SENATE BILL 360
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Michael S. Sanchez
AN ACT
RELATING TO MUNICIPAL ELECTIONS; REQUIRING COUNTY CLERKS TO ADMINISTER MUNICIPAL ELECTIONS IN CERTAIN MUNICIPALITIES; RECONCILING CONFLICTING AMENDMENTS TO THE SAME SECTION OF LAW BY REPEALING LAWS 1995, CHAPTER 98, SECTION 3.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 3-8-2 NMSA 1978 (being Laws 1985, Chapter 208, Section 10, as amended) is amended to read:
"3-8-2. DEFINITIONS.--
A. The definitions in Section 3-1-2 NMSA 1978 shall apply to the Municipal Election Code in addition to those definitions set forth in the Municipal Election Code.
B. As used in the Municipal Election Code:
(1) "absentee voter list" means the list prepared by the municipal and county clerks of those persons who have been issued an absentee ballot;
(2) "ballot" means a system for arranging and designating for the voter the names of candidates and questions to be voted on and for the marking, casting or otherwise recording of such votes. "Ballot" includes marksense ballots, absentee ballots, ballot faces, emergency paper ballots and paper ballots used in lieu of voting machines;
(3) "ballot face" means the material placed on the front of the voting machine containing the names of the candidates, the offices the candidates are seeking and a statement of the proposed questions to be voted upon;
[(4) "clerk" or "municipal clerk" means the municipal clerk or any deputy or assistant municipal clerk;
(5)] (4) "county clerk" means the clerk of the county or [his] the county clerk's designee within which the municipality is located;
[(6)] (5) "election returns" means all certificates of the precinct board, including the certificate showing the total number of votes cast for each candidate, if any, and for or against each question, if any, and shall include statements of canvass, signature rosters, registered voter lists, machine-printed returns, emergency paper ballots, paper ballots used in lieu of voting machines, absentee ballots, absentee ballot registers and absentee voter lists or absent voter machine-printed returns;
[(7)] (6) "emergency paper ballot" means the paper ballot used when a voting machine becomes disabled so that a voter is unable to cast a vote for all of the candidates and questions of the voter's choice and have such vote correctly recorded by the voting machine and when no substitute voting machine is available;
[(8)] (7) "marksense ballot" means a paper ballot card used on an optical-scan vote-tabulating machine;
[(9) "municipal clerk's office" means the office of the municipal clerk or any other room used in the process of absentee voting, counting and tallying of absentee ballots or canvassing the election results within the confines of the building where the municipal clerk's office is located;
(10)] (8) "paper ballot" means a ballot manually marked by the voter and counted by hand without the assistance of a machine or optical-scan vote-tabulating device;
[(11)] (9) "precinct" means a portion of a county situated entirely in or partly in a municipality that has been designated by the county as a precinct for election purposes and that is entitled to a polling place and a precinct board. If a precinct includes territory both inside and outside the boundaries of a municipality, "precinct", for municipal elections, shall mean only that portion of the precinct lying within the boundaries of the municipality;
[(12)] (10) "consolidated precinct" means the combination of two or more precincts pursuant to the Municipal Election Code;
[(13)] (11) "precinct board" means the appointed election officials serving a single or consolidated precinct;
[(14)] (12) "recheck" pertains to voting machines and means a verification procedure where the counter compartment of the voting machine is opened and the results of the balloting as shown on the counters of the machine are compared with the results shown on the official returns; and
[(15)] (13) "recount" pertains to emergency paper ballots, paper ballots used in lieu of voting machines and absentee ballots and means a retabulation and retallying of individual ballots."
Section 2. Section 3-8-6 NMSA 1978 (being Laws 1985, Chapter 208, Section 14, as amended) is amended to read:
"3-8-6. COUNTY CLERK--ELECTION DUTIES.--The county clerk shall maintain accurate voter registration information for each municipality located in the county [The county clerk shall provide to the municipal clerk, in advance of a municipal regular or special election, the names of only those registered voters entitled to vote in the municipal election] as required in Subsection B of Section 3-8-7 NMSA 1978."
Section 3. Section 3-8-7 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-5, as amended) is amended to read:
"3-8-7. [MUNICIPAL CLERK] COUNTY CLERK--ELECTION DUTIES.--
A. The [municipal] county clerk shall:
(1) administer the municipal election;
(2) with the consent of the governing body, secure the necessary polling places;
(3) see that all necessary supplies and equipment are present at each polling place prior to the opening of the polls on the day of the election;
(4) certify voting machines;
(5) conduct an election school for precinct board members as required in Section 3-8-21 NMSA 1978;
(6) keep the office of the [municipal] county clerk open on election day for the purpose of receiving ballot boxes, election returns and materials until all election returns and materials are received; and
(7) within fifteen days of the holding of any municipal election, [forward to the county clerk] produce a listing of all individuals voting in the municipal election.
B. [Within fifteen days of the adoption of the election resolution, the municipal clerk shall request in writing from the county clerk the registered voter lists and signature rosters containing only the qualified electors eligible to vote in the municipal election. The county clerk shall provide to the municipal clerk a printed registered voter list and the voter registration information in compatible electronic format containing only the qualified electors eligible to vote in the municipal election twenty days prior to the election. At least seven days prior to every municipal election, the county clerk shall furnish to the municipal clerk the registered voter list and signature roster containing only the qualified electors eligible to vote in the municipal election. A municipal clerk shall not amend, add or delete any information to or from the registered voter list except as otherwise provided by law. The registered voter list shall constitute the registration list for the municipal election. The registered voter list does not have to be returned to the county clerk.] The county clerk shall prepare the voter lists, signature roster and voter registration information necessary to conduct the municipal election. The municipality shall bear the reasonable cost of preparation of the voter lists, signature rosters and voter registration [in electronic format] information but in no case in an amount that exceeds the actual cost to the county."
Section 4. Section 3-8-10 NMSA 1978 (being Laws 1985, Chapter 208, Section 18, as amended) is amended to read:
"3-8-10. CONSOLIDATION OF PRECINCTS.--
A. Any precinct may be combined with one or more adjacent and contiguous precincts by the governing body when the [municipal] county clerk determines that consolidation is in the best interest of those precincts and will not compromise the orderly and efficient conduct of the election.
B. Precincts may be consolidated in any regular or special municipal election, including bond elections, except when prohibited by law."
Section 5. Section 3-8-11 NMSA 1978 (being Laws 1985, Chapter 208, Section 19) is amended to read:
"3-8-11. POLLING PLACES.--
A. The governing body shall designate within the municipal boundaries a polling place, in each precinct or consolidated precinct, [which] that is the most convenient and suitable public building or public school building in the precinct that can be obtained and [which] that provides suitable access for handicapped persons as required by law.
B. If no public building or public school building is available, the governing body shall provide some other suitable place, which shall be the most convenient and appropriate place obtainable within the municipal boundaries and in the precinct, considering the purpose for which it is to be used.
C. If no public building or public school building is available in the precinct and if there is no other suitable place obtainable in the precinct, the governing body may designate as a polling place for the precinct the most convenient and suitable building or public school building nearest to that precinct that can be obtained; provided, no polling place shall be designated outside the boundaries of the municipality and of the precinct as provided in this subsection until such designated polling place is approved by written order of the district court of the county in which the precinct is located.
D. Upon application of the governing body or [municipal] county clerk, the governing board of [any] a school district shall permit the use of [any] school buildings or a part thereof for the conduct of any municipal election."
Section 6. Section 3-8-12 NMSA 1978 (being Laws 1985, Chapter 208, Section 20) is amended to read:
"3-8-12. ELECTION RESOLUTIONS--NOTICES--CORRECTION OF ERRORS AND OMISSIONS.--The election resolution, publication of the election resolution or any notice regarding municipal election matters may be amended by the [municipal] county clerk to correct any ministerial errors or omissions. The corrected resolution or notice shall be published in the manner that the original is required to be published as required by law. However, if publication as required by law cannot be made, then such notice shall be given as is practicable under the circumstances in order to best reach those people to whom notice was intended under the law."
Section 7. Section 3-8-14 NMSA 1978 (being Laws 1985, Chapter 208, Section 22, as amended) is amended to read:
"3-8-14. VOTING MACHINES--ORDERING--PREPARATION--CERTIFICATION--DELIVERY.--
A. If voting machines are to be used, the [municipal] county clerk shall [order the machines from the county clerk within fifteen days of the adoption of the election resolution, and the county clerk shall] supply [such] the voting machines pursuant to Section 1-9-6 NMSA 1978. The county shall provide voting machine technicians, voting machine programming and voting machine transportation. The municipality shall pay the reasonable fee charged by the county for such services and the use of the voting machines, but in no case in an amount [which] that exceeds the actual cost to the county pursuant to Section 1-9-12 NMSA 1978.
B. If voting machines are to be used, the [municipal] county clerk shall [order] supply at least one voting machine for every polling place; provided that the county clerk shall [order] supply a sufficient number of voting machines to [assure] ensure that the eligible voters in that polling place shall be able to vote in a timely manner.
C. Programming of electronic machines shall be performed under the supervision of the [municipal clerk and the] county clerk. The machines shall be programmed so that votes will be counted in accordance with [specification] specifications for electronic voting [machine] machines adopted by the secretary of state.
D. Immediately upon receipt of the notice of date, time and place of inspection and certification, the [municipal] county clerk shall post such notice in the office of the [municipal] county clerk and attempt to telephone the candidates at the phone number listed on the declaration of candidacy to give each candidate notice of the date, time and place of inspection and certification.
E. Inspection and certification shall occur not later than seven days prior to the election and shall be open to the public. If electronic voting machines are to be used for absentee voting, inspection and certification shall occur not later than seven days prior to the beginning of absentee voting and shall be open to the public.
F. At the date, time and place for inspection and certification, in the presence of [the county clerk and] those municipal candidates present, if any, the [municipal] county clerk shall:
(1) ensure that the correct ballot face has been installed on each voting machine, if ballot faces are to be installed;
(2) test each counter for accuracy by casting votes upon it until it correctly registers each vote cast; and
(3) test each voting machine to [assure] ensure that it has been correctly programmed [and
(4) inform the county clerk when each machine is satisfactory and ready to be certified].
G. If [the municipal clerk informs the county clerk that] a machine is satisfactory and ready to be certified:
(1) the county clerk shall reset each counter at zero;
(2) the voting machine shall be immediately sealed with a numbered metal seal so as to prevent operation of the machine or its registering counters without breaking the seal;
(3) the [municipal] county clerk shall prepare a certificate in triplicate for each machine that shall:
(a) show the serial number of the voting machine;
(b) state that the voting machine has all of its resettable registering counters set at zero;
(c) state that the voting machine has been tested by voting on each registered counter to prove the counter is in perfect condition;
(d) state that the correct ballot face has been installed on the voting machine, if ballot faces are to be installed;
(e) show the number of the metal seal that has sealed the machine; and
(f) show the number registered on the protective counter;
(4) [a copy of the certificate shall be delivered to the county clerk] the original certificate shall be filed in the office of the [municipal] county clerk and one copy shall be posted on the voting machine; and
(5) if the voting machine requires keys, the keys to the voting machine shall be enclosed in a sealed envelope on which shall be written:
(a) the number of the precinct and polling place to which the machine is assigned;
(b) the serial number of the voting machine;
(c) the number of the metal seal that has sealed the voting machine;
(d) the number registered on the protective counter; and
(e) across the seal of the envelope, the signatures of the county clerk [the municipal clerk] and all candidates present, if any, at the inspection and certification.
H. After certification of the voting machines, if the voting machines require keys, the county clerk shall [keep the keys to the voting machines in his custody and shall deliver the keys to the municipal clerk when the voting machines are delivered for election. The municipal clerk shall] secure in the office of the [municipal] county clerk all the envelopes containing the keys to the voting machines until delivered to the presiding judge of the election.
I. An objection to the use of a particular voting machine shall be filed in the district court within two days after the machine has been certified. Any objection so filed shall specify the number of the voting machine objected to and the reason for the objection. Each voting machine shall be conclusively presumed to be properly prepared for the election if it has been certified unless a timely objection has been filed.
J. Voting machines certified in accordance with this section shall be delivered to the assigned precinct polling place no earlier than five days prior to the election and no later than noon on the day prior to the election, provided that any voting machines to be used for absentee voting shall be delivered [to the municipal clerk] no earlier than five days prior to the beginning of absentee voting and no later than noon on the day prior to the beginning of absentee voting in person in the office of the [municipal] county clerk.
K. The [municipal] county clerk shall refuse to certify any voting machine that the [municipal] county clerk determines is not programmed properly, is not working properly or will not fairly or accurately record votes. Only voting machines that have been certified by the [municipal] county clerk shall be used in the election."
Section 8. Section 3-8-15 NMSA 1978 (being Laws 1985, Chapter 208, Section 23, as amended) is amended to read:
"3-8-15. EMERGENCY PAPER BALLOTS--WHEN USED--AMOUNT REQUIRED--SAFEGUARDS.--
A. When voting machines are used in an election and one or more machines becomes disabled so that a voter is unable to vote for the candidates or the questions of the voter's choice, or both, and have [such] the vote correctly recorded by the voting machine and when no substitute voting machine is available, then emergency paper ballots shall be used.
B. The [municipal] county clerk shall supply to each polling place a quantity of emergency paper ballots equal to ten percent of the total number of qualified electors in the precinct or consolidated precinct. [Such] The ballots shall only be used as allowed in the Municipal Election Code.
C. Emergency paper ballots are official ballots and shall meet the same requirements and safeguards as all other official ballots."
Section 9. Section 3-8-16 NMSA 1978 (being Laws 1985, Chapter 208, Section 24, as amended) is amended to read:
"3-8-16. PAPER BALLOTS IN LIEU OF VOTING MACHINES--EMERGENCY PAPER BALLOTS--FORM--GENERAL REQUIREMENTS.--As used in this section, "paper ballots" means paper ballots used in lieu of voting machines and emergency paper ballots. Paper ballots shall be in the form prescribed by the [municipal] county clerk [which] that shall conform to the following rules.
A. Paper ballots shall:
(1) be numbered consecutively beginning with number one. The number shall be printed in the upper right-hand corner of the ballot with a diagonal perforated line appropriately placed so that the portion of the ballot bearing the number in the upper right-hand corner may be readily and easily detached from the ballot;
(2) be uniform in size;
(3) be printed on good quality paper;
(4) be printed in plain black type;
(5) have all words and phrases printed correctly and in their proper places; and
(6) have district and precinct, if applicable.
B. The following heading shall be printed on each paper ballot used in all municipal elections:
"OFFICIAL ELECTION BALLOT
Election held . . . . . . . . . . (insert date)".
C. If the election is a regular municipal election, [then] the paper ballot shall be prepared consistent with the requirements of Section 3-8-29 NMSA 1978. In addition, next to each candidate's name shall appear an empty box to be used when voting for that candidate. Where space is allowed on a paper ballot for entering the name of a declared write-in candidate, that space shall be clearly designated by the use of the heading "Write-in Candidate". Below the heading shall appear one line, with a box to the right of the line, for each individual office holder to be elected. Below the last candidate's name shall appear any question presented, in the order designated by the governing body.
D. If the election is a special municipal election, [then] questions presented shall be placed on the paper ballot in the order designated by the governing body.
E. Next to each question presented on a paper ballot shall appear two empty boxes, one labeled "FOR" and the other labeled "AGAINST".
F. At the bottom of all paper ballots shall be printed: "OFFICIAL ELECTION BALLOT", followed by a facsimile signature of the [municipal] county clerk."
Section 10. Section 3-8-17 NMSA 1978 (being Laws 1985, Chapter 208, Section 25, as amended) is amended to read:
"3-8-17. SAMPLE BALLOTS.--
A. At the same time official ballots are printed for voting with machines or paper ballots, the [municipal] county clerk shall cause sample ballots to be printed, which shall:
(1) be printed in both English and Spanish;
(2) be printed in a total number equal to at least five percent of the number of qualified electors in each precinct or consolidated precinct;
(3) be the same in all respects as the official ballots, except that they shall be printed on colored paper and shall not contain the facsimile signature of the [municipal] county clerk or any endorsement on the sample ballot or the back thereof;
(4) be marked in large black capital letters, "SAMPLE BALLOT"; and
(5) be made available in reasonable quantities to all interested persons for distribution to the voters.
B. Nothing in this section shall prevent any person from having printed at [his] personal expense sample ballots, of a different color than the official sample ballot, [which] that comply with the provisions of this subsection, so long as no marks, notations, words or other material are added to, taken from or deface, change or hide the information on or the appearance of the sample ballot as authorized by the [municipal] county clerk."
Section 11. Section 3-8-18 NMSA 1978 (being Laws 1985, Chapter 208, Section 26, as amended) is amended to read:
"3-8-18. ELECTION SUPPLIES.--
A. If paper ballots are to be used in lieu of voting machines, [then] the [municipal] county clerk shall order to be printed paper ballots and sample paper ballots no later than 5:00 p.m. on the fifty-third day preceding the day of the election. The ballots shall be delivered to the county clerk not later than the eighth day preceding the day of the election.
B. No later than 5:00 p.m. on the fifty-third day preceding the day of the election, the [municipal] county clerk shall:
(1) order absentee ballots;
(2) order ballot faces, sample voting machine ballots and emergency paper ballots, if voting machines are to be used; and
(3) order all other election supplies necessary for the conduct of the election.
C. Absentee ballots, emergency paper ballots, ballot faces for the machines and sample voting machine ballots shall be delivered to the [municipal] county clerk not less than thirty-five days prior to the day of the election."
Section 12. Section 3-8-19 NMSA 1978 (being Laws 1971, Chapter 306, Section 8, as amended) is amended to read:
"3-8-19. PRECINCT BOARDS--APPOINTMENTS--COMPENSATION.--
A. In order to qualify as a member of a precinct board, a person shall:
(1) be a [resident] qualified elector of the municipality and a resident of the precinct or consolidated precinct within the jurisdiction of the precinct board. However, if there is a shortage or absence of precinct board members in certain precincts or consolidated precincts, a person who is a [resident] qualified elector of the municipality and a nonresident of the precinct or consolidated precinct may be appointed;
(2) be able to read and write;
(3) have the necessary capacity to carry out the functions of the office with acceptable skill and dispatch; and
(4) execute the precinct board member's oath of office.
B. No person shall be qualified for appointment or service on a precinct board if that person is a:
(1) candidate for any municipal office;
(2) spouse, parent, child, brother or sister of any candidate to be voted for at the election;
(3) sheriff, deputy sheriff, marshal, deputy marshal or state or municipal [policeman] police officer;
(4) spouse, parent, child, brother or sister of the [municipal] county clerk or any deputy or assistant [municipal] county clerk; or
(5) [municipal] county clerk or deputy or assistant [municipal] county clerk.
C. Not less than thirty-five days before the day of the municipal election, the governing body shall appoint a precinct board for each polling place. The precinct board shall consist of no fewer than three members. Each board shall have no fewer than three election judges and no fewer than two election clerks. Election judges may also be appointed as election clerks. Not less than two alternates shall be appointed who shall become either election judges or election clerks or both as the need arises. On the thirty-fifth day before the day of the election, the [municipal] county clerk shall post and maintain in the clerk's office until the day of the election the names of the election judges, election clerks and alternates for each polling place. The posting of the names of the election judges, election clerks and alternates for each polling place may be proved by an affidavit signed by the [municipal] county clerk. The [municipal] county clerk shall, by mail, notify each person appointed, request a written acceptance and keep a record of all notifications and acceptances. The notice shall state the date by which the person must accept the appointment. If any person appointed to a precinct board, or as an alternate, fails to accept an appointment within seven days after the notice is sent, the position shall be deemed vacant and the position shall be filled as provided in this section.
D. [The county clerk shall furnish upon request of the municipal clerk the names and addresses of] Qualified precinct board members for general elections [and such precinct board members] may be appointed as precinct board members for municipal elections.
E. The [municipal] county clerk shall appoint a qualified elector as a precinct board member to fill any vacancy that may occur between the day when the list of precinct board members is posted and the day of the election. If a vacancy occurs on the day of the election, the precinct board members present at the polling place may appoint by a majority vote a qualified elector to fill the vacancy. If the vacancy was filled after the date of the election school, that person need not attend an election school in order to validly serve on the precinct board.
F. Members of a precinct board shall be compensated for their services at the rate provided in Section 1-2-16 NMSA 1978 for the day of the election. The governing body may authorize payment to alternates who are required by the precinct board or [municipal] county clerk to stand by on election day at the rate of not more than twenty dollars ($20.00) for the day of the election.
G. Compensation shall be paid within thirty days following the date of election."
Section 13. Section 3-8-20 NMSA 1978 (being Laws 1971, Chapter 306, Section 9, as amended) is amended to read:
"3-8-20. PRECINCT [BOARDS] BOARD--DUTIES.--
A. The precinct board shall:
(1) conduct the municipal election in the manner provided for the conduct of elections in the Municipal Election Code; and
(2) at the close of the polls, count the votes cast on each question, if any, and for each candidate, if any, and perform all duties as required by the Municipal Election Code.
B. A member of the precinct board shall not disclose the name of any candidate for whom any voter has voted.
C. No person shall serve on a precinct board unless that person has attended an election school conducted by the [municipal] county clerk in the previous four years."
Section 14. Section 3-8-21 NMSA 1978 (being Laws 1985, Chapter 208, Section 29, as amended) is amended to read:
"3-8-21. [MUNICIPAL] COUNTY CLERK--PRECINCT BOARD--ELECTION SCHOOL.--
A. The [municipal] county clerk shall conduct or cause to be conducted an election school not less than five days prior to the election. All major details of the conduct of elections shall be covered at the school, with special emphasis given to recent changes in the Municipal Election Code. The school of instruction shall be open to the public, with notice published not less than four days prior to the school.
B. Notice of the school shall be mailed to each precinct board member and alternate not less than seven days prior to the school.
C. Two or more municipalities may jointly conduct a combined election school.
D. The governing body may authorize payment of mileage to precinct board members who attend the election school."
Section 15. Section 3-8-22 NMSA 1978 (being Laws 1985, Chapter 208, Section 30, as amended) is amended to read:
"3-8-22. CONDUCT OF ELECTION--ELIGIBILITY FOR ASSISTANCE--ORAL ASSISTANCE FOR LANGUAGE MINORITY VOTERS--AID OR ASSISTANCE TO VOTER MARKING BALLOT--WHO MAY ASSIST VOTER--TYPE OF ASSISTANCE.--
A. A voter may request assistance in voting only if [he] the voter is:
(1) blind;
(2) physically disabled;
(3) unable to read or write; or
(4) a member of a language minority who is unable to read well enough to exercise the elective franchise.
B. When a voter who is eligible for assistance requires assistance in marking [his] a paper ballot or recording [his] a vote on a voting machine, the voter shall announce this fact in an audible tone before receiving [his] the paper ballot or before entering the voting machine.
C. The voter's request for assistance shall be noted next to [his] the voter's name in the signature roster and shall be initialed by the presiding judge.
D. After noting the voter's request for assistance in the signature roster, the voter shall be allowed to receive assistance in marking [his] a paper ballot or recording [his] a vote on a voting machine.
E. A person who swears falsely in order to secure assistance with voting is guilty of perjury.
F. If a voter who has requested assistance in marking [his] a ballot is blind, has a physical disability, is unable to read or write or is a member of a language minority who has requested assistance, [he] the voter may be accompanied into the voting machine by a person of [his] the voter's own choice; provided that the person shall not be the voter's employer, an agent of that employer, an officer or agent of the voter's union or a candidate whose name appears on the ballot in the election. A member of the precinct board may assist a voter, if requested to do so by that voter.
G. A person who accompanies the voter into the voting booth or voting machine may assist the voter in marking and folding [his] a paper ballot or recording [his] a vote on the voting machine. A member of the precinct board who assists a voter shall not disclose the name of any candidate or questions for whom any voter voted.
H. Oral assistance shall be made available to assist language minority voters who cannot read sufficiently well to exercise the elective franchise. "Language minority" means a person who is [an] Native American [Indian] or of Spanish heritage, and "inability to read well enough to exercise the elective franchise" means inability to read the languages in which the ballot is printed or the inability to understand instructions for operating the voting machine.
I. The position of election translator is created. The election translator shall be an additional member of the regular precinct board, unless oral assistance to language minorities can otherwise be rendered by a member of the regular precinct board. The election translator shall be appointed by the [municipal] county clerk in the same manner as other precinct board members are appointed, except that the [municipal] county clerk in appointing Native American [Indian] election translators shall seek the advice of the pueblo or tribal officials residing in that municipality. The election translator shall take the oath required of precinct board members and shall meet the same qualifications as other precinct board members.
J. Each [municipal] county clerk shall compile and maintain a list of standby election translators to serve in those precincts on election day when the appointed election translator is unavailable for such service."
Section 16. Section 3-8-23 NMSA 1978 (being Laws 1985, Chapter 208, Section 31) is amended to read:
"3-8-23. MESSENGERS--COMPENSATION.--
A. The [municipal] county clerk may appoint messengers to deliver ballot boxes, signature rosters, keys, election supplies and other materials pertaining to the election.
B. Messengers shall be paid mileage as provided in the Per Diem and Mileage Act each way over the usually traveled route. The mileage shall be paid within thirty days following the date of election."
Section 17. Section 3-8-26 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-4, as amended) is amended to read:
"3-8-26. REGULAR MUNICIPAL ELECTION--PUBLICATION OF RESOLUTION--CHOICE OF BALLOTS OR VOTING MACHINES.--
A. Not earlier than one hundred twelve days or later than eighty-four days prior to the date of a regular municipal election, the governing body shall adopt an election resolution calling for the regular municipal election. The election resolution shall be published in both English and Spanish and once within fifteen days of adoption and again not less than sixty days prior to the election or more than seventy-five days prior to the election, as provided in Subsection J of Section 3-1-2 NMSA 1978. In addition, the election resolution shall be posted in the office of the [municipal] county clerk within twenty-four hours from the date of adoption until the date of the election. For information purposes and coordination, one copy of the election resolution shall be mailed within fifteen days of adoption to the secretary of state [and the county clerk of the county in which the municipality is located].
B. The election resolution shall state the date when the election will be held, the offices to be filled, the questions to be submitted to the voters, the date and time of the closing of the registration books by the county clerk as required by law, the date and time for filing the declaration of candidacy, the location of polling places, the date and time for absentee voting and the consolidation of precincts, if any, notwithstanding any conflicting provisions of Section 1-3-5 NMSA 1978. Any question to be submitted to the voters in addition to the election of municipal officers may be included in the election resolution, but such inclusion shall not substitute for any additional or separate resolution or publication thereof as required by law.
C. In those municipalities allowed by law to use paper ballots, the election resolution shall also state whether paper ballots or voting machines will be used in the election."
Section 18. Section 3-8-27 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-8, as amended) is amended to read:
"3-8-27. REGULAR MUNICIPAL ELECTION--DECLARATION OF CANDIDACY--WITHDRAWING NAME FROM BALLOT--PENALTY FOR FALSE STATEMENT.--
A. Candidate filing day shall be between the hours of 8:00 a.m. and 5:00 p.m. on the fifty-sixth day preceding the day of election. On candidate filing day, a candidate for municipal office shall personally appear at the office of the [municipal] county clerk to file all documents required by law in order to cause a person to be certified as a candidate. Alternatively, on candidate filing day, a person acting solely on the candidate's behalf, by virtue of a written affidavit of authorization signed by the candidate, notarized and presented to the [municipal] county clerk by such person, shall file in the office of the [municipal] county clerk all documents required by law in order to cause a person to be certified as a candidate.
B. On candidate filing day, each candidate shall cause to be filed in the office of the [municipal] county clerk a declaration of candidacy; a certified copy of the candidate's current affidavit of voter registration that is on file with the county clerk [which] and that has been certified by the office of the county clerk on a date not earlier than the adoption of the election resolution; and, in a home-rule or charter municipality that requires a nominating petition to be submitted by a candidate for municipal office, a nominating petition that has the required number of signatures.
C. All candidates shall cause their affidavits of voter registration to show their address as a street address or rural route number and not as a post office box.
D. The [municipal] county clerk shall provide a form for the declaration of candidacy and shall accept only those declarations of candidacy [which] that contain:
(1) the identical name and the identical resident street address as shown on the affidavit of registration of the candidate submitted with the declaration of candidacy;
(2) the office and term to which the candidate seeks election and district designation, if appropriate;
(3) a statement that the candidate is eligible and legally qualified to hold the office for which the candidate is filing;
(4) a statement that the candidate has not been convicted of a felony or, if the candidate has been convicted of a felony, a statement that the candidate's elective franchise has been restored;
(5) a statement that the candidate or the candidate's authorized representative shall personally appear at the office of the [municipal] county clerk during normal business hours on the fifty-fourth day before the election to ascertain whether the [municipal] county clerk has certified the declaration of candidacy as valid;
(6) a telephone number at which the candidate or the candidate's authorized representative can be reached for purposes of giving telephone notice;
(7) a statement to the effect that the declaration of candidacy is an affidavit under oath and that any false statement knowingly made in the declaration of candidacy constitutes a fourth degree felony under the laws of New Mexico; and
(8) the notarized signature of the candidate on the declaration of candidacy.
E. The [municipal] county clerk shall not accept a declaration of candidacy for more than one municipal elected office per candidate, so that each candidate declares for only one municipal elected office.
F. Once filed, the declaration of candidacy is a public record.
G. Not later than the fifty-fifth day preceding the day of the election, the [municipal] county clerk shall determine whether the declaration of candidacy shall be certified. In order to be certified as a candidate, the documents submitted to the [municipal] county clerk shall prove that the individual is a qualified elector as defined in Subsection K of Section 3-1-2 NMSA 1978 and, if appropriate, that the individual resides in and is registered to vote in the municipal election district from which the individual seeks election. In the event that an individual fails to submit to the [municipal] county clerk on candidate filing day the documents listed in Subsection B of this section in the form and with the contents as required by this section, the [municipal] county clerk shall not certify that individual as a candidate for municipal office.
H. The [municipal] county clerk shall post in the county clerk's office a list of the names of those individuals who have been certified as candidates. The [municipal] county clerk shall also post in the county clerk's office the names of those individuals who have not been certified as candidates, along with the reasons therefor. The posting shall occur no later than 9:00 a.m. on the fifty-fourth day preceding the election.
I. Not later than 5:00 p.m. on the forty-ninth day before the day of the election, a candidate for municipal office may file an affidavit on the form provided by the [municipal] county clerk in the office of the [municipal] county clerk stating that [he] the candidate is no longer a candidate for municipal office. A [municipal] county clerk shall not place on the ballot the name of any person who has filed an affidavit as provided in this subsection.
J. Not later than 10:00 a.m. on the forty-eighth day preceding the election, the [municipal] county clerk shall confirm with the printer on contract with the municipality and the county clerk the names of the candidates and their position on the ballot.
K. Any person knowingly making a false statement in the declaration of candidacy is guilty of a fourth degree felony.
L. No person shall be elected to municipal office as a write-in candidate unless that person has been certified as a declared write-in candidate by the [municipal] county clerk, as follows:
(1) write-in candidates filing day shall be on the forty-second day preceding the election between the hours of 8:00 a.m. and 5:00 p.m.;
(2) write-in candidates shall file a declaration of write-in candidacy with the same documents and satisfy the same requirements as established in this section for candidates;
(3) the [municipal] county clerk shall, on the forty-first day preceding the election, certify those individuals who have satisfied the requirements of this section as declared write-in candidates;
(4) not later than 9:00 a.m. on the fortieth day preceding the election, the [municipal] county clerk shall, in the office of the [municipal] county clerk:
(a) post the names of those individuals who have been certified as declared write-in candidates; and
(b) post the names of those individuals who have not been certified as declared write-in candidates along with the reasons [therefor]; and
(5) not later than 5:00 p.m. on the twenty-eighth day preceding the election, a declared write-in candidate may file an affidavit that [he] the candidate is no longer a write-in candidate for municipal office. In the event that a declared write-in candidate files an affidavit of withdrawal, votes for that candidate shall not be counted and canvassed."
Section 19. Section 3-8-29 NMSA 1978 (being Laws 1985, Chapter 208, Section 37, as amended) is amended to read:
"3-8-29. REGULAR MUNICIPAL ELECTION--BALLOTS.--
A. At 5:01 p.m. on the fifty-fourth day preceding the election, in the presence of the certified candidates or their authorized representatives who desire to be present, the [municipal] county clerk shall administer an impartial and fair drawing by lot to determine the order in which the candidates for each office shall be listed on the ballot. If a candidate or an authorized representative fails to appear, then the [municipal] county clerk shall draw a lot for the absent candidate.
B. The ballot shall first set forth candidates running for executive office (mayor), if any; then candidates running for legislative office (councilors, trustees, commissioners), if any; and finally candidates running for judicial office (municipal judge), if any. For each office to be filled, the ballot shall contain:
(1) the office to be filled and its term;
(2) the names of the candidates running for office exactly as shown on the candidate's declaration of candidacy and in the order determined by the drawing by lot;
(3) a space for a qualified elector to write in the name of one declared write-in candidate, if any, per position to be filled; and
(4) any necessary reference to districts, positions or other similar official designations for office.
C. The only reference to a candidate for office to be placed on a ballot is the candidate's name as it appears on the candidate's declaration of candidacy. No ticket designations or party affiliations shall be shown on the ballot. Municipal elections shall be nonpartisan.
D. If it appears to the [municipal] county clerk that the name of two or more candidates for any office are the same or so similar as to tend to confuse the voter as to the candidates' identities, the occupation and address of each such candidate shall be printed immediately under the candidate's name on the ballot.
E. The [municipal] county clerk shall place on the ballot any question in the order designated by the governing body."
Section 20. Section 3-8-30 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-9, as amended) is amended to read:
"3-8-30. REGULAR MUNICIPAL ELECTION--PUBLICATION OF NAMES OF CANDIDATES AND OTHER ELECTION DATA.--The [municipal] county clerk shall publish the names of the candidates for each office to be filled, the order their names will appear on the ballot, the location and address of the polling place for each precinct and the names of all precinct board members and alternates and the precincts to which they are appointed. If districted, the [municipal] county clerk shall also publish the precincts or portion of precincts in each election district. Publication shall be once each week for two successive weeks, with the first publication not more than twenty-eight days prior to the day of the election and the last publication not less than two days before the day of election. This material shall also be posted in the office of the [municipal] county clerk from the day it is first published until the day of the election."
Section 21. Section 3-8-31 NMSA 1978 (being Laws 1971, Chapter 306, Section 10, as amended) is amended to read:
"3-8-31. REGULAR MUNICIPAL ELECTION--CHALLENGERS--WATCHERS--OBSERVERS.--
A. Upon petition filed with the [municipal] county clerk by an unopposed candidate or by both candidates for a municipal office, if only two candidates are running for the office, or by a majority of the candidates for a municipal office, if more than two candidates are running for the office, those candidates may:
(1) appoint one person as a challenger and one alternate for each polling place in the municipal election; and
(2) appoint one person as a watcher and one alternate for each polling place in the municipal election.
B. The petition appointing a challenger and watcher and alternates shall be filed not later than 5:00 p.m. on the fourth day preceding the election.
C. Upon receipt of the petition, the [municipal] county clerk shall verify whether the challengers, watchers and alternates are properly qualified pursuant to Subsection D of this section. Not later than 3:00 p.m. on the day prior to the election, the [municipal] county clerk shall prepare official identification badges for those challengers, watchers and alternates who are properly qualified. Such identification badges shall be signed by the [municipal] county clerk and contain the name of the challenger, watcher or alternate and state that person's title and the polling place where such person serves. Challengers, watchers and alternates shall be responsible to obtain their identification badges from the office of the [municipal] county clerk prior to the opening of the polls on election day.
D. A challenger, watcher or alternate shall function only at a polling place that serves the precinct within which such challenger, watcher or alternate resides. No sheriff, deputy sheriff, marshal, deputy marshal, municipal or state police officer, candidate or any person who is a spouse, parent, child, brother or sister of a candidate to be voted for at the election or any [municipal] county clerk, deputy county clerk or assistant shall serve as a challenger, watcher or alternate. No person shall serve as a challenger or watcher unless that person is a qualified elector of the municipality.
E. Upon presentation of their official identification badges to the precinct board, challengers, watchers and alternates shall be permitted to be present at the polling place 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.
F. Challengers, watchers and alternates shall wear their official identification badges at all times while they are present in the polling place. They shall not wear any other form of identification or any pins or other identification associated with any candidate, group of candidates or any question presented at the election.
G. Challengers, watchers and alternates shall not:
(1) be permitted to perform any duty of a precinct board member;
(2) handle the ballots, signature rosters, absentee voter lists or voting machines;
(3) take any part in the tallying or counting of the ballots; or
(4) interfere with the orderly conduct of the election.
H. If a challenger, watcher or alternate is wearing [his] an official identification badge, it is a petty misdemeanor to:
(1) deny [him] that person the right to be present at the polling place;
(2) deny [him] that person the right to examine voting machines as authorized by law;
(3) deny a challenger or alternate challenger the right to challenge voters pursuant to Section 3-8-43 NMSA 1978 and inspect the signature rosters; or
(4) deny [him] the challenger, watcher or alternate the right to witness the counting and tallying of ballots.
I. A challenger or alternate challenger, for the purposes of interposing challenges pursuant to Section 3-8-43 NMSA 1978, shall be permitted to:
(1) inspect the voter registration list;
(2) inspect the signature rosters or absentee voter lists to determine whether entries are being made in accordance with law;
(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, to see that all ballot labels are in their proper places and to see that the voting machine is ready for voting at the opening of the polls;
(4) make written memoranda of any action or omission on the part of any member of the precinct board and preserve such memoranda for future use; and
(5) witness the counting and tallying of the ballots.
J. A watcher or alternate watcher shall be permitted to:
(1) observe the election to [assure] ensure that it is conducted in accordance with law;
(2) examine any voting machine used at the polling place in the same manner that challengers may examine voting machines;
(3) make written memoranda of any action or omission on the part of any member of the precinct board and preserve such memoranda for future use; and
(4) witness the counting and tallying of ballots.
K. The governing body of a municipality may, at its discretion, appoint one qualified elector for each polling place to serve as an observer of the election. The governing body shall make such appointment not later than 3:00 p.m. on the day before the election and shall notify the [municipal] county clerk of such appointment. The [municipal] county clerk shall issue identification badges to all observers. An observer shall have no powers other than to observe the conduct of the election and observe the counting and tallying and report to the governing body."
Section 22. Section 3-8-32 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-13, as amended) is amended to read:
"3-8-32. REGULAR MUNICIPAL ELECTION--PLURALITY OF VOTES CAST REQUIRED FOR ELECTION.--
A. The candidate who receives a plurality of the votes cast for a designated office and term and who is qualified to hold office shall be elected to the office for the term designated.
B. If more than one candidate is to be elected to an office and term or the candidates are not running for a designated term, the candidates, in the number to be elected, receiving the largest pluralities shall be elected.
C. No candidate shall take office if the candidate has not remained legally qualified to hold office from the time the candidate was certified by the [municipal] county clerk as a candidate or declared write-in candidate through the time at which the candidate is to take office."
Section 23. Section 3-8-33 NMSA 1978 (being Laws 1985, Chapter 208, Section 41, as amended) is amended to read:
"3-8-33. REGULAR MUNICIPAL ELECTION--CERTIFICATES OF ELECTION--QUALIFICATION OF OFFICIAL--TAKING OFFICE.--
A. After canvass and not later than 5:00 p.m. on the sixth day following the election, the [municipal] county clerk shall prepare a certificate of election for each candidate elected and shall post, in the office of the [municipal] county clerk, the election results and the date, time and place where the oath of office will be administered.
B. Each candidate elected shall personally appear before the [municipal] county clerk after canvass and after the [municipal] county clerk has prepared the certificate of election and not later than 7:00 p.m. on the sixth day following the election. When the candidate appears, the [municipal] county clerk shall deliver the certificate of election to the candidate and the candidate shall sign a written statement acknowledging receipt of the certificate of election and acknowledging that the candidate is legally qualified to hold office. The [municipal] county clerk shall file a copy of the certificate of election and the written receipt and qualification statement in the official minute book of the municipality. Not later than 7:00 p.m. on the sixth day following the election, the [municipal] county clerk or any other person allowed by law to administer oaths shall administer the oath of office to each candidate who has provided the written receipt and qualification statement to the [municipal] county clerk. Upon taking the oath of office, the candidate shall be deemed to have taken office.
C. If a candidate fails to appear as required in Subsection B of this section, [then] the candidate or the candidate's authorized personal representative shall file an affidavit with the [municipal] county clerk, not later than 5:00 p.m. on the tenth day following the election, stating that the candidate was unable to personally appear before the [municipal] county clerk as required by law and the reasons [therefor]. If such an affidavit is timely filed, the candidate shall appear before the [municipal] county clerk not later than 5:00 p.m. on the thirtieth day after the election to receive the election certificate, file the receipt and qualification statement and take the oath of office.
D. If a candidate fails to comply with Subsection B of this section, [then] the [municipal] county clerk shall administer an impartial drawing by lot to determine which person shall remain in office until the candidate takes office or the office is declared vacant.
E. If a candidate fails to comply with [Subsection] Subsections B and [Subsection] C of this section, [then] the governing body shall declare by resolution that the office is vacant.
F. After each elected candidate has taken the oath of office, the [municipal] county clerk shall mail, within five days [thereof], a copy of the certificate of election to the [county clerk and the] secretary of state for information purposes.
G. An elected official shall remain in office as provided in this section until the official's successor has taken office as provided in this section.
H. The newly elected officials of the governing body who have taken office, the elected officials of the governing body whose terms have not expired and the elected officials of the governing body whose successors have not taken office shall meet not earlier than the sixth day after the election or later than the twenty-first day after the election for an organizational meeting. Such a meeting may be a special meeting or a regular meeting of the governing body."
Section 24. Section 3-8-35 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-2, as amended) is amended to read:
"3-8-35. SPECIAL ELECTION--GIVING NOTICE.--
A. When a special election is called or required by law, an election resolution shall be adopted by the governing body calling for the election, and the election resolution shall be published once each week for four consecutive weeks. The first publication of the election resolution shall be between fifty and sixty days before the day of the election. The election resolution shall be posted in the office of the [municipal] county clerk within twenty-four hours from the date of adoption until the date of the election. For information purposes and coordination, one copy of the election resolution shall be mailed to the secretary of state [and the county clerk of the county in which the municipality is located].
B. The election resolution shall state the purpose for calling the election, the date of the election, the date and time of the closing of the registration books by the county clerk as required by law, the questions to be submitted to the voters, the location of polling places, the consolidation of precincts, if any, and, regarding those municipalities authorized by law to use paper ballots in lieu of voting machines, if paper ballots or voting machines will be used in the election."
Section 25. Section 3-8-36 NMSA 1978 (being Laws 1985, Chapter 208, Section 44, as amended) is amended to read:
"3-8-36. SPECIAL ELECTIONS--PUBLICATION OF ELECTION DATA.--The [municipal] county clerk shall publish the location or address of the polling place for each precinct or consolidated precinct and the names of all precinct board members and alternates and the precincts to which they are appointed. Publication shall be once each week for two successive weeks. The first publication shall be not more than twenty-eight days before the day of election and the last publication shall be not less than two days prior to the election. This material shall also be posted in the office of the [municipal] county clerk from the day it is first published until the day of the election."
Section 26. Section 3-8-38 NMSA 1978 (being Laws 1985, Chapter 208, Section 46, as amended) is amended to read:
"3-8-38. CONDUCT OF ELECTION--SWEARING IN--DELIVERY OF SUPPLIES--OPENING AND CLOSING OF POLLS--PRECINCT BOARD ATTENDANCE.--
A. Not earlier than noon on the day before the election and not later than one hour prior to the opening of the polls, the [municipal] county clerk shall swear in the presiding judge and cause the election supplies, voting machine keys, ballot box, ballot box keys and other election materials to be delivered to the presiding judge.
B. The presiding judge shall cause all materials delivered to [him] the presiding judge to be delivered to the polling place not later than 6:00 a.m. on election day.
C. The presiding judge shall swear in all precinct board members upon their arrival at the polling place.
D. Polls shall be opened at 7:00 a.m. on the date of the election and shall be closed at 7:00 p.m. on the same day.
E. Precinct board members shall present themselves at the polling place not later than 6:00 a.m. on the day of the election and shall remain at the polling place until all duties of the precinct board are properly completed."
Section 27. 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--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.
B. Notwithstanding the provisions of Subsection A of this section, a person shall be permitted to vote 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] the person offers to vote;
(2) [his] the person's name is not listed as having been issued an absentee ballot;
(3) [he] the person presents a certificate bearing the seal and signature of the county clerk stating that [his] an affidavit of the person's registration is on file at the county clerk's office, that [he] the person has not been purged from the voter rolls and that [he] the person shall be permitted to vote in the precinct and election specified [therein] in the certificate; provided that such authorization shall not be given orally by the county clerk; and
(4) [he] the person executes a statement swearing or affirming [to the best of his 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] the person's executed sworn statement;
(3) retain the completed certificate and the executed sworn statement, which shall be returned to the [municipal] county clerk with the election returns; and
(4) comply with all relevant requirements of Section 3-8-41 NMSA 1978.
D. After canvass, the [municipal] county clerk shall [in writing notify the county clerk of] record the names of all individuals voting on certificates.
E. A person who knowingly executes a false statement required by Paragraph (4) 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 28. Section 3-8-46 NMSA 1978 (being Laws 1985, Chapter 208, Section 54, as amended) is amended to read:
"3-8-46. CONDUCT OF ELECTIONS--CLOSING POLLS--LOCKING VOTING MACHINES--OPENING VOTING MACHINES--VERIFICATION OF VOTES--ADMITTANCE OF WATCHERS AND CANDIDATES--PROCLAMATION OF RESULTS--COMPLETION OF LOCKING--DURATION OF LOCKING AND SEALING.--
A. When the last person has voted, the precinct board, in the presence of all persons lawfully permitted to be present, shall immediately lock and seal the voting machine against further voting. The precinct board shall release the machine-printed returns from the machine. The precinct board shall then sign a certificate stating that the machine was locked and sealed; giving the exact time; stating the number of voters shown on the public counters, which shall be the total number of votes cast on the machine in that precinct; stating the number on the seal; and stating the number registered on the protective counter.
B. The precinct board shall verify that the counter settings registered on the machine-printed returns are legible. The machine-printed returns shall show the number of votes cast for each candidate and the number of votes cast for and against any other question submitted, and the return shall be signed by each member of the precinct board and the challengers and watchers, if there be such.
C. If the machine-printed returns are not legible, or if the precinct officials are unable to obtain the returns from the voting machine, the precinct officials shall call the [municipal clerk, who shall immediately contact the] county clerk, who shall dispatch a voting machine technician to that polling place to help the precinct officials obtain the returns from the voting machine.
D. A write-in vote shall be cast by writing in the name of a declared write-in candidate on the ballot or, on voting machines, write-ins shall be written in the slot provided for each designated office. 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 write-in candidacy of the declared 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 the declared write-in candidate;
(2) the name is written in the proper slot on the voting machine or on the proper line for write-in votes provided on an absentee ballot, emergency paper ballot or paper ballot used in lieu of voting machines;
(3) the name written in is not a vote for a person who is on the ballot for that office; and
(4) the name written in is not imprinted by rubber stamp or similar device or by the use of preprinted stickers or labels.
E. Only the members of the precinct board, candidates or their representatives, representatives of the news media, certified challengers, watchers and observers and the [municipal] county clerk may be present while the votes are being counted and tallied. Only members of the precinct board shall handle ballots, machine-printed returns and signature rosters or take part in the counting and tallying.
F. The proclamation of the results of the votes cast shall be distinctly announced by an election judge who shall read the name of each candidate and the total number of votes cast for each candidate shown on the printed returns. An election judge shall also read the total number of votes cast for and against each question submitted. During the proclamation, ample opportunity shall be given to any person lawfully present to compare the result so proclaimed with the printed returns. The precinct board may make corrections then and there.
G. When the precinct board is satisfied that the election results have been correctly tallied, an election judge shall complete a separate election return certificate in quadruplicate on which is recorded the total number of votes cast in that polling place for each candidate and for and against each question. The certificate shall be signed by all the members of the precinct board. One copy shall be posted at the door of the polling place, one copy mailed to the district court in the envelope provided, one copy returned to the [municipal] county clerk to be used as unofficial returns and the original returned to the [municipal] county clerk in the envelope provided.
H. Before adjourning, the precinct board shall complete the locking procedures on the voting machine.
I. On the voting machine, the machine return sheet is the official vote tally for that machine and the separate election return certificate is the official vote tally for that precinct or consolidated precinct.
J. If in the district court's opinion a contest is likely to develop, the court may order a voting machine to remain locked and sealed for such time as it deems necessary.
K. The county clerk shall break the seal for purposes of lawful investigation when ordered to do so by a court of competent jurisdiction. When the investigation is completed, the voting machine shall again be sealed and across the envelope containing the keys shall be written the signature of the county clerk, unless other provisions for the use of the voting machine are ordered by the court."
Section 29. Section 3-8-47 NMSA 1978 (being Laws 1985, Chapter 208, Section 55, as amended) is amended to read:
"3-8-47. CONDUCT OF ELECTIONS--DISPOSITION OF SIGNATURE ROSTER--MACHINE-PRINTED RETURNS--BALLOT BOXES--ELECTION RETURN CERTIFICATE--AFFIDAVITS--OTHER ELECTION MATERIALS.--
A. After all certificates have been executed, the precinct board shall place one copy of the signature roster and one copy of the machine-printed returns in the stamped, addressed envelope provided for that purpose by the [municipal] county clerk and immediately mail it to the district court.
B. The following election returns and materials shall not be placed in the ballot box and shall be returned by the precinct board to the [municipal] county clerk in the envelope or other container provided by the [municipal] county clerk for [such] that purpose:
(1) all ballot box keys;
(2) one signature roster;
(3) one voter registration list;
(4) the election returns certificate;
(5) one copy of the machine-printed returns;
(6) a machine cartridge for any electronic marksense voting machine; and
(7) voting machine permits.
C. The locked ballot box containing any paper ballot cast in the election, election returns, all unused election supplies and all material listed in Subsection B of this section shall be returned by the precinct board to the [municipal] county clerk within twenty-four hours after the polls close.
D. After receipt of ballot boxes and election returns and materials but not later than twenty-four hours after the polls close, the [municipal] county clerk shall ascertain whether the locked ballot box and all the election returns and materials enumerated in Subsection B of this section have been returned to the [municipal] county clerk as provided in Subsection C of this section. If the locked ballot box or all such election returns and materials are not timely returned by each precinct board, the [municipal] county clerk shall immediately issue a summons requiring the delinquent precinct board to appear and produce the missing ballot box or election returns or materials within twenty-four hours. The summons shall be served by a sheriff or state police officer without cost to the municipality, and the members of the precinct board shall not be paid for their service on election day unless the delay was unavoidable. If delivery pursuant to the summons is not timely made, the vote in the precinct shall not be canvassed or made a part of the final election results except upon order of the district court after finding that the delay in the delivery of materials was due to forces beyond the control of the precinct board.
E. Once the ballot box is locked, it shall not be opened prior to canvassing by the [municipal] county clerk."
Section 30. Section 3-8-50 NMSA 1978 (being Laws 1985, Chapter 208, Section 58) is amended to read:
"3-8-50. CONDUCT OF ELECTION--EMERGENCY PAPER BALLOTS--PAPER BALLOTS--PROCEDURE AFTER MARKING--DELIVERY OF TWO OR MORE BALLOTS--PERSON AUTHORIZED TO RECEIVE BALLOTS--SPOILED OR DEFACED BALLOTS.--
A. After marking and preparing the paper ballot, the person voting:
(1) shall not show it to any person in such a way as to reveal its contents; and
(2) shall deliver it to an election judge who shall then remove any visible number on the ballot, hand the detached number to the person voting and deposit the paper ballot in the ballot box in the presence of the person voting.
B. Only an election judge shall receive a ballot from a person voting. No person shall examine or solicit a person to reveal or show the contents of [his] the person's paper ballot.
C. The election judge shall not deposit in the ballot box any paper ballot from which the slip containing the number of the paper ballot has not been removed by the election judge and handed to the person voting.
D. A person who accidentally spoils or erroneously prepares the ballot may return the spoiled or erroneously prepared ballot to the election judge and receive a new ballot.
E. The election judge in delivering the new ballot shall announce the name of the person voting in an audible tone and the number of the new ballot.
F. Upon the announcement of the election judge, the election clerks shall cross out the number of the spoiled or erroneously prepared ballot in the signature roster with a single line and shall insert in lieu thereof the number of the new ballot.
G. The election judge shall mark the spoiled or erroneously prepared ballot with the word "SPOILED" and shall place it in a separate envelope marked "SPOILED BALLOTS", which shall be returned to the [municipal] county clerk.
H. Any person who knowingly hands to the election judge two or more ballots folded together is guilty of a fourth degree felony."
Section 31. Section 3-8-51 NMSA 1978 (being Laws 1985, Chapter 208, Section 59, as amended) is amended to read:
"3-8-51. CONDUCT OF ELECTION--EMERGENCY PAPER BALLOTS--PAPER BALLOTS--UNUSED BALLOTS--DESTRUCTION OF UNUSED BALLOTS--COUNTING AND TALLYING.--
A. Immediately upon closing of the polls, the election judge shall prepare a certificate of destruction [which] that shall state the number of the last ballot [which] that was used for voting, the numbers of the ballots that were destroyed and the fact that all unused ballots were destroyed.
B. Immediately after preparation of the certificate of destruction and before any ballot box is unlocked, the precinct board shall destroy all unused ballots in the presence of the candidates, if present, the [municipal] county clerk, if present, certified challengers and watchers, if any, and representatives of the news media, if any.
C. On the day of the election, immediately upon the arrival of the hour when the polls are required by law to be closed, the [municipal] county clerk shall publicly, in the county clerk's office, proceed to destroy every unused ballot that remains in the county clerk's control and make and file an affidavit in writing as to the number of ballots so destroyed.
D. The precinct board shall count and tally the ballots and certify the results of the election on the form provided on the cover of the signature roster by writing opposite the name of each candidate in words and figures the total number of votes cast for the candidate and shall set forth in the spaces provided therefor in words and figures the total number of votes cast for or against each question submitted. Ballots not marked as required by the Municipal Election Code shall not be counted.
E. Only the members of the precinct board, candidates, [municipal] the county clerk, representatives of the news media and certified challengers and watchers may be present while the votes are being counted and tallied. Only members of the precinct board shall handle ballots and signature rosters or take part in the counting and tallying.
F. The proclamation of the results of the votes cast shall be distinctly announced by the election judge who shall read the name of each candidate and the total [vote] votes cast for each candidate. The election judge shall also read the total [vote] votes cast for and against each question submitted. The election judge shall thereupon complete an election return certificate on which is recorded the total number of votes cast for each candidate and for and against each question. The certificate shall be signed by all the members of the precinct board."
Section 32. Section 3-8-52 NMSA 1978 (being Laws 1985, Chapter 208, Section 60, as amended) is amended to read:
"3-8-52. CONDUCT OF ELECTION--EMERGENCY PAPER BALLOTS--PAPER BALLOTS--SIGNATURE ROSTERS--DISPOSITION.--
A. After the counting and tallying of ballots is completed and after all certificates have been executed, the precinct board shall place one copy of the signature roster and one copy of all certificates and tally sheets in the stamped, addressed envelope provided for that purpose by the [municipal] county clerk and immediately mail it to the district court.
B. The remaining copy of the signature roster, all certificates, tally sheets and all ballot box keys shall be returned to the [municipal] county clerk. The signature roster, certificates, tally sheets and ballot box key shall not be placed in the ballot box.
C. After paper ballots used in lieu of voting machines or emergency paper ballots are counted and tallied, the precinct board shall place the following in the ballot box:
(1) the bundles of counted paper ballots used in lieu of voting machines or emergency paper ballots;
(2) the envelopes containing spoiled ballots; and
(3) the envelopes containing rejected ballots.
D. After the required items have been placed in the ballot box, the ballot box shall be closed and locked.
E. The locked ballot box containing those materials required by law, the election returns and all other election materials shall be delivered to the [municipal] county clerk by the precinct board within twenty-four hours after the polls are closed. If such delivery is not timely made, then the vote in the precinct shall not be canvassed or made a part of the final election results except upon order of the district court after finding that the delay in the delivery of materials was due to forces beyond the control of the precinct board.
F. Once the ballot box is locked, it shall not be opened prior to canvassing."
Section 33. Section 3-8-53 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-14, as amended) is amended to read:
"3-8-53. POST-ELECTION DUTIES--CANVASS OF RETURNS--MAJORITY VOTE FOR QUESTIONS.--
A. After the polls are closed and after the return of the ballot box, election returns and other materials by a precinct board and not later than noon on the third day after the election, the [municipal] county clerk shall call [to his] for assistance to open the returns:
(1) a magistrate within the county, so long as the magistrate is not a candidate for an office of the municipality;
(2) the members of the governing body of the municipality who are not candidates for municipal office; provided that if the members of the governing body who are not candidates for municipal office constitute a quorum, a special meeting shall be called; or
(3) a district court judge from the judicial district in which the municipality is located.
B. The [municipal] county clerk and the persons called to open the returns are the municipal canvassing board, and the [municipal] county clerk shall be the presiding officer of the municipal canvassing board.
C. In the presence of the other members of the municipal canvassing board, the [municipal] county clerk shall publicly:
(1) canvass the returns in the manner set forth in the Municipal Election Code;
(2) prepare and execute a certificate of canvass certifying the results of the election. Such certificate shall contain the total number of voters who voted at the election, the total number of votes cast for each candidate, each declared write-in candidate and for and against each question, which candidates were elected to office and whether each question passed or failed;
(3) sign the certificate of canvass with the municipal canvassing board signing the certificate of canvass as witnesses; and
(4) immediately file the certificate of canvass in the official minute book of the municipality.
D. The matters to be performed pursuant to Subsection C of this section shall be completed not later than 5:00 p.m. on the third day following the election, and such matters shall be performed solely at the office of the [municipal] county clerk.
E. All questions submitted to the voters shall be decided by a majority of the voters voting on the question except as otherwise provided by law."
Section 34. Section 3-8-54 NMSA 1978 (being Laws 1985, Chapter 208, Section 62) is amended to read:
"3-8-54. POST-ELECTION DUTIES--CANVASS METHOD.--The [municipal] county clerk in the presence of the other members of the municipal canvassing board shall canvass the election returns by carefully examining [such] returns of each precinct to ascertain if they contain the properly executed certificates required by the Municipal Election Code and to ascertain whether any discrepancy, omission or error appears on the face of the election returns."
Section 35. Section 3-8-55 NMSA 1978 (being Laws 1985, Chapter 208, Section 63, as amended) is amended to read:
"3-8-55. POST-ELECTION DUTIES--CANVASS--DEFECTIVE RETURNS--CORRECTION.--
A. The [municipal] county clerk shall immediately order the precinct board to appear and make the necessary corrections or supply omissions or any missing election returns if it appears:
(1) on the face of the election returns that any certificate has not been properly executed;
(2) that there is a discrepancy within the election returns;
(3) that there is a discrepancy between the number of votes set forth in the certificate for all candidates and the number of electors voting as shown by the election returns;
(4) that there is any omission, informality, ambiguity, error or uncertainty on the face of the returns; or
(5) that there are missing election returns.
B. If any members of the precinct board fail to appear as required, the [municipal] county clerk shall immediately issue a summons commanding them to appear. The summons shall be served by a sheriff or state police officer as in the manner of civil cases, and for each service a sheriff or state police officer shall be allowed the same mileage as is paid in civil cases.
C. After issuing the necessary notifications or summonses, the canvass of all correct election returns shall proceed."
Section 36. Section 3-8-56 NMSA 1978 (being Laws 1985, Chapter 208, Section 64) is amended to read:
"3-8-56. POST-ELECTION DUTIES--CANVASS--WHEN RECHECK IS REQUIRED.--
A. If it appears that the defective returns cannot be corrected without a recheck of the voting machine, the [municipal] county clerk shall immediately cause written notice to be hand delivered to the district court.
B. The district court shall fix a time and place, which shall be not more than one week after receipt of notice from the [municipal] county clerk, for a recheck of the machines from that precinct.
C. The [municipal] county clerk shall immediately notify all candidates for municipal office, if any, of the time and place of the recheck.
D. At the time and place set by the district court, the recheck shall be conducted as provided in the Municipal Election Code.
E. After the recheck, the election returns shall be corrected in duplicate to conform to the facts.
F. After being properly corrected, the election returns shall be retained by the [municipal] county clerk and the [municipal] county clerk shall execute an amended certificate of canvass."
Section 37. Section 3-8-57 NMSA 1978 (being Laws 1985, Chapter 208, Section 65, as amended) is amended to read:
"3-8-57. POST-ELECTION DUTIES--CANVASS--SEARCH FOR MISSING RETURNS.--The [municipal] county clerk may open the ballot box during canvass for the purpose of obtaining ballots cast in the election to be counted and tallied, to search for missing election returns and to remove all unused election supplies from the ballot box. The ballot box shall be opened by the [municipal] county clerk only in the presence of the canvassing board."
Section 38. Section 3-8-58 NMSA 1978 (being Laws 1985, Chapter 208, Section 66, as amended) is amended to read:
"3-8-58. POST-ELECTION DUTIES--CANVASS--VOTING MACHINE RECHECK.--
A. Prior to completion of the official canvass of an election, the [municipal] county clerk, upon written request of any candidate in the election, if any, or upon receipt of a written petition of five percent of the people who voted in the election, shall, in the presence of the district judge, conduct a recheck and comparison of the results shown on the official returns being canvassed with the results of each voting machine used in the election.
B. For the purpose of making the recheck and comparison, the [municipal clerk may request the] county clerk [to] may:
(1) break the seal and unlock the voting machine;
(2) check the figures shown by the counter on the voting machine;
(3) insert the cartridge into the voting machine; and
(4) rerun the printed returns from the voting machine.
C. At the conclusion of the recheck and comparison, the voting machine shall again be locked.
D. The necessary corrections, if any, shall be made on the returns and the results of the election, as shown by the recheck and comparison, shall be declared."
Section 39. Section 3-8-60 NMSA 1978 (being Laws 1985, Chapter 208, Section 68) is amended to read:
"3-8-60. POST-ELECTION DUTIES--TIE VOTE.--In the event of a tie vote between any candidates in the election for the same office, the determination as to which of the candidates shall be declared to have been elected shall be decided by drawing by impartial lot. The method of determining by lot shall be mutually agreed upon by the candidates who are tied. The [municipal] county clerk shall issue a certificate of election to the candidate chosen by lot."
Section 40. Section 3-8-61 NMSA 1978 (being Laws 1985, Chapter 208, Section 69) is amended to read:
"3-8-61. POST-ELECTION DUTIES--NATURE OF DOCUMENTS--EXPENSE OF CORRECTIONS--PROCEEDINGS FOR CONTEMPT--RESPONSIBILITY FOR VOTING MACHINES.--
A. Municipal election returns are public records, subject to inspection during customary office hours by candidates and by members of the public, and may be copied upon request of a candidate or member of the public at a reasonable charge.
B. The expense of any proceeding to complete or correct any election returns or certificates shall be paid from the municipal general fund [upon voucher signed by the municipal] to the county clerk.
C. Failure of any person to obey any summons required to be issued by or issued pursuant to the Municipal Election Code is contempt and is punishable as provided by law.
D. The [municipal] county clerk shall have custody of all voting machines at all polling places [Within three days after the election, the county clerk shall take physical custody of] and shall secure [such] the machines for thirty days after certificates of election are issued to candidates or thirty days after canvass is completed in an election with no candidates for municipal office. The county clerk shall take the proper action to see that the voting machines in custody remain unopened, untampered with and undamaged during the thirty-day period."
Section 41. Section 3-8-62 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-8-16, as amended) is amended to read:
"3-8-62. CONTEST OF ELECTIONS--DESTRUCTION OF BALLOTS.--
A. The district court shall entertain contests for any municipal office or on any question placed on the ballot, and the procedure shall be as provided in the Municipal Election Code.
B. The ballots [only] shall be destroyed:
(1) thirty days after the issuance of the certificate of election or thirty days after completion of canvassing for elections in which there are no candidates for municipal office for those precincts in which the [municipal] county clerk has received no notice of contest or judicial inquiry; or
(2) upon order of the district court having jurisdiction for those precincts where a contest, recount or judicial inquiry is sought."
Section 42. Section 3-8-63 NMSA 1978 (being Laws 1985, Chapter 208, Section 71, as amended) is amended to read:
"3-8-63. CONTEST OF ELECTIONS--WHO MAY CONTEST--STATUS OF PERSON HOLDING CERTIFICATE--FILING OF COMPLAINT.--
A. Any unsuccessful candidate for election to any municipal office may contest the election of the candidate to whom a certificate of election has been issued. Twenty percent of those people who voted at the municipal election may contest the election on a question.
B. In case of a contest of an election, the person holding the certificate of election shall take possession and discharge the duties of the office until the contest is decided. If a contest of a question occurs, the question shall be considered passed or defeated according to the official certificate of canvass of the election filed by the [municipal] county clerk in the official records of the municipality until the contest is decided.
C. Any action to contest an election shall be commenced by the filing of a verified complaint of contest in the district court. Such complaint shall be filed no later than thirty days from issuance of the certificate of election to the successful candidate or thirty days after completion of canvassing for elections in which there are no candidates for municipal office. A copy of the petition shall be served on the [municipal clerk] governing body of the municipality, and the municipality shall be afforded an opportunity to intervene in the contest. The one instituting the action shall be known as the contestant and the one against whom the action is instituted shall be known as the contestee. The rules of civil procedure shall apply to all actions commenced under the provisions of this section."
Section 43. Section 3-8-65 NMSA 1978 (being Laws 1985, Chapter 208, Section 73, as amended) is amended to read:
"3-8-65. CONTEST OF ELECTIONS--PRESERVATION OF BALLOTS--BALLOTS DEFINED--APPLICATION FOR ORDER--DEPOSIT.--
A. Either the contestant or contestee, within the time provided by the Municipal Election Code for the preservation of ballots, shall give notice by certified mail to the [municipal] county clerk that a contest is pending in a designated court, and it is the duty of the [municipal] county clerk to preserve the ballots of all precincts named in the notice of contest and [to notify the county clerk to] impound the ballot faces and voting machines used in all of the precincts named in the notice of contest until the contest has been finally determined.
B. "Ballots", as used in Subsection A of this section, includes signature rosters, registered voter lists, machine-printed returns, voting machine permits, paper ballots, marksense ballots, absentee ballots, absentee ballot outer envelopes, statements of canvass, absentee ballot applications, absentee ballot registers and absentee voter lists.
C. Any contestant or contestee may petition the district court for an order impounding ballots in one or more precincts or consolidated precincts. The petition shall state what specific items of ballots are requested to be impounded. Upon receipt of the petition, along with a cash deposit of twenty-five dollars ($25.00) per precinct or consolidated precinct, the court may issue an order of impoundment."
Section 44. Section 3-8-67 NMSA 1978 (being Laws 1985, Chapter 208, Section 75) is amended to read:
"3-8-67. CONTEST OF ELECTION--BURDEN OF PROOF.--
A. If a contestant makes a prima facie showing that the precinct board or [municipal] county clerk failed to substantially comply with those provisions of the Municipal Election Code [which] that protect the secrecy and sanctity of the ballot and prescribe the duties of the precinct board or [municipal] county clerk, [then] the burden shall be on the contestee to prove that no fraud, intimidation, coercion or undue influence was exerted by [such] the precinct board members or the [municipal] county clerk and that the secrecy and purity of the ballot [was] were safeguarded and no intentional evasion of the substantial requirements of the law was made.
B. If the contestee fails to make such a showing, the votes of that entire polling place shall be rejected; provided that no such rejection shall be made [where] when it appears to the court that the members of the precinct board or [municipal] county clerk ignored the requirements of the Municipal Election Code with the probable intent of procuring the rejection of the entire vote in the precinct."
Section 45. Section 3-8-68 NMSA 1978 (being Laws 1985, Chapter 208, Section 76, as amended) is amended to read:
"3-8-68. RECOUNT--RECHECK--APPLICATION--COSTS.--
A. Whenever any candidate for any office for which the [municipal] county clerk issues a certificate of election believes that any error or fraud has been committed by any precinct board in counting or tallying the paper ballots used in lieu of voting machines, 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 municipal canvassing board, may have a recount of the paper ballots used in lieu of voting machines, emergency paper ballots or absentee ballots, or a recheck of the voting machine and the voting machine cartridge that contains the number of total votes that were cast in the precinct.
B. In the case of any office for which the [municipal] county clerk issues a certificate of election, application for recount or recheck shall be filed with the [municipal] county clerk.
C. Any applicant for a recount shall deposit with the [municipal] county clerk fifty dollars ($50.00) in cash or a sufficient surety bond in an amount equal to fifty dollars ($50.00) for each precinct or consolidated precinct for which a recount is demanded. Any applicant for a recheck shall deposit with the [municipal] county clerk ten dollars ($10.00) in cash or a sufficient surety bond in an amount equal to ten dollars ($10.00) for each voting machine to be rechecked.
D. The deposit or surety bond shall be security for the payment of the costs and expenses of the recount or recheck in case the results of the recount or recheck are not sufficient to change the results of the election.
E. If it appears that error or fraud sufficient to change the winner of the election has been committed, the costs and expenses of the recount or recheck shall be paid by the municipality [upon warrant of the municipal clerk] from the general fund of the municipality.
F. If no error or fraud appears to be sufficient to change the winner, the costs and expenses for the recount or recheck shall be paid by the applicant. Costs shall consist of any docket fees, mileage of a sheriff or state police officer in serving summons and fees and mileage of precinct board members, at the same rates allowed witnesses in civil actions. If fraud has been committed by a precinct board, [they] it shall not be entitled to such mileage or fees."
Section 46. Section 3-8-69 NMSA 1978 (being Laws 1985, Chapter 208, Section 77, as amended) is amended to read:
"3-8-69. RECOUNT--RECHECK--PROCEEDINGS.--
A. Immediately after filing of the application for recount or recheck, the [municipal] county clerk shall issue a summons directed to the precinct board of each precinct or consolidated precinct specified in the application commanding it to appear at the office of the [municipal] county clerk on a day fixed in the summons, which date shall not be more than ten days after the filing of the application for recount or recheck. [A copy of the summons shall be forwarded to the county clerk of the concerned county.]
B. The [municipal] county clerk shall deliver the summons to a sheriff or state police officer who shall forthwith personally serve it upon each of the precinct board members. The [municipal] county clerk shall send [notices] notice by registered mail of the date, time and place fixed for recount or recheck to the district judge [and county clerk].
C. The precinct board, district judge or the district court judge's designee and the county clerk [and the municipal clerk] shall meet on the date, time and [places] place fixed for the recount or recheck, and the ballot boxes or voting machines of the precinct or consolidated precinct involved in the recount or recheck shall be opened. The precinct boards shall recount and retally the paper ballots used in lieu of voting machines or emergency paper ballots or recheck the votes cast on the voting machine, as the case may be, and recount and retally the absentee ballots for the office in question in the presence of [the municipal clerk] the county clerk, district judge or person designated to act for the judge and any other person who may desire to be present.
D. During the recount or recheck, the precinct board of a precinct or consolidated precinct where emergency paper ballots, paper ballots used in lieu of voting machines or absentee ballots were used shall recount and retally only the ballots that the election judge accepted and placed in the ballot box at the time they were cast or received, as the case may be.
E. After completion of the recount or recheck, the precinct board shall replace the emergency paper ballots, paper ballots used in lieu of voting machines or absentee ballots in the ballot box and lock it, or the voting machines shall be locked and resealed, and the precinct board shall certify to the [municipal] county clerk the results of the recount or recheck. The district judge or the person designated to act for the judge and the county clerk [and the municipal clerk] shall also certify that the recount or recheck was made in their presence."
Section 47. Section 3-8-70 NMSA 1978 (being Laws 1985, Chapter 208, Section 78) is amended to read:
"3-8-70. RECOUNT--RECHECK--RECANVASS.--
A. Immediately upon receipt of the certificate of recount or recheck from all the precinct boards making a recount or recheck, the municipal canvassing board shall meet and recanvass the returns for the office in question.
B. In making the recanvass, the municipal canvassing board shall be bound by the certificates of recount or recheck from the precinct boards instead of the original returns from those precinct boards.
C. After the recanvass, if it appears that fraud or error has been committed sufficient to change the winner of the election, [then] the [municipal] county clerk shall revoke the certificate of election already issued to any person for that office and shall issue a certificate of election in favor of the person receiving a plurality of the votes cast at the election as shown by the recount or recheck, and such certificate shall supersede all others and entitle the holder to all of the rights and privileges of the office. The person shall take office after complying with Section 3-8-33 NMSA 1978 with the time to take office running from the date that the new certificate is issued."
Section 48. Section 3-8-71 NMSA 1978 (being Laws 1985, Chapter 208, Section 79, as amended) is amended to read:
"3-8-71. PRESERVATION OF ELECTION INFORMATION.--
A. The [municipal] county clerk shall retain for two years after each municipal election:
(1) the absentee ballot register, application for absentee ballots, absentee voter lists and affidavits of destruction;
(2) signature roster and registered voter list;
(3) the machine-printed returns;
(4) oaths of office of the precinct board;
(5) declarations of candidacy and withdrawals;
(6) copies of all election material required to be published or posted;
(7) a copy of all sample ballots and ballot faces;
(8) voting machine permits;
(9) certificates submitted by voters;
(10) copies of all affidavits and certificates prepared in connection with the election;
(11) all results of recounts, rechecks, contests and recanvass; and
(12) all other significant election materials.
B. The district court shall retain for forty-five days after each municipal election all election materials sent by the precinct board. Thereafter, the material may be destroyed unless needed by the court in connection with a contest or other case or controversy.
C. The [municipal] county clerk shall destroy election records two years after the election by shredding, burning or otherwise destroying."
Section 49. Section 3-8-73 NMSA 1978 (being Laws 1985, Chapter 208, Section 81) is amended to read:
"3-8-73. UNLAWFUL OPENING OF BALLOT BOX OR VOTING MACHINE--PENALTY.--
A. Unlawful opening of a ballot box consists of opening any ballot box or inspecting or removing the contents [thereof] without lawful authority or conspiring with others to have the same done.
B. A person who commits unlawful opening of a ballot box is guilty of a fourth degree felony.
C. Unlawful opening of a voting machine consists of, without lawful authority, opening, unlocking, inspecting, tampering, resetting or adjusting a voting machine [which] that has been certified by the [municipal] county clerk or conspiring with others to have the same done.
D. A person who commits unlawful opening of a voting machine is guilty of a fourth degree felony."
Section 50. Section 3-8-75 NMSA 1978 (being Laws 1985, Chapter 208, Section 83, as amended) is amended to read:
"3-8-75. FALSE VOTING--FALSIFYING ELECTION DOCUMENTS--FALSE SWEARING--PENALTY.--
A. False voting consists of:
(1) voting or offering to vote with the knowledge of not being a qualified elector;
(2) voting or offering to vote in the name of any other person;
(3) knowingly voting or offering to vote in any precinct except that in which one is registered;
(4) voting or offering to vote more than once in the same election;
(5) inducing, abetting or procuring or attempting to induce, abet or procure a person known not to be a qualified elector to vote; or
(6) inducing, abetting or procuring or attempting to induce, abet or procure a person who has voted once in any election to vote or attempt to vote again at the same election.
B. A person who commits false voting is guilty of a fourth degree felony.
C. 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, [municipal] county clerk or other election official:
(1) printing, causing to be printed, distributing or displaying false or misleading instructions pertaining to voting or the conduct of the election;
(2) printing, causing to be printed, distributing or displaying any official ballot, absentee ballot, marksense ballot, sample ballot, facsimile diagram, ballot face or pretended ballot that includes the name of any person not entitled by law to be on the ballot or omits or defaces the name of any person entitled by law to be on the ballot or otherwise contains false or misleading information or headings;
(3) defacing, altering, forging, making false entries in or changing any election document, including election returns, a certificate of election registration record or signature rosters, affidavits, certificates or any other election document except as authorized in the Municipal Election Code;
(4) withholding any certificate of election, registered voter list, signature roster, election return or any other election document required by or prepared and issued pursuant to the Municipal Election Code; or
(5) preparing or submitting any false certificate of election, signature roster, registered voter list, election return or any other election document.
D. A person who falsifies election documents is guilty of a fourth degree felony.
E. False swearing consists of knowingly taking or giving any oath required by the Municipal Election Code with the knowledge that the thing or matter sworn to is not a true and correct statement.
F. A person who falsely swears is guilty of a fourth degree felony."
Section 51. Section 3-8-76 NMSA 1978 (being Laws 1985, Chapter 208, Section 84, as amended) is amended to read:
"3-8-76. OFFERING A BRIBE--ACCEPTING A BRIBE--INTIMIDATION--PENALTY.--
A. Offering a bribe consists of willfully offering, advancing, paying or causing to be paid or promising, directly or indirectly, any money, other valuable consideration, office or employment to any person for any of the following purposes connected with or incidental to any election:
(1) to induce [such] a person to vote or refrain from voting for or against any candidate or question;
(2) to induce [such] a person, if a precinct board member, [municipal] county clerk or other election official, to mark, alter, withhold or otherwise change or falsify any ballot or vote that has been cast, any election return, any certificate of election or any other election document; or
(3) to induce [such] a person to use [such] a payment or promise to bribe others for the purposes specified in this section.
B. A person who offers a bribe is guilty of a fourth degree felony.
C. Accepting a bribe consists of knowingly accepting any payment or promise of payment, directly or indirectly, of money, other valuable consideration, office or employment for the unlawful purposes specified in Subsection A of this section.
D. A person who accepts a bribe is guilty of a fourth degree felony.
E. Intimidation consists of any person, including but not limited to any elected or appointed municipal official or employee, inducing or attempting to induce fear by use of or threatened use of force, violence, infliction of damage, harm or loss to any person or property or any form of economic retaliation upon any person voting or intending to vote, precinct board member, challenger, watcher or [municipal] county clerk to impede or prevent the free, fair and secret exercise of the elective franchise or the impartial and legally correct administration of the election pursuant to the Municipal Election Code.
F. A person who commits intimidation is guilty of a fourth degree felony."
Section 52. Section 3-8-78 NMSA 1978 (being Laws 1985, Chapter 208, Section 86, as amended) is amended to read:
"3-8-78. COERCION OF EMPLOYEES--PERMITTING PRISONERS TO VOTE--MALFEASANCE BY MESSENGERS--UNLAWFUL USE OR POSSESSION OF ALCOHOLIC LIQUOR OR ILLEGAL DRUGS--PENALTY.--
A. Coercion of employees consists of any officer or agent of any corporation, company or association or any person having supervision over or employing persons entitled to vote at any election directly or indirectly discharging or penalizing or threatening to discharge or penalize [such] an employee because of the employee's opinions or beliefs or because of [such] the employee's intention to vote or to refrain from voting for any candidate or for or against any question.
B. A person who commits coercion of employees is guilty of a fourth degree felony.
C. Permitting prisoners to vote consists of any person who has custody of convicts or prisoners taking [such] convicts or prisoners or permitting them to be taken to any polling place for the purpose of voting in any election.
D. A person who permits prisoners to vote is guilty of a petty misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) [nor] or more than five hundred dollars ($500) or by imprisonment for not less than thirty days [nor] or more than ninety days, or both.
E. [Subsection] Subsections C and [Subsection] D of this section do not prohibit permitting prisoners who are legally qualified to vote to cast an absentee ballot pursuant to the provisions of the Municipal Election Code.
F. Malfeasance by messengers consists of the willful delay or failure of any official messenger to convey or deliver election supplies to the precinct board or [municipal] county clerk, the willful delay or failure of any official messenger to convey or deliver the ballot box, key, election returns or other election materials, documents or supplies to the [municipal] county clerk or precinct board or the willful delay or failure of any official messenger to perform as required by any precinct board member or the [municipal] county clerk who makes a legal demand.
G. Any messenger committing [such] malfeasance by messengers is guilty of a petty misdemeanor.
H. Unlawful use or possession of alcoholic liquor or illegal drugs consists of the use or possession of any alcoholic liquor or illegal drug by any member of the precinct board, challengers, watchers or the [municipal] county clerk prior to or while performing official duties on election day. Unlawful use or possession also consists of the use, possession or carrying of alcoholic liquor or illegal drugs within two hundred feet of the polling place during any election.
I. A person who commits unlawful possession of alcoholic liquor or illegal drugs is guilty of a petty misdemeanor."
Section 53. Section 3-8-79 NMSA 1978 (being Laws 1985, Chapter 208, Section 87, as amended) is amended to read:
"3-8-79. CONSPIRACY--GENERAL PENALTY--VIOLATION BY [MUNICIPAL] COUNTY CLERK--PENALTY.--
A. Conspiracy to violate the Municipal Election Code consists of two or more persons knowingly combining, uniting or agreeing to cause or attempt to cause the omission or commission of any duty or act that violates the provisions of the Municipal Election Code.
B. A person who commits conspiracy to violate the Municipal Election Code is guilty of a fourth degree felony.
C. If the Municipal Election Code does not impose a specific penalty for the violation of a provision prohibiting a specific act, a person who knowingly commits such violation is guilty of a misdemeanor.
D. Violation of the Municipal Election Code consists of the willful violation of the Municipal Election Code or the willful failure or refusal to perform any act or duty required by the Municipal Election Code.
E. A member of the municipal governing body, a municipal official or employee, or [municipal] a county clerk, deputy or assistant who willfully violates the Municipal Election Code is guilty of a fourth degree felony and, in addition, such violation is sufficient cause for removal from office in a proceeding instituted for that purpose as provided by law."
Section 54. Section 3-9-2 NMSA 1978 (being Laws 1973, Chapter 375, Section 4) is amended to read:
"3-9-2. CERTAIN APPLICATIONS CONSTITUTE REGISTRATION.--An application from a federal qualified elector or federal voter shall, when received by the [municipal] county clerk, constitute a registration for purposes of that election."
Section 55. Section 3-9-4 NMSA 1978 (being Laws 1973, Chapter 375, Section 3, as amended) is amended to read:
"3-9-4. ABSENTEE BALLOT APPLICATION--REJECTION--ACCEPTANCE--ISSUANCE OF ABSENTEE BALLOT.--
A. Application by a federal qualified elector or federal voter shall be made on the federal postcard application form to the [municipal] county clerk.
B. The [municipal] county clerk shall prescribe the form of the absentee ballot application.
C. An application for an absentee ballot may be obtained by the voter from the [municipal] county clerk. An application for an absentee ballot may be requested by the voter in person, by telephone or by mail, and any voter may request an application for an absentee ballot for an immediate family member. For purposes of this section, "immediate family" means spouse, children, parents, brothers and sisters.
D. A list containing the names and addresses of voters requesting absentee ballot applications shall be kept and shall be made a part of the absentee ballot register.
E. Upon receipt of a properly completed and delivered application for an absentee ballot, the [municipal clerk shall contact the] county clerk [to] shall determine if the applicant is a qualified elector of the municipality.
F. The [municipal] county clerk shall reject an absentee ballot application for any of the following reasons:
(1) the application is not made on the form provided by the [municipal] county clerk;
(2) the application does not set forth the applicant's full name and address;
(3) the application does not set forth the applicant's social security number or date of birth;
(4) the application is not signed by the applicant; or
(5) the applicant:
(a) has no valid affidavit of registration on file with the county clerk and is not a federal qualified elector or federal voter;
(b) has a valid affidavit of registration on file with the county clerk, but is not a resident of the municipality; or
(c) is a federal qualified elector or federal voter, but is not entitled to vote in the municipal election; and
(d) cannot comply with Subparagraph (a), (b) or (c) of this paragraph pursuant to Subsection B of Section 3-8-40 NMSA 1978.
G. If the [municipal] county clerk rejects the absentee ballot application pursuant to Subsection F of this section, [then] the [municipal] county clerk shall refuse to issue an absentee ballot and shall mark the application "rejected" and enter "rejected" in the absentee ballot register and file the application in a separate file. The [municipal] county clerk shall, within twenty-four hours of rejection of the application, notify the applicant of the reasons for rejection of the application. Upon rejection of the application, the [municipal] county clerk shall determine the method of notification to the voter. Notification shall only be made by courier with return receipt or certified mail, return receipt requested. The person whose application has been rejected shall have ten days from receipt of notice to appeal or show cause why the application should be accepted. In addition, if the application is incomplete, the county clerk shall mail immediately a new application for an absentee ballot.
H. If the application for an absentee ballot is accepted, the [municipal] county clerk shall:
(1) mark the application "accepted";
(2) enter the required information in the absentee ballot register; and
(3) issue to the applicant an absentee ballot.
I. The [municipal] county clerk shall deliver the absentee ballot to the applicant in the office of the [municipal] county clerk if the application for an absentee ballot has been accepted and if the application is submitted in person by the applicant or mail an absentee ballot to any qualified elector, federal qualified elector or federal voter whose application for an absentee ballot was received by mail and has been accepted. The [municipal clerk shall notify the] county clerk [who] shall write "absentee ballot" on the signature line of the signature roster next to the name of the person who has been sent an absentee ballot. Names of individuals that have been labeled "absentee ballot" shall appear on a separate list called the "absentee voter list". [This list shall be submitted to the municipal clerk by the county clerk in the same manner as provided in Subsection B of Section 3-8-7 NMSA 1978.]
J. It is the duty of the [municipal] county clerk to verify the signature roster and absentee voter list to ensure that all names of individuals who have been issued absentee ballots have been labeled "absentee ballot" on the signature roster and their names listed on the absentee voter list. If not, the [municipal] county clerk shall write "absentee ballot" on the signature line of the signature roster next to the name of the person who has been sent an absentee ballot. The [municipal] county clerk shall then enter the name and all required information on the absentee voter list.
K. If the application for an absentee ballot is delivered in person to the [municipal] county clerk during regular hours and days of business and is accepted, the [municipal] county clerk shall issue the voter the absentee ballot and it shall be marked by the applicant in a voting booth in the [municipal] county clerk's office, sealed in the proper envelopes and otherwise properly executed and returned to the [municipal] county clerk or the clerk's authorized representative before the applicant leaves the office of the [municipal] county clerk, or allow the voter to cast a vote on the voting machine. Absentee ballots may be marked in person beginning at 8:00 a.m. on the twenty-seventh day before the election at the [municipal] county clerk's office during the regular hours and days of business until 5:00 p.m. on the Friday immediately prior to the date of election. An absent voter may vote in person on a paper ballot, or on an electronic voting machine, at the [municipal] county clerk's office beginning at 8:00 a.m. on the twentieth day prior to the election until 5:00 p.m. on the Friday immediately before the election.
L. The act of marking the absentee ballot in the office of the [municipal] county clerk shall be a convenience to the voter in the delivery of the absentee ballot and does not make the office of the [municipal] county clerk a polling place subject to the requirements of a polling place in the Municipal Election Code other than is provided in this subsection. During the period of time between the date a person may first apply in person for an absentee ballot and the final date for such application and marking of the ballot in the office of the [municipal] county clerk, it is unlawful to solicit votes or display or otherwise make accessible any posters, signs or other forms of campaign literature whatsoever in the county clerk's office.
M. Absentee ballots shall be air mailed to federal qualified electors and federal voters whose applications have been accepted not earlier than thirty-five days prior to the election and not later than 5:00 p.m. on the Friday immediately prior to the date of the election.
N. Absentee ballots shall be mailed to voters whose applications have been approved not earlier than thirty-five days prior to the election and not later than 5:00 p.m. on the Friday immediately prior to the date of the election.
O. No absentee ballot shall be delivered or mailed to any person other than the applicant for such ballot."
Section 56. Section 3-9-5 NMSA 1978 (being Laws 1973, Chapter 375, Section 6, as amended) is amended to read:
"3-9-5. ABSENTEE BALLOT REGISTER.--
A. For each election, the [municipal] county clerk shall keep an "absentee ballot register" in which [he] the clerk shall enter:
(1) in numerical sequence, the name and municipal address of each absentee ballot applicant;
(2) the date and time of receipt of the application;
(3) whether the application was accepted or rejected;
(4) the date of delivery to the voter in person in the office of the [municipal] county clerk, or mailing of an absentee ballot to the applicant, the method of delivery and, if mailed, the address to which the ballot was mailed;
(5) the applicant's precinct and district number, if applicable;
(6) whether the applicant is a voter, a federal voter or a federal qualified elector;
(7) affidavits of voters who did not receive absentee ballots; and
(8) the date and time the completed ballot was received from the applicant by the [municipal] county clerk.
B. The absentee ballot register is a public record open to public inspection in the [municipal] county clerk's office during regular office hours and shall be preserved for two years after the date of the election. The [municipal] county clerk shall have an updated absentee ballot register available for public inspection Monday through Friday during regular office hours.
C. For the purposes of recordkeeping, the absentee register may be combined with the early voting register, provided that the method of balloting shall be labeled either "absentee ballot" or "early voter"."
Section 57. Section 3-9-6 NMSA 1978 (being Laws 1973, Chapter 375, Section 7, as amended) is amended to read:
"3-9-6. FORM OF ABSENTEE BALLOT--FORM OF ABSENTEE BALLOT ENVELOPES.--
A. The form of the absentee ballot shall be, as nearly as practicable, in the same form as prescribed by the [municipal] county clerk for emergency paper ballots or paper ballots used in lieu of voting machines. 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 is practicable. The ballots shall provide for sequential numbering.
B. Absentee ballots and envelopes shall be delivered by the printer to the [municipal] county clerk not later than thirty-five days prior to the date of the election to be held.
C. The [municipal] county clerk shall prescribe the form of:
(1) official inner envelopes for use in sealing the completed absentee ballot;
(2) official mailing envelopes for use in returning the official inner envelope to the [municipal] county clerk;
(3) absentee ballot instructions, describing proper methods for completion of the ballot and returning it; and
(4) official transmittal envelopes for use by the [municipal] county clerk in mailing absentee ballot materials.
D. Official transmittal envelopes and official mailing envelopes for transmission of absentee ballot materials to and from the [municipal] county clerk and federal voters and federal qualified electors shall be printed in blue in the form prescribed by postal regulations and [the Federal Voting Assistance Act of 1955] federal law. Official transmittal envelopes and official mailing envelopes for transmission of absentee ballot materials to and from the [municipal] county clerk shall be printed in green in substantially similar form. All official inner envelopes shall be printed in green.
E. The reverse of each official mailing envelope shall contain a form to be signed by the person completing the absentee ballot. The form shall identify the person and shall contain the following statement: "I will not vote in this election other than by the enclosed ballot. I will not receive or offer any compensation or reward for giving or withholding any vote."."
Section 58. Section 3-9-7 NMSA 1978 (being Laws 1973, Chapter 375, Section 8, as amended) is amended to read:
"3-9-7. MANNER OF VOTING--USE OF AN ELECTRONIC VOTING DEVICE.--
A. Any person voting an absentee ballot under the provisions of the Municipal Election Code shall secretly mark the ballot in the manner provided in the Municipal Election Code for marking emergency paper ballots, remove any visible number on the ballot, place the ballot in the official inner envelope and securely seal the envelope. The person voting shall then place the official inner envelope inside the official mailing envelope and securely seal the envelope. The person voting shall then fill in the form on the reverse of the official mailing envelope.
B. Federal voters and federal qualified electors shall either deliver their ballots in person or mail the official mailing envelope to the [municipal] county clerk of their [municipality] county of residence or deliver it to a person designated by federal authority to receive executed ballots for transmission to the [municipal] county clerk of the [municipality] county of residence. Voters shall either deliver or mail the official mailing envelope to the [municipal] county clerk of their [municipality] county of residence. The [municipal] county clerk shall not accept an official outer envelope that is delivered in person to the [municipal] county clerk's office from any person other than the voter signing the official outer envelope.
C. Any person voting on the marksense ballot shall secretly mark the ballot by completing the arrow in pencil directly to the right of the candidate's name or the proposed question. The voter shall then place the marked ballot in the official inner envelope and securely seal the envelope and 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.
D. When an electronic voting device is used by the voter to cast an absentee vote, the [municipal] county clerk shall ensure that each absentee voting machine is located within the office of the [municipal] county clerk. The area shall be secured by lock and key. Each day during the time the absentee voting machine is used for absentee voting, the [municipal] county clerk shall, in the presence of one other employee of the [municipality] county, unlock the office where the voting machine is located. Each day, at the close of regular office hours, the [municipal] county clerk shall, in the presence of one other [municipal] county employee, secure the office where the voting machine is located. Each day immediately after unlocking or locking the office where the voting machine is located, the [municipal] county clerk and the employee present shall sign or initial the absentee voting daily report. The [municipal] county clerk shall prescribe the form of the absentee voting daily report, which shall include the following information:
(1) the voting machine serial number;
(2) beginning and ending public counter number for the day;
(3) beginning and ending protective counter number for the day;
(4) closing seal number, if any;
(5) the total number of voters for the day; and
(6) a place for the date and signature of the [municipal] county clerk and the [municipal] county employee.
E. Voting shall be conducted substantially in the manner provided in the Municipal Election Code. The absentee voting daily report shall be submitted to the absent voter precinct on election day, along with any voting machines used."
Section 59. Section 3-9-8 NMSA 1978 (being Laws 1973, Chapter 375, Section 9, as amended) is amended to read:
"3-9-8. CARE OF ABSENTEE BALLOTS--DESTRUCTION OF UNUSED BALLOTS BY [MUNICIPAL] COUNTY CLERK.--
A. The [municipal] county clerk shall mark on each completed official outer envelope the date and time of receipt in [his] the county clerk's office, record this information in the absentee ballot register and safely and securely keep the official outer envelope unopened until it is delivered on election day to the proper precinct board or until it is canceled and destroyed in accordance with law. Once a ballot is officially accepted by the [municipal] county clerk and recorded in the absentee ballot register, it cannot be returned to the voter for any reason.
B. The [municipal] county clerk shall accept completed official outer envelopes received by mail or delivered in person to the [municipal] county clerk's office by the voter signing the official outer envelope or by members of the voter's immediate family until 7:00 p.m. on election day. For purposes of this section, "immediate family" means spouse, children, parents, brothers and sisters. Any completed outer envelope received after that time and date shall be marked as to the time and date received, shall not be delivered to the precinct board and shall be preserved until the time for election contests has expired. In the absence of a court order, after the expiration of the time for election contests, the [municipal] county clerk shall destroy all late official mailing envelopes without opening or permitting the contents to be examined, cast, counted or canvassed. Before their destruction, the [municipal] county clerk shall count the numbers of late ballots from voters, federal voters and federal qualified electors and record the number from each category in the absentee ballot register.
C. After 5:00 p.m. and not later than 8:00 p.m. on the Thursday immediately preceding the date of the election, the [municipal] county clerk shall record the numbers of the unused absentee ballots and shall publicly destroy in the [municipal] county clerk's office all [such] unused ballots. The [municipal] county clerk shall execute a certificate of such destruction, which shall include the numbers on the ballots destroyed, and [such] the certificate shall be placed within the absentee ballot register.
D. At 7:00 p.m. on the day of the election, the [municipal] county clerk shall determine the number of ballots that were mailed and have not been received and execute a "certificate of unreceived absentee ballots". [Such] The certificate shall be placed in the absentee ballot register and shall become an official part of the register. The [municipal] county clerk shall determine the form of the certificate of unreceived absentee ballots."
Section 60. Section 3-9-9 NMSA 1978 (being Laws 1973, Chapter 375, Section 10, as amended) is amended to read:
"3-9-9. ABSENT VOTER PRECINCT.--For the purposes of absentee voting, the governing body shall create a special absent voter precinct, cause an absent voter precinct board to be appointed consisting of election judges and election clerks as provided in the Municipal Election Code and shall designate a polling place for the counting and tallying of absentee ballots in the election on election day. The [municipal] county clerk shall administer the oath to the election judges. A regular precinct board may be designated to serve as the absent voter precinct board. Members of the absent voter precinct board shall receive the same compensation as other precinct board members, but in no case shall a precinct board member who also serves as a member of the absent voter precinct board be entitled to extra compensation for serving on the absent voter precinct board."
Section 61. Section 3-9-10 NMSA 1978 (being Laws 1985, Chapter 208, Section 98, as amended) is amended to read:
"3-9-10. DELIVERY OF ABSENTEE BALLOTS TO ABSENT VOTER PRECINCT.--After 7:00 a.m. on election day, the [municipal] county clerk shall deliver to the absent voter precinct board the absentee ballot register and the absent voter ballots received by the county clerk, any electronic voting machines used and all absentee voting daily reports. Prior to 7:00 p.m. on election day, the [municipal] county clerk shall deliver any ballots received on election day to the absent voter precinct board and the precinct board shall note the receipt of ballots in the absentee ballot register and on the absentee voter list. On delivery of the ballots, the [municipal] county clerk or [his] the clerk's designee shall remain in the presence of the absent voter precinct board until the county clerk has observed the opening of all official mailing envelopes, the deposit of all ballots in the locked ballot box and the listing of the names on all of the official mailing envelopes in the absentee voter list. All functions of the absent voter precinct board shall be conducted in the place designated as the absent voter precinct."
Section 62. Section 3-9-11 NMSA 1978 (being Laws 1985, Chapter 208, Section 99, as amended by Laws 1995, Chapter 98, Section 3 and also by Laws 1995, Chapter 200, Section 10) is amended to read:
"3-9-11. HANDLING ABSENTEE BALLOTS BY ABSENT VOTER PRECINCT BOARDS.--
A. Before opening any official mailing envelope, an election judge shall determine that the required signature has been executed on the reverse side of the official mailing envelope.
B. If the signature is missing, an election judge shall write "rejected" on the front of the official mailing envelope. The election clerks shall write the notation "rejected - missing signature" in the "notations" column on the absentee voter list. An election judge shall place the official mailing envelope unopened in an envelope provided for rejected ballots, seal the envelope, write the voter's name on the front of the envelope and deposit it in the locked ballot box.
C. Declared challengers certified by the [municipal] county clerk may examine the official mailing envelope and may challenge the ballot of any absent voter for the following reasons:
(1) the official mailing envelope has been opened prior to being received by the precinct board; or
(2) the person offering to vote is not a federal voter, federal qualified elector or voter as provided in the Municipal Election Code.
Upon the challenge of an absentee ballot, an election judge shall generally follow the same procedure as when ballots are challenged when a person offers to vote in person. If a challenged ballot is not to be counted, it shall not be opened and shall be placed in an envelope provided for challenged ballots.
D. If the official mailing envelopes have properly executed signatures and the voters have not been challenged:
(1) an election judge shall open the official mailing envelopes and deposit the ballots in their still-sealed official inner envelopes in the locked ballot box; and
(2) the election clerks shall mark the notation "AB" opposite the voter's name in the "notations" column of the absentee voter list.
E. Prior to the closing of the polls, an election judge may remove the absentee ballots from the official inner envelopes and either count and tally the results of absentee balloting by hand or register the results of each absentee ballot on a voting machine the same as if the absent voter had been present and voted in person. It shall be unlawful for any person to disclose the results of such count and tally or such registration on a voting machine of absentee ballots prior to the closing of the polls.
F. The [municipal] county clerk shall, prior to the opening of the polls on election day, notify the absent voter precinct board in writing whether absentee ballots are to be counted and tallied or registered on a voting machine. The procedures shall be such as to ensure the secrecy of the ballot.
G. Absent voter precinct polls shall be closed at 7:00 p.m. on the day of the election by the absent voter precinct board."
Section 63. Section 3-9-13 NMSA 1978 (being Laws 1973, Chapter 375, Section 11, as amended) is amended to read:
"3-9-13. VOTING IN PERSON PROHIBITED.--
A. No person who has been issued an absentee ballot shall vote in person at that person's regular precinct polling place on election day except as otherwise provided in the Municipal Election Code.
B. At any time prior to 5:00 p.m. on the Friday immediately preceding the date of the election, any person whose absentee ballot application has been accepted and who was mailed an absentee ballot but who has not received the absentee ballot may execute, in the office of the [municipal] county clerk of the [municipality] county where that person is registered to vote, a sworn affidavit stating that the person did not receive or vote [his] the absentee ballot. Upon receipt of the sworn affidavit, the [municipal] county clerk shall issue the voter a replacement absentee ballot.
C. The [municipal] county clerk shall prescribe the form of the affidavit and the manner in which the [municipal] county clerk shall void the first ballot mailed to the applicant."
Section 64. Section 3-9-13.1 NMSA 1978 (being Laws 2003, Chapter 244, Section 19) is amended to read:
"3-9-13.1. ABSENTEE BALLOT--CONDUCT OF ELECTION--WHEN NOT TIMELY RECEIVED--EMERGENCY PROCEDURE FOR VOTING AND COUNTING.--
A. A voter who has submitted an application for an absentee ballot that was accepted by the [municipal] county clerk but who has not received the absentee ballot by mail as of the date of the election may [present himself at his] go to the assigned polling place and, after executing an affidavit of nonreceipt of absentee ballot, shall be issued an emergency paper ballot in lieu of an absentee ballot by the presiding judge, and shall be allowed to mark the ballot.
B. The voter shall place the completed emergency paper ballot issued in lieu of an absentee ballot in an official inner envelope, substantially in the form prescribed pursuant to Section 3-9-6 NMSA 1978, which shall be sealed by the voter. The official inner envelope shall then be placed by the voter, in the presence of the presiding judge, in an official outer envelope substantially as prescribed for a transmittal envelope or mailing envelope pursuant to Section 3-9-6 NMSA 1978. The presiding judge shall fill in the information on the back of the envelope that identifies the voter by name and signature roster number and contains the printed affidavit that the voter made application for an absentee ballot, which the voter believes to have been accepted by the [municipal] county clerk, that the voter swears an absentee ballot had not been received as of the date of the election and that the voter was issued an emergency paper ballot in lieu of an absentee ballot, and that the ballot was marked by the voter and submitted to the presiding judge.
C. The presiding judge shall place all emergency paper ballots issued in lieu of absentee ballots in a special envelope provided for that purpose by the [municipal] county clerk, seal the envelope and return it to the [municipal] county clerk along with the machine tally sheets after the closing of the polls. The sealed envelope shall not be placed in the locked ballot box.
D. The [municipal] county clerk shall, upon receipt of the envelope containing emergency paper ballots in lieu of absentee ballots, and no later than forty-eight hours after the close of the polls for the election, remove the transmittal envelopes and without removing or opening the inner envelopes, determine:
(1) if the voter did in fact make application for an absentee ballot that was accepted by the [municipal] county clerk;
(2) if an absentee ballot was mailed by the [municipal] county clerk to the voter; and
(3) whether an absentee ballot was received by the [municipal] county clerk from the voter by 7:00 p.m. on election day.
E. If the [municipal] county clerk determines that the emergency paper ballot in lieu of absentee ballot is valid, that an absentee ballot was mailed to the voter and that no absentee ballot was received from the voter by the [municipal] county clerk, the [municipal] county clerk shall remove the inner envelope without opening it, retain the transmittal envelope with the other election returns and place the inner envelope, unopened, in a secure and locked container to be transmitted to the canvassing board to be tallied and included in the canvass of the election returns for the municipality.
F. If the [municipal] county clerk determines that the emergency paper ballot in lieu of absentee ballot is not valid because the application for absentee ballot was rejected and no ballot was mailed to the voter, or that a ballot was received from the voter by the [municipal] county clerk not later than 7:00 p.m. on election day, the [municipal] county clerk shall write "rejected invalid ballot" on the front of the transmittal envelope and the transmittal envelope shall not be sent to the canvassing board for counting and tallying. The [municipal] county clerk shall retain the unopened transmittal envelope in a safe and secure manner and shall notify the district attorney in writing of the alleged violation of the Municipal Election Code. A copy of the notification to the district attorney shall be sent by first class mail to the voter and to the secretary of state.
G. The [municipal] county clerk shall furnish and shall prescribe the form of the necessary envelopes to be used in accordance with the purposes of this section, and shall take steps to preserve the secrecy of any ballots cast pursuant to this section."
Section 65. Section 3-9-16 NMSA 1978 (being Laws 1973, Chapter 375, Section 14, as amended) is amended to read:
"3-9-16. PENALTIES.--
A. [Any] A person who knowingly votes or offers to vote an absentee ballot to which [he] the person is not lawfully entitled to vote or offer to vote is guilty of a fourth degree felony.
B. [Any] A municipal official or employee or any other person who furnishes absentee ballots to persons who are not entitled to such ballots under the provisions of the Municipal Election Code is guilty of a fourth degree felony.
C. [Any] A municipal official or employee, precinct board member or any other person who knowingly destroys or otherwise disposes of an absentee ballot other than in the manner provided by the Municipal Election Code is guilty of a fourth degree felony.
D. [Any] A person who knowingly or willfully makes any false statement in any application for an absentee ballot or in the absentee ballot register or in any certificate required by the Municipal Election Code is guilty of a fourth degree felony.
E. A person who knowingly possesses an executed or unexecuted absentee ballot outside the physical confines of the [municipal] county clerk's office when the ballot is not the personal ballot of that person or who otherwise knowingly authorizes, aids or abets the unlawful removal of an executed or unexecuted absentee ballot from the physical confines of the [municipal] county clerk's office is guilty of a fourth degree felony.
F. A [municipal] county clerk who knowingly possesses an executed or unexecuted absentee ballot outside the physical confines of the [municipal] county clerk's office when that ballot is not the personal ballot of the [municipal] county clerk, or who otherwise knowingly authorizes, aids or abets the unlawful removal of an executed or unexecuted absentee ballot that is not the personal ballot of the [municipal] county clerk from the physical confines of the [municipal] county clerk's office, is guilty of a fourth degree felony."
Section 66. Section 3-12-2.1 NMSA 1978 (being Laws 1981, Chapter 198, Section 1, as amended) is amended to read:
"3-12-2.1. GOVERNING BODY--MAYOR-COUNCIL--CHANGE IN NUMBER OF MEMBERS.--
A. The number of members on the council or board of trustees of a municipality having a mayor-council form of government may be changed as set forth in this section, provided [such] the number shall not be less than or more than that number specified in Subsection D of Section 3-12-2 NMSA 1978.
B. A majority of the members elected to the governing body may adopt an ordinance increasing or decreasing the number of [councilmen] council members or trustees of that body and calling a special election on the question of approving or disapproving the change.
C. The governing body of the municipality shall adopt an election resolution calling a special election on the question of approving or disapproving a change in the number of [councilmen] council members or trustees if there is filed with the [municipal] county clerk a petition requesting an election on [such a] the change and the petition is signed by at least five percent of the number of registered voters of the municipality. The petition shall specify the number of [councilmen] council members in addition to the mayor [which] that shall constitute the governing body of the municipality. The petition shall be validated by the [municipal] county clerk by verification that it contains the required number of signatures of registered voters. The election resolution shall be adopted within ten days after the petition is verified by the [municipal] county clerk.
D. A special election to approve or disapprove a change in the number of [councilmen] council members or trustees shall be held within ninety days after the adoption of the ordinance as provided in Subsection B of this section or within ninety days after the date the petition is verified as provided in Subsection C of this section, as the case may be, or the election may be held in conjunction with a regular municipal election if such election occurs within ninety days after the adoption of the ordinance or verification of the petition. The municipality shall pay for the cost of the election.
E. If at an election called pursuant to this section a majority of the registered voters voting on the question of changing the number of [councilmen] council members or trustees vote in favor of [such] the change, all [councilmen] council members or trustees shall serve until their current term of office expires. At each of the subsequent two regular municipal elections, one-half of the newly required number of [councilmen] council members or trustees shall be elected.
F. If a majority of the registered voters voting on the question of changing the number of [councilmen] council members or trustees disapproves or approves of such change, then such change in the number of members shall not be considered again for a period of four years from the date of the election."
Section 67. Section 3-14-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-13-2, as amended) is amended to read:
"3-14-2. COMMISSION-MANAGER--SPECIAL ELECTION FOR ADOPTION.--
A. Upon petition signed by qualified electors, not less in number than fifteen percent of the votes cast for the office of mayor at the last regular municipal election, filed with the [municipal] county clerk and verified by the [municipal] county clerk to contain a sufficient number of legal signatures, the governing body shall, within ten days of verification, adopt an election resolution calling for the holding of a special election within ninety days after the verification of the petition on the question of organizing the municipality under the commission-manager form of government, or the governing body may submit to the qualified electors of the municipality the question of organizing the municipality under the commission-manager form of government.
B. The question to be placed shall read substantially as follows:
"For the commission-manager form of government and providing for the election of five commissioners ____; and
Against the commission-manager form of government and providing for the election of five commissioners ____.""
Section 68. Section 3-14-3 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-13-3) is amended to read:
"3-14-3. COMMISSION-MANAGER--CERTIFYING RESULTS OF ELECTION--RECORDING--AFFIRMATIVE VOTE--ORGANIZATION.--After the results of the election have been canvassed, the governing body shall certify the results to the municipal clerk and county clerk, and they shall be recorded in the minutes book of the municipality. If a majority of the votes cast on the question favor organizing under a commission-manager form of government, the governing body shall proceed to organize the municipality under the commission-manager form of government."
Section 69. Section 3-14-7 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-13-7) is amended to read:
"3-14-7. COMMISSION-MANAGER--CANDIDATES FOR OFFICE--WRITE-IN BALLOTS.--If no more candidates qualify for office than there are vacancies to be filled, they shall be declared elected without a vote upon certification by the [municipal] county clerk. If there is no candidate for office, the ballot shall be printed without names and a voter may write in the name of a qualified elector upon the ballot."
Section 70. Section 3-14-16 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-13-16) is amended to read:
"3-14-16. COMMISSION-MANAGER--RECALL--ELECTION--BALLOT--EFFECT--FILLING VACANCIES.--
A. In any commission-manager municipality, any elective officer is subject to a recall election. Upon petition seeking the recall of an elective officer, signed by the qualified electors in a number more than twenty percent of the average number of voters who voted at the previous four regular municipal elections or more than twenty percent of the number of voters who voted at the previous regular municipal election, whichever is the greater, the commission shall call a special election unless the regular municipal election occurs within sixty days, in which case the qualified electors shall vote on the recall at the regular election.
B. In either case, there shall be a special ballot containing the name of the officer, the title of the office [he holds] and the dates of the beginning and termination of [his] the officer's official term. Below the name of the officer shall be two phrases, "For the recall" and "Against the recall", one below the other with a space after each for placing a cross where desired. If a majority of the votes cast favor recall and the number of votes cast favoring a recall are equal to or more than the number the officer received when [he] the officer was a candidate for office, the office in question is declared vacant.
C. If an officer is recalled, [he] the officer shall not be eligible for reelection until the term for which [he] the officer was originally elected has expired.
D. If the recall election results in a failure to secure the votes necessary to recall, the officer in question shall not be subject again to recall until six months have elapsed from the date the previous recall election was held.
E. A vacancy created by a recall election shall be filled in the same manner as other vacancies on the commission are filled. If all commissioners are recalled at the same election, [the municipal clerk or, if there is no municipal clerk] the district court shall, within three days, call an election as provided in Section [14-13-8 New Mexico Statutes Annotated, 1953 Compilation] 3-14-8 NMSA 1978 for the election of five commissioners."
Section 71. Section 3-30-2 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-29-2) is amended to read:
"3-30-2. NONRESIDENT MUNICIPAL ELECTOR--QUALIFICATIONS.--A "nonresident municipal elector" means any qualified elector who:
A. is registered to vote in the county in which the municipality holding an election on the question of creating a debt is situated;
B. has paid a property tax on property located within the municipality holding an election on the question of creating a debt during the year preceding the election; and
C. has registered with the municipal clerk [his] or, if appropriate, the county clerk, the elector's intention to vote at the municipal election on the question of creating a municipal debt in the manner provided in Section [14-29-3 New Mexico Statutes Annotated, 1953 Compilation] 3-30-3 NMSA 1978."
Section 72. Section 3-30-3 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-29-3) is amended to read:
"3-30-3. NONRESIDENT MUNICIPAL ELECTOR--MANNER OF REGISTERING TO VOTE ON QUESTION OF CREATING A MUNICIPAL DEBT--CERTIFICATE OF ELIGIBILITY.--Not more than sixty nor less than fifteen days before the day of a municipal election on the question of creating a debt, any nonresident municipal elector desiring to vote on the question of creating a municipal debt shall file with the municipal clerk or, if appropriate, the county clerk of the county a certificate of eligibility [which] that shall be the registration required of the nonresident municipal elector for voting at a municipal election on the question of creating a debt. The certificate of eligibility shall be in substantially the following form:
"I, ____________________________________, desire
(Last Name, First Name, Middle Name)
to vote at the municipal election to be held on
________________________ and request the county clerk
(Insert date of election)
and county treasurer of _______________________ to
(Insert name of county)
certify that I am a nonresident municipal elector of
the _________________________________.
(Insert name of the municipality)
Signed:____________________________________________
(Signature of nonresident municipal elector)
I hereby certify that the above named nonresident
municipal elector is registered to vote in this county.
Signed:__________________________________
(County Clerk)
I hereby certify that the above named nonresident
municipal elector has paid a tax on property within
the _________________________________ during the preceding
(Insert name of the municipality)
year to-wit on the _____ day of _______________, [19] 20__.
Signed:______________________________________"."
(County Treasurer)
Section 73. Section 3-30-4 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-29-4) is amended to read:
"3-30-4. NONRESIDENT POLLING PLACE--DUTIES OF THE COUNTY CLERK OR MUNICIPAL CLERK TO REGISTER NONRESIDENT MUNICIPAL ELECTORS.--
A. In the same manner that polling places are secured for the conduct of a municipal election, the county clerk or municipal clerk shall provide a polling place within the municipality for nonresident municipal electors desiring to vote on the question of creating a municipal debt. The polling place shall be separate from any other polling place located within the municipality.
B. Not less than five days before the date of an election on the question of creating a municipal debt, the county clerk or municipal clerk shall place, by name in alphabetical order, all certificates of eligibility filed by nonresident municipal electors in a registration book kept for that purpose. The registration book for nonresident municipal electors shall be delivered to the judge and clerks of the election at the polling place for nonresident municipal electors in the same manner other registration books are delivered to the judges and clerks of the election in the remaining polling places, and the certificates of eligibility shall serve as the registration forms for the nonresident municipal elector desiring to vote on the question of creating a debt."
Section 74. Section 3-30-7 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-29-7, as amended) is amended to read:
"3-30-7. CANVASS OF BOND ELECTION--CERTIFICATION OF RESULTS--EFFECT.--
A. The vote upon each question proposing to issue negotiable bonds shall be canvassed as provided in the Municipal Election Code, and the [municipal] county clerk shall certify the results of the election and have the municipal clerk file the certificate of canvass in the official minute book of the municipality.
B. If a majority of those voting on the question favor the creation of the debt, the governing body of the municipality may proceed to issue the negotiable bonds."
Section 75. REPEAL.--Laws 1995, Chapter 98, Section 3 is repealed.
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