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F I S C A L I M P A C T R E P O R T

SPONSOR Duran

ORIGINAL DATE

LAST UPDATED

1/29/08

2/6/08 HB

SHORT TITLE Absentee Voting in Small Precincts

SB 256/aSRC

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB456, Relates to HB191

SOURCES OF INFORMATION

LFC Files

Responses Received From

Association of County Clerks (ACC)

Attorney General’s Office (AGO)

No Responses Received From

Secretary of State (SOS)

SUMMARY

Synopsis of SRC Amendment

The Senate Rules Committee amendment strikes “loses or". In the original bill if a voter lost or

did not receive an absentee ballot, the voter can vote

on an absentee ballot in the office of the county

clerk on election day in lieu of voting on the missing ballot. The amendment no longer specifically

references a lost absentee ballot.

Synopsis of Original Bill

Senate Bill 256 enacts a new section of the Election Code to provide for the designation of an

election precinct as a “mail ballot election precinct" by the Board of County Commissioners

upon the request of the County Clerk if the board finds that the precinct has fewer than fifty

voters and the nearest polling place for an adjoining precinct is more than thirty miles driving

distance from the polling place designated for the precinct in question. The bill would require the

County Clerk to notify voters in that precinct that they will be sent an absentee ballot twenty

Senate Bill 256/aSRC – Page

2

eight days before the election and that there will be no polling place for the precinct on election

day. The voter may “opt out" of receiving an absentee ballot by returning a card to the clerk

notifying the clerk that they do not want to receive an absentee ballot.

The clerk must notify voters that a voting system equipped for persons with disabilities will be

available at all early voting sites before election day and in the office of the county clerk on

election day in case the voter prefers to vote in person and not by mail.

The county clerk must keep a sufficient number of ballots for voters who lose or do not receive

an absentee ballot before election day, so that the voter may vote on an absentee ballot in the

office of the county clerk on election day in lieu of voting using the “missing" ballot.

The bill also amends current sections of the Election Code governing precinct polling places, to

exempt mail ballot election precincts.

FISCAL IMPLICATIONS

The Association of County Clerks expresses concern that this is an unfunded mandate and loss of

ballots can become problematic and expensive, as there is potential to under-order ballots to be

able to replace lost ballots.

SIGNIFICANT ISSUES

The Attorney General’s Office identified several concerns with mail ballots in New Mexico.

First, the legislature has limited its use. See

NMSA 1978, Section 1-23-7 “Mail ballot elections

shall be used exclusively for voting in those elections specified in Section 1-23-3 and shall not be

used in connection with elections at which candidates are nominated for or elected to office."

Second, the bill could be construed as only requiring the clerk to provide early and election day

in-person voting via voting machine to persons with disabilities, and in-person voting via

absentee ballot on election day for persons who have lost or who have not received their absentee

ballots by mail, and whose ballots are therefore considered to be “missing". In-person voting by

machine on election day does not appear to be available to other voters who “opt-out" of mail-in

voting. Not requiring that all voters cast their votes by mail, or failing to provide voting

machines for all voters who do not wish to vote by mail, could result in confusion and litigation.

PERFORMANCE IMPLICATIONS

The bill requires the County Clerks office send registered mail before each election. The

Association of County Clerks notes that currently no forms in place to accomplish this and the

bill offers no direction as to whose responsibility it is to create these forms ie: notification of no

polling place/voter declining to receive mailed ballot. Usual process is SOS creates forms to

meet statewide standards.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Duplicates HB456. Relates to House Bill 191, which provides for automatic mailing of absentee

ballots for those voters on a permanent early voting list.

Senate Bill 256/aSRC – Page

3

TECHNICAL ISSUES

According to the AGO, the requirement that voters be notified that “there will be no polling

place for the precinct on election day" is not technically accurate, as certain voters would in fact

be allowed to vote in person at the County Clerk’s office on election day.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Current law will govern voting in all precincts in New Mexico.

EO/mt