Committee Substitute for HB0833JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 833

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

AN ACT

RELATING TO ELECTIONS; UPDATING PROVISIONS IN THE ELECTION CODE TO COMPORT WITH THE USE OF PAPER BALLOTS; REMOVING REFERENCES TO EMERGENCY PAPER BALLOTS FROM THE ELECTION CODE; PROVIDING FOR THE HANDLING OF PAPER BALLOTS; AMENDING, REPEALING AND RECOMPILING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 1-1-6 NMSA 1978 (being Laws 1977, Chapter 222, Section 1, as amended) is amended to read:

"1-1-6. RECHECK AND RECOUNT.--As used in the Election Code:

A. "recheck" pertains to electronic vote tabulating systems and means a verification procedure whereby a printout of the electronic record of votes cast in an election is made from each electronic memory device in the electronic vote tabulating system and the results are compared with the results shown on the official returns; and

B. "recount" pertains to [emergency] all paper ballots, including absentee ballots, provisional paper ballots, optical scan paper ballots and any other paper ballot and means a verification procedure whereby the voters' selections for an office are [retabulated by feeding the ballots into an electronic vote tabulating system, and the voters' selections on ballots that cannot be read by the system are counted by hand] retallied and the results compared with the results shown on the official returns."

Section 2. Section 1-2-12 NMSA 1978 (being Laws 1969, Chapter 240, Section 32, as amended) is amended to read:

"1-2-12. PRECINCT BOARD--NUMBER FOR EACH PRECINCT--

MULTIPARTISAN.--

A. When absentee ballots are counted, the precinct board shall consist of:

(1) a presiding judge;

(2) one election judge from each of the major political parties;

(3) one clerk from each of the major political parties; and

(4) if a major party has no registered, qualified elector who is able to fill the position as election judge or election clerk, a registered, qualified elector from another major party, chosen by the county clerk to fill the vacant position.

B. [When one voting machine is to be used in a precinct] For primary, general and special federal elections, the precinct board shall consist of:

(1) a presiding judge;

(2) two election judges who shall be of different major political parties; and

(3) one election clerk who shall be of a different political party than the presiding judge.

C. [When two voting machines are to be used in a precinct] For all other elections, the precinct board shall consist of:

(1) a presiding judge;

(2) [two] one election [judges who shall be of different political parties] judge; and

(3) [two] one election [clerks who shall be of different political parties] clerk.

[D. When three voting machines are used in a precinct, the precinct board shall consist of:

(1) a presiding judge;

(2) two election judges who shall be of different political parties; and

(3) three election clerks, not more than two of whom shall belong to the same political party.

E.] D. If the county clerk determines that additional election clerks are needed in a precinct, the clerk may appoint such additional election clerks as [he] the clerk deems necessary; provided, however, that such appointments for partisan elections shall be made in the manner that provides for representation from all major political parties.

[F.] E. In addition to the members of the precinct board provided for in this section, the county clerk may appoint an additional election clerk for the purpose of making changes in the certificate of registration of any voter who has voted in that election at the polling place."

Section 3. Section 1-2-23 NMSA 1978 (being Laws 1969, Chapter 240, Section 42, as amended) is amended to read:

"1-2-23. CHALLENGERS--PERMITTED ACTIVITIES.--

A. A challenger or alternate challenger, upon presentation of [his] the written appointment to the precinct board, shall be permitted to be present from the time the precinct board convenes at the polling place until the completion of the counting and tallying of the ballots after the polls close.

B. A challenger or alternate challenger, for the purpose of interposing challenges, may:

(1) inspect the registration book or precinct voter list for the purpose of determining whether [he] the challenger or alternate challenger desires to interpose a challenge;

(2) inspect the poll books, registration book or signature rosters to determine whether entries are being made in accordance with the Election Code;

(3) examine each voting machine before the polls are opened to compare the number on the metal seal and the numbers on the counters with the numbers on the key envelope and to see [that all ballot labels are in their proper places and] that the voting machine is ready for voting at the opening of the polls; and

(4) make in any polling place and preserve for future reference written memoranda of any action or omission on the part of any member of the precinct board."

Section 4. Section 1-6-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 133, as amended) is amended to read:

"1-6-7. FORM OF ABSENTEE BALLOT.--As soon as candidates and questions to be voted upon have been determined for each election, the county clerk shall procure a supply of suitable absentee ballots. The absentee ballots shall be numbered and shall be, as nearly as possible, in the same form as prescribed by the secretary of state for [emergency] paper ballots. However, to reduce weight and bulk for transport of absentee ballots, the size and weight of the paper for envelopes, ballots and instructions shall be reduced as much as possible. Absentee ballots shall be printed at least forty-five days prior to the date of a primary election and forty-nine days prior to the date of a general election. Absentee ballots for any other election shall be printed at least thirty-five days prior to the date of the election."

Section 5. Section 1-6-15 NMSA 1978 (being Laws 1977, Chapter 222, Section 13, as amended) is amended to read:

"1-6-15. CANVASS--RECOUNT OR RECHECK--DISPOSITION.--If voting machines are not used to register absentee ballots, the absentee ballots shall be canvassed, recounted and disposed of in the manner provided by the Election Code for the canvassing, recounting and disposition of [emergency] paper ballots. If voting machines are used to register absentee ballots, the ballots shall be canvassed and rechecked in the manner provided by the Election Code for the canvassing and recheck of ballots cast on a voting machine; provided, in the event of a contest, voting machines used to register absentee ballots shall not be rechecked but the absentee ballots shall be recounted in the manner provided by the Election Code for the recounting of [emergency] paper ballots. As used in this section, "voting machines" means electronic voting machines as provided in the Election Code."

Section 6. Section 1-6-16.1 NMSA 1978 (being Laws 1989, Chapter 368, Section 1, as amended) is amended to read:

"1-6-16.1. ABSENTEE BALLOT--CONDUCT OF ELECTION--WHEN NOT TIMELY RECEIVED--EMERGENCY PROCEDURE FOR VOTING AND COUNTING.--

A. A voter who applies for an absentee ballot but has not received the absentee ballot by mail as of the date of the election may [present himself at his] go to the voter's assigned polling place and, after executing an affidavit of nonreceipt of absentee ballot, shall be permitted to vote on [an emergency] a replacement absentee paper ballot.

B. The completed ballot shall be placed in an official inner envelope substantially as prescribed by Section 1-6-8 NMSA 1978 and sealed. The official inner envelope shall then be placed in an official envelope substantially as prescribed for a transmittal envelope or mailing envelope in Section 1-6-8 NMSA 1978. This envelope shall contain a form on its back that identifies the voter by name and signature roster number and a printed statement to the effect that the voter made application for an absentee ballot but had not received it as of the date of the election and is permitted to vote by [emergency] replacement absentee paper ballot.

C. The presiding [election] judge shall put all replacement absentee ballots in a special envelope provided for that purpose by the county clerk, seal it and return it to the county clerk along with the machine tally sheets. The sealed envelope shall not be put in the locked ballot box.

D. Upon receipt of the envelope containing replacement absentee ballots, the county clerk, no later than forty-eight hours after the close of the election, shall remove the transmittal envelopes and, without removing or opening the inner envelopes, determine that:

(1) [if a] the voter did in fact make application for an absentee ballot; and

(2) [if an] no absentee ballot was received by the county clerk from the voter by 7:00 p.m. on election day.

E. Upon making that determination, the county clerk shall remove the inner envelope without opening it, retain the transmittal envelope with the other election returns and place the inner unopened envelope in a secure container to be transmitted to the county canvassing board to be tallied and included in the canvass of that county for the appropriate precinct.

F. The secretary of state shall prescribe and furnish the necessary envelopes for purposes of this section and shall adopt rules [and regulations] deemed necessary to preserve the secrecy of the [emergency] replacement absentee paper ballots."

Section 7. Section 1-8-36.1 NMSA 1978 (being Laws 1981, Chapter 156, Section 1, as amended) is amended to read:

"1-8-36.1. PRIMARY ELECTION LAW--WRITE-IN CANDIDATES.--

A. Write-in candidates are permitted in the primary election only for the offices of United States representative, members of the legislature, district judges, district attorneys, public regulation commission, [state board of education] public education commission, magistrates and any office voted upon by all voters of the state.

B. A person may be a write-in candidate only for nomination by the major political party with which [he] the person is affiliated as shown by [his] the certificate of registration, and such person shall have the qualifications to be a candidate in the primary election for the political party for which [he] the person is a write-in candidate.

C. A person desiring to be a write-in candidate for one of the offices listed in Subsection A of this section in the primary election shall file with the proper filing officer a declaration of intent to be a write-in candidate. Such declaration of intent shall be filed before 5:00 p.m. on the second Tuesday in March.

D. A write-in vote shall be counted and canvassed only if:

(1) the name written in is the name of a declared write-in candidate and shows two initials and last name; first name, middle initial or name and last name; first and last name; or the full name as it appears on the declaration of intent to be a write-in candidate and misspellings of the above combinations that can be reasonably determined by a majority of the members of the precinct board to identify a declared write-in candidate; and

(2) the name is written [in the proper slot on the voting machine or] on the proper line provided on [an absentee ballot or emergency paper] the ballot for write-in votes for the office for which the candidate has filed a declaration of intent and the voter has followed the directions for casting a vote for the write-in candidate.

E. At the time of filing the declaration of intent to be a write-in candidate, the write-in candidate shall be considered a candidate for all purposes and provisions relating to candidates in the Election Code, including the obligations to report pursuant to the Campaign Reporting Act, except that [he shall not be entitled to have his] the write-in candidate's name shall not be printed on the ballot.

F. No unopposed write-in candidate shall have [his] the write-in candidate's nomination certified unless [he] the write-in candidate receives at least the number of write-in votes in the primary election as [he] the write-in candidate would need signatures on a nominating petition pursuant to the requirements set out in Section 1-8-33 NMSA 1978.

G. A write-in vote shall be cast by writing in the name and following the directions for casting a vote for the write-in candidate. As used in this section, "write-in" does not include the imprinting of any name by rubber stamp or similar device or the use of preprinted stickers or labels."

Section 8. Section 1-10-1 NMSA 1978 (being Laws 1977, Chapter 222, Section 24, as amended) is amended to read:

"1-10-1. BALLOT.--As used in the Election Code:

A. "ballot" means a system for arranging and designating for the voter the names of candidates, constitutional amendments and other questions to be voted on and for the marking, casting or otherwise recording of such votes, and the term includes absentee ballots, [ballot labels, ballot cards, ballot sheets] provisional paper ballots and [emergency] all other paper ballots;

[B. "ballot label" means that portion of cardboard, paper or other material placed on the front of the voting machine containing the names of the candidates, the offices the candidates are seeking, a statement of the proposed constitutional amendment or other question or proposition to be voted upon;

C. "emergency paper ballot" means the paper ballot used in the circumstances covered under Section 1-12-43 NMSA 1978;

D. "ballot card" means a card upon which votes may be recorded by use of a pen or pencil for tabulation in an electronic vote tabulating machine;

E. "ballot sheet" means the sheet used on an electronic vote recording and tabulating machine containing the offices, candidates and questions to be voted on] and

[F.] B. "provisional paper ballot" means the paper ballot used pursuant to Section [1-5-10 or] 1-12-7.1, 1-12-8 [NMSA 1978] or [Section 3 of this 2003 act] 1-12-25.2 NMSA 1978."

Section 9. Section 1-10-5 NMSA 1978 (being Laws 1977, Chapter 222, Section 28) is amended to read:

"1-10-5. BALLOTS--PRINTING.--[Ballot labels] Ballots shall be printed and in the hands of the county clerk at least [thirty] forty days before the election."

Section 10. Section 1-12-44 NMSA 1978 (being Laws 1977, Chapter 222, Section 47, as amended) is recompiled in Chapter 1, Article 10 NMSA 1978 and is amended to read:

"[EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--GENERAL REQUIREMENTS.--[Emergency] Paper ballots [used in the primary and general elections] shall:

A. be numbered consecutively [for each precinct, beginning with number one. The number shall be printed in the upper right-hand corner of the ballot with a diagonal perforated line so placed that the portion of the ballot bearing the number in the upper right-hand corner may be readily and easily detached from the emergency paper ballot];

B. be uniform in size;

C. be printed on good quality white paper;

D. be printed in plain black type;

[E. have all words, phrases and the names of the candidates printed in their proper places; and

F.] E. have the [legislative district, commissioner district and] precinct numbers printed on each [emergency] paper ballot; and

F. be in the form prescribed by the secretary of state."

Section 11. Section 1-12-47 NMSA 1978 (being Laws 1977, Chapter 222, Section 50) is recompiled in Chapter 1, Article 10 NMSA 1978 and is amended to read:

"[EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--WRITE-IN CANDIDATES.--[Where space is allowed on an emergency paper ballot] When a write-in candidate has been certified pursuant to the Election Code, a space for entering the name of [a] the write-in candidate [that space] shall be clearly designated by the use of the heading "Write-in Candidate" after the listing of other candidates for that office."

Section 12. Section 1-12-49 NMSA 1978 (being Laws 1977, Chapter 222, Section 52) is recompiled in Chapter 1, Article 10 NMSA 1978 and is amended to read:

"[EMERGENCY SITUATIONS] PAPER BALLOTS--ELECTION SUPPLIES.--The secretary of state shall provide for the procurement of [emergency] paper ballot election supplies."

Section 13. Section 1-10-8.1 NMSA 1978 (being Laws 1981, Chapter 166, Section 1, as amended) is amended to read:

"1-10-8.1. GENERAL ELECTION--PARTY POSITION ON BALLOT.--

A. The order of preference for position on the [voting machines, emergency paper ballots and absentee] ballots of the candidates of political parties in the general election shall be determined by lot at the time and in the manner prescribed by the secretary of state.

[B. The order of preference of major political parties for purposes of this section shall be: first, the top row with the offices proceeding from left to right across the lever voting machine or paper ballot; second, the second row with the offices proceeding from left to right across the machine or paper ballot; and thereafter, consecutively down each row in the same manner until all major parties and their candidates are positioned on the ballot.

C. The order of preference of minor political parties for purposes of this section in the positions below the major parties on the machine or ballot shall be: first, the top row with the offices proceeding from left to right across the machine or paper ballot; second, the second row with the offices proceeding from left to right across the machine or paper ballot; and thereafter, consecutively down each row in the same manner until all minor parties and their candidates are positioned on the ballot.

D. Where lever voting machines are used, the sample ballot posted in the polling place shall reflect the actual positioning of parties on the voting machine in that precinct. The secretary of state may require that sample ballots distributed to each polling place reflect the actual positioning of parties on the voting machines used in that precinct.

E.] B. When electronic vote recording and tabulating machines or electronic vote tabulating machines are used, the offices and candidates shall be printed on the ballot [sheet or ballot card] in a vertical position with the order of preference being from top to bottom.

[F.] C. When [emergency] paper ballots [and absentee ballots] are used in a general election, such ballots shall be printed and bound so that the ballots for each precinct shall reflect the actual positioning of parties as they appear on [the voting machines] all ballots in that precinct.

[G.] D. The secretary of state shall prescribe procedures and publish instructions to carry out the provisions of this section."

Section 14. Section 1-10-11 NMSA 1978 (being Laws 1969, Chapter 240, Section 210, as amended) is amended to read:

"1-10-11. SAMPLE BALLOTS--PENALTY.--

[A. After the official ballot labels are arranged for voting purposes, the county clerk shall provide sample ballots which shall show the entire front of the voting machine as it will appear for voting purposes on election day.

B.] The county clerk shall provide at least four sample ballots for use in each precinct. Two of the sample ballots shall be displayed for public inspection on the outside of the polling place and two on the inside. The sample ballots shall be displayed throughout election day. It is a petty misdemeanor for any person to deface, alter, remove or in any way destroy the sample ballots displayed for public inspection at the polling place during the hours the election is being conducted."

Section 15. Section 1-12-19.1 NMSA 1978 (being Laws 1981, Chapter 156, Section 2, as amended) is amended to read:

"1-12-19.1. GENERAL ELECTIONS--SPECIAL ELECTIONS--WRITE-IN CANDIDATES.--

A. A person desiring to be a write-in candidate in a special election for United States representative or a statewide special election shall file with the proper filing officer a declaration of intent to be a write-in candidate. The declaration of intent shall be filed between 9:00 a.m. and 5:00 p.m. on the sixty-third day immediately preceding the election. A person desiring to be a write-in candidate in a general election shall file the declaration of intent between 9:00 a.m. and 5:00 p.m. on the day after the primary election.

B. The form of the declaration of intent shall be prescribed by the secretary of state and shall contain a sworn statement by the candidate that the candidate is qualified to be a candidate for and to hold the office for which the candidate is filing.

C. At the time of filing the declaration of intent to be a write-in candidate, the write-in candidate shall be considered a candidate for all purposes and provisions relating to candidates in the Election Code, including the obligation to report under the Campaign Reporting Act, except that the candidate shall not be entitled to have the candidate's name printed on the ballot.

D. The secretary of state shall, not less than [ten] forty days before the general election, certify the names of the declared write-in candidates to the county clerks of every county affected by such candidacy.

E. No person shall be a write-in candidate in the general election who was a candidate in the primary election immediately prior to the general election.

F. A vote for a write-in candidate shall be counted and canvassed only if:

(2) the name is written in the proper office [or entered upon the keyboard on the voting machine or] on the proper line provided on [a marksense ballot, absentee ballot or emergency paper] the ballot for write-in votes for the office for which the candidate has filed a declaration of intent and the voter has followed the directions for casting a vote for the write-in candidate.

G. No unopposed write-in candidate shall have an election certified unless the candidate receives at least the number of write-in votes as the candidate would need signatures on a nominating petition pursuant to the requirements in Section 1-8-33 NMSA 1978.

H. A write-in vote shall be cast by writing in the name. As used in this section, "write-in" does not include the imprinting of any name by rubber stamp or similar device or the use of preprinted stickers or labels."

Section 16. Section 1-12-25.1 NMSA 1978 (being Laws 1991, Chapter 105, Section 30) is amended to read:

"1-12-25.1. PROCEDURES FOR VOTING ON [LEVER] ELECTRONIC [AND MARKSENSE VOTING MACHINES] VOTE TABULATOR SYSTEMS.--[A.] A voter [voting on a lever type machine] using an electronic vote tabulator system to vote shall:

[(1) enter the machine and push the red handle to the left to close the curtain;

(2) set the pointer directly under the candidate's name or question on which he desires to vote; and

(3) make all selections and pull the red handle to the right to open the curtain and record his vote.

B. A voter voting on a direct recording electronic machine shall:

(1) enter the machine;

(2) press the square to the right of the candidate's name or question on which he desires to vote; and

(3) make all selections and press the vote button in the lower right hand corner of the voting machine to record his vote.

C. A voter voting on a marksense machine shall

(1)] A. receive a ballot issued by the precinct board;

[(2)] B. take the ballot to a voting booth and, with the [pencil] writing utensil provided, mark it [by completing the arrow to the right of the candidate's name or question on which he desires to vote] in accordance with the instructions for that ballot type; and

[(3) make all selections and] C. feed the ballot into the [machine] electronic vote tabulator to record [his] the vote."

Section 17. Section 1-12-31 NMSA 1978 (being Laws 1969, Chapter 240, Section 291, as amended) is amended to read:

"1-12-31. CONDUCT OF ELECTION--DISPOSITION OF BALLOT BOXES AND OTHER ELECTION MATERIALS.--

A. The following election returns and materials shall not be placed in the ballot box and shall be returned immediately to the county clerk along with the locked box:

(1) one ballot box key in an envelope addressed to the county clerk;

(2) one signature roster;

(3) one tally sheet;

(4) the registration binder;

(5) all unused election supplies not destroyed pursuant to the Election Code; and

(6) a machine cartridge for any electronic [or marksense machine] vote tabulator.

B. [In the event emergency paper ballots have been voted] The election judge of the party different from that of the presiding judge shall place the other ballot box key in the envelope addressed to the district court and immediately mail it to the district court."

Section 18. Section 1-12-37.1 NMSA 1978 (being Laws 2002, Chapter 51, Section 1) is amended to read:

"1-12-37.1. BALLOTS--REMEDY FOR USE OF INCORRECT BALLOTS.--

A. As used in this section, "incorrect ballot" means an election ballot that fails to list the correct candidate for an office.

B. If an incorrect ballot is discovered after eligible voters have used the incorrect ballot to cast their votes, the precinct board shall:

(1) lock and seal the voting machine on which the incorrect ballot appears to prevent further voting on that machine, at which time that machine shall be considered disabled;

(2) preserve a record of the voters who voted using the incorrect ballot by marking the vote number shown on the public counter of the voting machine on both the copy of the voter list marked for the secretary of state and the signature roster; and

(3) attach a note to the voter list marked for the secretary of state and the signature roster giving the number of the last voter who voted using the incorrect ballot [and

(4) if necessary, use emergency paper ballots pursuant to Section 1-12-43 NMSA 1978].

C. The precinct board shall notify the county clerk and the secretary of state of the incorrect ballot and of the precinct board's compliance with the provisions of this section no later than one hour after the polls close.

D. The votes recorded on the voting machine that was locked and sealed pursuant to Subsection B of this section shall be tallied with the votes from valid ballots from the precinct, except that the votes for incorrect candidates shall not be tallied. Written notice of this procedure and a statement of the number of voters who voted using the incorrect ballot shall be sent to the secretary of state and the county clerk after the signature roster is properly certified.

E. If a candidate contests the election results and the court finds that the number of eligible voters who relied on incorrect ballots is great enough to affect the outcome of that candidate's race, the court may order the county clerk to send ballots for that candidate's race to those voters who voted using an incorrect ballot.

F. The ballots prescribed in Subsection E of this section shall list the names of the candidates and office for the race in question, be in a form substantially similar to absentee ballots as prescribed by the secretary of state and:

(1) indicate the number of voters that are eligible to vote in the court-ordered vote;

(2) give the reason the voter is being asked to vote;

(3) indicate that the voter must return the ballot within fourteen days of receiving it;

(4) be mailed to the voter by certified mail, return receipt requested; and

(5) be mailed with a prepaid return envelope addressed to the county clerk of the county within which the voter's precinct lies.

G. Returned ballots shall be opened, counted and tallied by the county clerk in the presence of the district court judge or [his] the district court judge's representative and the results added to the candidates' respective vote totals and reported to the court and the secretary of state. Ballots not received by the county clerk within eighteen days of the county clerk's mailing shall not be counted."

Section 19. Section 1-12-43 NMSA 1978 (being Laws 1977, Chapter 222, Section 46) is amended to read:

"1-12-43. EMERGENCY SITUATIONS [EMERGENCY PAPER BALLOTS--WHEN USED].--

A. If any [voting machine] electronic vote tabulator becomes disabled while being used to the extent that any voter is unable to cast a vote for all the candidates or questions of [his] the voter's choice and have such vote recorded by the [machine] electronic vote tabulator, it shall be repaired, if possible, or another [voting machine] electronic vote tabulator shall be promptly substituted.

B. The board of county commissioners shall appropriate funds for servicing, repairing and substituting [voting machines] electronic vote tabulators that become disabled.

C. If a disabled [voting machine] electronic vote tabulator cannot be repaired in a reasonable length of time and if there are no other [voting machines] electric vote tabulators available for substitution, the presiding judge shall order [emergency paper] marked ballots to be [substituted and used] collected and securely preserved until they may be tabulated pursuant to rules promulgated by the secretary of state.

D. A voter shall not be denied the opportunity to mark a ballot for later tabulation due to the lack of a functioning electronic vote tabulator.

[D.] E. The county clerk shall provide additional [emergency paper] ballots if needed and when requested by the precinct board."

Section 20. Section 1-12-51 NMSA 1978 (being Laws 1977, Chapter 222, Section 54) is amended to read:

"1-12-51. [EMERGENCY SITUATIONS] PAPER BALLOTS--UNAUTHORIZED RECEIPT OR DELIVERY OF [EMERGENCY] PAPER BALLOT.--Except for absentee ballots and unless otherwise provided by law, a voter shall not receive [an emergency] a paper ballot from any person other than from a member of the precinct board of the polling place where [he] the voter is authorized to vote or at an alternate early voting location. No person other than a member of the precinct board or officer authorized by law shall deliver [an emergency] a paper ballot to any voter."

Section 21. Section 1-12-55 NMSA 1978 (being Laws 1977, Chapter 222, Section 58, as amended) is amended to read:

"1-12-55. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--[USE OF PEN] MARKING.--All [crosses or checks] marks on the [emergency] paper ballot shall be made only with [pen. The cross used in marking emergency paper ballots shall be two lines intersecting at any angle within the circle or box. The check shall be a "V" shaped mark with it being permissible for either side of the "V" being longer than the other side. Any mark discernible either as a cross or a check, whether or not any of the lines extend outside the circle or box, shall be counted as a valid marking of the ballot] the recommended or provided marking device."

Section 22. Section 1-12-57 NMSA 1978 (being Laws 1977, Chapter 222, Section 60) is amended to read:

"1-12-57. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--PROCEDURE AFTER MARKING.--After marking and preparing [his emergency] a paper ballot in a polling place or alternate voting location, the voter:

[A. shall, before leaving the voting machine, fold his ballot so that the number on the ballot appears on the outside, without displaying the marks on its face, and he shall keep it folded until he has voted;

B.] A. shall not show it to any person in such a way as to reveal its contents; and

[C.] B. shall [deliver it to the presiding judge who shall then detach the visible number on the ballot, hand it to the voter, then deposit the emergency] feed the paper ballot [in the ballot box in the presence of the voter] into the electronic vote tabulator."

Section 23. Section 1-12-58 NMSA 1978 (being Laws 1977, Chapter 222, Section 61) is amended to read:

"1-12-58. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--DELIVERY OF TWO OR MORE BALLOTS [FOLDED TOGETHER].--Every voter who knowingly [hands to the presiding judge] attempts to vote on two or more [emergency] paper ballots [folded together] is guilty of a fourth degree felony."

Section 24. Section 1-12-59 NMSA 1978 (being Laws 1977, Chapter 222, Section 62) is amended to read:

"1-12-59. [EMERGENCY SITUATIONS--PERSON AUTHORIZED TO RECEIVE EMERGENCY] VIEWING MARKED PAPER BALLOT.--[Only the presiding judge shall receive from any voter an emergency paper ballot prepared by such voter.] No person shall [examine or] solicit the voter to show [his emergency] the voter's marked paper ballot."

Section 25. Section 1-12-61 NMSA 1978 (being Laws 1977, Chapter 222, Section 64) is amended to read:

"1-12-61. [EMERGENCY SITUATIONS] REMOVAL OF [EMERGENCY] PAPER BALLOTS FROM POLLING PLACE.--No person shall remove any [emergency] paper ballot from any polling place [before the completion of the ballot count] unless authorized by law."

Section 26. Section 1-12-62 NMSA 1978 (being Laws 1977, Chapter 222, Section 65, as amended) is amended to read:

"1-12-62. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--SPOILED OR DEFACED.--

A. A voter who accidentally spoils or erroneously prepares [his emergency] the voter's paper ballot may return the spoiled or erroneously prepared [emergency] paper ballot to the presiding judge and receive a new [emergency] paper ballot.

B. The presiding judge in delivering the new [emergency] paper ballot shall announce the name of the voter and the number of the new [emergency] paper ballot in an audible tone.

C. Upon the announcement of the presiding judge, the election clerks shall [cross out the number of the spoiled or erroneously prepared emergency paper ballot] make a record in the signature roster and checklist of registered voters [with a single line and shall insert in lieu thereof the number of the new emergency paper] that the voter received a replacement ballot.

D. The [presiding judge] voter shall mark the spoiled or erroneously prepared [emergency] paper ballot with the word "SPOILED" and shall place it in a separate envelope marked "SPOILED BALLOTS", which shall be returned to the county clerk."

Section 27. Section 1-12-63 NMSA 1978 (being Laws 1977, Chapter 222, Section 66) is amended to read:

"1-12-63. [EMERGENCY SITUATIONS] ELECTION JUDGES--UNUSED [EMERGENCY] PAPER BALLOTS.--Immediately upon the time of the closing of the polls [and before any ballot box is unlocked], the election judges and presiding judge, in the presence of those lawfully permitted to be present, shall publicly destroy all unused [emergency] paper ballots."

Section 28. Section 1-12-65 NMSA 1978 (being Laws 1977, Chapter 222, Section 68, as amended) is amended to read:

"1-12-65. EMERGENCY SITUATIONS--[EMERGENCY] PAPER BALLOTS--COUNTING AND TALLYING PROCEDURES.--

A. The presiding judge and the election judges, assisted by the election clerks, shall count and tally the [emergency] paper ballots that were not tabulated by the electronic vote tabulator and certify the results of the election on the form on the tally sheet setting opposite the name of each candidate in figures the total number of votes cast for the candidate, and they shall set forth in the spaces provided therefor the total number of votes cast for and against each constitutional amendment and other questions. [Emergency] Paper ballots not marked as required by the Election Code shall not be counted. The precinct board shall sign the tally sheet certificate.

B. The counting and tallying of [emergency] paper ballots in emergency situations shall be in accordance with procedures prescribed by the secretary of state."

Section 29. Section 1-12-66 NMSA 1978 (being Laws 1977, Chapter 222, Section 69, as amended) is amended to read:

"1-12-66. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--SIGNATURE ROSTERS, CHECKLIST OF VOTERS AND TALLY SHEETS--DISPOSITION.--

A. After the counting and tallying of [emergency] paper ballots are completed and after all certificates have been executed, the presiding judge and the two election judges shall place [one copy of the signature roster] the checklist of voters and one copy of the tally sheet in the stamped, addressed envelope provided for that purpose and an election judge shall immediately mail it to the secretary of state.

B. The [remaining copy of the] signature roster and the original tally sheet shall be returned to the county clerk. The signature roster and the tally sheet shall not be placed in the ballot box.

C. Signature rosters, checklists of registered voters and tally sheets in the custody of the county clerk and the secretary of state may be destroyed three years after the election to which they apply."

Section 30. Section 1-12-67 NMSA 1978 (being Laws 1977, Chapter 222, Section 70, as amended) is amended to read:

"1-12-67. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS [MATERIAL] TO BE PLACED IN BALLOT BOX.--[A.] After the [emergency] paper ballots are tallied, the precinct board shall place [the following in the ballot box:

(1)] the bundles of counted [emergency] paper ballots

[(2) the envelopes containing spoiled ballots; and

(3) the envelopes containing rejected ballots.

B. After the required items have been placed] in the ballot box and the ballot box shall be closed and locked."

Section 31. Section 1-12-68 NMSA 1978 (being Laws 1977, Chapter 222, Section 71, as amended) is amended to read:

"1-12-68. [EMERGENCY SITUATIONS--EMERGENCY] PAPER BALLOTS--COUNTY CANVASS--WHEN RECOUNT IS REQUIRED.--

A. If it appears that defective returns cannot be corrected without a recount of the [emergency] paper ballots, the county canvassing board shall immediately notify the district court in writing.

B. The district court shall fix a time and place, which shall be not more than one week after receipt of notice from the county canvassing board, for a recount of the [emergency] paper ballots from the precinct.

C. The county clerk shall immediately notify the county [chairmen] chairs of the political parties [who] that participated in the election of the time and place of the recount.

D. At the time and place set by the district court, the ballot box shall be opened in the presence of the district judge or some person designated by [him] the district judge to act for the district court, the precinct board, the county canvassing board and other persons desiring to be present.

E. The precinct board shall then recount the [emergency] paper ballots and make a new tally sheet certificate in duplicate to conform to the facts.

F. After the recount is completed, the precinct board shall replace in the ballot box the [emergency] paper ballots and other items taken therefrom and shall lock and return the ballot box and one key to the county clerk. The other key shall be returned to the district court or its representative.

G. After being properly corrected, the signature roster and tally sheets shall be disposed of as in the first instance: one each to the county clerk and one each to the secretary of state."

Section 32. Section 1-14-14 NMSA 1978 (being Laws 1969, Chapter 240, Section 343, as amended) is amended to read:

"1-14-14. RECOUNTS--RECHECKS--APPLICATION.--

A. Whenever any candidate for any office for which the state canvassing board or county canvassing board issues a certificate of nomination or election believes that any error or fraud has been committed by any precinct board in counting or tallying the [emergency paper ballots or absentee] ballots, in the verification of the votes cast on the voting machines or in the certifying of the results of any election whereby the results of the election in the precinct have not been correctly determined, declared or certified, the candidate, within six days after completion of the canvass by the proper canvassing board, may have a recount of the [emergency paper ballots or absentee] ballots, or a recheck of the votes shown on the voting machines, that were cast in the precinct.

B. In the case of any office for which the state canvassing board issues a certificate of nomination or election, application for recount or recheck shall be filed with the secretary of state.

C. In the case of any office for which the county canvassing board issues a certificate of nomination or election, application for recount or recheck shall be filed with the district judge for the county in which the applicant resides."

Section 33. Section 1-16-12 NMSA 1978 (being Laws 1969, Chapter 240, Section 385, as amended) is amended to read:

"1-16-12. STATE CONSTITUTIONAL AMENDMENTS--GENERAL ELECTIONS.--At all general elections at which any proposed constitutional amendment or question is submitted to the voters, the [emergency paper ballot or absentee ballot on the] proposed constitutional amendment or question shall be printed on the [emergency paper ballot or absentee] ballot for the election of officers."

Section 34. Section 1-20-9 NMSA 1978 (being Laws 1969, Chapter 240, Section 433, as amended) is amended to read:

"1-20-9. FALSIFYING ELECTION DOCUMENTS.--Falsifying election documents consists of performing any of the following acts willfully and with knowledge and intent to deceive or mislead any voter, precinct board, canvassing board or other election official:

A. printing, causing to be printed, distributing or displaying false or misleading instructions pertaining to voting or the conduct of the election;

B. printing, causing to be printed, distributing or displaying any official ballot, sample ballot, facsimile diagram [ballot label] or pretended ballot [which] that includes the name of any person not entitled by law to be on the ballot, or omits the name of any person entitled by law to be on the ballot, or otherwise contains false or misleading information or headings;

C. defacing, altering, forging, making false entries in or changing in any way a certificate of nomination, registration record or election return required by or prepared and issued pursuant to the Election Code;

D. suppressing any certificate of nomination, registration record or election return required by or prepared and issued pursuant to the Election Code;

E. preparing or submitting any false certificate of nomination, registration record or election return; or

F. knowingly falsifying any information on a nominating petition.

Whoever falsifies election documents is guilty of a fourth degree felony."

Section 35. Section 1-22-10 NMSA 1978 (being Laws 1985, Chapter 168, Section 12, as amended) is amended to read:

"1-22-10. BALLOTS.--

A. The proper filing officer shall determine whether a candidate filing a declaration of candidacy is a registered qualified elector of the state residing within the school district. If the candidate is so qualified and no withdrawal of candidacy has been filed as provided in the School Election Law, the proper filing officer shall place the candidate's name on the ballot for the position specified in the declaration of candidacy. A declaration of candidacy shall not be amended after it has been filed with the proper filing officer.

B. Ballots for the school district election shall be prepared by the proper filing officer and printed by the thirtieth day preceding the election. The cost of printing the ballots shall be paid by the school district. The proper filing officer shall furnish printed ballots to the county clerk of each county in which the school district is situate. The printed ballot shall contain the name of each person who is a candidate and the position on the board for which [he] the person is a candidate. The ballot shall also contain all questions to be submitted to the voters of the district as certified to the proper filing officer by the board.

C. Paper ballots [and ballot labels] shall be printed in a form in substantial compliance with the provisions of Section 1-12-44 NMSA 1978 and in compliance with the provisions of the federal Voting Rights Act of 1965, as amended.

D. A school district election shall be a nonpartisan election, and the names of all candidates shall be listed on the ballot without party or slate designation. The order in which the names of candidates are listed on the ballot shall be determined by lot.

E. Whenever two or more members of the board are to be elected for terms of the same length of time, the positions shall be numerically designated on the ballot as "position one", "position two" and such additional consecutively numbered positions as are necessary, but only one member shall be elected for each position.

F. Space shall be provided on each ballot for a voter to write in the name of one candidate for each position to be filled when a declaration of intent to be a write-in candidate has been filed.

G. Voting machines shall be used for the recording of votes cast in a school district election; provided that paper ballots may be [used] hand counted in lieu of using a voting machine to tabulate ballots for:

(1) school districts of less than five hundred average daily membership; or

(2) school district elections in which only one candidate has filed a declaration of candidacy for each position to be filled at the election, no declared write-ins have filed for any position and there are no questions or bond issues on the ballot and notwithstanding any other provision in [this chapter; or

(3) for emergency ballots in case of a malfunction of the voting machine] the Election Code."

Section 36. Section 1-22-18 NMSA 1978 (being Laws 1985, Chapter 168, Section 20) is amended to read:

"1-22-18. WRITE-IN CANDIDATES.--

A. Write-in candidates for the office of board member shall be permitted in school district elections.

B. A person may be a write-in candidate only if [he] the person has the qualifications to be a candidate for membership on the board in the school district election as provided in the School Election Law.

C. A person desiring to be a write-in candidate for the office of board member shall file with the proper filing officer a declaration of intent to be a write-in candidate. The declaration shall be filed before 5:00 p.m. on the thirty-fifth day preceding the date of the election.

D. A write-in vote shall be counted and canvassed only if:

(1) the name written in is the name of a declared write-in candidate and shows two initials and last name; first name, middle initial or name and last name; first and last name; or the full name as it appears on the declaration of intent to be a write-in candidate and if misspellings of those combinations can be reasonably determined by a majority of the members of the precinct board to identify a declared write-in candidate; and

(2) the name is written [in the proper slot on the voting machine or] on the proper line provided on the [paper ballot, absentee ballot or emergency] ballot for write-in votes for the office and position for which the candidate has declared [his] intent and the voter has followed the directions for voting for the write-in candidate.

E. At the time of filing the declaration of intent to be a write-in candidate, the write-in candidate shall be considered a candidate for all purposes and provisions relating to candidates in the School Election Law except that [he shall not be entitled to have his] the write-in candidate's name shall not be printed on the ballot.

F. A write-in vote shall be cast by writing in the name. As used in this section, "write-in" does not include the imprinting of any name by rubber stamp or similar device or the use of a preprinted sticker or label."

Section 37. REPEAL.--Sections 1-12-24, 1-12-45 through 1-12-46, 1-12-48, 1-12-50, 1-12-52 through 1-12-54, 1-12-56, 1-12-60, 1-12-64 and 1-16-12 NMSA 1978 (being Laws 1969, Chapter 240, Section 278, Laws 1977, Chapter 222, Section 48, Laws 1991, Chapter 105, Section 35, Laws 1977, Chapter 222, Sections 49, 51, 53, 55 through 57, 59, 63 and 67 and Laws 1969, Chapter 240, Section 385, as amended) are repealed.

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