46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO ELECTIONS; PROVIDING THAT PROPOSALS TO AMEND THE CONSTITUTION OF NEW MEXICO BE SUBMITTED TO THE VOTERS BY MAILED BALLOT.

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

Section 1. Section 1-16-1 NMSA 1978 (being Laws 1969, Chapter 240, Section 374) is amended to read:

"1-16-1. STATE CONSTITUTIONAL AMENDMENTS--OTHER STATEWIDE QUESTIONS--APPLICATION OF ELECTION CODE.--

A. At all elections at which any proposed constitutional amendment [or question] is submitted to a vote of the electors, the election shall be:

(1) conducted by all-mailed ballot pursuant to the provisions of this article; and

(2) otherwise held and conducted in accordance with other provisions of the Election Code.

B. Other statewide questions submitted to a vote of the electors shall be held and conducted in accordance with the Election Code."

Section 2. Section 1-16-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 378, as amended) is amended to read:

"1-16-5. STATE CONSTITUTIONAL AMENDMENTS--BALLOT--FORMS [FOR EMERGENCY PAPER BALLOTS AND ABSENTEE BALLOTS].--

A. All [emergency paper ballots and absentee] ballots proposing constitutional amendments shall have printed thereon in both English and Spanish the full title of the joint resolution proposing the constitutional amendment and the constitutional amendment number assigned to the joint resolution by the secretary of state. Below the printed title, there shall be printed on the ballot two one-quarter-inch blank boxes. Opposite one of the blank boxes, there shall be printed in both English and Spanish the [words] word "FOR", and opposite the other blank box shall be printed in both such languages the [words] word "AGAINST".

B. There shall be printed across the top of such ballot the following: "Instructions to voters: If you desire to vote for the amendment, mark a cross (X) or a check () or

any other mark clearly indicating intention in the opposite the [words] word "FOR". If you desire to vote against the amendment, mark a cross (X) or a check () or any other mark clearly indicating intention in the opposite the [words] word "AGAINST"."

Section 3. Section 1-16-6 NMSA 1978 (being Laws 1969, Chapter 240, Section 379, as amended) is amended to read:

"1-16-6. STATE CONSTITUTIONAL AMENDMENTS--MARKING [EMERGENCY PAPER BALLOTS AND ABSENTEE] BALLOTS.--A voter desiring to mark his [emergency paper ballot or absentee] ballot for or against a proposed constitutional amendment shall do so in the manner specified in the instructions printed on the [emergency paper ballot or absentee] ballot."

Section 4. Section 1-16-9 NMSA 1978 (being Laws 1969, Chapter 240, Section 381, as amended) is amended to read:

"1-16-9. STATE CONSTITUTIONAL AMENDMENTS--OTHER QUESTIONS--SINGLE [EMERGENCY] PAPER [BALLOT AND ABSENTEE] BALLOT.--

A. Proposed constitutional amendments [or other questions] submitted to the voters [on emergency paper ballots or absentee ballots] at any election shall be printed upon one ballot only.

B. Other statewide questions submitted to the voters on emergency paper ballots or absentee ballots shall be printed upon one ballot only."

Section 5. 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] STATEWIDE QUESTION--GENERAL ELECTIONS.--At all general elections at which any [proposed constitutional amendment or question] statewide question other than a proposed constitutional amendment 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 6. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--BALLOTS--ENVELOPES.--

A. For each election at which a proposed constitutional amendment is to be submitted to the voters, the secretary of state shall prescribe the form of, procure and, not less than fifty-six days before the election, distribute to each county clerk a supply of:

(1) ballots;

(2) official inner envelopes for use in sealing completed ballots;

(3) official mailing envelopes for use in returning the official inner envelopes to the county clerk;

(4) ballot instructions describing how to complete and return ballots; and

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

B. The reverse of each official mailing envelope shall contain a form, to be executed by the voter completing the ballot, that contains such affirmations as the secretary of state shall, by rule, prescribe."

Section 7. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--MAILED BALLOTS--REGISTER.--

A. For each election at which a proposed constitutional amendment is submitted to a vote of the electors, a county clerk shall keep a register of all registered voters in the county, on which he shall enter:

(1) the name and address of each registered voter;

(2) the date of mailing of the ballot to the voter;

(3) the voter's precinct; and

(4) the date and time the completed ballot was received from the voter by the county clerk.

B. Within twenty days after receiving the ballot materials from the secretary of state, the county clerk shall mail a ballot to each registered voter.

C. The ballot register is a public record open to public inspection in the county clerk's office during regular office hours.

D. The county clerk shall deliver to the absent voter precinct board on election day a complete list of all registered voters with applicable information shown in the ballot register for each voter up to 5:00 p.m. on the Thursday preceding the election. The county clerk shall deliver a signature roster containing the same information as the lists to the absent voter precinct board.

E. The county clerk shall transmit to the secretary of state and to the county chairman of each of the major political parties in the county a complete copy of entries made in the ballot register. Such transmissions shall be made on the Friday immediately following the election."

Section 8. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--MAILED BALLOTS--MANNER OF VOTING.--A person voting on a proposed constitutional amendment shall secretly mark the ballot in the manner provided in Section 1-16-5 NMSA 1978, 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."

Section 9. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--MAILED BALLOTS--RECEIPT OF BALLOTS BY CLERK.--

A. A county clerk shall mark on each completed official mailing envelope the date and time of receipt in the clerk's office, record this information in the ballot register and safely keep the official mailing envelope unopened in a locked and number-sealed ballot box until it is delivered to the proper absent voter precinct board or until it is canceled and destroyed in accordance with law.

B. The county clerk shall accept completed official mailing envelopes until 7:00 p.m. on election day. A completed official mailing envelope received after that time shall not be delivered to an absent voter precinct board but the county clerk shall record, in the ballot register, the date and time of receipt. The county clerk shall preserve all late official mailing envelopes until the time for election contests has expired, at which time, in the absence of a restraining order, he shall destroy the envelopes without opening or permitting the contents to be examined, cast, counted or canvassed.

C. At 5:00 p.m. on the Monday immediately preceding the date of election, the county clerk shall record the numbers of the unused ballots and shall publicly destroy in the county clerk's office all such unused ballots. The county clerk shall execute a certificate of destruction, which shall include the numbers on the ballots destroyed. A copy of the certificate of destruction shall be sent to the secretary of state."

Section 10. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--HANDLING BALLOTS BY ABSENT VOTER PRECINCT BOARDS.--

A. Before opening any 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. The accredited challengers may examine the official mailing envelope and may challenge the ballot of any voter because the official mailing envelope has been opened prior to being received by the absent voter precinct board. Upon the challenge of a 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 ballots pursuant to this section as with other challenged ballots.

D. If an official mailing envelope has been properly subscribed and the voter has not been challenged:

(1) the election judges shall open the official mailing envelope and deposit the ballot in its still-sealed official inner envelope in the locked ballot box; and

(2) the election clerks shall enter the voter's name and residence address as shown on the official mailing envelope in the signature rosters.

E. Prior to the closing of the polls, the election judges and the presiding election judge may either remove the ballots from the official inner envelopes and count and tally the results or, under the personal supervision of the presiding election judge and one election judge from each party, count and tally the ballots on an electronic voting machine the same as if the voter had voted in person. It is unlawful for any person to disclose the results of a count and tally or the registration on a voting machine of ballots prior to the closing of the polls.

F. Ballots shall be counted and tallied on an electronic voting machine as provided in the Election Code.

G. Absent voter precinct polls shall close at the time prescribed by the Election Code for other polling places, and the results of the election shall be certified as prescribed by the secretary of state.

H. The county clerk may convene the absent voter precinct board no more than three days before the day of the election to alphabetize, enter on the roster and sort the ballots by legislative district; provided that no member of the absent voter precinct board shall open an official mailing envelope or count and canvass any ballot prior to the day of the election."

Section 11. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--CANVASS--RECOUNT OR RECHECK--DISPOSITION.--If electronic voting machines are not used to register the mailed ballots for proposed state constitutional amendments, the 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 the ballots, the ballots shall be canvassed and rechecked in the manner provided by the Election Code for the canvassing and rechecking of ballots cast on a voting machine; provided, in the event of a contest, voting machines used to register the ballots shall not be rechecked but the ballots shall be recounted in the manner provided by the Election Code for the recounting of emergency paper ballots."

Section 12. A new section of Chapter 1, Article 16 NMSA 1978 is enacted to read:

"[NEW MATERIAL] STATE CONSTITUTIONAL AMENDMENTS--VOTING WHEN NO MAILED BALLOT RECEIVED.--

A. Except as provided in this section, a person shall not vote in person on the question of a proposed state constitutional amendment.

B. At any time prior to 5:00 p.m. on the Monday immediately preceding the date of the election, a registered voter who has not received a mailed ballot for a proposed state constitutional amendment may execute, in the office of the county clerk of the county where he is registered to vote, a sworn affidavit stating that he did not receive the ballot. Upon receipt of the sworn affidavit, the county clerk shall issue the voter a replacement ballot.

C. If a proposed state constitutional amendment is submitted to the voters in a general election, a voter who has not received the ballot by mail as of the date of the election may present himself at his assigned polling place and shall be permitted to vote on a replacement ballot. The replacement ballot shall be placed by the voter in an official inner envelope. The voter shall then place the inner envelope inside an official outer envelope and securely seal the envelope. The voter shall then complete the form on the reverse of the outer envelope, which shall include an affidavit of nonreceipt of the mailed ballot and an affirmation by the voter under penalty of perjury that the facts stated in the form are true. The presiding election judge shall put all outer envelopes 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 replacement ballots, the county clerk, no later than forty-eight hours after the close of the election, shall remove the outer envelopes and, without removing or opening the inner envelopes, determine if a mailed ballot was received by the county clerk from the voter by 7:00 p.m. on election day. Upon making that determination, the county clerk shall remove the inner envelope without opening it, retain the outer envelope with the other election returns, place the inner unopened envelope in a secure container and transmit the container to the county canvassing board for inclusion in the canvass of that county for the appropriate precinct.

E. The secretary of state shall prescribe and furnish the affidavits, replacement ballots and necessary envelopes for purposes of this section and shall adopt rules deemed necessary to preserve the secrecy of the replacement ballot."