HOUSE BILL 395

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Joseph Cervantes

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO ELECTIONS; PROVIDING FOR ELECTION-DAY REGISTRATION AND VOTING FOR PRIMARY AND GENERAL ELECTIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 1-1-16 NMSA 1978 (being Laws 1969, Chapter 240, Section 16, as amended) is amended to read:

     "1-1-16. REGISTRATION OFFICER.--As used in the Election Code, "registration officer" means the secretary of state, a county clerk or a clerk's authorized deputy, a member of a precinct board on election day, a member of the board of registration or a state employee performing registration duties in accordance with the federal National Voter Registration Act of 1993 or Section 1-4-5.2 NMSA 1978."

     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:                 (1) by mail;

                (2) in the office of the secretary of state or county clerk [or];

                (3) with a registration agent or officer; or

                (4) on election day at a polling place in the county in which the qualified elector resides.

          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. A qualified elector may request a certificate of registration form from a precinct board member on election day at a polling place in the county in which the qualified elector resides.

          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:                 (1) mailed or presented in person by the registrant or any other person to the secretary of state; [or]

                (2) presented in person by the registrant or any other person to the county clerk of the county in which the registrant resides; or

                (3) presented on election day in person by the registrant to a precinct board member at a polling place in 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 or presented on election day in person by the registrant to a precinct board member at a polling place in the county in which the registrant resides.

          G. A certificate of registration presented by a registrant to a precinct board member on election day shall be returned to the county clerk with the election returns and other materials required to be delivered to the county clerk after the closing of the polls.

          [G.] H. 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.] I. 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.] J. 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 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 1-4-8 NMSA 1978 (being Laws 1969, Chapter 240, Section 66, as amended) is amended to read:

     "1-4-8. DUTIES OF COUNTY CLERK--ACCEPTANCE OF REGISTRATION--CLOSE OF REGISTRATION--ELECTION-DAY REGISTRATION--FEDERAL QUALIFIED ELECTORS AND OVERSEAS VOTERS--LATE REGISTRATION.--

          A. For qualified electors other than federal qualified electors or overseas voters, the following provisions shall apply:

                (1) the county clerk shall receive certificates of registration at all times during normal working hours, except that the clerk shall close registration at 5:00 p.m. on the twenty-eighth day immediately preceding any election at which the registration books are to be furnished to the precinct board;

                (2) on election day, the county clerk shall accept for filing certificates of registration for qualified electors who register to vote on election day at a polling place in the county in which the qualified elector resides;

                [(2)] (3) registration shall be reopened on the Monday following the election;

                [(3)] (4) for purposes of a municipal or school election, the registration period for those precincts within the municipality or school district is closed at 5:00 p.m. on the twenty-eighth day immediately preceding the municipal or school election and is opened again on the Monday following the election;

                [(4)] (5) during the period when registration is closed, the county clerk shall receive certificates of registration and other documents pertaining thereto but, except for certificates of registration received on election day, shall not file [the] any certificate of registration in the registration book until the Monday following the election, at which time a voter information document shall be mailed to the registrant at the address shown on the certificate of registration;

                [(5)] (6) when the twenty-eighth day prior to any election referred to in this section is a Saturday, Sunday or legal holiday, registration shall be closed at 5:00 p.m. of the next succeeding regular business day for the office of the county clerk; and

                [(6)] (7) the county clerk shall accept for filing any certificate of registration that is subscribed and dated on or before the twenty-eighth day preceding the election and:

                     (a) received by the county clerk before 5:00 p.m. on the Friday immediately following the close of registration;

                      (b) mailed and postmarked not less than twenty-eight days prior to any election referred to in this section; or

                     (c) accepted at a state agency designated pursuant to Section 1-4-5.2 NMSA 1978.

          B. For federal qualified electors and overseas voters, the county clerk shall accept a certificate of registration by electronic transmission from a voter qualified to apply for and vote by absentee ballot in the county if the transmission is received before 5:00 p.m. on the Friday immediately preceding the election."

     Section 4. Section 1-12-7.2 NMSA 1978 (being Laws 1969, Chapter 240, Section 114, as amended) is amended to read:

     "1-12-7.2. [VOTER] QUALIFIED ELECTOR WHOSE NAME IS NOT ON LIST OR ROSTER--ELECTION-DAY REGISTRATION.--

          A. A [voter] qualified elector whose name does not appear on the voter list and signature roster for the precinct in which [he] the qualified elector offers to vote may register to vote and shall be permitted to vote in the precinct pursuant to the federal National Voter Registration Act of 1993, this section and Section 1-12-8 NMSA 1978.

          [B. The election clerks in charge of the signature rosters shall add the voter's name and address in ink to the signature roster on the line immediately following the last entered voter's name and the voter shall be allowed to sign an affidavit of eligibility and cast a provisional paper ballot, provided he has first signed or marked both the signature roster and checklist of registered voters.]

          B. If the qualified elector is not registered to vote and is at the polling place for the precinct in which the qualified elector resides, the qualified elector shall be allowed to complete a certificate of registration and cast a ballot; provided that:

                (1) the qualified elector presents a current and valid photo identification card, 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;

                (2) the address in the document presented by the qualified elector is located within the precinct where the qualified elector is offering to vote; and

                (3) the qualified elector signs or marks both the signature roster and checklist of registered voters.

          C. If the qualified elector is not registered to vote and is at a polling place for a precinct where the qualified elector does not reside but is within the county where the qualified elector resides, the qualified elector shall be allowed to complete a certificate of registration and cast a provisional paper ballot; provided that:

                (1) the qualified elector presents a current and valid photo identification card, 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 qualified elector;

                (2) the address in the document presented by the qualified elector is located within the county where the qualified elector is offering to vote; and

                (3) the qualified elector signs or marks both the signature roster and checklist of registered voters.

          D. Once the qualified elector is registered to vote, the election clerks in charge of the signature rosters shall add the voter's name and address in ink to the signature roster on the line immediately following the last entered voter's name.

          [C.] E. The provisional paper ballot number for the [voter] person shall be entered on the affidavit of eligibility, the signature roster and the checklist of registered voters.

          [D.] F. In a primary election, a voter shall not be permitted to vote for a candidate of a party different from the party designation shown on [his] the voter's certificate of registration. Upon making that determination, the county clerk shall transmit the ballot to the county canvassing board to be tallied and included in the canvass of that county for the appropriate precinct.

          [E.] G. Verbal authorization from the county clerk to allow a person to vote is not permitted." 

     Section 5. 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 either

                (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; or

                (4) the person is not registered and registers to vote in accordance with the provisions of Section 1-12-7.2 NMSA 1978 on election day at a polling place for a precinct within which the person does not reside.

          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 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 6. Section 1-12-8.1 NMSA 1978 (being Laws 2005, Chapter 270, Section 62, as amended) is amended to read:

     "1-12-8.1. CONDUCT OF ELECTION--USE OF VOTER'S RECEIPT OF CERTIFICATE OF REGISTRATION--PROCEDURES.--If a [voter whose] voter's name is not in the signature roster for the precinct in which the voter resides and the voter presents the voter's 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 1-12-7.1 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. The voter shall be allowed to register and cast a ballot as provided in the Election Code. 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 7. Section 1-12-20 NMSA 1978 (being Laws 1969, Chapter 240, Section 273, as amended) is amended to read:

     "1-12-20. CONDUCT OF ELECTION--INTERPOSING CHALLENGES.--A challenge may be interposed by a member of the precinct board or by a party challenger for the following reasons:

          A. the person [presenting himself] who has come to vote is not registered and is not a qualified elector;

          B. the person [presenting himself] who has come to vote is listed on the purge list placed with the signature rosters or is listed among those persons in the precinct from whom an absentee ballot was received;

          C. the person [presenting himself] who has come to vote is improperly registered because [he] the person is not a qualified elector;

          D. in the case of a primary election, the person [presenting himself] who has come to vote is not affiliated with a political party represented on the ballot; or

          E. in the case of an absentee ballot, the official outer envelope of the absentee voter has been opened prior to the counting of the ballots."

     Section 8. Section 1-12-25.4 NMSA 1978 (being Laws 2003, Chapter 356, Section 7, as amended) is amended to read:

     "1-12-25.4. PROVISIONAL PAPER BALLOTS--DISPOSITION.--

          A. Upon closing of the polls, provisional paper ballots shall be delivered to the county clerk, who shall determine if the ballots will be counted prior to certification of the election.

          B. A provisional paper ballot shall not be counted if the registered voter did not sign either the signature roster or the ballot's envelope.

          [C. If there is no record of the voter ever having been registered in the county, the voter shall be offered the opportunity to register and the provisional paper ballot shall not be counted.

          D.] C. If the voter was registered in the county, the registration was later canceled and the county clerk determines that the cancellation was in error, the voter's registration shall be immediately restored and the provisional paper ballot counted.

          [E.] D. If the county clerk determines that the cancellation was not in error, the voter shall be offered the opportunity to register at the voter's correct address, and the provisional paper ballot shall not be counted.

          [F.] E. If the voter is a registered voter in the county, but has voted on a provisional paper ballot at a polling place other than the voter's designated polling place, the county canvassing board shall ensure that only those votes for the positions or measures for which the voter was eligible to vote are counted.

          [G.] F. If the county clerk finds that the voter who voted on a provisional paper ballot at the polls has also voted an absentee ballot in that election, the provisional paper ballot shall not be counted.

          [H.] G. The county canvassing board shall prepare a tally displaying the number of provisional paper ballots received, the number found valid and counted, the number rejected and not counted and the reason for not counting the ballots as part of the canvassing process and forward it to the secretary of state immediately upon certification of the election.

          [I.] H. The secretary of state shall issue rules to ensure securing the secrecy of the provisional paper ballots, especially during canvassing, reviewing or recounting, and protecting against fraud in the voting process."

     Section 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

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