HB0450

HOUSE BILL 450

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Brian F. Egolf

AN ACT

RELATING TO ELECTIONS; PROVIDING THAT SCHOOL ELECTIONS BE CONDUCTED BY MAIL; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 1987; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

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

SECTION 1. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] ELECTIONS CONDUCTED BY MAIL.--All school elections shall be conducted by mail pursuant to the provisions of Chapter 1, Article 22 NMSA 1978 except as provided in Section 1-22-6 NMSA 1978."

SECTION 2. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] BALLOTS--ENVELOPES.--

A. The secretary of state shall prescribe the form of:

(1) ballots;

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

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

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

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

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

SECTION 3. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] BALLOTS--REGISTER.--

A. The proper filing officer shall keep a register of all voters in the school district on which is entered:

(1) the name and address of each voter;

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

(3) the voter's school district and precinct; and

(4) the date and time the completed ballot was received from the voter by the proper filing officer.

B. Not less than twenty-eight days before election day, the proper filing officer shall mail by non-forwardable mail a ballot to each voter in the school district.

C. The proper filing officer shall deliver to the absent voter precinct board on election day a complete list of all voters with applicable information shown in the ballot register for each voter."

SECTION 4. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] BALLOTS--MANNER OF VOTING.--

A. A voter shall secretly mark the ballot, place it in the official inner envelope and securely seal the envelope. The voter shall then place the official inner envelope inside the official mailing envelope and securely seal the envelope. The voter shall then complete the form on the reverse of the official mailing envelope, which shall include an affirmation by the voter under penalty of perjury that the facts stated in the form are true.

B. A voter may return the completed official mailing envelope by mail or personally deliver it to the office of the county clerk."

SECTION 5. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] RECEIPT OF BALLOTS BY CLERK.--

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

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

SECTION 6. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] HANDLING BALLOTS BY ABSENT VOTER PRECINCT BOARD.--

A. Before opening any official mailing envelope, the election judges and the presiding election judge shall determine that the required information has been completed on the reverse side of the official mailing envelope.

B. If the voter's signature is missing, the presiding judge shall write "Rejected" on the front of the official mailing envelope. The election clerks shall enter the voter's name in the signature rosters and shall write the notation "Rejected - Missing Signature" in the "Notations" column of the signature rosters. The presiding judge shall place the official mailing envelope unopened in an envelope provided for rejected ballots, seal the envelope and write the voter's name on the front of the envelope and deposit it in the locked ballot box.

C. The accredited challengers may view the official mailing envelope and may challenge the ballot of any voter because the official mailing envelope has been opened prior to being received by the absent voter precinct board. Upon the challenge of a ballot, the election judges and the presiding election judge shall follow the same procedure as when ballots are challenged when a person attempts to vote in person. If a challenge is upheld, the official mailing envelope shall not be opened but shall be placed in an envelope provided for challenged ballots. The same procedure shall be followed in canvassing and determining the validity of challenged ballots pursuant to this section as with other challenged ballots.

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

(1) the election clerks shall enter the name and residence address as shown on the official mailing envelope in the signature rosters and shall mark the notation "AB" opposite the voter's name in the "Notations" column of the signature rosters; and

(2) only between 8:00 a.m. and 10:00 p.m. on the five days preceding election day, including Saturday and Sunday, and beginning at 7:00 a.m. on election day, under the personal supervision of the presiding election judge, shall the election judges open the official mailing envelope and the official inner envelope and insert the enclosed ballot into an electronic voting machine to be registered and retained until votes are counted and canvassed following the closing of the polls on election night.

E. Ballots shall be counted and tallied on an electronic voting machine as provided in the Election Code, except as provided in Section 1-22-10 NMSA 1978.

F. It is unlawful for a person to disclose the results of a count and tally or the registration on a voting machine of ballots prior to the closing of the polls."

SECTION 7. A new section of the School Election Law is enacted to read:

"[NEW MATERIAL] VOTING WHEN NO BALLOT RECEIVED.--

A. Except as provided in this section, a person shall not vote in person in a school election.

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

C. A voter who has not received the ballot by mail as of the date of the election shall be permitted to vote on a replacement ballot in the office of the county clerk. The replacement ballot shall be placed by the voter in an official inner envelope. The voter shall then place the inner envelope inside an official outer envelope and securely seal the envelope. The voter shall then complete the form on the reverse of the outer envelope, which shall include an affidavit of nonreceipt of the mailed ballot and an affirmation by the voter under penalty of perjury that the facts stated in the form are true. The county clerk shall put all outer envelopes in a special envelope provided for that purpose and seal it and return it to the absent voter precinct board.

D. Upon receipt of replacement ballots, the county clerk, no later than forty-eight hours after the close of the election, shall remove the outer envelopes and, without removing or opening the inner envelopes, determine if a mailed ballot was received by the county clerk from the voter by 7:00 p.m. on election day. Upon making that determination, the county clerk shall remove the inner envelope without opening it, retain the outer envelope with the other election returns, place the inner unopened envelope in a secure container and transmit the container to the canvassing board for inclusion in the canvass of that county for the appropriate precinct.

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

SECTION 8. Section 1-22-1 NMSA 1978 (being Laws 1985, Chapter 168, Section 3) is amended to read:

"1-22-1. SHORT TITLE.--[Sections 1-22-1 through 1-22-19] Chapter 1, Article 22 NMSA 1978 NMSA 1978 may be cited as the "School Election Law"."

SECTION 9. Section 1-22-4 NMSA 1978 (being Laws 1985, Chapter 168, Section 6, as amended) is amended to read:

"1-22-4. REGULAR ELECTION--PROCLAMATION--PUBLICATION.--

A. The board shall by resolution issue a public proclamation in Spanish and English calling a regular school district election within the school district on the date prescribed by the School Election Law. The proclamation shall be filed by the superintendent with the county clerk [of record] who is the proper filing officer on the last Tuesday in November of the even-numbered year immediately preceding the date of the election.

B. The proclamation shall specify:

(1) the date when the election will be held;

(2) the positions on the board to be filled;

(3) the date on which declarations of candidacy are to be filed;

(4) the date on which declarations of intent to be a write-in candidate are to be filed;

(5) the questions to be submitted to the voters;

(6) the school district precincts in each county in which the election is to be held [and the location of each polling place;

(7) the hours each polling place will be open]; and

[(8)] (7) the date and time of the closing of the registration books by the county clerk [of record] as required by law.

C. After filing the proclamation with the [county clerk of record] proper filing officer, and not less than fifty days before the date of the election, [the] that county clerk [of record] shall publish the proclamation at least once in a newspaper of general circulation within the school district. The publication of the proclamation shall conform to the requirements of the federal Voting Rights Act of 1965, as amended."

SECTION 10. Section 1-22-5 NMSA 1978 (being Laws 1985, Chapter 168, Section 7, as amended) is amended to read:

"1-22-5. SPECIAL ELECTION--PROCLAMATION--PUBLICATION.--

A. Whenever a special school district election is to be called or is required by law, the board shall by resolution issue a public proclamation in Spanish and English calling the election. The proclamation shall forthwith be filed by the superintendent with the county clerk [of record] who is the proper filing officer.

B. The proclamation shall specify:

(1) the date on which the special election will be held;

(2) the positions on the board to be filled;

(3) the date on which declarations of candidacy are to be filed;

(4) the date on which declarations of intent to be a write-in candidate are to be filed;

(5) the questions to be submitted to the voters;

(6) the school district precincts in each county in which the election is to be held [and the location of each polling place;

(7) the hours each polling place will be open]; and

[(8)] (7) the date and time of the closing of the registration books by the county clerk [of record] as required by law.

C. After filing the proclamation with the [county clerk of record] proper filing officer, and not less than fifty days before the date of the election, [the] that county clerk [of record] shall publish the proclamation at least twice in a newspaper of general circulation in the school district. The publication of the proclamation shall conform to the requirements of the federal Voting Rights Act of 1965, as amended."

SECTION 11. Section 1-22-6 NMSA 1978 (being Laws 1985, Chapter 168, Section 8, as amended) is amended to read:

"1-22-6. PRECINCTS--CONSOLIDATION--POLLING PLACES.--

A. The same precincts that are used in a general election shall be used in a school district election, provided that:

(1) if a precinct lies partly within and partly outside of a school district, the part of the precinct lying within the school district constitutes a precinct for a school district election; and

(2) all of the area within the exterior boundaries of a school district may constitute [one] an absent voter precinct for a school district election.

B. In the event that only one candidate has filed a declaration of candidacy for each position to be filled at an election and no declared write-in candidates have filed for any position and there are no questions or bond issues on the ballot, only one polling place for the election shall be designated and it shall be in the office of the county clerk or a designated polling place in the school district of the county in which the school district is located.

[C. Except as otherwise provided in the School Election Law, the county clerk shall consolidate precincts for a school district election as provided in the proclamation for that election and shall provide for a polling place within each precinct or consolidated precinct.]"

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

"1-22-10. BALLOTS.--

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

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

C. Paper ballots shall be printed in a form in substantial compliance with the provisions of Section [1-12-44] 1-10-12 NMSA 1978 and in compliance with the provisions of the federal Voting Rights Act of 1965, as amended.

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

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

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

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

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

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

SECTION 13. Section 1-22-12 NMSA 1978 (being Laws 1985, Chapter 168, Section 14, as amended) is amended to read:

"1-22-12. CONDUCT OF ELECTIONS.--

A. Except as otherwise provided in the School Election Law, the county clerk shall administer and conduct school district elections pursuant to the provisions of the Election Code for the conduct of general elections.

B. Precinct board members for [each polling place] the absent voter precinct shall be appointed by the county clerk from among those persons who meet the qualifications set forth in Section 1-2-7 NMSA 1978 and who reside within the school district. The number of members on [each] the precinct board shall be as provided in Section 1-2-12 NMSA 1978. Vacancies on election day shall be filled as provided in Section 1-2-15 NMSA 1978.

C. In the event that only one candidate has filed a declaration of candidacy for each position to be filled at the election, no declared write-ins have filed for any position and there are no questions or bond issues on the ballot, the county clerk shall perform the duties of the absent voter precinct board and no other precinct board shall be appointed.

D. All costs of school district elections shall be paid by the school district."

SECTION 14. Section 1-22-13 NMSA 1978 (being Laws 1985, Chapter 168, Section 15) is amended to read:

"1-22-13. CHALLENGERS--WATCHERS.--Upon petition filed with the county clerk, any candidate for membership on the board may:

A. appoint one person as challenger for [each precinct in] the school district election, who shall have the powers and be subject to the restrictions provided for challengers in the Election Code; and

B. appoint one person as a watcher for [each precinct in] the school district election, who shall have the powers and be subject to the restrictions provided for watchers in the Election Code."

SECTION 15. Section 1-22-15 NMSA 1978 (being Laws 1985, Chapter 168, Section 17, as amended by Laws 1987, Chapter 249, Section 49 and also by Laws 1987, Chapter 338, Section 3) is amended to read:

"1-22-15. CANVASSING BOARD--DUTIES.--

A. The canvassing board for the canvass of the results of a school district election shall be composed of the superintendent, the county clerk [of record] who is the proper filing officer and the magistrate or the presiding judge of the metropolitan court, as the case may be, of the county in which the administrative office of the school district is situate.

[B. Ballots cast in each county in which the school district is situate shall be transported by the presiding judge of the precinct board upon the closing of the polls to the office of the proper filing officer. Each ballot box shall have two locks. The key to one lock on each ballot box when emergency ballots are used and one copy of the signature roster shall at that time be placed in a stamped, addressed envelope provided for that purpose and shall be mailed to the magistrate or the presiding judge of the metropolitan court, as the case may be, of the county in which the administrative office of the school district is situate. If emergency ballots are not used, both ballot box keys shall be returned to the proper filing officer.

C.] B. Within three days after the date of the school district election, the canvassing board shall meet in the office of the proper filing officer or the administrative office of the school district as determined by the proper filing officer and shall:

(1) canvass the returns in the same manner as county election returns are canvassed;

(2) determine the total number of persons in the school district voting in the election; and

(3) issue a certificate of canvass of the results of the election and send one copy of the certified results:

(a) to the board;

(b) to the secretary of state; and

[D.] C. The canvassing board shall issue a certificate of election to each candidate [which] that it determines to be elected.

[E.] D. The county clerk [of record] who is the proper filing officer shall cause the results of the election to be published once in a newspaper of general circulation in the school district."

SECTION 16. Section 1-23-2 NMSA 1978 (being Laws 1987, Chapter 160, Section 2) is amended to read:

"1-23-2. DEFINITION.--As used in the Mail Ballot Election Act, "local government" means any county [school district] or incorporated municipality."

SECTION 17. REPEAL.--Sections 1-22-19 and 1-23-7 NMSA 1978 (being Laws 1985, Chapter 168, Section 21 and Laws 1987, Chapter 160, Section 7, as amended) are repealed.

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