SENATE BILL 514
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Howie Morales
AN ACT
RELATING TO MUNICIPAL ELECTIONS; ELIMINATING CERTIFICATE VOTING; PROVIDING REQUIREMENTS FOR PROVISIONAL BALLOTS; REQUIRING NOTIFICATION OF STATUS OF A PROVISIONAL BALLOT TO AN INDIVIDUAL WHO CASTS A PROVISIONAL BALLOT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 3-8-40 NMSA 1978 (being Laws 1985, Chapter 208, Section 48, as amended) is amended to read:
"3-8-40. CONDUCT OF ELECTION--PERSONS NOT PERMITTED TO VOTE--[CERTIFICATE VOTING] PROVISIONAL BALLOTS--FRAUDULENT AND DOUBLE VOTING.--
A. No person shall vote in a municipal special or regular election unless that person is a qualified elector and [he] has appeared to vote at the polling place in the precinct or consolidated precinct that encompasses [his] the qualified elector's place of residence as shown on the signature roster or at some other polling place at which the person is authorized to vote.
B. Notwithstanding the provisions of Subsection A of this section, a person shall be permitted to vote on a provisional paper ballot even though that person's name cannot be found in the signature roster, provided:
(1) [his] the person's residence is within the boundaries of the municipality [and within the boundaries of the precinct and the district, if applicable, in which he offers to vote;
(2) his name is not listed as having been issued an absentee ballot;
(3) he presents a certificate bearing the seal and signature of the county clerk stating that his affidavit of registration is on file at the county clerk's office, that he has not been purged from the voter rolls and that he shall be permitted to vote in the precinct and election specified therein; provided that such authorization shall not be given orally by the county clerk]; and
[(4) he] (2) the person executes a statement swearing or affirming to the best of [his] the person's knowledge that [he] the person is a qualified elector resident of the municipality, currently registered and eligible to vote [in that precinct] and has not cast a ballot or voted in the election.
C. Upon compliance with the requirements of Subsection B of this section, the election judge shall cause the election clerks to:
(1) write the person's name and address [as shown on the certificate] in the signature roster under the heading for name and address in the first blank space immediately below the last name and address appearing in the signature roster;
[(2) insert the person's ballot number or voter number as shown on the public counter of the voting machine on the certificate and on his executed sworn statement;
(3)] (2) retain the [completed certificate and the] executed sworn statement, which shall be returned to the municipal clerk with the election returns; and
[(4)] (3) comply with all relevant requirements of Section 3-8-41 NMSA 1978.
D. After canvass, the municipal clerk shall in writing notify the county clerk [of the names of] and all individuals [voting on certificates] who cast provisional ballots as to the disposition of the provisional paper ballots.
E. A person who knowingly executes a false statement required by Paragraph [(4)] (2) of Subsection B of this section is guilty of perjury as provided in the Criminal Code, and voting on the basis of such falsely executed statement constitutes fraudulent voting.
F. A person not entitled to vote who fraudulently votes or a person who votes or offers to vote more than once at any election is guilty of a fourth degree felony."
SECTION 2. Section 3-8-43 NMSA 1978 (being Laws 1985, Chapter 208, Section 51, as amended) is amended to read:
"3-8-43. CONDUCT OF ELECTION--CHALLENGES--REQUIRED CHALLENGES--ENTRIES--DISPOSITION.--
A. A challenge may be interposed by a member of the precinct board or by a challenger for the following reasons, which shall be stated in an audible tone by the person making the challenge:
(1) the person offering to vote is not registered;
(2) the person offering to vote is listed among those persons in the precinct to whom an absentee ballot was issued;
(3) the person offering to vote is not a qualified elector;
(4) the person offering to vote is not listed on the signature roster or voter registration list;
(5) in the case of an absentee ballot, the official mailing envelope containing an absentee ballot has been opened prior to delivery of absentee ballots to the absent voter precinct board; or
(6) the person offering to vote is a qualified elector of the municipality but does not reside in the district where the person is offering to vote.
B. When a person has offered to vote and a challenge is interposed and the person's name appears in the signature roster or the person's name has been entered in the signature roster pursuant to Subsection C of Section 3-8-40 NMSA 1978, the election clerk shall write the word "challenged" above the person's signature in the signature roster and:
(1) if the challenge is unanimously affirmed by the election judges:
(a) the election clerk shall write the word "affirmed" above the person's signature next to the challenge notation in the signature roster;
(b) the person shall [nevertheless] be furnished a provisional paper ballot, [whether or not voting machines are being used at the polling place, and] an outer envelope and an official inner envelope. The voter shall vote on the provisional paper ballot in secrecy, place the completed ballot in the official inner envelope, place the official inner envelope in the outer envelope and return the outer envelope with its contents to an election judge;
(c) the election judge shall ensure that the required information is completed on the outer envelope, require the voter to sign the outer envelope in the appropriate space and place the outer envelope with its contents in an envelope designated for provisional paper ballots; and
(d) the election clerk shall write the provisional ballot tracking number [of the ballot so furnished] next to the person's signature in the signature roster;
[(c) the person shall be allowed to mark and prepare the ballot. The person shall return the paper ballot to an election judge who shall announce the person's name in an audible tone and in the person's presence place the challenged ballot in an envelope marked "rejected", which shall be sealed and the person's name shall be written on the envelope; and
(d) the envelope containing the rejected ballot shall then be deposited in the ballot box and shall not be counted] or
(2) if the challenge is not unanimously affirmed by the election judges:
(a) the election clerks shall write the words "not affirmed" above the person's signature next to the challenge notation in the signature roster; and
(b) the person shall be allowed to vote in the manner allowed by law as if the challenge had not been interposed.
C. A required challenge shall be interposed by the precinct board when a person attempts to offer to vote and demands to vote and the person's name does not appear on the signature roster and cannot be entered pursuant to Subsection B of Section 3-8-40 NMSA 1978. A required challenge shall be interposed by the precinct board as follows:
(1) the election judge shall cause the election clerks to enter the person's name and address under the heading "name and address" in the signature roster in the first blank space immediately below the last name and address that appears in the signature roster;
(2) the election clerk shall immediately write the words "required challenge" above the space provided for the person's signature in the signature roster;
(3) the person shall sign the person's name in the signature roster;
(4) the person shall [nevertheless] be furnished a provisional paper ballot, [whether or not voting machines are being used at the polling place, and] an outer envelope and an official inner envelope. The voter shall vote on the provisional paper ballot in secrecy, place the completed ballot in the official inner envelope, place the official inner envelope in the outer envelope and return the outer envelope with its contents to an election judge;
(5) the election judge shall ensure that the required information is completed on the outer envelope, require the voter to sign the outer envelope in the appropriate space and place the outer envelope with its contents in an envelope designated for provisional paper ballots; and
(6) the election clerk shall write the provisional ballot tracking number [of the ballot so furnished] next to the person's signature in the signature roster [and
(5) the person shall be allowed to mark and prepare the ballot. The person shall return the paper ballot to an election judge who shall announce the person's name in an audible tone and in the person's presence place the required challenge ballot in an envelope marked "rejected--required challenge" that shall be sealed. The person's name shall be written on the envelope and the envelope containing the rejected ballot shall then be deposited in the ballot box and shall not be counted]."
SECTION 3. A new section of the Municipal Election Code is enacted to read:
"[NEW MATERIAL] 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 clerk 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 municipal clerk shall provide a free access system, such as a local 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 the decision pursuant to rules issued by the secretary of state. Access to information regarding an individual voter's provisional paper ballot is restricted to the voter who cast the ballot.
C. Beginning with the closing of the polls on election day through the fifth day following the election, the municipal clerk shall notify by mail each person whose provisional paper ballot was not counted of the reason the ballot was not counted. The voter shall have until the tenth day after the election to appeal to the municipal clerk a decision to reject the voter's ballot."
SECTION 4. A new section of the Municipal Election Code is enacted to read:
"[NEW MATERIAL] CONDUCT OF ELECTION--PROVISIONAL PAPER BALLOTS--DISPOSITION.--
A. Upon closing of the polls, provisional paper ballots shall be delivered to the municipal 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:
(1) the registered voter did not sign the signature roster or the outer envelope containing the provisional ballot;
(2) the county clerk advises the municipal clerk in writing that there is no record of the voter ever having been registered in the municipality; however, the voter shall be offered the opportunity to register to vote in future elections;
(3) the county clerk determines that the voter's registration in the municipality was canceled and so advises the municipal clerk in writing; however, the voter shall be offered the opportunity to register at the voter's correct address; and
(4) the municipal clerk finds that a voter who voted on a provisional paper ballot at the polls also voted an absentee ballot or voted early in that election.
C. If the voter is a registered voter in the municipality but has voted on a provisional paper ballot at a polling place other than the voter's designated or authorized polling place, the municipal clerk shall ensure that only those votes for positions or measures for which the voter was eligible to vote are counted.
D. If the voter was registered in the municipality, the registration was later canceled and the county clerk determines that the cancellation was in error and so advises the municipal clerk in writing, the voter's registration shall be immediately restored and the provisional paper ballot counted.
E. As part of the canvassing process, the municipal clerk shall prepare a tally of all election results and forward the tally to the county clerk immediately upon certification of the election. The tally shall include:
(1) the number of provisional paper ballots received;
(2) the number of provisional paper ballots determined to be valid and counted; and
(3) the number of provisional paper ballots rejected and not counted and the reason for each rejection."
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