44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO ELECTIONS; AMENDING AND ENACTING CERTAIN PROVISIONS OF THE ELECTION CODE RELATING TO ELECTION PROCEDURES.

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

Section 1. Section 1-2-1 NMSA 1978 (being Laws 1969, Chapter 240, Section 22, as amended) is amended to read:

"1-2-1. SECRETARY OF STATE--CHIEF ELECTION OFFICER--RULES AND REGULATIONS--ENFORCEMENT POWERS.--

A. The secretary of state is the chief election officer of the state and shall:

(1) obtain and maintain uniformity in the application, operation and interpretation of the Election Code;

(2) subject to the State Rules Act, make rules [and regulations] pursuant to the provisions of, and necessary to carry out the purposes of, the Election Code and shall furnish to the county clerks copies of [such] the rules [and regulations; and];

(3) through the attorney general or the district attorney having jurisdiction, bring such actions as deemed necessary and proper for the enforcement of the provisions of the Election Code; and

(4) by rule, adopt checklists, written in nontechnical language for distribution by each county clerk and including the following topics:

(a) precinct opening procedures;

(b) precinct close-out procedures;

(c) routine precinct voting procedures;

(d) procedures to follow when a voter is not on the precinct list of voters;

(e) procedures to follow when a voter is not in receipt of an absentee ballot;

(f) machine malfunction procedures;

(g) legal powers and duties of the precinct board;

(h) opening and close-out procedures for absent voter precincts;

(i) procedures in absent voter precincts for accepting or rejecting absentee ballots; and

(j) procedures in absent voter precincts for counting absentee ballots.

B. No forms or procedures shall be used in any election held pursuant to the Election Code without prior approval of the secretary of state."

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

"1-2-2. SECRETARY OF STATE--GENERAL DUTIES.--The secretary of state shall:

A. generally supervise all elections;

B. administer the Election Code in its statewide application especially as it relates to federal and state elective offices;

C. prepare instructions for the conduct of election and registration matters in accordance with the laws of the state;

D. advise county clerks, boards of county commissioners and boards of registration as to the proper methods of performing their duties prescribed by the Election Code;

E. report possible violations of the Election Code of which he has knowledge to the district attorney or the attorney general for prosecution;

F. cause to be published in pamphlet form and distributed to the county clerk of each county for use by precinct boards a sufficient number of copies of the Election Code as it is from time to time amended and supplemented;

G. be responsible for the education and training of county clerks regarding elections, including conducting, within one hundred eighty days of each general election, a training program for newly elected county clerks with an emphasis on practical applications;

H. be responsible for the education and training of voting machine technicians; [and]

I. assist the county clerks in the education and training of registration officers and precinct boards; and

J. provide county clerks, their staffs and precinct boards with copies of the checklists developed pursuant to Section 1-2-1 NMSA 1978. The checklists shall be used as part of the training materials for all precinct boards and staff of the county clerks."

Section 3. Section 1-2-4 NMSA 1978 (being Laws 1969, Chapter 240, Section 25, as amended) is amended to read:

"1-2-4. SECRETARY OF STATE--INSTRUCTIONS TO PRECINCT BOARDS.--

A. The secretary of state shall provide instructions for the precinct board, which shall include a brief nontechnical explanation of their duties as required by the Election Code. The instructions shall be in a checklist format including the topics specified in Paragraph (4) of Subsection A of Section 1-2-1 NMSA 1978.

B. When any specific duty is imposed by the instructions issued under the Election Code, the duty shall be deemed to be a requirement of the law."

Section 4. Section 1-2-12 NMSA 1978 (being Laws 1969, Chapter 240, Section 32, as amended) is amended to read:

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

MULTIPARTISAN.--

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

(1) a presiding judge;

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

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

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

B. When one voting machine is to be used in a precinct, the precinct board shall consist of:

(1) a presiding judge;

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

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

C. When two voting machines are to be used in a precinct, the precinct board shall consist of:

(1) a presiding judge;

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

(3) two election clerks who shall be of different political parties.

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

(1) a presiding judge;

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

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

E. If the county clerk determines that additional election clerks are needed in a precinct, the clerk may appoint such additional election clerks as he deems necessary; provided, however, that such appointments shall be made in the manner that provides for representation from all major political parties. The county clerk may, proportionally by party, increase the size of the board of an absent voter precinct if the county clerk determines that, based on the number of absentee ballots requested, additional election clerks are necessary to ensure the timely tallying of the absentee ballots.

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

Section 5. Section 1-2-17 NMSA 1978 (being Laws 1969, Chapter 240, Section 37, as amended) is amended to read:

"1-2-17. PRECINCT BOARD--SCHOOLS OF INSTRUCTION.--

A. The secretary of state shall supervise and the county clerk shall cause to be held a public school of instruction for all presiding judges, precinct boards and others who will be officially concerned with the conduct of elections in any county with a population of one hundred thousand or more according to the most recent federal decennial census.

B. The county clerk shall cause to be held a public school of instruction for all presiding judges, precinct boards and others who will be officially concerned with the conduct of the elections in any county having a population of less than one hundred thousand according to the most recent federal decennial census.

C. The schools for instruction provided for in this section shall be as follows:

(1) one school not less than three days before the primary election;

(2) one school not less than three days before the general election; and

(3) one school not less than three days before any other statewide election.

D. All major details of the conduct of elections shall be covered by the county clerk or his authorized representative at such school, with special emphasis being given to recent changes in the Election Code. The topics to be covered at the school shall include those topics contained in the checklists required by Paragraph (4) of Subsection A of Section 1-2-1 NMSA 1978.

E. The school of instruction shall be open to any interested person, and notice of the school shall be given to the public press at least four days before the school is to be held. Each member of the precinct board shall be notified by mail at least seven days prior to commencement of the school.

F. No person shall serve as a judge or member of a precinct board in any election who has not attended at least one such school of instruction in the calendar year of the election at which he is appointed to serve or has been certified by the county clerk with respect to the person's completion of the school of instruction. This subsection shall not apply to filling of vacancies on election day as provided in Subsection B of Section 1-2-15 NMSA 1978."

Section 6. Section 1-2-22 NMSA 1978 (being Laws 1969, Chapter 240, Section 41, as amended) is amended to read:

"1-2-22. CHALLENGERS--QUALIFICATIONS--RESTRICTIONS.--[Challengers and alternate challengers shall be voters of a precinct located in that county to which they are appointed.] Challengers shall be voters of the county in which they are appointed. No sheriff, deputy sheriff, marshal, deputy marshal, municipal or state police officer, candidate or any person who is a spouse or child of a candidate being voted on at the election shall serve as a challenger or alternate challenger."

Section 7. Section 1-3-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 57, as amended) is amended to read:

"1-3-7. POLLING PLACES.--

A. No less than one polling place shall be provided for each precinct.

B. The board of county commissioners shall designate as the polling place, or places as the case may be, in each precinct the most convenient and suitable public building or public school building in the precinct that can be obtained.

C. If no public building or public school building is available, the board of county commissioners shall provide some other suitable place which shall be the most convenient and appropriate place obtainable in the precinct, considering the purpose for which it is to be used pursuant to the Election Code.

D. 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 board of county commissioners 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 boundary 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.

E. Upon application of the board of county commissioners, the governing board of any school district shall permit the use of any school building or a part thereof for registration purposes and the conduct of any election; provided, however, that the building or the part used for the election complies with the standards set out in the federal Voting Accessibility for the Elderly and Handicapped Act [(Public Law 98-435)].

F. Public schools may be closed for elections at the discretion of local school boards.

G. Prior to each election, the county clerk, by publication and by posting in government buildings and, if possible, on state county and municipal websites, shall announce the polling places for each precinct in the county."

Section 8. Section 1-4-5 NMSA 1978 (being Laws 1969, Chapter 240, Section 63, as amended by Laws 1993, Chapter 314, Section 6 and also by Laws 1993, Chapter 316, Section 6) is amended to read:

"1-4-5. METHOD OF REGISTRATION.--

A. A qualified elector may apply to a registration officer for registration.

B. The registration officer shall fill out each of the blanks on the original and the voter's copy of the certificate of registration by typing or printing in ink. Carbon paper may be used between the original and the voter's copy.

C. The qualified elector shall subscribe a certificate of registration.

(1) A person shall sign his original certificate of registration using his given name, middle name or initial and last name.

(2) If any qualified elector seeking to register is unable to read and write either the English or Spanish language or is unable to read or write because of some physical disability, the certificate of such person shall be filled out by a registration officer and the name of the qualified elector so registering shall be subscribed by the making of his mark.

D. When properly executed by the registration officer, the original and the voter's copy of the certificate of registration shall be presented, either in person or by mail by the qualified elector or by the registration officer, to the county clerk of the county in which the qualified elector resides.

E. Only when the certificate of registration is properly filled out, subscribed by the qualified elector and accepted for filing by the county clerk as evidenced by his signature or stamp and the date of acceptance thereon shall it constitute an official public record of the registration of the qualified elector.

F. No later than one hundred twenty days before each election, the county clerk shall submit for publication and, if possible, through television and radio public service announcements, a statement that it is the responsibility of each voter to update his voter registration data."

Section 9. Section 1-4-21 NMSA 1978 (being Laws 1969, Chapter 240, Section 77, as amended) is amended to read:

"1-4-21. REFUSAL OF REGISTRATION--APPEAL.--A qualified elector whose registration has been refused or the county chairman of any major political party who alleges that certain persons are qualified electors but have been refused registration may bring an appeal regarding the refused registration pursuant to the provisions of Section [12-8A-1] 39-3-1.1 NMSA 1978. The court shall award costs against the county if the appeal is successful."

Section 10. Section 1-6-6 NMSA 1978 (being Laws 1969, Chapter 240, Section 132, as amended) is amended to read:

"1-6-6. ABSENTEE BALLOT REGISTER.--

A. For each election, the county clerk shall keep an "absentee ballot register" in which he shall enter:

(1) the name and county 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 or mailing of an absentee ballot to the applicant;

(5) the applicant's precinct;

(6) whether the applicant is a voter, a federal voter, a federal qualified elector or an overseas citizen voter; and

(7) the date and time the completed ballot was received from the applicant by the county clerk.

B. The county clerk shall use the absentee register to ensure that multiple absentee ballot requests are not processed for the same voter. If multiple absentee voter requests are received for the same voter, only the first request shall be honored.

[B.] C. Within twenty-four hours after receipt of a voter's application for an absentee ballot, the county clerk shall mail either the ballot or notice of rejection. If necessary, the county clerk shall hire temporary staff to ensure that the requirements of this subsection are satisfied.

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

[D.] E. The county clerk shall deliver to the absentee board on election day a complete list of all absentee ballot applicants with applicable information shown in the absentee ballot register for each applicant up to noon of the day preceding the election. The county clerk shall deliver a signature roster containing the same information as the lists to the absentee board.

[E.] F. The county clerk shall transmit to the secretary of state and to the county chairman of each of the major political parties in the county a complete copy of entries made in the absentee ballot register. Such transmissions shall be made once each week beginning four weeks immediately prior to the election. A final copy shall be transmitted on the Friday immediately following the election."

Section 11. Section 1-6A-10 NMSA 1978 (being Laws 1995, Chapter 165, Section 4) is amended to read:

"1-6A-10. ABSENTEE-EARLY VOTING PRECINCT BOARD.--

A. The county clerk shall appoint absentee-early voting election officials who shall receive compensation at an hourly rate set by the county clerk.

B. A minimum of three board members shall be appointed to the absentee-early voting precinct board with not more than two members belonging to the same political party. The county clerk shall, proportionally by party, increase the size of the board if the number of anticipated ballots is such that more election clerks are necessary."

Section 12. Section 1-10-9 NMSA 1978 (being Laws 1969, Chapter 240, Section 208) is amended to read:

"1-10-9. BALLOTS--ERRORS AND OMISSIONS.--

A. If an error or omission has occurred in the printed ballot, the district court, upon petition of any voter, may order the county clerk to forthwith correct the error or supply the omission or immediately show cause why the error should not be corrected or the omission should not be supplied.

B. If any error occurs in the printing on the ballot of the name of any candidate or in the designation of the office for which he is nominated, the ballot shall nevertheless be counted for such candidate for the office for which he was nominated as shown by the certificate of nomination.

C. If an error or omission occurs on the face of the ballot and is not discovered until after voting has commenced, a voter may notify the election judge or the county clerk of the error omission. Within twenty-four hours after notification, the county clerk or a candidate shall bring the matter before the district court, which shall immediately hold a hearing on the matter. Within ten days after the hearing, the district court shall grant such appropriate relief as it deems necessary, including rejection of all or a portion of the votes in a precinct or rejection of all the votes in the election. Appeals from the decision of the district court may be taken to the supreme court and shall be heard expeditiously. Pending a final decision, the canvassing board shall not certify the affected election. If an error or omission results in an action pursuant to this subsection, the office of the election official that caused the error or omission shall be assessed all court costs."

Section 13. Section 1-12-3 NMSA 1978 (being Laws 1977, Chapter 222, Section 36) is amended to read:

"1-12-3. CONDUCT OF ELECTION--PRECINCT BOARD DUTIES.--The secretary of state shall prescribe the duties of the precinct board in a checklist format, including those topics required by Paragraph (4) of Subsection A of Section 1-2-1 NMSA 1978. Copies of such duties shall be furnished each county clerk and the clerk shall distribute them to each precinct."

Section 14. Section 1-12-32 NMSA 1978 (being Laws 1969, Chapter 240, Section 292, as amended) is amended to read:

"1-12-32. CONDUCT OF ELECTION--RETURN OF BALLOT BOXES AND ELECTION MATERIALS.--

A. Unless the ballot box, election returns and materials are delivered to the county clerk within [twenty-four] twelve hours after the polls are closed, 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.

B. In precincts not more than thirty-five miles distant from the county clerk's office, the delivery of the ballot box and election returns and materials shall be made by the presiding judge in person.

C. In precincts more than thirty-five miles distant from the county clerk's office, the delivery of the ballot box, election returns and materials may be made by special messenger selected by the presiding judge and the election judges."

Section 15. A new Section 1-13-13.1 NMSA 1978 is enacted to read:

"1-13-13.1. [NEW MATERIAL] POST-ELECTION DUTIES--INSPECTION OF REJECTED BALLOTS.--During the canvass of an election, the county canvassing board, upon written request of a candidate in the election, shall permit an inspection of rejected ballots. The inspection shall be conducted in the presence of the requesting candidate and any other interested person."

Section 16. Section 1-14-2 NMSA 1978 (being Laws 1969, Chapter 240, Section 327) is amended to read:

"1-14-2. CONTEST OF ELECTIONS--STATUS OF PERSON HOLDING CERTIFICATE.--

A. Except as provided in Subsection B of this section, 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.

B. In the case of an election context alleging an error or omission of an election official, the certificate of election shall be suspended and the incumbent shall retain the office until a final judgment."

Section 17. Section 1-14-3 NMSA 1978 (being Laws 1969, Chapter 240, Section 328, as amended) is amended to read:

"1-14-3. CONTEST OF ELECTION--FILING OF COMPLAINT.--

A. Except as provided in Subsection B of this section, any action to contest an election shall be commenced by filing a verified complaint of contest in the district court of the county where either of the parties resides. [Such] The complaint shall be filed no later than thirty days from issuance of the certificate of nomination or issuance of the certificate of election to the successful candidate. The party instituting the action shall be known as the contestant, and the party against whom the action is instituted shall be known as the contestee.

B. An action to contest an election alleging an error or omission by an election official shall be brought in the district court of the county where the person bringing the action resides. The complaint shall be filed no later than thirty days from issuance of the certificate of nomination or certificate of election. The party instituting the action shall be known as the contestant and the election official shall be the contestee.

C. The Rules of Civil Procedure apply to all actions commenced under the provisions of this section."

Section 18. Section 1-14-4 NMSA 1978 (being Laws 1969, Chapter 240, Section 337) is amended to read:

"1-14-4. CONTEST OF ELECTION--JUDGMENT--EFFECT--COSTS.--

A. Except as provided in Subsection B of this section, judgment shall be rendered in favor of the party for whom a majority of the legal votes shall be proven to have been cast and shall be to the effect that he is entitled to the office in controversy with all the privileges, powers and emoluments belonging thereto and for his costs. If the contestant prevails, he shall have judgment placing him in possession of the contested office and for the emoluments thereof from the beginning of the term for which he was elected and for his costs.

B. If the court finds that an error or omission has been committed by an election official, the court may:

(1) reject all or a portion of the votes from affected precincts and render an order that the person for whom a majority of the legal votes were cast is entitled to hold the office in controversy; or

(2) reject all of the votes cast in the election and order a special election to decide who is entitled to hold the office in controversy."