature or, if unable to write, to make the voter's mark opposite the voter's printed name. If the voter makes the voter's mark, it shall be witnessed by one of the judges of the precinct board. [If the signature roster indicates that the voter is required to present a physical form of identification before voting, the election judge shall ask the voter for the required physical form of identification. If the voter does not provide the required identification, the voter shall be allowed to vote on a provisional paper ballot; provided, however, that if the voter brings the required physical form of identification to the polling place after casting a provisional ballot, that ballot shall be qualified and the voter shall not vote on any other type of ballot.]

F. The election judge shall follow the procedures provided for in Sections 1-12-7.2 and 1-12-8 NMSA 1978 if a person whose name does not appear on the signature roster requests to vote or a person is required to vote on a provisional paper ballot.

G. A voter shall not be permitted to vote until the voter has properly signed the voter's usual signature or made the voter's mark in the signature roster.

H. After the poll is closed, the election clerk in charge of a signature roster shall draw a single horizontal line in ink through each signature space in the signature roster where no signature or mark appears."

Section 12. Section 1-12-8 NMSA 1978 (being Laws 1969, Chapter 240, Section 247, as amended) is amended to read:

"1-12-8. CONDUCT OF ELECTION--PROVISIONAL VOTING.--

A. A person shall be permitted to vote on a provisional paper ballot even though the person's original certificate of registration cannot be found in the county register or even if the person's name does not appear on the signature roster, provided:

(1) the person's residence is within the boundaries of the county in which the person offers to vote;

(2) the person's name is not on the list of persons submitting absentee ballots; and

(3) the person executes a statement swearing or affirming to the best of the person's knowledge that the person is a qualified elector, is currently registered and eligible to vote in that county and has not cast a ballot or voted in that election.

B. A voter shall vote on a provisional paper ballot if the voter:

(1) has not previously voted in a general election in New Mexico or has been purged from the voter list;

(2) registered to vote by mail;

(3) did not submit the [physical form of the] required voter identification with the certificate of registration form; and

(4) does not present to the election judge [a physical form of] the required voter identification.

C. A voter shall vote on a provisional ballot in accordance with the provisions of Paragraph (3) of Subsection A of this section and Section 1-12-7.1 NMSA 1978 if the voter does not provide the required voter identification to the election judge.

D. An election judge shall have the voter sign the signature roster and issue the voter a provisional paper ballot, an outer envelope and an official inner envelope. The voter shall vote on the provisional paper ballot in secrecy and when done, place the ballot in the official inner envelope and place the official inner envelope in the outer envelope and return it to the precinct officer. The election judge shall ensure that the required information is completed on the outer envelope, have the voter sign it in the appropriate place and place it in an envelope designated for provisional paper ballots.

E. Knowingly executing a false statement constitutes perjury as provided in the Criminal Code of this state, and voting on the basis of such falsely executed statement constitutes fraudulent voting."

Section 13. Section 1-12-10 NMSA 1978 (being Laws 1969, Chapter 240, Section 249, as amended) is amended to read:

"1-12-10. CONDUCT OF ELECTION--VOTER'S NAME, ADDRESS,

SIGNATURE.--

A. When a voter [presents himself] offers to vote at the polls [to vote, he], the voter shall announce [his] the voter's name and address in an audible tone of voice. When an election judge finds the voter's name in the signature roster, [he] the election judge shall in like manner repeat the name of the voter. The election judge shall then ask the voter to provide the required voter identification. The voter shall then sign [his] the voter's name or make [his] the voter's mark on the signature line in the copy of the signature roster to be returned to the county clerk. Upon the voter's name or mark being written in the signature roster, a challenge may be interposed as provided in the Election Code.

B. If a voter fails to provide the required voter identification, the voter shall be allowed to vote on a provisional ballot in accordance with the provisions of Sections 1-12-7.1 and 1-12-8 NMSA 1978."

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