New Mexico Glossary

1-4-30. Cancellation of registration; voter's request.

A.  The county clerk shall cancel a certificate of registration upon the request of a voter only for the following reasons:

(1)       when the voter changes the voter's registered residence address to another county within the state;

(2)       when the voter moves to another state; and

(3)       upon the written request of the voter.

B.  A written request by a voter to cancel the voter's registration shall be in writing and subscribed before a registration officer or a person authorized to administer oaths or on a form prescribed by the secretary of state.

C.  The voter's certificate of registration shall be deemed canceled upon receipt by the county clerk of the request when the request is for the reasons specified in Subsection A of this section.

History: 1953 Comp., § 3-4-28, enacted by Laws 1969, ch. 240, § 86; 1975, ch. 255, § 48; 1993, ch. 314, § 26; 1993, ch. 316, § 26; 2011, ch. 137, § 37.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, permitted county clerks to cancel a voter’s registration upon the written request of the voter.

The 1993 amendment, effective June 18, 1993, substituted "a certificate" for "an affidavit" in Subsection A; deleted "affidavit of" preceding the first occurrence of "registration" and made a minor stylistic change in Subsection B; deleted "affidavit of" preceding both occurrences of "registration" in Subsection C; and, in Subsection D, substituted "certificate" for "affidavit" and corrected a misspelling of "canceled".

1-4-32. Cancellation of registration; duties of county clerk; retention of records.

A.  When a registration is canceled, the county clerk shall remove, endorse and file the original certificate of registration according to procedures prescribed by the secretary of state.

B.  Canceled original certificates of registration along with any written application of the voter for cancellation or other pertinent orders or certificates shall be retained for six years and then may be destroyed; provided that such records may be destroyed prior to the expiration of the six-year period with the approval of the state records administrator and upon their being properly microfilmed and stored.

History: 1953 Comp., § 3-4-30, enacted by Laws 1969, ch. 240, § 88; 1975, ch. 255, § 50; 1979, ch. 24, § 5; 1987, ch. 249, § 12; 1993, ch. 314, § 28; 1993, ch. 316, § 28.

ANNOTATIONS

1993 amendments. — Identical amendments to this section were enacted by Laws 1993, ch. 314, § 28 and Laws 1993, ch. 316, § 28, both effective June 18, 1993, and both approved April 8, 1993, which deleted "an affidavit of" and made a related stylistic change in Subsection A, and substituted "certificate" for "affidavit" in Subsection A and "certificates" for "affidavits" near the beginning of Subsection B. The section was set out as amended by Laws 1993, ch. 316, § 28. See 12-1-8 NMSA 1978.

1-1-3.1. Election cycle.

Except as otherwise provided, as used in the Election Code:

A.  "election cycle" means the period beginning on January 1 after the last general election and ending on December 31 after the general election;

B.  "general election cycle" means the period beginning on the day after the primary election and ending on December 31 after the general election; and

C.  "primary election cycle" means the period beginning on January 1 after the last general election and ending on the day of the primary election.

History: Laws 2003, ch. 356, § 1; 2011, ch. 137, § 4; 2019, ch. 262, § 3.

ANNOTATIONS

The 2019 amendment, effective July 1, 2019, revised the definition of "election cycle" as used in the Election Code; in Subsection A, after "beginning on", deleted "the day" and added "January 1", and after "ending on", deleted "the day of" and added "December 31 after"; in Subsection B, after "ending on", deleted "the day of" and added "December 31 after"; and in Subsection C, after "beginning on", deleted "the day" and added "January 1".

Temporary provisions. — Laws 2019, ch. 262, § 16 provided that the secretary of state, in consultation with the attorney general, shall promulgate rules to implement the amendatory provisions of this act by August 1, 2019.

The 2011 amendment, effective July 1, 2011, redefined "election cycle" and added definitions of "general election cycle" and "primary election cycle".

1-1-4. Qualified elector.

A.  As used in the Election Code and rules promulgated by the secretary of state, "qualified elector" means any resident of this state who is qualified to vote under the provisions of the constitution of New Mexico and the constitution of the United States and includes any qualified resident.

B.  As used in all other statutes and rules of New Mexico, unless otherwise defined, "qualified elector" means a "voter" as that term is defined in Section 1-1-5 NMSA 1978.

History: 1953 Comp., § 3-1-4, enacted by Laws 1969, ch. 240, § 4; 1975, ch. 255, § 2; 2011, ch. 137, § 5; 2019, ch. 212, § 2.

ANNOTATIONS

Cross references. — For qualifications of voters, see N.M. Const., art. VII, § 1.

For voting age unaffected by general lowering of age of majority to 18, see 28-6-1 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the definition of "qualified elector" as used in the Election Code; in Subsection A, added "and rules promulgated by the secretary of state", and after "United States", added "and includes any qualified resident"; and added Subsection B.

The 2011 amendment, effective July 1, 2011, defined "qualified elector" as a resident of New Mexico.

Compiler's notes. — A three-judge federal district court sitting in Trujillo v. Garley, U.S. Dist. Ct., Civ. A. No. 1353, entered a declaratory judgment on August 11, 1948, that Indians in New Mexico are entitled to vote, the former provisions of the New Mexico constitution to the contrary notwithstanding. The case was not appealed.

Qualification of grand juror. — Grand juror did not have to be a properly registered voter to be a qualified elector, for purposes of sitting on the grand jury. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86.

A juror has only to meet the requirements of N.M. Const., art. VII, § 1 to be a qualified elector under 38-5-1 NMSA 1978, and therefore to be qualified to serve as a grand juror. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Women's suffrage amendment to federal or state constitution as affecting pre-existing constitutional or statutory provisions which limited rights or duties to legal or male voters, 71 A.L.R. 1332, 157 A.L.R. 461.

Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

29 C.J.S. Elections § 1(7).

1-1-4.1. Federal qualified elector.

As used in the Election Code, "federal qualified elector" means:

A.  a uniformed-service voter; or

B.  an overseas voter.

History: Laws 2015, ch. 145, § 1.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 1 effective July 1, 2015.

1-1-5. Voter.

As used in the Election Code, "voter" means any qualified elector or federal qualified elector who is registered to vote under the provisions of the Election Code.

History: 1953 Comp., § 3-1-5, enacted by Laws 1969, ch. 240, § 5; 2011, ch. 137, § 6; 2015, ch. 145, § 4; 2019, ch. 212, § 3.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, revised the definition of "voter" as used in the Election Code; and after "registered", added "to vote".

The 2015 amendment, effective July 1, 2015, removed the specific reference to overseas voter, the meaning of which is included in the definition of federal qualified elector; after "any qualified elector", added "or", and after "federal qualified elector", deleted "or overseas voter".

The 2011 amendment, effective July 1, 2011, included federal qualified voters and overseas voter in the definition of "voter".

Qualification of grand juror. — Grand juror did not have to be a properly registered voter to be a qualified elector, for purposes of sitting on the grand jury. State v. Chama Land & Cattle Co., 1990-NMCA-129, 111 N.M. 317, 805 P.2d 86.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Incompetents: voting rights of persons mentally incapacitated, 80 A.L.R.3d 1116.

29 C.J.S. Elections § 1(8).

1-1-5.1. Early voter.

As used in the Election Code [Chapter 1 NMSA 1978], "early voter" means a voter who votes in person before election day, and not by mail.

History: Laws 2003, ch. 357, § 7.

ANNOTATIONS

Effective dates. — Laws 2003, ch. 357 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2003, 90 days after adjournment of the legislature.

1-1-5.2. Definition of a vote; machine-tabulated; hand-tallied; write-in.

A.  For a paper ballot that is machine-tabulated on a vote tabulation system certified for use in this state, a vote shall be counted if the:

(1)       voter's selection of a candidate or answer to a ballot question is indicated in the voting response area of the paper ballot; and

(2)       ballot is marked in accordance with the instructions for that ballot type.

B.  For a paper ballot that is hand-tallied, a vote shall be counted if:

(1)       the ballot is marked in accordance with the instructions for that ballot type;

(2)       the preferred candidate's name or answer to a ballot question is circled;

(3)       there is a distinct marking, such as a cross or check, within the voting response area for the preferred candidate or answer to a ballot question; or

(4)       the presiding judge and election judges hand-tallying the ballot unanimously agree that the voter's intent is clearly discernable.

C.  For a paper ballot that is machine-tabulated or hand-tallied and that contains a write-in vote, the write-in vote shall be counted if the name is:

(1)       the name of a declared write-in candidate for that office and position and is on the proper line provided for a write-in vote for that office and position; and

(2)       written as first and last name; first name, middle name or initial and last name; one or two initials and last name; or last name alone if there is no other declared write-in candidate for the office or position that is the same or so similar as to tend to confuse the candidates' identities; provided that:

(a) when the presiding judge and election judges reviewing the write-in vote unanimously agree that the voter's intent is clearly discernable, an abbreviation, misspelling or other minor variation in the form of the name of a declared write-in candidate shall be accepted as a valid vote; and

(b) as used in this subsection, "write-in" and "written" do not include the imprinting of any name by stamp or similar method or device or the use of a stencil or a preprinted sticker or label.

History: Laws 2003, ch. 356, § 9; 2005, ch. 270, § 58; 2007, ch. 337, § 11; § 1-9-4.2 NMSA 1978, recompiled as § 1-1-5.2 NMSA 1978 by Laws 2010, ch. 28, § 21; 2019, ch. 212, § 4.  

ANNOTATIONS

Recompilations. — Laws 2010, ch. 28, § 21 recompiled former 1-9-4.2 NMSA 1978 as 1-1-5.2 NMSA 1978, effective March 3, 2010.

The 2019 amendment, effective April 3, 2019, revised the definition of a vote; in the section heading, deleted "counting of", and added "machine-tabulated", and deleted "ballots" and added "write-in"; in Subsection A, deleted "A vote for" and added "For", deleted "used on an electronic vote tabulating system, optical scan vote tabulating system or high-speed central count vote tabulator consists of a" and added "that is machine-tabulated on a vote tabulation system certified for use in this state, a vote shall be counted if the", added paragraph designations "(1)" and "(2)", and in Paragraph A(2), added "ballot is"; in Subsection B, Paragraph B(3), after "there is a", added "distinct marking, such as a", and in Paragraph B(4), after "judges", deleted "for the precinct" and added "hand-tallying the ballot"; and added Subsection C.

Hand-tallied ballots. — This section, as implemented by the regulations of the secretary of state which lay out detailed guidelines for determining what kinds of ballot marks should and should not constitute a legal vote along with graphical examples of ballots with unconventional markings, accompanied by rules about how to interpret such marks, is constitutional on its face. State of N.M. ex rel. League of Women Voters v. Herrera, 2009-NMSC-003, 145 N.M. 563, 203 P.3d 94.

1-1-5.3. Overseas voter.

As used in the Election Code, "overseas voter" means an individual who is a United States citizen, who is outside the United States and who:

A.  is temporarily absent from the individual's residence in this state;

B.  before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state's voter eligibility requirements;

C.  before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state's voter eligibility requirements; or

D.  was born outside the United States, is not otherwise described in this section and, except for a state residency requirement, otherwise satisfies this state's voter eligibility requirements, if:

(1)       the last place where a parent or legal guardian of the individual was, or would have been, eligible to vote before leaving the United States is within this state; and

(2)       the individual has not previously registered to vote in any other state.

History: Laws 2015, ch. 145, § 2.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 2 effective July 1, 2015.

1-1-5.4. Uniformed-service voter.

As used in the Election Code, "uniformed-service voter" means an individual who is a United States citizen, whose voting residence is in this state, who otherwise satisfies this state's voter eligibility requirements and who is:

A.  a member of the active or reserve components of the army, navy, air force, marine corps or coast guard of the United States who is on active duty and who by reason of that active duty is absent from the state;

B.  a member of the merchant marine, the commissioned corps of the public health service, the astronaut program of the national aeronautics and space administration or the commissioned corps of the national oceanic and atmospheric administration of the United States and who by reason of that service is absent from the state;

C.  a member on activated status of the national guard or state militia and who by reason of that active duty is absent from the member's county of residence; or

D.  a spouse or dependent of a member referred to in Subsection A, B or C of this section and who, by reason of active duty or service of the member, is absent from the state; provided the spouse or dependent is an individual recognized as a spouse or dependent by the entity under which the member is serving.

History: Laws 2015, ch. 145, § 3.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 3 effective July 1, 2015.

1-1-5.10. Qualified resident.

As used in the Election Code, "qualified resident" means an individual who is under the age of eighteen and, except for the age requirement, otherwise satisfies the state's voter eligibility requirements as a qualified elector or a federal qualified elector.

History: Laws 2019, ch. 212, § 15.

ANNOTATIONS

Emergency clauses. — Laws 2019, ch. 212, § 286, contained an emergency clause and was approved April 3, 2019.

1-1-5.11. Special election.

As used in the Election Code, "special election" means an election at which only ballot questions are considered and that is held at a time other than a statewide election.

History: Laws 2019, ch. 212, § 16.

ANNOTATIONS

Emergency clauses. — Laws 2019, ch. 212, § 286, contained an emergency clause and was approved April 3, 2019.

1-1-5.12. Statewide election.

As used in the Election Code, "statewide election" means:

A.  a general election;

B.  a political party primary;

C.  a regular local election; or

D.  with respect to the applicable counties and precincts, an election called to fill a vacancy in the office of United States representative.

History: Laws 2019, ch. 212, § 17.

ANNOTATIONS

Emergency clauses. — Laws 2019, ch. 212, § 286, contained an emergency clause and was approved April 3, 2019.

1-1-5.13. United States.

As used in the Election Code, "United States" means the several states and the District of Columbia, but does not mean Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

History: Laws 2019, ch. 212, § 18.

ANNOTATIONS

Emergency clauses. — Laws 2019, ch. 212, § 286, contained an emergency clause and was approved April 3, 2019.

1-1-6. Recheck and recount.

As used in the Election Code [Chapter 1 NMSA 1978]:

A.  "recheck" pertains to electronic vote tabulating systems and means a verification procedure whereby a printout of the electronic record of votes cast in an election is made from each electronic memory device in the electronic vote tabulating system and the results are compared with the results shown on the official returns; and

B.  "recount" pertains to all paper ballots, including absentee ballots, provisional paper ballots, optical scan paper ballots and any other paper ballot and means a verification procedure whereby the voters' selections for an office are retallied and the results compared with the results shown on the official returns.

History: 1953 Comp., § 3-1-5.1, enacted by Laws 1977, ch. 222, § 1; 2005, ch. 270, § 8; 2007, ch. 337, § 3; 2009, ch. 150, § 1.

ANNOTATIONS

The 2009 amendment, effective June 19, 2009, in Subsection B, after "pertains to", deleted "emergency" and added "all"; after "paper ballots", added "including"; deleted "retabulated by feeding the ballots into an electronic vote tabulating system, and the voters’ selections on ballots that cannot be read by the system are counted by hand" and added the word "retallied".

The 2007 amendment, effective July 1, 2007, amended Subsection A to define "recheck" as pertaining to electronic vote tabulating systems; and Subsection B to define "recount" to include a verification procedure whereby voters' selections are retabulated by feeding the ballots into an electronic vote tabulating system.

The 2005 amendment, effective July 1, 2005, in Subsection A, changed "voting machines" to "electronic voting systems"; deleted the former provision that "recheck" means a verification procedure where the center counter compartment door of the voting machine is opened; provided that "recheck" means the verification procedure where a printout of the electronic records of votes cast in an election is made from each electronic memory device in the electronic voting system; deleted the former provision that the results of the balloting as shown on the counters of the machine are compared with the official returns; and in Subsection B, defined "recount" to include provisional paper ballots, optical scan paper ballots, voter verifiable and auditable paper ballots, paper ballots printed by electronic voting systems and any other paper ballot; deleted the former provision that "recount" means a retabulation and retallying of individual ballots; and defined "recount" to mean a verification procedure whereby the voters' selection on the paper ballot may be counted by hand and the results compared to the official returns.

Examination of write-in scrolls constitutes a "recheck," and is covered by 1-14-14 NMSA 1978. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.

1-1-7. Residence; rules for determining.

For the purpose of determining residence for voting, the place of residence is governed by the following rules:

A.  the residence of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return;

B.  the place where a person's family resides is presumed to be his place of residence, but a person who takes up or continues his abode with the intention of remaining at a place other than where his family resides is a resident where he abides;

C.  a change of residence is made only by the act of removal joined with the intent to remain in another place. There can be only one residence;

D.  a person does not gain or lose residence solely by reason of his presence or absence while employed in the service of the United States or of this state, or while a student at an institution of learning, or while kept in an institution at public expense, or while confined in a public prison or while residing upon an Indian or military reservation;

E.  no member of the armed forces of the United States, his spouse or his dependent is a resident of this state solely by reason of being stationed in this state;

F.   a person does not lose his residence if he leaves his home and goes to another country, state or place within this state for temporary purposes only and with the intention of returning;

G.  a person does not gain a residence in a place to which he comes for temporary purposes only;

H.  a person loses his residence in this state if he votes in another state in an election requiring residence in that state, and has not upon his return regained his residence in this state under the provisions of the constitution of New Mexico;

I.    "residence" is computed by not including the day on which the person's residence commences and by including the day of the election;

J.   a person does not acquire or lose residence by marriage only.

History: 1953 Comp., § 3-1-6, enacted by Laws 1969, ch. 240, § 6; 1973, ch. 70, § 1.

ANNOTATIONS

Cross references. — For residence not acquired or lost by presence or absence in federal or state service or as student, see N.M. Const., art. VII, § 4.

Establishing physical presence. — Under Subsections C and H of this section, a person who does not have a sufficient physical presence in a place to qualify that place as an abode or a habitation (i.e., as a place where the person lives or resides, even if only part-time) must establish such a physical presence in the place - that is, he must "remove" to the place - before his voting residence can be changed to that place. Klumker v. Van Allred, 1991-NMSC-045, 112 N.M. 42, 811 P.2d 75.

Loss of residence status. — A person who physically leaves the county where he has resided and then votes or qualifies to vote outside that county loses his residence in that county for voting purposes. Klumker v. Van Allred, 1991-NMSC-045, 112 N.M. 42, 811 P.2d 75.

Multiple residences not precluded. — This section and 1-1-7.1 NMSA 1978 merely codify the supreme court's pronouncement in State ex rel. Magee v. Williams, 1953-NMSC-082, 57 N.M. 588, 261 P.2d 131, and do not preclude the possibility of multiple residences. Apodaca v. Chavez, 1990-NMSC-028, 109 N.M. 610, 788 P.2d 366.

Family home as permanent residence. — Political candidate's Santa Fe county family home remained his permanent residence, even though he maintained a home in Rio Arriba county where he resided with his wife and two children. Apodaca v. Chavez, 1990-NMSC-028, 109 N.M. 610, 788 P.2d 366.

Circumstantial evidence of intent to reside sufficient. — It is obviously difficult to prove an intent to reside by direct evidence. Circumstantial evidence of intent is sufficient if it can be said that it amounts to substantial evidence. State ex rel. Huning v. Los Chavez Zoning Comm'n., 1982-NMSC-024, 97 N.M. 472, 641 P.2d 503, rev’g 1979-NMSC-088, 93 N.M. 655, 604 P.2d 121.

Change of residence is accomplished only by the act of moving to another place coupled with the intent to remain in the other place. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Residence for voting similar to residence for jury service. — There is a similarity between residence for the purpose of voting and residence for the purpose of serving as a juror. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Right of Indian to vote. — There is nothing in the constitution or the statutes which prohibits an Indian from voting in a proper election, provided he fulfills the statutory requirements required of any other voter. Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

Reservation deemed residence for voting purposes. — A reservation lying within geographic boundaries of the state is a part of the state, and residence for voting purposes, within the meaning of the constitution, follows. Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

Polling places may be placed on reservations. — Inasmuch as there is residence on a reservation for voting purposes, there is no prohibition to the location of polling places thereon. Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

Vote cast outside residence of voter is void; it must be cast in person in the precinct in which the voter has resided for the preceding 30 days. State ex rel. Bd. of Cnty. Comm'rs v. Board of Cnty. Comm'rs, 1954-NMSC-124, 59 N.M. 9, 277 P.2d 960; Arledge v. Mabry, 1948-NMSC-047, 52 N.M. 303, 197 P.2d 884.

Franchise cannot be conferred on nonresident. — Former statute purporting to make residents living on condemned lands residents of New Mexico in the constitutional sense did not aid person living on condemned lands at Los Alamos project, since legislature could not constitutionally confer the elective franchise on persons whose legal status was that of a nonresident. Arledge v. Mabry, 1948-NMSC-047, 52 N.M. 303, 197 P.2d 884.

Candidate to file in district where he resides. — In order for a candidate for county commission or state representative to qualify for those offices, he must file in the district where he resides. 1966 Op. Att'y Gen. No. 66-30.

Change of residence by candidate. — In order to run in a certain district, a candidate can change his residency at any time up to the filing date, so long as the legislative district is in the same county. 1966 Op. Att'y Gen. No. 66-30.

Those residing on former public domain land may exercise elective franchise in both state and federal elections, since the state retained jurisdiction over the area not inconsistent with federal use. 1964 Op. Att'y Gen. No. 64-123.

No residence on purchased without consent of state. — Those people residing on land obtained by the United States through the constitutional method may not establish their residency so as to become electors; those residing on lands obtained by purchase without obtaining the consent of the state are in a similar position. 1964 Op. Att'y Gen. No. 64-123.

Establishing residence. — "Residence" for voting and election purposes is established initially by actual residence and intent to make that place a home. After "residence" is thus established, the person may move elsewhere, and if he intends to return, his "residence" for voting and election purposes remains as established. 1956 Op. Att'y Gen. No. 56-6445.

For those residing upon lands within military installations which formerly were part of public domain, "residence" for voting purposes could be established thereon. The reasoning behind this conclusion is that the state of New Mexico, as to these lands, exercised concurrent jurisdiction with the federal government even though title was held by the federal government. 1956 Op. Att'y Gen. No. 56-6425.

Term "residence" has been defined as being synonymous with home or domicile denoting the permanent dwelling place to which a party, when absent, intends to return and also as "that place wherein he legally resides and has his domicile and from which, when temporarily absent, he intends to return." 1956 Op. Att'y Gen. No. 55-6208.

No residence for those on lands over which federal government has control. — On any lands over which the United States government has acquired exclusive control, except for the purpose of service of civil and criminal process, no residence can be acquired for the purpose of voting. 1953 Op. Att'y Gen. No. 53-5841.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 163 et seq.

Significance of place where one votes or registers to vote on question as to his domicile or residence for other purposes, 107 A.L.R. 448.

Residence or inhabitancy within district or other political unit for which he is elected or appointed as a necessary qualification of officer or candidate, in absence of express provision to the effect, 120 A.L.R. 672.

Military service, voting by persons in, 140 A.L.R. 1100, 147 A.L.R. 1443, 148 A.L.R. 1402, 149 A.L.R. 1466, 150 A.L.R. 1460, 151 A.L.R. 1464, 152 A.L.R. 1459, 153 A.L.R. 1434, 154 A.L.R. 1459, 155 A.L.R. 1459.

Domicile or residence of person in the armed forces, 149 A.L.R. 1471, 150 A.L.R. 1468, 151 A.L.R. 1468, 152 A.L.R. 1471, 153 A.L.R. 1442, 155 A.L.R. 1466, 156 A.L.R. 1465, 157 A.L.R. 1462, 158 A.L.R. 1474.

State voting rights of residents of federal military establishment, 34 A.L.R.2d 1193.

Absentee voters' laws: validity of, 97 A.L.R.2d 218.

Absentee voters' laws: construction and effect of, 97 A.L.R.2d 257.

Residence or domicile of student or teacher for purpose of voting, 98 A.L.R.2d 488, 44 A.L.R.3d 797.

29 C.J.S. Elections §§ 19 to 25.

1-1-19. Elections covered by code.

A.  The Election Code applies to the following:

(1)       general elections;

(2)       primary elections;

(3)       special elections;

(4)       elections to fill vacancies in the office of United States representative;

(5)       local elections included in the Local Election Act; and

(6)       recall elections of county officers, school board members or applicable municipal officers.

B.  To the extent procedures are incorporated or adopted by reference by separate laws governing such elections or to the extent procedures are not specified by such laws, certain provisions of the Election Code shall also apply to special district elections not covered by the Local Election Act [Chapter 1, Article 22 NMSA 1978].

History: 1953 Comp., § 3-1-18, enacted by Laws 1969, ch. 240, § 19; 1975, ch. 255, § 6; 1977, ch. 222, § 4; 1985, ch. 168, § 1; 2018, ch. 79, § 1.

ANNOTATIONS

Cross references. — For primary elections, see 1-8-10 to 1-8-44 NMSA 1978.

For election of representative in congress, see 1-15-17 NMSA 1978.

For school district elections, see 1-22-1 NMSA 1978 et seq.

For municipal elections, see 3-8-1 NMSA 1978.

The 2018 amendment, effective July 1, 2018, added certain recall elections to the list of elections covered by the Election Code, and made conforming changes as a result of the enactment of the Local Election Act; in Subsection A, Paragraph A(3), deleted "statewide" preceding "special elections", in Paragraph A(4), after "in the office of", added "United States", after "representative", deleted "in congress; and", in Paragraph A(5), deleted "school district" and added "local", and after "elections", added "included in the Local Election Act; and", and added Paragraph A(6); and in Subsection B, deleted former Paragraph B(1) and paragraph designation "(2)", after "shall also apply to", added "special district officer or special district bond or other", and after "special district elections", added "not covered by the Local Election Act".

Application of the Election Code to public improvement district formation elections. — The Election Code’s thirty-day limitation period for filing a complaint to contest an election applies to a public improvement district formation election under the Public Improvement District Act. Glaser v. LeBus, 2012-NMSC-012, 276 P.3d 959.

Where the petitioners filed a complaint to contest an election to form a public improvement district under the Public Improvement District Act thirteen months after the election, the action was barred by the thirty-day limitation for filing a complaint to contest an election under the Election Code. Glaser v. LeBus, 2012-NMSC-012, 276 P.3d 959.

Scope of section. — County official recall elections are not listed in this section. Sparks v. Graves, 2006-NMCA-030, 139 N.M. 143, 130 P.3d 204.

Write-in candidates in conservancy district elections. — Conservancy district board rule prohibiting write-in candidates for election to the board is invalid as contrary to the legislative intent expressed by this section, making the Election Code, Chapter 1, NMSA 1978, applicable to special district elections and to the constitutional mandate in N.M. Const., art. II, § 8 of "free and open" elections. Gonzales v. Middle Rio Grande Conservancy Dist., 1987-NMCA-125, 106 N.M. 426, 744 P.2d 554.

Public improvement district formation elections. — The formation election provisions of the Public Improvement District Act incorporate the election contest procedures of the Election Code. Glaser v. LeBus, 2012-NMCA-028, 274 P.3d 114.

Special school bond election is not "special election" or "municipal election" within statutes so that the word "election" should apply to all special and municipal elections and so that no person should vote in any special or municipal election unless registered, and voters otherwise qualified were entitled to vote in special school bond election, although not registered. Johnston v. Board of Educ., 1958-NMSC-141, 65 N.M. 147, 333 P.2d 1051.

Words "general election," used in act providing for method of changing name of a municipality, contemplated the biennial election for choosing state and county officials and national representatives in congress. Benson v. Williams, 1952-NMSC-074, 56 N.M. 560, 246 P.2d 1046.

Elections for board of directors of conservancy district. — A person cannot stand for election for the board of directors of the Middle Rio Grande Conservancy District if that person resides in a county in which part of the district is located but outside the district itself. 1988 Op. Att'y Gen. No. 88-34.

ANNOTATIONS

Cross references. — For secretary of state prescribing form of precinct board member's oath, see 1-11-16 NMSA 1978.

The 2019 amendment, effective April 3, 2019, replaced "precinct board" with "election board" throughout the section.

The 2011 amendment, effective July 1, 2011, required members of precinct boards to be voters of the county in which they serve; prohibited the appointment of a person who is married to a person related to a candidate to be voted for at the election or who is the parent of the spouse of a candidate; and permitted the appointment of minors only to the precinct board in the county in which the minor’s parents or legal guardian reside.

The 2010 amendment, effective May 19, 2010, in the catchline, added "qualification of minors"; in Subsection A(3), after "capacity to carry out", deleted "his" and added "a precinct board member’s"; and added Subsections D and E.

The 2005 amendment, effective July 1, 2005, added Subsection B to provide that a person shall receive training and be certified before serving as a presiding judge of a precinct board.

Oath of precinct official. — Former Election Code provision, as amended, dealing with oath of precinct election officials merely required that each group of officials certify that they had and would discharge the duties of their respective offices faithfully and impartially. Seele v. Smith, 1947-NMSC-068, 51 N.M. 484, 188 P.2d 337.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 90.

29 C.J.S. Elections § 61.

1-2-9. Election board; standby list.

A.  Not less than twenty-one days prior to the date for appointing members of election boards, the county clerk shall publish a notice once in a newspaper of general circulation to the effect that election boards are to be appointed for the specified number of precincts, stating the number of persons composing each board and that applications for the standby list will be accepted at the county clerk's office.

B.  The county clerk shall then compile from the individual applicants a standby list of election board members.  The persons on the standby list shall have the same qualifications and comply with the same requirements as provided for election board members.

History: 1953 Comp., § 3-2-9.1, enacted by Laws 1975, ch. 255, § 15; 1991, ch. 105, § 3; 2019, ch. 212, § 21.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "precinct board" with "election board" throughout the section.

The 1991 amendment, effective April 2, 1991, in Subsection A, deleted "and alternates" following "precinct boards" in two places and deleted "and the number of alternates for each board" following "composing each board" near the end of the subsection.

1-2-11. Election board; assignment.

Wherever possible, the county clerk shall assign persons appointed as election board members to serve in precincts wherein they reside or in precincts located in the representative district wherein they reside.  In the event of a shortage or absence of election board members in certain precincts, the county clerk may, in the best interest of the election process, assign appointed election board members to serve on any election board in the county; provided that such appointed board members shall not change the proportionate representation of each party on the board.

History: 1953 Comp., § 3-2-10.1, enacted by Laws 1977, ch. 222, § 5; 2011, ch. 137, § 15; 2019, ch. 212, § 22.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "precinct board" with "election board" throughout the section.

The 2011 amendment, effective July 1, 2011, made stylistic changes.

1-2-12. Election board; positions on each board.

A.  Each election board shall consist of:

(1)       a presiding judge;

(2)       two election judges; and

(3)       election clerks who are appointed to assist the presiding judge and election judges.

B.  The county clerk shall appoint presiding judges and election judges so that not more than two of the three judges belong to the same political party at the time of their appointment; provided that:

(1)       a judge of an election board shall not have changed party registration in the two years next preceding the judge's appointment in such a manner that the judge's prior party registration would make the judge ineligible to serve on the assigned election board; and

(2)       a judge of an election board shall not continue to serve on an election board if the judge changes party registration after the date of appointment in such a manner to make the judge ineligible to serve on the assigned election board.

C.  The county clerk may appoint teams of presiding judges and election judges for alternate voting locations, absent voter precincts, recounts and special elections; provided that each team meets the requirements of Subsection B of this section.

D.  The county clerk may appoint election clerks to the election board as necessary to assist the presiding judge and election judges if the county clerk determines that additional election board members are needed.

E.  County clerk employees may be assigned by the county clerk to provide support to an election board or polling location.

History: 1953 Comp., § 3-2-11, enacted by Laws 1969, ch. 240, § 32; 1975, ch. 255, § 17; 1981, ch. 159, § 3; 1985, ch. 160, § 1; 1991, ch. 105, § 4; 1993, ch. 314, § 4; 1993, ch. 316, § 4; 1995, ch. 124, § 2; 2009, ch. 150, § 2; 2011, ch. 137, § 16; 2015, ch. 145, § 9; 2019, ch. 212, § 23.

ANNOTATIONS

Cross references. — For appointment of precinct board, see 1-2-6 NMSA 1978.

For qualification of board members, see 1-2-7 NMSA 1978.

The 2019 amendment, effective April 3, 2019, changed the name of "precinct board" to "election board", and revised the required composition of an election board; replaced "precinct board" with "election board" throughout the section; in the section heading, deleted "number for each precinct" and added "positions on each board"; in Subsection A, in the introductory clause, deleted "For primary, general and special federal elections, the precinct" and added "Each election", in Paragraph A(3), deleted "one" preceding "election", and after "election", deleted "clerk" and added "clerks who are appointed to assist the presiding judge and election judges"; in Subsection B, in the introductory clause, after "county clerk", deleted "in appointing precinct boards for primary, general and special federal elections", deleted paragraph designations "(1)" and "(2)", and after "election judges so that", deleted "at least one election judge shall not be of the same political party, if any, as the presiding judge; and" and added "not more than two of the three judges belong to the same political party at the time of their appointment; provided that:", and added Paragraphs B(1) and B(2); in Subsection C, added "The county clerk", after "election for judges for", added "alternate voting locations", after "voter precincts", deleted "recount precinct boards" and added "recounts", after the next occurrence of "and", deleted "alternate voting locations" and added "special elections", after "meets the requirements", deleted "pursuant to Paragraph (1) of this subsection" and added "of Subsection B of this section"; deleted former Subsection C; in Subsection D, after the subsection designation, deleted "If", after "county clerk", added "may appoint election clerks to the election board as necessary to assist the presiding judge and election judges if the county clerk", after "additional election", deleted "clerks" and added "board members", and after "are needed", deleted "the clerk may appoint such additional election clerks as the clerk deems necessary"; and in Subsection E, after "employees may be", deleted "appointed to assist a precinct board" and added "assigned by the county clerk to provide support to an election board or polling location".

The 2015 amendment, effective July 1, 2015, authorized the county clerk to appoint teams of presiding judges and election judges for recount precinct boards and authorized the county clerk to appoint county clerk employees to assist a precinct board; in Paragraph (2) of Subsection B, after "voter precincts", added "recount precinct boards"; and added Subsection E.

The 2011 amendment, effective July 1, 2011, provided the method for appointing presiding judges and election judges and eliminated the authority of election clerks to appoint additional election clerks.

The 2009 amendment, effective June 19, 2009, in Subsection B, deleted "When one voting machine is to be used in a precinct" and added "For primary, general and special federal elections"; in Subsection C, deleted "When two voting machine are to be used in a precinct" and added "For all other elections"; in Paragraph (2) of Subsection C, changed "two" to "one"; deleted "judges who shall be of different political parties" and added "judge"; in Paragraph (3) of Subsection C, changed "two" to "one"; deleted "clerks who shall be of different political parties" and added "clerk"; and deleted Subsection D, which provided for cases in which three voting machines are used.

The 1995 amendment, effective January 1, 1996, substituted "multipartisan" for "bipartisan" in the section heading; and in Subsection A, rewrote Paragraphs (2) and (3) and added Paragraph (4).

The 1993 amendment, made a minor stylistic change in Subsection E and substituted "certificate" for "affidavit" in Subsection F.

The 1991 amendment, effective April 2, 1991, deleted former Subsection E which read "Alternates for each precinct board shall be selected in the same proportion as precinct board members"; redesignated former Subsections F and G as Subsections E and F; and made a minor stylistic change in Subsection E.

County commissioners as election judges unconstitutional. — Former absent voter's law which attempted to constitute board of county commissioners as judges of election was unconstitutional as contrary to N.M. Const., art. VII, § 1, which provides that not more than two judges of election shall belong to same political party at time of their appointment. Thompson v. Scheier, 1936-NMSC-026, 40 N.M. 199, 57 P.2d 293.

Mandamus not granted after election. — Mandamus to revoke the appointment of one judge of election from the republican party and make the appointment from the democratic party would not be granted after the election as the issue had become moot. Board of Comm'rs v. Coors, 1925-NMSC-023, 30 N.M. 482, 239 P. 524.

Election judges have no tenure. — Election judges created for a specific purpose and to perform certain public duties have no definite tenure of office. Territory ex rel. Lester v. Suddith, 1910-NMSC-068, 15 N.M. 728, 110 P. 1038.

Appointment of officials for each precinct. — The appointment of election judges and other election officials for each precinct and election district is contemplated under the primary law. 1944 Op. Att'y Gen. No. 44-4442.

1-2-14. Election boards; notice of appointment.

A.  Immediately after the appointment of the election boards, the county clerk shall:

(1)       make and certify a list of the names of the appointees for each polling location and send a copy of the list to the county chair of each political party participating in a partisan election and to the secretary of state; and

(2)       notify each person appointed, request the person's acceptance and keep a record of all notifications and acceptances.

B.  If any person appointed to an election board fails to accept the appointment within two weeks after the notice was sent or communicated, the county clerk shall appoint another qualified person for the election board.

History: 1953 Comp., § 3-2-13, enacted by Laws 1969, ch. 240, § 34; 1975, ch. 255, § 18; 1991, ch. 105, § 5; 2011, ch. 137, § 17; 2019, ch. 212, § 24.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, changed the name of "precinct board" to "election board", removed a provision requiring the county clerk to post the list of names of appointees to an election board; replaced "precinct board" with "election board" throughout the section; and in Subsection A, Paragraph A(1), after "polling location", deleted "by precinct where applicable, post the list in a conspicuous and accessible place in the county clerk’s office and keep it posted for five days", and after "participating in", deleted "the" and added "a partisan".

The 2011 amendment, effective July 1, 2011, required county clerks to certify a list of appointees for each polling location and to send a copy of the list upon request to the county chair and eliminated the requirement that county clerks send the precinct board a copy of instructions.

The 1991 amendment, effective April 2, 1991, in Subsection A, deleted "and alternates" following "boards" in the introductory phrase and "including alternates" following "names" near the beginning of Paragraph (1) and, in Subsection B, deleted "or as an alternate" following "precinct board" and substituted "appoint another qualified person" for "appoint the alternate member to fill the position in the case of a precinct board member, or another qualified person in the case of a vacancy in the position of alternate".

1-2-15. Election board; vacancies.

A.  If for any cause a member of the election board fails to appear for the assigned duty to which the member was appointed, the remaining board members shall immediately notify the county clerk.

B.  In the event of a vacancy in an election board position by reason of death, removal from the county, disqualification, refusal to serve, failure to appear for an assigned duty or excusal by the county clerk for sufficient cause, the county clerk may appoint a qualified person to fill the vacancy.

C.  No vacancy shall prevent the remaining board members from proceeding to open the polls or otherwise perform their duties for the election in their assigned location.

History: 1978 Comp., § 1-2-15, enacted by Laws 1991, ch. 105, § 6; 2019, ch. 212, § 25.

ANNOTATIONS

Repeals and reenactments. — Laws 1991, ch. 105, § 6 repealed former 1-2-15 NMSA 1978, as enacted by Laws 1969, ch. 240, § 35, relating to precinct board, vacancy on election day, and enacted the above section, effective April 2, 1991.

The 2019 amendment, effective April 3, 2019, changed the name of "precinct board" to "election board", and revised the provisions related to vacancies on an election board; replaced "precinct board" with "election board" throughout the section; in the section heading, deleted "vacancy on election day" and added "vacancies"; in Subsection A, after "member of the", deleted "precinct board is not present on election day at the precinct for which he or she" and added "election board fails to appear for the assigned duty to which the member", after "shall", added "immediately", and after "county clerk", deleted "who shall fill the vacancy"; deleted former Subsection B and added new Subsection B; and in Subsection C, after "No vacancy", deleted "on election day", after "open the polls", deleted "and conducting" and added "or otherwise perform their duties for", and after "assigned", deleted "precinct" and added "location".

1-2-16. Election board; compensation.

A.  Members of an election board shall be compensated for their services at the rate of not less than the federal minimum hourly wage rate nor more than two hundred dollars ($200) for an election day.

B.  Members of an election board assigned to alternate voting or alternate mobile voting locations or absent voter precincts may be compensated at an hourly rate set by the county clerk.

C.  Compensation shall be paid within thirty days following the date of election.

D.  For purposes of determining eligibility for membership in the public employees retirement association and pursuant to the provisions of Subsection B of Section 10-11-3 NMSA 1978, election board members are designated as seasonal employees.

History: 1953 Comp., § 3-2-15, enacted by Laws 1969, ch. 240, § 36; 1975, ch. 255, § 19; 1981, ch. 159, § 4; 1987, ch. 226, § 1; 1987, ch. 249, § 2; 1991, ch. 77, § 1; 1999, ch. 236, § 2; 2001, ch. 44, § 1; 2011, ch. 137, § 18; 2012, ch. 26, § 1;  2019, ch. 212, § 26.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, changed the name of "precinct board" to "election board", and provided for alternate mobile voting locations; replaced "precinct board" with "election board" throughout the section; and in Subsection B, after "alternate voting", added "or alternate mobile voting".

The 2012 amendment, effective March 3, 2012, designated precinct board members as seasonal employees for purposes of eligibility for membership in the public employees retirement association and added Subsection D.

The 2011 amendment, effective July 1, 2011, increased the amount of compensation from one hundred fifty dollars to two hundred dollars and permitted board members assigned to alternate voting locations or absent voter precincts to be compensated at an hourly rate.

The 2001 amendment, effective June 15, 2001, changed the maximum compensation for board members from seven dollars ($7.00) per hour to one hundred fifty dollars ($150) for an election day.

The 1999 amendment, effective June 18, 1999, in Subsection A, substituted "the federal minimum hourly wage rate" for "fifty dollars ($50.00)" and "seven dollars ($7.00) per hour" for "ninety-five dollars ($95.00)".

The 1991 amendment, effective June 14, 1991, in Subsection A, substituted "nor more than ninety-five dollars ($95.00)" for "or more than the per diem rate allowed for members of the legislature".

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 63.

1-2-17. Election board; schools of instruction.

A.  The county clerk shall cause to be held a public school of instruction for all election board members and others who will be officially concerned with the conduct of an election. 

B.  The schools of instruction provided for in this section shall be held following an election board member's appointment and before the member performs assigned duties in an election.

C.  All major details of the conduct of elections shall be covered by the county clerk or the clerk's authorized representative at such school, with special emphasis being given to recent changes in the Election Code.

D.  The school of instruction shall be open to any interested person, and the county clerk shall post notice of the school at least four days before the school is to be held.  Each member of an election board shall be notified at least seven days prior to commencement of the school.

E.  A person shall not serve as a member of an election board in any election unless that person has attended at least one such school of instruction for the election at which the person is appointed to serve and 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.

History: 1953 Comp., § 3-2-16, enacted by Laws 1969, ch. 240, § 37; 1975, ch. 255, § 20; 1977, ch. 222, § 6; 1987, ch. 249, § 3; 1989, ch. 392, § 2; 1991, ch. 105, § 7; 2005, ch. 270, § 13; 2011, ch. 137, § 19;  2019, ch. 212, § 27.

ANNOTATIONS

Cross references. — For election seminars for county clerks, see 1-2-5 NMSA 1978.

The 2019 amendment, effective April 3, 2019, changed the name of "precinct board" to "election board", and revised the provisions related to schools of instruction for members of an election board; replaced "precinct board" with "election board" throughout the section; in Subsection B, after "shall be", deleted "as follows:" and added "held following an election board member’s appointment and before the member performs assigned duties in an election", deleted former Paragraphs B(1) through B(3); in Subsection D, after "interested person, and", added "the county clerk shall post", after "notice of the school", deleted "shall be given to the public press"; and in Subsection E, after "one such school of instruction", deleted "in the calendar year of" and added "for", and after "appointed to serve", deleted "or" and added "and".

The 2011 amendment, effective July 1, 2011, removed the secretary of state as a participant in public schools of instruction and eliminated the secretary of state’s responsibility to cover the details of the conduct of elections.

The 2005 amendment, effective July 1, 2005, in Subsection A, provided that the secretary of state may supervise and the county clerk shall cause to be held a public school of instruction and deleted the former provision in Subsection A that a public school of instruction shall be held in any county with a population of one hundred thousand or more; deleted the former provision of Subsection B, which provided that the county clerk shall hold a public school of instruction for persons concerned with the conduct of elections in any county having a population of less that one hundred thousand; changed three to seven in Subsections B(1) through (3); and provided in Subsection C that all major details of elections shall be covered by the secretary of state of the secretary's authorized representative.

The 1991 amendment, effective April 2, 1991, deleted "alternates for precinct board members" following "precinct boards" in Subsections A and B and made a minor stylistic change in Subsection F.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 90.

29 C.J.S. Elections § 58.

1-2-18. Election board members; identification badges.

At all times on election day while performing their duties, members of the election board shall wear uniform identification badges.  Such badges shall be furnished by the county clerk.  The secretary of state shall prescribe the form and material of such identification badges, which shall include the identification of the election board member's name, title and political party.

History: 1953 Comp., § 3-2-17, enacted by Laws 1969, ch. 240, § 38; 2019, ch. 212, § 28.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "precinct board" with "election board" throughout the section, and after "board member’s", added "name".

1-2-19. Oral assistance for language minority voters.

A.  In those polling places designated by the secretary of state as being subject to the provisions of the 1975 amendments to the federal Voting Rights Act of 1965, oral assistance shall be made available to assist language minority voters who cannot read sufficiently well to exercise the elective franchise. As used in the Election Code [Chapter 1 NMSA 1978], "language minority" means a person who is an 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.

B.  In those precincts where oral assistance is required, the position of election translator is created. The election translator shall be an additional member of the regular precinct board [election board] unless oral assistance to language minorities can otherwise be rendered by a member of the regular precinct board [election board]. The election translator shall be appointed by the county clerk in the same manner as other precinct board [election board] members are appointed, except that the county clerk in appointing American Indian election translators shall seek the advice of the pueblo or tribal officials residing in that county. The election translator shall take the oath required of precinct board [election board] members and shall meet the same qualifications as other precinct board [election board] members. In precincts where election translators are required, an election translator shall represent each political party as required by law for precinct boards [election boards].

C.  Each 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.

D.  Each county clerk shall provide to the secretary of state no later than thirty days before any election a list of appointed election translators and a list of appointed standby election translators, together with the precinct numbers to which each election translator has been appointed.

History: 1953 Comp., § 3-2-17.1, enacted by Laws 1977, ch. 124, § 2; 1989, ch. 392, § 3.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Cross references. — For the 1975 amendments to the federal Voting Rights Act of 1965, see 42 U.S.C. §§ 1973a to 1973d, 1973h, 1973i, 1973k, 1973l, 1973aa, 1973aa-1a, 1973aa-2 to 1973aa-5, 1973bb and 1973bb-1.

1-2-20. Messengers; compensation.

A.  The county clerk may appoint messengers to deliver ballot boxes, poll books, keys, election supplies and other materials pertaining to the election.  Messengers may also be authorized to collect absentee ballots and removable media storage devices from polling places and deliver them to locations designated by the county clerk.

B.  Messengers may be compensated at the same daily or hourly rate as provided for election board members or at a rate established by the county clerk.  Messengers may be paid mileage as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] each way over the usually traveled route when the messenger travels by private vehicle.  The compensation and mileage shall be paid within thirty days following the date of election.

C.  Messengers shall take an oath of office before entering into service as a messenger.  Messengers may be appointed to serve solely in that capacity or may be election board members or county employees also appointed to serve as messengers.

History: 1953 Comp., § 3-2-18, enacted by Laws 1969, ch. 240, § 39; 1973, ch. 4, § 1; 1981, ch. 159, § 5; 2007, ch. 337, § 6; 2015, ch. 145, § 10; 2019, ch. 212, § 29.

ANNOTATIONS

Cross references. — For offenses by messengers, see 1-20-19 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised a provision related to compensating messengers hired to deliver ballot boxes and other materials pertaining to an election, removed the requirement that messengers be paid mileage, and required messengers to take an oath of office; in Subsection B, after the subsection designation added the first sentence, in the second sentence, after "Messengers", deleted "shall" and added "may", after "traveled route", added "when the messenger travels by private vehicle", and after "date of election", deleted "if funds are available for payment"; and added Subsection C.

The 2015 amendment, effective July 1, 2015, provided for messengers, appointed by the count clerk, to collect removable media storage devices from polling places and deliver them as instructed by the county clerk; in Subsection A, after "absentee ballots", added "and removable media storage devices", and after "places and deliver", deleted "those absentee ballots" and added "them".

The 2007 amendment, effective July 1, 2007, provided that messengers may collect absentee ballots from polling places and deliver them to locations designated by the county clerk.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 63.

1-2-21. Challengers; appointment.

A.  The county chair of each political party represented on the ballot in a partisan election may appoint in writing challengers for each polling location.  If more than one challenger is appointed to a polling location, the challengers shall be listed in ranking order.

B.  If any county chair fails to make such appointments or if there is no county chair, the state chair of the political party may in a partisan election appoint in writing one challenger for each polling location in the county.

History: 1953 Comp., § 3-2-19, enacted by Laws 1969, ch. 240, § 40; 1975, ch. 255, § 21; 2011, ch. 137, § 20; 2019, ch. 212, § 30.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, revised the provision related to appointing challengers for each polling location in partisan elections; in Subsection A, after "represented on the ballot", added "in a partisan election"; in Subsection B, after "make such appointments", added "or if there is no county chair", after "political party may", added "in a partisan election" and after "each polling location", deleted "corresponding to the precinct" and added "in the county"; and deleted Subsection C.

The 2011 amendment, effective July 1, 2011, permitted each political party to appoint challengers for each polling location and if more than one challenger is appointed, required that they be listed in ranking order.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 91, 92.

29 C.J.S. Elections §§ 59, 60.

1-2-22. Challengers, watchers and election observers; qualifications; restrictions.

Challengers and watchers shall be voters of a precinct located in that county to which they are appointed. No person shall be qualified for appointment or service as a challenger, watcher or election observer:

A.  who is a candidate for any office to be voted for at the election;

B.  who is a spouse, parent, child, brother or sister of any candidate to be voted for at the election;

C.  who is married to a parent, child, brother or sister of any candidate to be voted for at the election or who is the parent of the spouse of any candidate to be voted for at the election; or

D.  who is a sheriff, deputy sheriff, marshal, deputy marshal or state or municipal police officer.

History: 1953 Comp., § 3-2-20, enacted by Laws 1969, ch. 240, § 41; 1975, ch. 255, § 22; 1987, ch. 249, § 4; 2011, ch. 137, § 21.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, provided criteria that disqualifies challengers, watchers and elections observers from appointment or service.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 90.

29 C.J.S. Elections § 58.

1-2-23. Challengers; permitted activities.

A.  A challenger, upon presentation of the written appointment to the precinct board [election board], shall be permitted to be present at any time from the time the precinct board [election board] convenes at the polling place until the completion of the precinct board's [election board's] duties after the polls close.

B.  A challenger, for the purpose of interposing challenges, may:

(1)       view the signature roster or precinct voter list for the purpose of determining whether the challenger desires to interpose a challenge when a signature roster or precinct voter list is used;

(2)       view the application to vote form before the voter receives a ballot for the purpose of determining whether the challenger desires to interpose a challenge when an application to vote form is used;

(3)       view the signature roster or checklist of voters to determine whether entries are being made in accordance with the Election Code;

(4)       view each voting machine before the polls are opened to ensure that the public counter is at zero, that the results tape contains no votes and that there are no voted ballots in the voting machine bins; and

(5)       make in any polling place and preserve for future reference written memoranda of any action or omission on the part of any member of the precinct board [election board].

History: 1953 Comp., § 3-2-21, enacted by Laws 1969, ch. 240, § 42; 1975, ch. 255, § 23; 2009, ch. 150, § 3; 2011, ch. 137, § 22.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Cross references. — For watchers and precinct board members making memoranda of actions or omissions, see 1-2-29 and 1-12-6 NMSA 1978.

For entries by precinct board, see 1-12-11 NMSA 1978.

For interposing challenges, see 1-12-20 NMSA 1978.

The 2011 amendment, effective July 1, 2011, permitted challengers to view an application to vote form before a voter receives a ballot, the signature roster or checklist of voters, and the voting machine to ensure that no votes have been registered.

The 2009 amendment, effective June 19, 2009, in Paragraph (1) of Subsection B, added "the challenger or alternate challenger"; and in Paragraph (3) of Subsection B, after "envelope and to see", deleted "that all ballot labels are in their proper places and".

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 96, 97.

29 C.J.S. Elections § 55.

1-2-24. Challengers; identification badges.

At all times while they are present in the polling place, challengers shall wear uniform identification badges designating them as authorized challengers of the political party which they represent. They shall not wear any other form of identification, party or candidate pins. The secretary of state shall prescribe the form and materials of such badges and such badges shall be furnished to the challengers by the presiding judge upon presentation of their written appointments.

History: 1953 Comp., § 3-2-22, enacted by Laws 1969, ch. 240, § 43.

1-2-25. Challengers, watchers, county canvass observers; permitted and prohibited activities.

A.  Challengers, watchers and county canvass observers shall:

(1)       not be permitted to perform any duty of an election board member;

(2)       not handle the ballots, signature rosters, checklist of voters or voting machines or take any part in the counting or tallying of the ballots or the county canvass;

(3)       not be allowed to view a voter's full date of birth or any portion of the voter's social security number;

(4)       not interfere with the orderly conduct of the election, the counting or tallying of the ballots or the county canvass;

(5)       be allowed in the room in which the voting is being conducted at a polling location; provided that at any given time, each political party, candidate or election-related organization may have no more than one person present; and

(6)       be allowed in the room in which the absent voter election board, the recount election board or the election board for a special election conducts its business or, in the case of county canvass observers, in which the county canvass is conducted; provided that each political party, candidate or election-related organization shall have no more than:

(a) two persons present at any given time in counties with more than ten thousand registered voters;

(b) four persons present at any given time in counties with more than fifty thousand registered voters; or

(c)  fifteen persons present at any given time in counties with more than one hundred fifty thousand registered voters.

B.  Subject to permission granted by the county clerk, additional challengers may be present in the room in which the absent voter election board, the recount election board or the election board for a special election conducts its business in a partisan election; provided that the number of additional challengers allowed pursuant to this subsection is identical for each political party participating in the election.

History: 1953 Comp., § 3-2-23, enacted by Laws 1969, ch. 240, § 44; 1975, ch. 255, § 24; 2011, ch. 137, § 23; 2019, ch. 212, § 31.

ANNOTATIONS

Cross references. — For disturbing polling place prohibited, see 1-20-20 NMSA 1978.

The 2019 amendment, effective April 3, 2019, changed the name of "precinct board" to "election board", permitted challengers, watchers and county canvass observers to be in the room in which a recount election board or an election board for a special election conducts its business, and changed which counties are entitled to have up to fifteen challengers, watchers or county canvass observers; replaced "precinct board" with "election board" throughout the section; in Subsection A, in Paragraph A(6), in the introductory clause, after "absent voter election board,", added "the recount election board or the election board for a special election", and in Subparagraph A(6)(c), after "more than", deleted "two" and added "one"; and in Subsection B, after "voter election board,", added "the recount election board or the election board for a special election", and after "conduct its business", added "in a partisan election".

The 2011 amendment, effective July 1, 2011, prohibited challengers, watchers and county canvass observers from handling the voter checklist, tallying ballots or the county canvass, from viewing voters’ dates of birth and social security numbers, and from interfering with the election, the counting or tallying of ballots or the county canvass; permitted challengers, watchers and county canvass observers to be present when the voting is being conducted and when the absent voter precinct board conducts business, subject to certain specified restrictions; and permitted county clerks to allow additional challengers to be present when the absent voter precinct board conducts business.

1-2-26. Challengers; penalty.

The act of denying a challenger, who has presented a written appointment to the precinct board [election board] and who is not interfering with the orderly conduct of the election, the right to be present at the polling place, or denying a challenger the right to challenge voters and view the signature rosters or checklist of voters or denying a challenger the right to witness the precinct board [election board] in the conduct of its duties is a petty misdemeanor.

History: 1953 Comp., § 3-2-24, enacted by Laws 1969, ch. 240, § 45; 1975, ch. 255, § 25; 2011, ch. 137, § 24.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

The 2011 amendment, effective July 1, 2011, permitted challengers to exercise their rights if they are not interfering with the orderly conduct of the election.

1-2-27. Watchers; appointment.

A.  An election-related organization may in a statewide or special election appoint watchers in a county if the organization provides a written notice to the secretary of state at least seven days prior to serving as a watcher during early voting, the election date or the ballot qualification period for mailed ballots in a statewide or a special election and specifies the names of the qualified appointees.  The secretary of state shall notify the county clerk of the qualified appointees at least five days before the election.

B.  Any group of three candidates for elected office in a statewide election may appoint watchers in a county if the candidates provide a written notice to the secretary of state at least seven days prior to serving as a watcher during early voting, the election date or the ballot qualification period for mailed ballots in a statewide or special election and specify the names of the qualified appointees.  The secretary of state shall notify the county clerk of the qualified appointees at least five days before the election.

History: 1953 Comp., § 3-2-25, enacted by Laws 1969, ch. 240, § 46; 1975, ch. 255, § 26; 2003, ch. 377, § 1; 2005, ch. 270, § 14; 2011, ch. 137, § 25; 2019, ch. 212, § 32.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, limited the provisions in this section to statewide and special elections, and changed certain notice provisions for the appointment of watchers; in Subsection A, after "election-related organization may", added "in a statewide or special election", after "at least", deleted "ten" and added "seven", after "days prior to", added "serving as a watcher during early voting", and after "election date", added "or the ballot qualification period for mailed ballots in a statewide or a special election"; and in Subsection B, after "elected office", added "in a statewide election", after "at least", deleted "ten" and added "seven", after "days prior to", added "serving as a watcher during early voting", and after "election date", added "or the ballot qualification period for mailed ballots in a statewide or special election".

The 2011 amendment, effective July 1, 2011, eliminated the right of county chairmen to appoint watchers; eliminated the restriction on the number of watchers that may be appointed; required candidates to give the secretary of state notice at least ten days prior to the election of their appointment of watchers; and required the secretary of state to notify county clerks of the appointment of the watchers at least five days before the election.

The 2005 amendment, effective July 1, 2005, in Subsection B, changed the deadline for when the secretary of state shall notify the county clerk of the qualified appointees from ten to five days; and deleted "a nonpartisan" in the definition of "election-related organization".

The 2003 amendment, effective June 20, 2003, redesignated former Subsections B and C as present Subsection C and D and added present Subsection B.

Third party entitled to watcher in municipal election. — A third party ticket in a municipal election is entitled to have its own watchers provided it follows the outlined procedure. 1950 Op. Att'y Gen. No. 50-5290.

Candidate for office is not disqualified from serving as party watcher, and he may act as such during counting of the ballots. 1944 Op. Att'y Gen. No. 44-4609.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 91, 92.

29 C.J.S. Elections §§ 59, 60.

1-2-29. Watchers and election observers; permissible activities.

A.  Upon presentation to a precinct board [election board] of a written appointment, a watcher or election observer may:

(1)       be present at any time from the time the precinct board [election board] convenes at the polling place until the completion of the precinct board's [election board's] duties after the polls close;

(2)       be permitted to observe that the election is being conducted in accordance with the Election Code;

(3)       view the precinct voter list to ascertain whether a voter has voted, subject to the same prohibitions and restrictions as are placed upon challengers by the Election Code;

(4)       view any voting machine being used in the precinct in the same manner that challengers may examine the voting machines; and

(5)       make in any polling place and preserve for future reference written memoranda of any action or omission on the part of any member of the precinct board [election board] charged with the performance of a duty by the Election Code.

B.  A watcher appointed on behalf of candidates may be present only in polling locations within the county of appointment at which ballots are cast for at least one of the candidates making the appointment.

History: 1953 Comp., § 3-2-27, enacted by Laws 1969, ch. 240, § 48; 2003, ch. 377, § 2; 2011, ch. 137, § 26.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Cross references. — For challengers and precinct board members making memoranda of actions or omissions, see 1-2-23 and 1-12-6 NMSA 1978.

For prohibited activities of challengers, see 1-2-25 NMSA 1978.

For admission of watcher to polling place during reading of results of votes cast, see 1-12-38 NMSA 1978.

For disturbing the polling place, see 1-20-20 NMSA 1978.

The 2011 amendment, effective July 1, 2011, included election observers within the scope of this section and provided that a watcher appointed by candidates may be present only at polling locations where ballots are cast for at least one of the candidates appointing the election observer.

The 2003 amendment, effective June 20, 2003, redesignated former Paragraphs A(3) and A(4) as present Paragraphs A(4) and A(5) and added present Paragraph A(3).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 96, 97.

29 C.J.S. Elections § 55.

1-2-30. Watchers and election observers; penalty.

The act of denying a watcher or an election observer, who has presented a written appointment to the precinct board [election board] and who is not interfering with the orderly conduct of the election, the right to be present at the polling place or denying a watcher or election observer the right to witness the precinct board [election board] in the conduct of its duties is a petty misdemeanor.

History: 1953 Comp., § 3-2-28, enacted by Laws 1969, ch. 240, § 49; 2011, ch. 137, § 27.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

The 2011 amendment, effective July 1, 2011, included election observers within the scope of this section and permitted watchers and election observers to exercise their rights if they not interfering with the orderly conduct of the election.

1-2-31. County canvass observers.

A.  The county chair of each political party represented on a partisan ballot may appoint in writing county canvass observers.  A candidate for elected office and an election-related organization in a statewide or special election may each appoint county canvass observers in a county if the candidate or organization makes a written request to the secretary of state and specifies the names of the qualified appointees.  The secretary of state shall immediately notify the county clerk of the qualified appointees.

B.  County canvass observers shall be voters of a precinct located in that county to which they are appointed.  No person shall be qualified for appointment or service as a county canvass observer who is a sheriff, deputy sheriff, marshal, deputy marshal or state or municipal police officer.

C.  A county canvass observer or an election observer, upon presentation of the observer's written appointment, shall be permitted to be present at any time from the time the county canvassing begins until the completion of the canvass.

D.  A county canvass observer or election observer is strictly limited to observing and documenting the canvassing process and shall not interrupt the canvassing process.

E.  County canvass observers and election observers shall not interfere with the orderly conduct of the canvass and may be removed by the county clerk if the observer does not comply with the law.

F.   As used in this section, "county canvass" means the process in the office of the county clerk of qualifying and verifying paper ballots and counting and tallying votes for each precinct beginning upon the closing of the polls and ending with the certification and announcement of the results by the county canvassing board.

History: Laws 2005, ch. 270, § 15; 2011, ch. 137, § 28; 2019, ch. 212, § 33.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, limited the provisions in this section to statewide and special elections, revised a notice provision, and revised the definition of "county canvass" as used in this section; in Subsection A, after "represented on", deleted "the" and added "partisan", after "election-related organization", added "in a statewide or special election", after "written request to the secretary of state", deleted "at least ten days prior to the election date", after "The secretary of state", added "immediately", and after "qualified appointees", deleted "at least five days before the election"; and in Subsection F, after "means the process", added "in the office of the county clerk".

The 2011 amendment, effective July 1, 2011, allowed county chairs to appoint county canvass observers; required the secretary of state to notify county clerks of appointments of county canvass observers at least five days before the election; disqualified law enforcement officers from serving as county canvass observers; and eliminated the restriction on the number of county canvass observers that may be admitted in the room where the canvass is being conducted.

1-2-32. State canvass observers.

A.  The state chair of each political party represented on a partisan ballot may appoint in writing state canvass observers.  A candidate for elected office in a statewide election and an election-related organization in a statewide or special election may each appoint state canvass observers if the candidate or organization makes a written request to the secretary of state and specifies the names of the qualified appointees.

B.  State canvass observers shall be voters of the state.  No person shall be qualified for appointment or service as a state canvass observer who is a sheriff, deputy sheriff, marshal, deputy marshal or state or municipal police officer.

C.  The state canvass observer or election observer, upon presentation of the observer's written appointment, shall be permitted to be present at any time from the time the state canvassing begins until the completion of the canvass.

D.  A state canvass observer or election observer is strictly limited to observing and documenting the canvassing process and shall not interrupt the canvassing process.

E.  State canvass observers shall not interfere with the orderly conduct of the canvass and may be removed by the secretary of state if the observer does not comply with the law.

F.   As used in this section, "state canvass" means the process in the office of the secretary of state or by such person as the state canvassing board may appoint to examine election returns and certificates issued by the county canvassing boards and ending with the certification and announcement of the results by the state canvassing board.

History: Laws 2011, ch. 137, § 11; 2019, ch. 212, § 34.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, limited the provisions in this section to statewide and special elections, revised a notice provision, and revised the definition of "state canvass" as used in this section; in Subsection A, after "represented on", deleted "the" and added "a partisan", after "candidate for elected office", added "in a statewide election", after "election-related organization", added "in a statewide or special election", and after "written request to the secretary of state", deleted "at least ten days prior to the election date"; and in Subsection F, after "means the process", deleted "of examining" and added "in the office of the secretary of state or by such persons as the state canvassing board may appoint to examine".

1-6-1.1. Definitions.

As used in the Absent Voter Act:

A.  "absentee" means the ability of a voter to receive, fill out and return a ballot at a place and time other than a polling location on the day of the election;

B.  "early voting location" means the office of the county clerk, an alternate voting location or a mobile alternate voting location;

C.  "mailed ballot" means a ballot that is sent to a voter pursuant to the provisions of the Election Code and does not include a ballot that is provided to a voter in person at an early voting location; and

D.  "registered ballot" means a ballot that has been filled out by the voter and whose votes have been recorded and retained by an electronic voting system before the day of the election pursuant to the provisions of the Election Code.

History: 1978 Comp., § 1-6-1.1, enacted by Laws 2019, ch. 212, § 60.

ANNOTATIONS

Emergency clauses. — Laws 2019, ch. 212, § 286, contained an emergency clause and was approved April 3, 2019.

1-6-3. Right to vote absentee.

A voter may vote absentee in all candidate contests and on all ballot questions as if the voter had appeared on the day of the election to vote in person at a polling location.

History: 1953 Comp., § 3-6-3, enacted by Laws 1969, ch. 240, § 129; 1975, ch. 255, § 84; 1977, ch. 269, § 2; 1981, ch. 150, § 1; 1987, ch. 327, § 7; 1989, ch. 392, § 10; 1993, ch. 19, § 1; 1993, ch. 21, § 1; 1999, ch. 267, § 5; 2015, ch. 145, § 42; 2019, ch. 212, § 61.

ANNOTATIONS

Cross references. — For persons not permitted to vote, see 1-12-7 NMSA 1978.

For constitutional provisions on the right to vote, see U.S. Const., amendments XIX and XXVI.

The 2019 amendment, effective April 3, 2019, rewrote the provision relating to absentee voting; in the section heading, deleted "ballot", and after "A voter may vote absentee", deleted "ballot for all candidates and on all questions appearing on the ballot as if the voter were able to cast the ballot in person" and added the remainder of the section.

The 2015 amendment, effective July 1, 2015, removed the provision relating to federal qualified electors registering for and voting by absentee ballot; deleted the subsection designation for Subsection A; at the beginning of the sentence, deleted "Any" and added "A", after "on the ballot as if", deleted "he" and added "the voter", after "able to cast", deleted "his" and added "the", and after "ballot in person", deleted "at his regular polling place on election day"; and deleted Subsection B.

The 1999 amendment, effective June 18, 1999, substituted the section heading for "Right to absentee ballot; right to vote", and substituted "as if he were able to cast his ballot in person at his regular polling place on election day" for "at his precinct poll as if he were able to cast his ballot in person at the precinct poll" in Subsection A.

The 1993 amendment, effective June 18, 1993, in Subsection A, deleted former Paragraphs (1) through (6), identifying persons eligible to vote by absentee ballot, and deleted "statewide" preceding "questions".

Compiler's notes. — The following annotations are from cases decided prior to the 1993 amendment, which eliminated requirements for voting by absentee ballot.

Obvious intent of absentee voting statutes is to enlarge the right of franchise to people who fall into the categories specifically set forth in the law, provided they have good reason to believe that they cannot be available at the polls on election day. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Requirements of valid absentee ballot. — A qualified absentee voter must in good faith have a reasonable belief that he may be unable to vote in person on election day for one or more of the specific statutory reasons and must sign the proper affidavits under oath to prove his status; after he has done this, it is the burden of the one challenging his right to vote to come forward and prove that the ballot is illegal, either when the votes are counted or by election contest. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Certain knowledge of absence not required. — To hold that the application for an absentee ballot must be made with certain knowledge that a voter cannot be present would place unreasonable constraints upon the right to vote and would be in contravention of the legislature's manifest intent to enlarge the voter franchise. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Presence in county on election day by otherwise qualified absentee voter does not invalidate his vote. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

When absentee ballots counted in contested election. — In an election contest trial persons who alleged statutory reasons for applying for, and voting by, absentee ballot, such as health and business, and whose testimony shows reasonable grounds to sustain their good faith application should have their votes counted. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 359.

29 C.J.S. Elections § 210(3).

1-6-4. Mailed ballot application.

A.  In a statewide election, application by a voter for a mailed ballot shall be made only on a paper form or its online equivalent.  The form shall identify the applicant and contain information to establish the applicant's qualification for issuance of a mailed ballot under the Absent Voter Act; provided that only on the application form for a primary election ballot there shall be a box, space or place provided for designation of the voter's political party affiliation.

B.  Each application on a paper form for a mailed ballot shall be signed by the applicant and shall require the applicant's printed name, registration address and year of birth to be supplied by the applicant, which shall constitute the required form of identification.  When submitted by the voter, the county clerk shall accept an application for a mailed ballot pursuant to this subsection regardless of whether the application for a mailed ballot is delivered to the county clerk on paper or by electronic means.  When submitted by a third party, the county clerk shall not accept an application for a mailed ballot pursuant to this subsection if the application for a mailed ballot is delivered by electronic means.

C.  The secretary of state shall allow a voter to submit an online application for a mailed ballot through a website authorized by the secretary of state; provided that the voter shall have a current or expired New Mexico driver's license or state identification card issued by the motor vehicle division of the taxation and revenue department.  An online request for a mailed ballot shall contain all of the information that is required for a paper form.  The voter shall also provide the person's full New Mexico driver's license number or state identification card number.

D.  When a voter requests a mailed ballot pursuant to this section, the voter shall mark the box associated with the following statement, which shall be included as part of the online mailed ballot request form:

"By clicking the boxes below, I swear or affirm all of the following:

[ ]         I am the person whose name and identifying information is provided on this form and I desire to request a mailed ballot to vote in the state of New Mexico; and

[ ]         All of the information that I have provided on this form is true and correct as of the date I am submitting this form."

E.  Online applications for mailed ballots shall retain the dates of submission by the qualified elector and of acceptance by the county clerk.  For purposes of deadlines contained in the Election Code, the time and date of the submission by the voter shall be considered the time and date when the application for a mailed ballot is received by the county clerk.

F.   New registrants who registered for the first time in this state by mail and at that time did not provide acceptable documentary identification as required by federal law shall be informed of the need to comply with federal identification requirements when returning the requested ballot.  The secretary of state shall issue rules to exempt voters from submitting identification only as required by federal law and shall review and, if necessary, update these rules no later than March 15 of even-numbered years.

G.  A person who willfully and with knowledge and intent to deceive or mislead any voter, election board, canvassing board, county clerk or other election official and who falsifies any information on an absentee ballot request form or who affixes a signature or mark other than the person's own on a mailed ballot request form is guilty of a fourth degree felony.

History: 1953 Comp., § 3-6-4, enacted by Laws 1969, ch. 240, § 130; 1977, ch. 269, § 3; 1981, ch. 150, § 2; 1985, ch. 207, § 4; 1987, ch. 327, § 8; 1989, ch. 66, § 1; 1989, ch. 105, § 1; 1989, ch. 392, § 11; 1993, ch. 19, § 2; 1993, ch. 20, § 1; 1993, ch. 21, § 2; 1993, ch. 314, § 42; 1993, ch. 316, § 42; 1997, ch. 201, § 1; 1999, ch. 267, § 6; 2003, ch. 357, § 1; 2005, ch. 270, § 4; 2007, ch. 336, § 8; 2008, ch. 59, § 5; 2011, ch. 137, § 39; 2015, ch. 145, § 43; 2017, ch. 101, § 3; 2019, ch. 212, § 62.

ANNOTATIONS

Cross references. — For processing of applications, see 1-6-5 NMSA 1978.

The 2019 amendment, effective April 3, 2019, changed procedures related to absentee voting, and provided for mailed ballot application; in the section heading, deleted "absentee" and added "mailed", in Subsection A, after the subsection designation, added "In a statewide election", after "application by a voter for", deleted "an absentee" and added "a mailed", after "on a paper form or its", deleted "electronic" and added "online", after "qualification for issuance of", deleted "an absentee" and added "a mailed", after "application form for a", deleted "general" and added "primary", and after "shall be", deleted "no" and added "a"; in Subsection B, after "Each application", added "on a paper form", after the next occurrence of "for", deleted "an absentee" and added "a mailed", and after "identification.", deleted "except for" and added the remainder of the subsection; added new Subsections C through E and new subsection designation F, and redesignated former Subsection C as Subsection G; in Subsection F, after "registered", added "for the first time in this state", after "documentary identification", added "as required by federal law shall be informed of the need to comply with federal identification requirements when returning the requested ballot"; and in Subsection G, after "any voter", deleted "precinct" and added "election", and after "person’s own on", deleted "absentee" and added "a mailed".

The 2017 amendment, effective June 16, 2017, provided for electronic application for absentee ballots; and in Subsection A, after "shall be made only on a", added "paper" and after "form", added "or its electronic equivalent".

The 2015 amendment, effective July 1, 2015, removed references to federal qualified electors and overseas voters relating to absentee voting; in the catchline, after "application", deleted "federal qualified elector; overseas voter"; deleted Subsection A and redesignated Subsections B and C as Subsections A and B, respectively; in Subsection A, after "secretary of state", deleted "in accordance with federal law"; deleted Subsection D; and redesignated former Subsection E as Subsection C.

The 2011 amendment, effective July 1, 2011, provided that a person who violates this section is guilt of a fourth degree felony.

The 2008 amendment, effective May 14, 2008, in Subsection C, deleted "unique identifier" and added "registration address".

The 2007 amendment, effective April 2, 2007, in Subsection C, required the secretary of state to issue rules to exempt voters from submitting identification only as required by federal law.

The 2005 amendment, effective July 1, 2005, moved the provision that the form shall allow the applicant to receive an absentee ballot for all elections within the election cycle from Subsection B to Subsection A; in Subsection B, provided that the application form shall be prescribed in accordance with federal law; and in Subsection C, provided that the application shall require the applicant's printed name, year of birth and unique identifier to be supplied by the applicant, which shall constitute the form of identification except for registrants who registered by mail and did not provide acceptable information.

The 2003 amendment, effective June 20, 2003, inserted "federal qualified elector; overseas voter" in the section heading; in Subsection A, inserted "or an overseas voter"; in Subsection B, in the first sentence, substituted "prescribed by the secretary of state" for "prescribed, printed and furnished by the secretary of state to the county clerk of the county in which the voter resides", and inserted the last sentence; and added Subsection D; in the first sentence in Subsection B. This section was also amended by Laws 2003, ch. 356, § 18, which was repealed by Laws 2005, ch. 270, § 80.

The 1999 amendment, effective June 18, 1999, substituted "in which the voter resides" for "in which he resides" in the first sentence of Subsection B.

The 1997 amendment, effective June 20, 1997, added the language beginning "provided that" at the end of Subsection B.

The 1993 amendment, effective June 18, 1993, inserted "only" and "printed and furnished" in the first sentence of Subsection B; rewrote Subsection C; and deleted former Subsections D and E, relating to the witnessing and mailing of absentee ballots.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 360.

29 C.J.S. Elections § 210(4).

Third party agents collecting applications for mailed ballots.

A.  A person or organization that is not part of a government agency and that collects applications for mailed ballots shall submit the applications to the appropriate office for filing within forty-eight hours of their completion or the next business day if the appropriate office is closed for that forty-eight-hour period.

B.  A person who collects applications for mailed ballots and fails to submit a voter's completed application is guilty of a petty misdemeanor.

C.  A person who intentionally alters another voter's completed application for a mailed ballot is guilty of a fourth degree felony.

History: Laws 2005, ch. 270, § 41; 2007, ch. 337, § 9; 2019, ch. 212, § 63.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "absentee ballots" with "mailed ballots", and provided duties for third party agents who collect applications for mailed ballots; and replaced "absentee ballot applications" with "applications for mailed ballots" throughout the section.

The 2007 amendment, effective July 1, 2007, eliminated the requirement that the secretary of state establish procedures to ensure that absentee ballot applications can be traced to the person and organization collecting the applications; provided that a person who collects absentee ballot applications and fails to submit a completed application is guilty of a petty misdemeanor; and added Subsection C.

1-6-5. Processing application; issuance of ballot.

A.  The county clerk shall mark each completed application for a mailed ballot with the date and time of receipt in the clerk's office and enter the required information in the ballot register.  The county clerk shall then determine if the applicant is a voter and if the voter is a uniformed-service voter or an overseas voter.  If the applicant is a uniformed-service voter or overseas voter, the application shall be processed pursuant to the Uniform Military and Overseas Voters Act [1-6B-1 to 1-6B-17 NMSA 1978].

B.  If the applicant does not have a valid certificate of registration on file in the county, a mailed ballot shall not be issued and the county clerk shall mark the application "rejected", file the application in a separate file from those accepted and notify the applicant in writing with an explanation why the application was rejected.

C.  When required by federal law, if the applicant has on file with the county a valid certificate of registration that indicates that the applicant is a voter who is a new registrant in the state and who registered by mail without submitting the required documentary identification, the county clerk shall notify the voter that the voter must submit with the mailed ballot a form of documentary identification from the list in Paragraph (3) of Subsection I of Section 1-4-5.1 NMSA 1978.  The county clerk shall note on the ballot register and signature roster that the applicant's mailed ballot must be returned with the required voter identification.

D.  If the applicant has on file with the county a valid certificate of registration, the county clerk shall mark the application "accepted" and deliver a mailed ballot to the voter and the required envelopes for use in returning the ballot.

E.  Upon the mailing of a mailed ballot to an applicant who is a voter, an appropriate designation shall be made on the signature line of the signature roster next to the name of the voter.

F.   A mailed ballot shall not be delivered by the county clerk to any person other than the applicant for the ballot.  Mailed ballots shall be sent to applicants beginning twenty-eight days before the election.  For each application for a mailed ballot received twenty-three or more days before the election, the county clerk shall send either the ballot or a notice of rejection to the applicant as soon as practicable; provided that the ballot or a notice of rejection is sent not later than twenty-two days before the election.  For each application for a mailed ballot received within twenty-two days of election day, the county clerk shall send either the mailed ballot or a notice of rejection to the applicant within twenty-four hours after receipt of the voter's application for a mailed ballot.  A mailed ballot shall be requested not later than the Thursday immediately prior to the date of the election and shall be sent to the voter not later than the Friday immediately prior to the date of the election.

History: 1953 Comp., § 3-6-5, enacted by Laws 1969, ch. 240, § 131; 1971, ch. 317, § 7; 1975, ch. 255, § 87; 1977, ch. 269, § 4; 1979, ch. 378, § 3; 1983, ch. 232, § 1; 1987, ch. 327, § 10; 1989, ch. 392, § 12; 1993, ch. 314, § 43; 1993, ch. 316, § 43; 1999, ch. 267, § 8; 2001, ch. 49, § 1; 2001, ch. 58, § 1; 2003, ch. 355, § 4; 2003, ch. 356, § 19; 2003, ch. 357, § 2; 2005, ch. 270, § 43; 2007, ch. 336, § 9; 2009, ch. 251, § 5; 2011, ch. 137, § 40; 2015, ch. 145, § 44; 2019, ch. 212, § 64.

ANNOTATIONS

Cross references. — For change of party affiliation, see 1-4-15 and 1-4-16 NMSA 1978.

The 2019 amendment, effective April 3, 2019, replaced "absentee ballot" with "mailed ballot", revised notice procedures related to acceptance and rejection of applications for mailed ballots, and provided additional duties for the county clerk related to delivering mailed ballots; replaced "absentee ballot" with "mailed ballot" throughout the section; in Subsection B, after "from those accepted", added "and notify the applicant in writing with an explanation why the application was rejected"; deleted Subsection C and redesignated former Subsections D and E as Subsections C and D, respectively; in Subsection C, added "When required by federal law", after "form of documentary identification", added "from the list in Paragraph (3) of Subsection I of Section 1-4-5.1 NMSA 1978"; in Subsection D, after "‘accepted’ and", deleted "beginning twenty-eight days before the election", after "ballot to the voter", deleted "in the county clerk’s office or mail to the applicant an absentee ballot", and deleted the last sentence of the subsection, which related to changing party affiliation by an absent voter; added new subsection designation "E."; and deleted former Subsections F through L and added a new Subsection F.

The 2015 amendment, effective July 1, 2015, removed references to federal qualified electors, overseas voters and uniformed-service voters and required that these voters applications for absentee voting should be processed pursuant to the Uniform Military and Overseas Voters Act; in Subsection A, after "applicant is a voter,", deleted "an absent uniformed services" and added "and if the voter is a uniformed-service", after "voter or an overseas voter.", added "If the applicant is a uniformed-service voter or overseas voter, the application shall be processed pursuant to the Uniform Military and Overseas Voters Act."; in Subsection B, after "file in the county", deleted "and is not a federal qualified elector or if the applicant states that the applicant is a federal qualified elector but the application indicates the applicant is not a federal qualified elector"; in Subsection E, after "If the", deleted "county clerk finds that the applicant is a voter other than a federal qualified elector or overseas voter" and added "applicant has on file with the county a valid certificate of registration", and after "returning the ballot.", deleted "If the county clerk finds that the applicant is a federal qualified elector or overseas voter, the county clerk shall mark the application ‘accepted’ and beginning forty-five days before the election, mail to the applicant an absentee ballot and the required envelopes for use in returning the ballot. Acceptance of an application of a federal qualified elector constitutes registration for the election in which the ballot is to be cast. Acceptance of an application from an overseas voter who is not an absent uniformed services voter constitutes a request for changing information on the certificate of registration of any such voter".

The 2011 amendment, effective July 1, 2011, rewrote the procedure for marking an absentee ballot at the county clerk’s office and prohibited electioneering in county clerks’ offices or at any alternate voting location.

The 2009 amendment, effective June 19, 2009, in Subsection F, added the last sentence; in Subsection G, deleted the second sentence which permitted a voter to be assisted in marking a ballot; and added the last sentence.

The 2007 amendment, effective April 2, 2007, in Subsection G, eliminated the requirement that absentee ballots be airmailed or electronically transmitted to applicants temporarily domiciled inside or outside the continental limits of the United States.

The 2005 amendment, effective July 1, 2005, in Subsection D, provided that if the voter is a new registrant who registered by mail, the county clerk shall notify the voter that the voter must submit the required physical form of identification, and deleted the former provision that the voter must submit a copy of a current and valid photo identification, utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the applicant; in Subsection F, provided that it is unlawful to display the prohibited items in the alternate voting location; in Subsection G, deleted former provisions which provided for the establishment of voting locations and the time of voting; in Subsection G, provided that absentee ballots may be electronically transmitted to applicants; changed the deadline for sending ballots from Thursday to Friday; deleted the former provisions in Subsection J, which provided for the acceptance of absentee ballots by the county clerk from absent uniformed services voters or overseas voters; in Subsection I, provided that the notice must be provided at least ten days before early voting begins; and added Subsection J to provide that the secretary of state shall establish procedures for the submittal, when required by federal law, of required voter identification with mailed-in absentee ballots.

The 2003 amendment, effective June 20, 2003, added a new Subsection D and redesignated the remaining subsections; rewrote Subsection E, inserting the second sentence, rewrote the last two sentences in Subsection F, and rewrote Subsection G, adding the third, fourth, and fifth sentences.

The 2001 amendment, effective June 15, 2001, in Subsection F, moved "on an electronic voting machine" from preceding "at an alternate location" to preceding "at the county clerk's office" and inserted "; provided, a county clerk may allow an absent voter to vote on an electronic voting machine beginning on the fortieth day before the election".

The 1999 amendment, effective June 18, 1999, substituted "marking and delivery" for "making and delivery" in the section heading; in Subsection D, substituted "If the county clerk finds that the applicant is" for "If the applicant is determined to be", inserted "an absentee ballot to the voter in the county clerk's office" in the first sentence and made a similar insertion in the last sentence, and substituted "has been provided or mailed" for "has been sent" in the last sentence; in Subsection E, deleted "in the courthouse" following "secretary of state" in the first sentence, and deleted "upon the execution with the county clerk of an affidavit for assistance stating therein that the voter meets at least one of the conditions for receiving such assistance as is set forth by the provisions of Section 1-12-12 NMSA 1978" at the end of the last sentence; added Subsection F, and redesignated the subsequent subsections accordingly; inserted "by the county clerk" in Subsection H; and added Subsection J.

The 1993 amendment, effective June 18, 1993, substituted "certificate" for "affidavit" in Subsection B.

Absentee ballots taken on weekend valid. — The taking of absentee ballots on a weekend by the county clerk is a technical irregularity which does not threaten the purity of the electoral process; therefore, the trial court erred in invalidating these votes. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Delivery by agent does not void ballot. — Delivery of the completed ballots by an agent of the voters to the county clerk's office, standing alone, is not a sufficient deviation from the provisions of the absentee voter laws to void the votes in question. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Mere technical irregularities do not void election. — An election will not be disturbed by reason of technical irregularities in the manner of conducting it or of making the returns thereof, especially in the absence of pleading and proof that the result was thereby changed or at least made uncertain. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Assistance of voter by candidate's wife not violation. — When the wife of a candidate assisted a voter in casting her ballot and there is no claim or proof of any undue influence or other wrongdoing on the part of the candidate's wife except that she simply helped the voter in casting her ballot, there is no violation of election law. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 361.

29 C.J.S. Elections § 210(6).

1-6-15. Canvass; recount or recheck; disposition.

If voting machines are not used to register absentee ballots, the absentee ballots shall be canvassed, recounted and disposed of in the manner provided by the Election Code [Chapter 1 NMSA 1978] for the canvassing, recounting and disposition of paper ballots. If voting machines are used to register absentee ballots, the ballots shall be canvassed and rechecked in the manner provided by the Election Code for the canvassing and recheck of ballots cast on a voting machine; provided, in the event of a contest, voting machines used to register absentee ballots shall not be rechecked but the absentee ballots shall be recounted in the manner provided by the Election Code for the recounting of paper ballots. As used in this section, "voting machines" means electronic voting machines as provided in the Election Code.

History: 1953 Comp., § 3-6-14.1, enacted by Laws 1977, ch. 222, § 13; 1985, ch. 207, § 6; 1999, ch. 267, § 17; 2009, ch. 150, § 5.

ANNOTATIONS

Cross references. — For the verification of votes on a voting machine, see 1-12-37 NMSA 1978.

For counting and tallying procedures for emergency paper ballots, see 1-12-65 NMSA 1978.

For recount of emergency paper ballots, see 1-12-68 NMSA 1978.

For the disposition of emergency paper ballots, see 1-12-69 NMSA 1978.

The 2009 amendment, effective June 19, 2009, in the first sentence, after "disposition of", deleted "emergency" and in the second sentence, after "recounting of", deleted "emergency".

The 1999 amendment, effective June 18, 1999, deleted "lever voting machines or" preceding "electronic voting machines" in the last sentence and made a minor stylistic change.

1-6-16. Mailed ballots; replacement and provisional paper ballots.

A.  A voter who has applied for a mailed ballot or who has been sent a mailed ballot may execute an affidavit stating that the person did not and will not vote the mailed ballot that was issued.  Upon receipt of the sworn affidavit, if the ballot register does not show that a ballot from the voter has been cast in that election, the county clerk shall void the mailed ballot that was previously issued to the voter.

B.  A voter shall be mailed a replacement ballot to be returned to the county clerk for tabulation by the absent ballot election board if the voter:

(1)       communicates with the office of the county clerk and requests a replacement mailed ballot be delivered to the voter; and

(2)       has executed the affidavit required by Subsection A of this section and the county clerk has voided the mailed ballot previously issued to the voter.

C.  A voter shall be issued a replacement ballot to be filled out and fed by the voter into the electronic vote tabulator if the voter:

(1)       appears at the office of the county clerk, an alternate voting location or a mobile alternate voting location:

(a) at any time during the period for early voting if the county clerk has real-time synchronization between the early voting locations and the qualification of mailed ballots; or

(b) during the period for early voting until the time the county clerk begins qualifying mailed ballots if the county clerk does not have real-time synchronization between the early voting locations and the qualification of mailed ballots; and

(2)       has executed the affidavit required by Subsection A of this section and the county clerk has voided the mailed ballot previously issued to the voter.

D.  If the county clerk does not have real-time synchronization between the early voting locations and the qualification of mailed ballots, a voter shall be issued a provisional paper ballot to be filled out and delivered to the county clerk for tabulation during the county canvass if:

(1)       the voter appears at an early voting location after the time the county clerk begins qualifying mailed ballots; and

(2)       the voter has executed the affidavit required by Subsection A of this section and the county clerk has voided the mailed ballot previously issued to the voter.

E.  A provisional paper ballot issued pursuant to this section shall be qualified and tabulated once the county clerk determines that the voter did not vote any other ballot in the same election and if no challenge is successfully interposed.

F.   The secretary of state shall prescribe the form of the affidavit and the manner in which the county clerk shall void the previously requested absentee ballot.

History: 1953 Comp., § 3-6-15, enacted by Laws 1969, ch. 240, § 141; 1981, ch. 150, § 5; 1989, ch. 368, § 2; 1989, ch. 392, § 15; 1999, ch. 267, § 18; 2011, ch. 137, § 46; repealed and reenacted by Laws 2019, ch. 212, § 74.

ANNOTATIONS

Repeals and reenactments. — Laws 2019, ch. 212, § 74 repealed former 1-6-16 NMSA 1978 and enacted a new section, effective April 3, 2019.

The 2011 amendment, effective July 1, 2011, prohibited a person who has been issued an absentee ballot from voting other than on a replacement absentee ballot and prohibited replacement absentee ballots from being placed in a voting system for tabulation of votes cast at the county clerk’s office or an alternate voting location.  

1-6-16.1. Absentee ballot; conduct of election; when not timely received; emergency procedure for voting and counting.

A.  A voter who applies for a mailed ballot but has not received or returned the ballot by mail as of the date of the election may go to the voter's assigned polling place or a voter convenience center and, after executing an affidavit stating that the person did not and will not vote the mailed ballot that was issued, shall be permitted to vote on a provisional paper ballot.

B.  If the county clerk has real-time synchronization between the election-day polling places and the qualification of ballots received by mail, the voter shall be issued a replacement ballot to be filled out and fed by the voter into the electronic vote tabulator.

History: Laws 1989, ch. 368, § 1; 1991, ch. 105, § 14; 1999, ch. 267, § 19; 2009, ch. 150, § 6; 2019, ch. 212, § 75.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, changed "absentee ballot" to "mailed ballot", revised the procedures related to mailed ballots not timely received, and provided that if the county clerk has real-time synchronization between the election-day polling places and the qualification of ballots received by mail, the voter is to be issued a replacement ballot to be filled out and fed by the voter into the electronic vote tabulator; in Subsection A, after "applies for", deleted "an absentee" and added "a mailed", after "received", added "or returned", after "assigned polling place", added "or a voter convenience center", after "affidavit", deleted "of nonreceipt of absentee ballot" and added "stating that the person did not and will not vote the mailed ballot that was issued", and after "vote on a", deleted "replacement absentee" and added "provisional"; and deleted former Subsections B through F and added a new Subsection B.

The 2009 amendment, effective June 19, 2009, in Subsection A, deleted "present himself at his" and added "go to the voter’s", and after "to vote on", deleted "an emergency" and added "a replacement absentee"; in Subsection B, in the last sentence, after "to vote by", deleted "emergency" and added "replacement absentee"; in Subsection C, after "presiding", deleted "election" and after "shall put all" added "replacement"; and in Subsection F, after "secrecy of the", deleted "emergency" and added "replacement absentee".  

The 1999 amendment, effective June 18, 1999, deleted "or a marksense ballot" at the end of Subsections B and C; substituted "retain the transmittal envelope with the other election returns and place the inner unopened envelope in a secure container" for "destroy the transmittal envelope and place the inner envelope in a secure place" in Subsection E; and substituted "emergency paper ballots" for "ballot" in Subsection F.

The 1991 amendment, effective April 2, 1991, added "or a marksense ballot" at the end of Subsections A and B and made a minor stylistic change in Subsection B.

1-6-16.2. Additional emergency procedure for voting.

A.  After the close of the period for requesting a mailed ballot, any voter who is unable to go to the polls due to unforeseen illness or disability resulting in the voter's confinement in a hospital, sanatorium, nursing home or residence and who is unable to vote in person may request in writing that a provisional paper ballot be made available to the voter.  The written request shall be signed by the voter and a health care provider under penalty of perjury.

B.  The provisional paper ballot shall be made available by the county clerk of the county in which the voter resides to any authorized representative of the voter who through the representative has presented the written request to the office of the county clerk.

C.  The voter shall mark the provisional paper ballot, place it in an identification envelope, fill out and sign the envelope and return the ballot to the office of the county clerk of the county in which the voter resides no later than the time of closing of the polls on election day.  A provisional paper ballot issued pursuant to this section shall be qualified and tabulated once the county clerk determines that the person did not cast any other ballot and if no challenge is successfully interposed.

History: 1978 Comp., § 1-6-16.2, enacted by Laws 1993, ch. 353, § 1; 1999, ch. 267, § 20; 2017, ch. 101, § 4; 2019, ch. 212, § 76.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, changed "absentee ballot" to "mailed "ballot", and removed a provision related to providing a provisional paper ballot and the circumstances under which the county clerk is required to reject the request for a provisional paper ballot; in Subsection A, after "requesting", deleted "absentee ballots by mail" and added "a mailed ballot"; and deleted former Subsection C and redesignated former Subsection D as Subsection C.

The 2017 amendment, effective June 16, 2017, revised the emergency procedures for voting in cases where the voter is unable to vote in person after the close of the period for requesting an absentee ballot by mail; in Subsection A, after "who is unable to vote", deleted "at his regular polling place or alternate location" and added "in person", and after "may request in writing that", deleted "an alternative" and added "a provisional paper"; in Subsection B, after "The", deleted "alternative" and added "provisional paper", and added "county" preceding each occurrence of "clerk"; in Subsection C, after "releasing the", deleted "alternative" and added "provisional paper", deleted "he" and added "the county clerk", and after "reject the request for", deleted "an alternative" and added "a provisional paper"; in Subsection D, after "voter shall mark the", deleted "alternative" and added "provisional paper", after "identification envelope", deleted "similar to that used for absentee ballots", after "office of the", added "county", deleted the last sentence of the paragraph, which related to verifying the signature of the voter on the provisional paper ballot, and added the current last sentence of the paragraph; and deleted Subsections E and F.

The 1999 amendment, effective June 18, 1999, substituted "regular polling place or alternate location" for "polling place, voting booth, or voting apparatus or machinery" in Subsection A.

1-6-20. Creation of absent voter precinct.

A.  The board of county commissioners shall adopt a resolution creating, for absent voting purposes only, an absent voter precinct for each county.

B.  Absent voter precincts shall be identified by the name of the county.

History: 1953 Comp., § 3-6-20, enacted by Laws 1969, ch. 54, § 3; 1971, ch. 317, § 12; 1975, ch. 255, § 92; 1977, ch. 222, § 14; 2005, ch. 270, § 52.

ANNOTATIONS

The 2005 amendment, effective July 1, 2005, in Subsection A, provided that the resolution create a precinct for each county; in Subsection A, deleted the former provision which provided that the resolution create a precinct for each state legislative district and the boundaries of each precinct coincide with the boundaries of the state representative district except for multi-county representative districts where the boundaries of the precinct shall coincide with the boundaries of that portion of the representative district lying within the county; and in Subsection B, deleted the former provision which provided that precincts be identified by the name of the state representative district number or in multi-county representative districts the precinct shall be distinguished by the name of the county.

ANNOTATIONS

Repeals. — Laws 2005, ch. 270, § 79 repealed 1-6-21 NMSA 1978, as enacted by Laws 1975, ch. 255, § 93, relating to consolidation of absent voter precincts, effective July 1, 2005. For provisions of former section, see the 2004 NMSA 1978 on NMOneSource.com.

1-6-22. Designation of absent voter precinct polling place.

The board of county commissioners of each county shall designate a polling place in each absent voter precinct at the time the precinct is created.

History: 1953 Comp., § 3-6-21, enacted by Laws 1969, ch. 54, § 4; 1975, ch. 255, § 94; 2005, ch. 270, § 53.

ANNOTATIONS

The 2005 amendment, effective July 1, 2005, deleted the former provision that a polling place shall be designated in each precinct when the precinct is consolidated.

1-6-22.1. Mail ballot election precinct; absentee voting in lieu of polling place.

A.  Notwithstanding the provisions of Sections 1-1-11 and 1-1-12 NMSA 1978, not later than the first Monday in November of each odd-numbered year, a board of county commissioners may designate a precinct as a mail ballot election precinct if, upon a written request of the county clerk, it finds that the precinct has fewer than one hundred voters and the nearest polling place for an adjoining precinct is more than twenty miles driving distance from the boundary for the precinct in question.

B.  If a precinct is designated a mail ballot election precinct, in addition to the notice required pursuant to Section 1-3-8 NMSA 1978, the county clerk shall notify by mail with delivery confirmation all voters in that precinct at least forty-two days before an election that each voter will be sent an absentee ballot twenty-eight days before the election and that there will be no polling place for the precinct on election day. The county clerk shall include in the notice a card informing the voter that if the voter does not want to receive an absentee ballot for that election, the voter should return the card before the date the county clerk is scheduled to mail out absentee ballots. The notice shall also inform the voter 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. In addition, the notice shall inform the voter if the county is consolidating precincts on election day and, if so, the ability of the voter to cast a ballot at any consolidated precinct on election day if the voter chooses not to receive an absentee ballot, or to cast a provisional ballot at any consolidated precinct if the voter does not receive an absentee ballot, which will be counted upon confirmation that the voter has not returned the absentee ballot.

C.  The county clerk shall mail each voter in the mail ballot election precinct an absentee ballot on the twenty-eighth day before an election, unless the voter has requested otherwise, along with a notice that there will be no polling place in that precinct on election day.

D.  The county clerk shall keep a sufficient number of ballots from a mail ballot election precinct such that a voter from that precinct may vote on a replacement or provisional paper ballot pursuant to Section 1-6-16 NMSA 1978 or on an emergency paper ballot pursuant to Section 1-6-16.2 NMSA 1978.

History: Laws 2009, ch. 251, § 1; 2009, ch. 274, § 1; 2011, ch. 137, § 47; 2015, ch. 145, § 49; 2017, ch. 101, § 5.

ANNOTATIONS

The 2017 amendment, effective June 16, 2017, provided for replacement or provisional paper ballots for absentee voters who did not receive an absentee ballot by mail or who were unable to vote in person after the close of the period for requesting an absentee ballot by mail; in Subsection D, after "voter from that precinct", deleted "does not receive an absentee ballot before election day, the voter", after "may vote on", deleted "an absentee" and added "a replacement or provisional paper", after "ballot", deleted "in the office of the county clerk on election day in lieu of voting on the missing ballot" and added "pursuant to Section 1-6-16 NMSA 1978 or on an emergency paper ballot pursuant to Section 1-6-16.2 NMSA 1978".

The 2015 amendment, effective July 1, 2015, amended the notice requirements when a precinct is designated a mail ballot election precinct; in Subsection B, after "the county clerk shall notify by", deleted "registered", after "mail", added "with delivery confirmation", after "receive an absentee ballot", added "for that election", after "absentee ballots. The", deleted "card" and added "notice", and after "prefers to vote in person and not by mail.", added the remainder of the subsection.

The 2011 amendment, effective July 1, 2011, required the designation of a precinct as a mail ballot election precinct not later than the first Monday in November of each odd-numbered year if the precinct has less than one hundred voters and the nearest polling place is more than twenty miles from the boundary of the precinct, and required the county clerk to notify voters in the precinct at least forty-two days before an election.

1-6-23. Absent voter precinct polling place; hours on election day and subsequent days.

The county clerk or statutorily appointed supervisor of the election shall determine the hours between 8:00 a.m. and 5:00 p.m. during which the absent voter precinct polling place shall be open for delivery and registering of absentee ballots on the five days preceding election day and the hours during which the absent voter precinct polling place shall be open for the delivery, registering and counting of ballots on election day and subsequent days until all ballots are counted; provided that the absent voter precinct polling place opens at 7:00 a.m. on election day.

History: 1953 Comp., § 3-6-21.1, enacted by Laws 1975, ch. 255, § 95; 1977, ch. 222, § 16; 1983, ch. 232, § 7; 1999, ch. 267, § 23; 2005, ch. 270, § 54; 2007, ch. 336, § 12.

1-10-2. Ballots; duty to provide.

The county clerk shall prepare and supply the ballots used in elections conducted under the Election Code [Chapter 1 NMSA 1978]. The secretary of state may assist in preparing and supplying ballots. Ballots other than those prepared by the county clerk or secretary of state shall not be used.

History: 1953 Comp., § 3-10-11.2, enacted by Laws 1977, ch. 222, § 25; 2007, ch. 337, § 12.

ANNOTATIONS

The 2007 amendment, effective July 1, 2007, permitted the secretary of state to assist in preparing and supplying ballots.

1-10-2.1. Repealed.

History: 1978 Comp., § 1-10-2.1, enacted by Laws 1991, ch. 105, § 16; repealed by Laws 2011, ch. 137, § 110.

ANNOTATIONS

Repeals. — Laws 2011, ch. 137, § 110 repealed 1-10-2.1 NMSA 1978, as enacted by Laws 1991, ch. 105, § 16, relating to ballots and equipment, effective July 1, 2011. For provisions of former section, see the 2010 NMSA 1978 on NMOneSource.com.

1-10-3. Ballots; uniformity.

A.  Ballots shall be uniform throughout the state and compatible with the type of voting machine used in the county.

B.  The secretary of state shall determine in each election, where applicable, the position of the parties, constitutional amendments, questions and the names of nominees to be voted on by the voters of the entire state.

History: 1953 Comp., § 3-10-11.3, enacted by Laws 1977, ch. 222, § 26; 1985, ch. 207, § 20.

1-10-4. Ballots; preparation.

A.  In a primary election, not less than sixty days before the election, each county clerk shall group each candidate who has been qualified by a proper filing officer and a space for any offices with a declared write-in candidate, separated by political party and certify in writing a separate ballot for each precinct in the county for each major political party to be voted on at the primary election.

B.  In a general election, not less than sixty days before the election, each county clerk shall certify in writing the ballot for each precinct in the county containing the name of each candidate that has been certified as the nominee of a qualified political party, each unaffiliated candidate who has been qualified by a proper filing officer, a space for any offices with a declared write-in candidate and any ballot questions to be voted on at the general election.

C.  In a regular local election, not less than sixty days before the election, each county clerk shall certify in writing the ballot for each precinct in the county containing the name of each candidate who has been qualified by a proper filing officer, a space for any offices with a declared write-in candidate and any ballot questions to be voted on at the regular local election.

D.  In a special local election, not less than sixty days before the election, each county clerk shall certify in writing the ballot for each precinct in the county containing any ballot questions to be voted on at the special election.

E.  In a special state election, not less than sixty days before the election, the secretary of state shall certify in writing the ballot containing any ballot questions to be voted on at the special state election.

F.   In an election to fill a vacancy in the office of United States representative and except as provided in Subsection G of this section, not less than fifty-three days before the election, the secretary of state shall certify in writing the ballot containing the name of each candidate that has been certified as the nominee of a qualified political party, each unaffiliated candidate who has been qualified and a space for any declared write-in candidate to be voted on at the election to fill a vacancy in the office of United States representative.

G.  In an election to fill a vacancy in the office of United States representative in extraordinary circumstances pursuant to 2 U.S.C. Section 8(b), not more than seventeen days after the announcement of a vacancy in the office of United States representative, the secretary of state shall certify in writing the ballot containing the name of each candidate that has been certified as the nominee of a qualified political party, each unaffiliated candidate who has been qualified and a space for any declared write-in candidate to be voted on at the election to fill a vacancy in the office of United States representative.

H.  On the date specified for each election in this section, each ballot certified pursuant to this section shall be sent to the ballot printer or other person preparing the ballot for use by voters and sent to the secretary of state to keep on file for twelve months, after which the certified ballot shall be transferred to be a permanent record at the state records center.  Upon request of the county chair of a political party participating in a partisan election, the county clerk shall furnish proof sheets or a copy of the proof sheets of the certified ballot as soon as they become available.

History: 1953 Comp., § 3-10-11.4, enacted by Laws 1977, ch. 222, § 27; 1979, ch. 378, § 11; 1981, ch. 143, § 1; 1985, ch. 207, § 21; 2011, ch. 137, § 71; 2017, ch. 101, § 14; 2019, ch. 212, § 99.

ANNOTATIONS

Cross references. — For position of names on ballots, see 1-15A-8, 1-10-3, 1-10-8 and 1-10-8.1 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the ballot preparation procedures for each types of election; in Subsection A, added "In a primary election, after "not less than", deleted "sixty-three" and added "sixty", after "shall group", deleted "all candidates for", after "each", added "candidate who has been qualified by a proper filing officer and a space for any offices with a declared write-in candidate, separated by political"; in Subsection B, added "In a general election", after "not less than", deleted "sixty-three" and added "sixty", after "nominee of a qualified political party,", added "each unaffiliated candidate who has been qualified by a proper filing officer, a space for any offices with a declared write-in candidate", and after "and any", deleted "constitutional amendments, questions or other propositions that are to be voted on and certify all such information to the ballot printer.  A copy of each certification shall be kept on file in the office of the secretary of state." and added "ballot questions to be voted on at the general election", and added the remaining language; added new Subsections C through G; and in Subsection H, added the first sentence.

The 2017 amendment, effective June 16, 2017, changed the deadlines for preparation of ballots; and in Subsections A and B, after "Not less than", deleted "fifty-six" and added "sixty-three".

The 2011 amendment, effective July 1, 2011, required the secretary of state to prepare primary election ballots fifty-six days before the election, to prepare general election ballots fifty-six days before the election, and to furnish proof sheets of the ballot to the county chair of each political party upon request.

1-10-5. Ballots; printing.

The county clerk shall have access to sufficient ballots to send to federal qualified electors no later than the last business day before the forty-fifth day prior to an election.  All other pre-printed ballots shall be in the possession of the county clerk at least forty days before the election.  When a county is using a system that is designed to print ballots at a polling location, the system shall be programmed and capable of operation at least forty days before the election.

History: 1953 Comp., § 3-10-11.5, enacted by Laws 1977, ch. 222, § 28; 2009, ch. 150, § 9; 2011, ch. 137, § 72; 2015, ch. 145, § 57; 2019, ch. 212, § 100.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, after "All other", added "pre-printed", and after "shall be", deleted "printed and".

The 2015 amendment, effective July 1, 2015, removed the reference to "overseas voters" in the provision requiring the county clerk to have sufficient ballots for an election; after "federal qualified electors", deleted "and overseas voters", after "day prior to", deleted "a primary or general" and added "an", and after "election", deleted "as required by federal law".

The 2011 amendment, effective July 1, 2011, required county clerks to send ballots to federal qualified electors and overseas voters not later than the forty-fifth day prior to the election and to have all other ballots at least forty days before the election.

The 2009 amendment, effective June 19, 2009, at the beginning of the sentence, deleted "Ballot labels" and added "Ballots" and changed "thirty" to "forty".

Printing ballots under voting machine law. — Since voting machines are to be used in the precinct or election districts involved, it is only ballots to the amount of 10% of the total number of registered voters that would be necessary to have printed. Paper ballots are only required to be used under the voting machine law in the event a voting machine should become disabled or in the event a person presents himself to vote by triplicate registration affidavit when his name does not appear in the registration book. 1954 Op. Att'y Gen. No. 54-5920 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 335.

29 C.J.S. Elections §§ 153, 155.

1-10-6. Ballots; name to be printed; similar names; names not to be printed.

A.  In the preparation of ballots for a statewide election, the candidate's name shall be printed on the ballot as it appears on the candidate's certificate of registration that is on file in the county clerk's office on the day the secretary of state issues the proclamation for that election; provided that:

(1)       the last name printed on the ballot shall match the candidate's legal last name;

(2)       academic, honorific and elected titles shall not be printed;

(3)       periods after initials shall not be printed;

(4)       punctuation common to names, other than a period, shall be printed as it appears on the candidate's certificate of registration; and

(5)       only letters and punctuation used in roman typefaces shall be printed.

B.  If it appears that the names of two or more candidates for any office to be voted on at the election are the same or are so similar as to tend to confuse the voter as to the candidates' identities, the occupation and, if further differentiation is necessary, the year of birth, of each such candidate shall be printed immediately under the candidate's name on the ballot.

C.  A candidate's name shall not be printed on the ballot if at least seventy days before a general election, sixty-three days before a primary election or regular local election or seven days after the filing day for declarations of candidacy for any other election:

(1)       the candidate files with the proper filing officer a signed and notarized statement of withdrawal as a candidate in that election;

(2)       a judicial determination is made that the candidate does not qualify to be a candidate for the office sought;

(3)       the voter registration of the candidate is updated by the candidate in such manner that the candidate does not qualify to be a candidate for the office sought; or

(4)       the voter registration of the candidate is canceled for any reason provided in Chapter 1, Article 4 NMSA 1978.

History: 1953 Comp., § 3-10-11.6, enacted by Laws 1977, ch. 222, § 29; 1979, ch. 378, § 12; 1981, ch. 143, § 2; 1993, ch. 314, § 52; 1993, ch. 316, § 52; 2019, ch. 212, § 101.

ANNOTATIONS

Cross references. — For position of names on ballots, see 1-8-59, 1-10-3, 1-10-8 and 1-10-8.1 NMSA 1978.

The 2019 amendment, effective April 3, 2019, provided certain items that should, and items that should not, be on the ballot, provided additional criteria to differentiate candidates with similar names, and provided certain circumstances when a candidate’s name should not be printed on the ballot; in the section heading, deleted "candidates with", added "names not to be printed"; in Subsection A, after "preparation of ballots", added "for a statewide election", and added Paragraphs A(1) through A(5); in Subsection B, after "occupation and,", deleted "post office address" and added "if further differentiation is necessary, the year of birth"; and added Subsection C.

1993 amendments. — Identical amendments to this section were enacted by Laws 1993, ch. 314, § 52 and Laws 1993, ch. 316, § 52, both effective June 18, 1993, and both approved on April 8, 1993, which substituted "certificate" for "affidavit" in Subsection A and made a minor stylistic change in Subsection B. The section was set out as amended by Laws 1993, ch. 316, § 52. See 12-1-8 NMSA 1978.

Purpose of "similar name" statute is to prevent voter confusion. 1964 Op. Att'y Gen. No. 64-25.

Section is remedial in nature and should receive liberal construction. 1964 Op. Att'y Gen. No. 64-25.

On same ballot but different offices. — When two or more candidates for different offices but whose names will appear on the same ballot are the same or are so similar as to tend to confuse the voter as to their identity, the occupation and address of each such candidate is to be printed under such candidate's name on the ballot. 1964 Op. Att'y Gen. No. 64-25.

Same ballot and same office. — When two or more candidates with the same or similar names are running for either the same or different offices and whose names will appear on the same ballot, the occupation and address of each candidate for the office or offices involved is to be printed on the ballot. 1964 Op. Att'y Gen. No. 64-25.

Present principal occupation. — The occupation which is to be listed on the ballot is the candidate's present principal occupation. 1964 Op. Att'y Gen. No. 64-25.

1-10-7. Ballots; name shall appear but once; exceptions.

A.  In a primary or general election, no candidate's name shall appear more than once on the ballot, except in the case of a candidate who is also a candidate for president or vice president of the United States.

B.  In a regular local election, a candidate's name:

(1)       shall not appear more than once to be elected to any position with the same local government; and

(2)       may appear more than once to be elected to any position with different local governments.

History: 1953 Comp., § 3-10-11.7, enacted by Laws 1977, ch. 222, § 30; 1979, ch. 378, § 13; 1981, ch. 143, § 3; 2019, ch. 212, § 102.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, revised provisions related to names appearing on a ballot, and added a separate provision applicable to regular local elections; in the section heading, added "exceptions"; deleted "Except in the case of a candidate for United States senate or United States representative who is also a candidate for president or vice president of the United States"; in Subsection A, added "In a primary or general election", and after "once on the ballot", deleted "Whenever a person is, with his knowledge and consent, a candidate at any nominating convention or primary for nomination as the candidate of any political party for any office to be voted on at the election to be held next after such convention or primary, his name shall not be printed on the ballot at such election except in the column under the party name and emblem of the party designated on his declaration of candidacy or statement of candidacy for convention designation" and added "except in the case of a candidate who is also a candidate for president or vice president of the United States."; and added Subsection B.

Intent of section is to prevent party switching after an unsuccessful primary bid in order to run in the general election. Anderson v. Hooper, 498 F. Supp. 898 (D.N.M. 1980) (decided prior to 1981 amendment).

Running as independent in succeeding election not prevented. — Section 1-8-19 NMSA 1978 and this section do not prevent an unsuccessful party primary candidate from running as an independent in the succeeding general election. Anderson v. Hooper, 498 F. Supp. 898 (D.N.M. 1980)(decided prior to 1981 amendment).

Section does not apply to presidential primary and does not prevent placement of candidate's name on general election ballot. Anderson v. Hooper, 498 F. Supp. 898 (D.N.M. 1980)(decided prior to 1981 amendment).

1-10-7.1. Repealed.

History: Laws 1997, ch. 93, § 1; repealed by Laws 2011, ch. 137, § 110.

ANNOTATIONS

Repeals. — Laws 2011, ch. 137, § 110 repealed 1-10-7.1 NMSA 1978, as enacted by Laws 1997, ch. 93, § 1, relating to removal of names of deceased candidates from ballots, effective July 1, 2011. For provisions of former section, see the 2010 NMSA 1978 on NMOneSource.com.

1-10-8. Ballots; order of offices and ballot questions.

A.  In the year in which the president of the United States is elected, the ballot in a primary election and general election shall contain, when applicable, partisan offices to be voted on in the following order:

(1)       in a presidential primary, president;

(2)       in a general election, president and vice president as a ticket;

(3)       United States senator;

(4)       United States representative; 

(5)       state senator;

(6)       state representative;

(7)       supreme court;

(8)       court of appeals;

(9)       public regulation commission districts with odd-numbered designations;

(10)     public education commission districts with odd-numbered designations;

(11)     district court;

(12)     metropolitan court;

(13)     county clerk;

(14)     county treasurer; and

(15)     county commission districts and positions with odd-numbered designations.

B.  In the year in which the governor is elected, the ballot in a primary election and general election shall contain, when applicable, partisan offices to be voted on in the following order:

(1)       United States senator;

(2)       United States representative;

(3)       in a major political party primary, governor;

(4)       in a major political party primary, lieutenant governor;

(5)       in a general election, governor and lieutenant governor as a ticket;

(6)       secretary of state;

(7)       attorney general;

(8)       state auditor;

(9)       state treasurer;

(10)     commissioner of public lands;

(11)     state representative;

(12)     supreme court;

(13)     court of appeals;

(14)     public regulation commission districts with even-numbered designations;

(15)     public education commission districts with even-numbered designations;

(16)     district court;

(17)     district attorney;

(18)     metropolitan court;

(19)     magistrate court;

(20)     county sheriff;

(21)     county assessor;

(22)     county commission districts and positions with even-numbered designations; and

(23)     probate judge.

C.  The ballot in a regular local election shall contain, when applicable, nonpartisan offices to be voted on in the following order:

(1)       municipal, with elective executive officers listed first, governing board members listed second and judicial officers listed third;

(2)       board of education of a school district;

(3)       community college, branch community college, technical and vocational institute district or learning center district; and

(4)       special districts listed in order by voting population of each special district, with the most populous listed first and the least populous listed last.

D.  The ballot in a statewide election shall contain, when applicable, nonpartisan judicial retention and in a statewide or special election, when applicable, ballot questions to be voted on in the following order, unless a different order is prescribed by the secretary of state:

(1)       judicial retention;

(2)       proposed state constitutional amendments;

(3)       other state ballot questions;

(4)       county ballot questions; and

(5)       local government ballot questions listed in the same order as the list of local governments in Subsection C of this section.

E.  When multiple positions for the same nonjudicial office are listed on the same ballot and each position is to be elected individually:

(1)       offices designated by district number shall appear on the ballot in ascending numerical order of the districts;

(2)       offices not designated by district number shall appear on the ballot in ascending numerical order of the position; provided that the secretary of state shall numerically designate the positions on the ballot as "position one", "position two" and such additional consecutively numbered positions as are necessary, and only one member shall be elected for each position; and

(3)       whenever two or more positions for the same office are to be elected to represent the same area with terms of different lengths of time, the secretary of state shall first group the offices with the shorter length of time and shall designate each position with "for a term expiring _________", specifying the date the term expires.

F.   When multiple positions for the same judicial office are listed on the same ballot and each position is to be elected or voted on individually:

(1)       district, metropolitan and magistrate court positions, either for partisan election or for nonpartisan judicial retention, shall appear on the ballot in ascending numerical order of the division number assigned to each position;

(2)       supreme court and court of appeals for partisan election shall appear on the ballot in ascending numerical order of the position number designated by the secretary of state for that election, based on the date of the vacancy causing the position to be listed on the ballot; provided that if multiple vacancies occurred on the same day, the positions shall appear on the ballot based on the order of seniority of the justice or judge who vacated the position, with the highest seniority listed first; and

(3)       supreme court and court of appeals for nonpartisan judicial retention shall appear on the ballot in ascending numerical order of the position number designated by the secretary of state for that election, based on the seniority of the justice or judge seeking retention, with the highest seniority listed first.

History: 1953 Comp., § 3-10-11.8, enacted by Laws 1977, ch. 222, § 31; 1991, ch. 105, § 17; 2011, ch. 56, § 1; 2015, ch. 145, § 58; repealed and reenacted by Laws 2019, ch. 212, § 103.

ANNOTATIONS

Repeals and reenactments. — Laws 2019, ch. 212, § 103 repealed former 1-10-8 NMSA 1978, and reenacted a new section, effective April 3, 2019.

Temporary provisions. — Laws 2019, ch. 212, § 281 provided that the secretary of state shall ensure that the public regulation commission, public education commission, magistrate judges and county officers are aligned with the offices listed for election in Section 1-10-8 NMSA 1978. The secretary of state shall provide a process to renumber district numbers so that offices are aligned with the offices listed for election in Section 1-10-8 NMSA 1978 and, where necessary, shall provide for an extended term to the general election in 2022 or 2024 only as required to align offices and positions to the offices listed for election in Section 1-10-8 NMSA 1978; provided that where one member of a local governing body must receive an extended term pursuant to this section, the secretary of state shall have the members whose terms expire the same year draw lots to make the determination.

The 2015 amendment, effective July 1, 2015, amended the order in which offices are to be placed on a ballot in primary and general elections; in Subsection D, deleted "candidates for" and added "non-judicial", and after "large, in", added "the"; in Subsection G, after "other", deleted "district candidates" and added "districted offices"; in Subsection H, deleted "metropolitan and magistrate judges" and added "judicial offices in partisan contests, in the order prescribed by the secretary of state"; in Subsection O, deleted "other issues as" and added "in the order"; and added Paragraphs (1) through (3) of Subsection O.

The 2011 amendment, effective July 1, 2011, eliminated the position of county surveyor.

The 1991 amendment, effective April 2, 1991, rewrote this section to the extent that a detailed comparison would be impracticable.

Order declaration of candidacy filed. — All candidates for legislative, judicial district, county and precinct offices are to appear on the ballot for a particular office in the order in which they filed a declaration of candidacy. 1964 Op. Att'y Gen. No. 64-18 (opinion rendered under former law).

1-10-8. Ballots; order of offices and ballot questions.  (Effective January 1, 2023.)

A.  In the year in which the president of the United States is elected, the ballot in a primary election and general election shall contain, when applicable, partisan offices to be voted on in the following order:

(1)       in a presidential primary, president;

(2)       in a general election, president and vice president as a ticket;

(3)       United States senator;

(4)       United States representative;

(5)       state senator;

(6)       state representative;

(7)       supreme court;

(8)       court of appeals;

(9)       public education commission districts with odd-numbered designations;

(10)     district court;

(11)     metropolitan court;

(12)     county clerk;

(13)     county treasurer; and

(14)     county commission districts and positions with odd-numbered designations.

B.  In the year in which the governor is elected, the ballot in a primary election and general election shall contain, when applicable, partisan offices to be voted on in the following order:

(1)       United States senator;

(2)       United States representative;

(3)       in a major political party primary, governor;

(4)       in a major political party primary, lieutenant governor;

(5)       in a general election, governor and lieutenant governor as a ticket;

(6)       secretary of state;

(7)       attorney general;

(8)       state auditor;

(9)       state treasurer;

(10)     commissioner of public lands;

(11)     state representative;

(12)     supreme court;

(13)     court of appeals;

(14)     public education commission districts with even-numbered designations;

(15)     district court;

(16)     district attorney;

(17)     metropolitan court;

(18)     magistrate court;

(19)     county sheriff;

(20)     county assessor;

(21)     county commission districts and positions with even-numbered designations; and

(22)     probate judge.

C.  The ballot in a regular local election shall contain, when applicable, nonpartisan offices to be voted on in the following order:

(1)       municipal, with elective executive officers listed first, governing board members listed second and judicial officers listed third;

(2)       board of education of a school district;

(3)       community college, branch community college, technical and vocational institute district or learning center district; and

(4)       special districts listed in order by voting population of each special district, with the most populous listed first and the least populous listed last.

D.  The ballot in a statewide election shall contain, when applicable, nonpartisan judicial retention and in a statewide or special election, when applicable, ballot questions to be voted on in the following order, unless a different order is prescribed by the secretary of state:

(1)       judicial retention;

(2)       proposed state constitutional amendments;

(3)       other state ballot questions;

(4)       county ballot questions; and

(5)       local government ballot questions listed in the same order as the list of local governments in Subsection C of this section.

E.  When multiple positions for the same nonjudicial office are listed on the same ballot and each position is to be elected individually:

(1)       offices designated by district number shall appear on the ballot in ascending numerical order of the districts;

(2)       offices not designated by district number shall appear on the ballot in ascending numerical order of the position; provided that the secretary of state shall numerically designate the positions on the ballot as "position one", "position two" and such additional consecutively numbered positions as are necessary, and only one member shall be elected for each position; and

(3)       whenever two or more positions for the same office are to be elected to represent the same area with terms of different lengths of time, the secretary of state shall first group the offices with the shorter length of time and shall designate each position with "for a term expiring ___", specifying the date the term expires.

F.   When multiple positions for the same judicial office are listed on the same ballot and each position is to be elected or voted on individually:

(1)       district, metropolitan and magistrate court positions, either for partisan election or for nonpartisan judicial retention, shall appear on the ballot in ascending numerical order of the division number assigned to each position;

(2)       supreme court and court of appeals for partisan election shall appear on the ballot in ascending numerical order of the position number designated by the secretary of state for that election, based on the date of the vacancy causing the position to be listed on the ballot; provided that if multiple vacancies occurred on the same day, the positions shall appear on the ballot based on the order of seniority of the justice or judge who vacated the position, with the highest seniority listed first; and

(3)       supreme court and court of appeals for nonpartisan judicial retention shall appear on the ballot in ascending numerical order of the position number designated by the secretary of state for that election, based on the seniority of the justice or judge seeking retention, with the highest seniority listed first.

History: 1953 Comp., § 3-10-11.8, enacted by Laws 1977, ch. 222, § 31; 1991, ch. 105, § 17; 2011, ch. 56, § 1; 2015, ch. 145, § 58; 1978 Comp., § 1-10-8, repealed and reenacted by Laws 2019, ch. 212, § 103; 2020, ch. 9, § 8.

ANNOTATIONS

Contingent effective date. — Laws 2020, ch. 9, § 8 amended 1-10-8 NMSA 1978, effective January 1, 2023, contingent upon the adoption of Laws 2019, SJC/SRC/SJR Nos. 1 and 4, Constitutional Amendment 1, at the general election held on November 3, 2020.  Constitutional Amendment 1 was adopted by a vote of 445,655 for and 355,471 against.

The 2020 amendment, effective January 1, 2023, removed the public regulation commission from the order of how candidates are required to appear on the ballot; in Subsection A, deleted Paragraph (9) and redesignated the succeeding paragraphs accordingly; and in Subsection B, deleted Paragraph (14) and redesignated the succeeding paragraphs accordingly.

1-10-8.1. Ballots; order of candidate names; party position on ballot.

A.  Except as provided in this section, the order of candidates for the same office in a statewide election shall be determined using a randomization method provided by rule based on candidate name or determined by lot.

B.  In a general election, the order of candidates for the same office shall be determined using a randomization method provided by rule based on political party or candidate name or determined by lot.

C.  Candidates designated and certified by state convention pursuant to Section 1-8-21.1 NMSA 1978 shall be placed on the respective political party primary ballot before other candidates for the same office in descending order of the vote received at the applicable state convention; provided that the order of names on the respective political party primary ballot of two or more candidates receiving an equal number of votes for designation by convention for the same office shall be determined using a randomization method provided by rule based on candidate name or determined by lot.

History: Laws 1981, ch. 166, § 1; 1985, ch. 207, § 22; 1991, ch. 105, § 18; 2009, ch. 150, § 13; 2019, ch. 212, § 104.

ANNOTATIONS

Cross references. — For position of names and offices on ballots, see 1-10-3 and 1-10-8 NMSA 1978.

For errors and omissions, see 1-10-9 NMSA 1978.

The 2019 amendment, effective April 3, 2019, completely rewrote the section; in the section heading, deleted "General election" and added "Ballots; order of candidate names"; and deleted former Subsections A through D and added new Subsections A through C.

The 2009 amendment, effective June 19, 2009, in Subsection A, after "position on the", deleted "voting machines, emergency paper ballots and absentee"; deleted former Subsection B, which provided for the order of preference of major political parties; deleted former Subsection C, which provided for the preference of minor political parties; deleted former Subsection D, which provided that when lever voting machines are used, the sample ballot must reflect the actual positioning of parties on the voting machine; in Subsection B, after "printed on the ballot", deleted "sheet or ballot card"; and in Subsection C, after "When", deleted "emergency"; after "paper ballots", deleted "and absentee ballots"; and after "they appear on", deleted "the voting machine" and added "all ballots".

The 1991 amendment, effective April 2, 1991, substituted "position" for "rotation" in the section heading.

Compiler's notes. — Emmons v. Hooper, No. Civ.-78-404C (D.N.M., filed July 6, 1979), declared that the former practice by the secretary of state of placing the majority party's candidates on the top line of the ballot in every general election discriminated against candidates of nonmajority parties and against those voting for such candidates, thus violating the fourteenth amendment of the United States Constitution. Emmons v. Hooper, No. Civ.-78-404C (D.N.M., filed July 27, 1979), found the secretary of state's proposed plan, used until the enactment of this section, to eliminate intentional or purposeful discrimination sufficiently corrective.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 300 et seq.

29 C.J.S. Elections §§ 158, 159.

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.

History: 1953 Comp., § 3-10-13, enacted by Laws 1969, ch. 240, § 208.

ANNOTATIONS

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 316.

29 C.J.S. Elections § 173.

1-10-10. Ballots; sample.

A.  The county clerk shall make available in both English and Spanish a number of sample ballots in a quantity and in a printed or electronic format as prescribed by the secretary of state.

B.  The sample ballots shall be the same in all respects as the official ballots, except that, if printed, they shall be printed on colored paper and shall not contain the facsimile signature of the county clerk or any endorsement on the back thereof. Each sample ballot shall be marked in large black capital letters, "SAMPLE BALLOT".

C.  Printed sample ballots shall be made available in reasonable quantities to all interested persons at the county clerk's office, in each polling place and on the county's web site, if the county maintains a web site.

History: 1953 Comp., § 3-10-14, enacted by Laws 1969, ch. 240, § 209; 1971, ch. 317, § 18; 1977, ch. 124, § 4; 1985, ch. 207, § 23; 2015, ch. 145, § 59.

ANNOTATIONS

The 2015 amendment, effective July 1, 2015, provided that the county clerk shall make available a number of sample ballots in a quantity and format prescribed by the secretary of state and shall make the sample ballots available at the county clerk’s office, in each polling place and on the county’s web site, if the county maintains a web site; in Subsection A, deleted "At the time of printing the official ballots", after "county clerk shall", deleted "cause to be printed" and added "make available", after "in a quantity", deleted "equal to ten percent of the number of voters in each precinct" and added "and in a printed or electronic format as prescribed by the secretary of state"; in Subsection B, after "except that," added "if printed"; in Subsection C, added "Printed", after "interested persons", deleted "for distribution to the voters within the appropriate precincts." and added "at the county clerk’s office, in each polling place and on the county’s website, if the county maintains a web site"; and deleted Subsection D.

1-10-11. Sample ballots; penalty.

The county clerk shall provide at least four sample ballots for use in each precinct. Two of the sample ballots shall be displayed for public inspection on the outside of the polling place and two on the inside. The sample ballots shall be displayed throughout election day. It is a petty misdemeanor for any person to deface, alter, remove or in any way destroy the sample ballots displayed for public inspection at the polling place during the hours the election is being conducted.

History: 1953 Comp., § 3-10-15, enacted by Laws 1969, ch. 240, § 210; 1977, ch. 124, § 5; 1981, ch. 143, § 4; 2009, ch. 150, § 14.

ANNOTATIONS

Cross references. — For offenses and penalties, see 1-20-1 NMSA 1978 et seq.

The 2009 amendment, effective June 19, 2009, deleted former Subsection A, which required the county clerk to provide sample ballots that show the entire front of the voting machine.

1-10-12. Paper ballots; general requirements.

Paper ballots shall:

A.  be numbered consecutively;

B.  be uniform in size;

C.  be printed on good quality white paper;

D.  be printed in plain black type;

E.  have the precinct numbers printed on each paper ballot; and

F.   be in the form prescribed by the secretary of state.

History: 1953 Comp., § 3-12-78, enacted by Laws 1977, ch. 222, § 47; 1987, ch. 249, § 39; 1991, ch. 105, § 34; § 1-12-44 NMSA 1978, recompiled and amended as § 1-10-12 NMSA 1978 by Laws 2009, ch. 150, § 10.

ANNOTATIONS

Recompilations. — Laws 2009, ch. 150, § 10 recompiled former 1-12-44 NMSA 1978 as 1-10-12 NMSA 1978, effective June 19, 2009.

The 2009 amendment, effective June 19, 2009, at the beginning of the sentence, before "Paper ballots", deleted "Emergency" and after "Paper ballots", deleted "used in the primary and general elections"; in Subsection A, deleted language that provided for the numbering of ballots beginning with precinct one; deleted former Subsection E, which required all words, phrases and the name of candidates to be printed in their proper places; in Subsection E, after "have the", deleted "legislative district, commissioner district and", and after "printed on each", deleted "emergency"; and added Subsection F.

The legislature did not delegate to the secretary of state the authority to reinstate straight-ticket voting in New Mexico. — Where the New Mexico secretary of state sought to reinstate straight-ticket voting in the November 2018 general election, and where petitioners, a coalition of voters, political parties, and political organizations, filed a petition for writ of mandamus requesting an order prohibiting the secretary of state from further efforts to reinstate the straight-ticket option on the grounds that she does not possess the authority to do so, the writ of mandamus was issued because N.M. Const., Art. VII, § 1(B) gives the legislature plenary authority over elections, an authority which cannot be delegated and which is limited only by the New Mexico constitution.  Moreover, the history of straight-ticket voting in New Mexico indicates that the legislature never delegated or attempted to delegate to the secretary of state the authority to decide whether straight ticket voting shall be an option to voters in general elections, and 1-10-12(F) NMSA 1978, which gives the secretary of state the authority to prescribe the form of the ballot, was never intended to authorize the secretary of state to decide questions related to straight-ticket voting.  Unite New Mexico v. Oliver, 2019-NMSC-009.

1-10-13. Ballots; write-in candidates.

When a write-in candidate has been qualified by the proper filing officer pursuant to the Election Code:

A.  a space for entering the name of the write-in candidate shall be clearly designated by the use of the heading "Declared Write-in Candidate" after the listing of other candidates for that office; and

B.  the write-in candidate's name shall not be pre-printed on the ballot, nor displayed or otherwise provided in any polling place by any election official or member of an election board.

History: 1953 Comp., § 3-12-81, enacted by Laws 1977, ch. 222, § 50; § 1-12-47 NMSA 1978, recompiled and amended as § 1-10-13 NMSA 1978 by Laws 2009, ch. 150, § 11; 2019, ch. 212, § 105.

ANNOTATIONS

Recompilations. — Laws 2009, ch. 150, § 11 recompiled former 1-12-47 NMSA 1978 as 1-10-13 NMSA 1978, effective June 19, 2009.

The 2019 amendment, effective April 3, 2019, provided that the names of write-in candidates shall not be pre-printed on the ballot; in the introductory clause, after "has been", deleted "certified" and added "qualified by the proper filing officer; in Subsection A, added "‘Declared’" preceding "Write-in Candidate"; and added Subsection B.

The 2009 amendment, effective June 19, 2009, at the beginning of the sentence, deleted "Where space is allowed on an emergency paper ballot" and added "When a write-in candidate has been certified pursuant to the Election Code, a space"; and after "Write-in Candidate", added "after the listing of other candidates for that office".

1-10-14. Paper ballots; election supplies.

The secretary of state shall provide for the procurement of paper ballot election supplies.

History: 1953 Comp., § 3-12-83, enacted by Laws 1977, ch. 222, § 52; § 1-12-49 NMSA 1978, recompiled and amended as § 1-10-14 NMSA 1978 by Laws 2009, ch. 150, § 12.

ANNOTATIONS

Recompilations. — Laws 2009, ch. 150, § 12 recompiled 1-12-49 NMSA 1978 as 1-10-14 NMSA 1978, effective June 19, 2009.

The 2009 amendment, effective June 19, 2009, after "procurement of", deleted "emergency".

1-12-1. Conduct of election; opening and closing of polls.

Polls shall be opened at 7:00 a.m. on the date required by law for the election and shall be closed at 7:00 p.m. on the same day.

History: 1953 Comp., § 3-12-1, enacted by Laws 1969, ch. 240, § 237; 1985, ch. 205, § 1; 1987, ch. 226, § 2.

ANNOTATIONS

Cross references. — For right of challengers and watchers to be present, see 1-2-23 and 1-2-29 NMSA 1978.

For proclaiming closing of polls, see 1-12-26 NMSA 1978.

For allowing employees time off to vote, see 1-12-42 NMSA 1978.

For provision prohibiting local or special laws regarding opening or conducting any election or designating voting place, see N.M. Const., art. IV, § 24.

Mere irregularity in manner of conducting an election, in absence of fraud or evidence of a change in result, did not necessarily destroy validity of election, nor probative force of ballots as evidence. Gallegos v. Miera, 1923-NMSC-018, 28 N.M. 565, 215 P. 968.

Effect of mere irregularities. — Elections conducted fairly and honestly will not be set aside for mere irregularity in the appointment of election officers or in conduct of the election where no fraud or illegal voting is shown. Carabajal v. Lucero, 1916-NMSC-045, 22 N.M. 30, 158 P. 1088.

No ballots received after 7:00 p.m. regardless of voter position. — From and after 7:00 p.m. no ballots shall be received by the officials, irrespective of whether voting machines or the ordinary type of balloting is employed. Thus it makes no difference that the person is in line outside the polling place and has not announced his name to the poll clerk, or that a person is inside the polling place and has not yet announced his name to the poll clerk or that he has announced his name to the poll clerk but has not yet gone into the voting machine to vote. At 7:00 p.m. the machine should be locked where voting machines are used, and where ordinary balloting is employed the officials must not allow the deposit of any ballots in the ballot boxes after this time. 1956 Op. Att'y Gen. No. 56-6532.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 103.

Violation of law as regards time for keeping polls open as affecting election results, 66 A.L.R. 1159.

Validity of public election as affected by fact that it was held at time other than fixed by law, 121 A.L.R. 987.

29 C.J.S. Elections § 198.

1-12-2. Conduct of election; precinct board [election board] attendance.

Precinct board [Election board] members, excepting those members scheduled to work only the second shift, shall present themselves at the polling place not later than 6:00 a.m. on the date required by law for the election.

History: 1953 Comp., § 3-12-2, enacted by laws 1969, ch. 240, § 238; 1977, ch. 222, § 35; 1985, ch. 205, § 2; 1999, ch. 236, § 3.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Recompilations. — Laws 2005, ch. 270, § 63 recompiled former 1-5-10 NMSA 1978 as 1-12-7.1 NMSA 1978, effective July 1. 2005.

The 2015 amendment, effective July 1, 2015, required the precinct board to post a map of the precincts represented in each polling place, required the presiding judge of the precinct board to assign one judge or clerk to be in charge of a copy of the checklist of voters at each polling location where physical rosters are used to confirm the registration and voting of each person offering to vote; in Subsection A, after "A.", added "At", after "each", added "election day polling location, other than a consolidated precinct where any voter in the county may vote, the", after "precinct board", deleted "using voter lists", after "alphabetical list of voters", added "and a map of the precincts represented in that polling place", after "years", added "months or days", and after "of birth", deleted "unique identifiers"; in Subsection B, added "At each polling location where physical rosters are used"; in Subsection D, after "clerk assigned to", deleted "the checklist of voters used for confirmation of" and added "confirm", after the first occurrence of "registration", deleted "and voting", after "registration is confirmed", deleted "by the presence of the person’s name on the checklist of voters"; in Subsection E, after "shall locate", deleted "that list number and" and added "the", and after "clerks of the precinct board.", designated the remainder of the subsection as Subsection F, and after "the ballot shall be qualified", deleted the remainder of the subsection; and redesignated former Subsections F and G as Subsections G and H, respectively.

The 2011 amendment, effective July 1, 2011, authorized the presiding judge to assign an election clerk to be in charge of one copy of the checklist of voters and authorized such election clerks to determine that each person offering to vote is registered and to witness a voter’s mark; required a person who votes on a provisional ballot to provide voter identification before 5:00 p.m. on the second day after the election; and eliminated the requirement that election clerks strike through each signature space in the signature roster that has no signature or mark.

The 2008 amendment, effective May 14, 2008, in the catchline, changed "precinct voter list" to "checklist of voters"; and in Subsection A, provided that the posted copy shall not contain the voter’s address, year of birth or unique identifier.

The 2005 amendment, effective July 1, 2005, changed "voter list" to "precinct voter list"; deleted the former provision of Subsection D that if the person presents a certificate under the seal and signature of the county clerk showing that he is entitled to vote in the election and to vote in that precinct, the judge shall announce to the clerks the list number and name of the voter; provided in Subsection D that if the voter provides the required voter identification, the judge shall announce to the clerks the list number and name of the voter, that if the voter does not provide the required voter identification, the voter shall be allowed to vote on a provisional ballot and shall provide the voter identification to the county clerk before the canvas begins or to the precinct board before the poll closes or the provisional ballot shall not be qualified, and that if the voter identification is provided, the provisional ballot shall be qualified and the voter shall not vote on any type of ballot; deleted the former provision in Subsection E, which provided that if the roster indicated that the voter is required to present identification before voting, the judge shall ask for a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows and matches the name and address of the voter as indicated on the roster; and in Subsection E, provided that if the roster indicates that the voter is required to present physical identification before voting, the judge shall ask for the required physical form of identification and that if the voter does not provide the required identification and votes on a provisional ballot, the ballot shall be qualified if the voter brings the required physical form of identification to the polling place after casting the provisional ballot and the voter shall not vote on any other type of ballot.

1-12-7.2. Voter whose name is not on list or roster.

A.  A voter whose name does not appear on the voter list and signature roster for the precinct in which the voter offers to vote shall be permitted to vote in the precinct pursuant to the federal National Voter Registration Act of 1993 and Section 1-12-8 NMSA 1978.

B.  The judges or election clerks in charge of the signature rosters shall add the voter's name and address in ink to the signature roster on the line immediately following the last entered voter's name and, the voter shall be allowed to sign an affidavit of eligibility and cast a provisional paper ballot, provided the voter has first signed or marked both the signature roster and checklist of registered voters.

C.  The provisional paper ballot tracking number for the voter shall be entered on the affidavit of eligibility, the signature roster and the checklist of registered voters.

D.  In a primary election, a voter shall not be permitted to vote for a candidate of a party different from the party designation shown on the voter's certificate of registration. Upon making that determination, the county clerk shall transmit the ballot to the county canvassing board to be tallied and included in the canvass of that county for the appropriate precinct.

History: 1953 Comp., § 3-5-13, enacted by Laws 1969, ch. 240, § 114; 1975, ch. 255, § 69; 1993, ch. 314, § 37; 1993, ch. 316, § 37; 2001, ch. 146, § 4; 2003, ch. 356, § 16; recompiled as 1-12-7.2 NMSA 1978 by Laws 2005, ch. 270, § 78; 2011, ch. 137, § 84.

ANNOTATIONS

Recompilations. — Laws 2005, ch. 270, § 78 recompiled former 1-5-12 NMSA 1978 as 1-12-7.2 NMSA 1978, effective July 1. 2005.

Cross references. — For definition of qualified elector, see 1-1-4 NMSA 1978.

For definition of voter, see 1-1-5 NMSA 1978.

For the National Voter Registration Act of 1993, see 42 USCS § 1973gg et seq.

The 2011 amendment, effective July 1, 2011, eliminated the prohibition against verbal authorization from the county clerk.

The 2003 amendment, effective July 1, 2003, in Subsection A, inserted "and Section 1-12-8 NMSA 1978"; in Subsection B, substituted "a provisional paper ballot" for "an emergency paper ballot"; at the beginning of Subsection C, substituted "provisional" for "emergency"; and in the first sentence of Subsection D, substituted "a voter shall not be permitted" for "no voter shall be permitted".

The 2001 amendment, effective June 15, 2001, in Subsection A, substituted the former requirements necessary to allow a voter to vote in a precinct that does not have that voter's name on the list or roster for a reference to the requirements of the National Voter Registration Act of 1993; in Subsection B, substituted "to sign an affidavit of eligibility and cast an emergency paper ballot" for "to cast his ballot", substituted "both the signature roster and checklist of registered voters" for "both rosters"; in Subsection C, substituted "The emergency paper ballot" for "The voting machine public counter number or the ballot"; substituted "the affidavit of eligibility, the signature roster and the checklist of registered voters" for "his certificate of eligibility or copy of his certificate of registration", deleted the provision that required the certificate of eligibility or certificate of registration be retained by the precinct board and returned to the county clerk with election returns; deleted former Subsection D, which made the certificate of eligibility valid for use only in the precinct, election and date specified thereon, and renumbered the remaining subsections accordingly; in present Subsection D, deleted the provision that party affiliation must be on the certificate of eligibility or registration for the voter to cast a ballot, deleted "certificate of eligibility or the copy of his" preceding "certificate of registration", added the last sentence; and in Subsection E, deleted "under this section" following "person to vote".

The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "voter's copy of a certificate" for "triplicate affidavit", inserted "of eligibility", and substituted "certificate" for "affidavit"; in Subsection C, inserted "of eligibility" twice, and substituted "copy of his certificate" for "triplicate affidavit" and "voter's copy of his certificate of registration" for "triplicate affidavit"; inserted "of eligibility" in Subsection D; and, in Subsection E, inserted "of eligibility" twice, and substituted "copy of his certificate" for "triplicate affidavit" and "the copy of his certificate" for "triplicate affidavit".

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 182.

29 C.J.S. Elections § 51.

1-12-7.3. Signature rosters and checklists of voters; contents.

A.  The signature roster and checklist of voters for any precinct shall contain for each voter, as shown in the county register, the voter's:

(1)       name;

(2)       gender;

(3)       place of residence;

(4)       year of birth;

(5)       party affiliation, if any; and

(6)       precinct of residence.

B.  In addition, the names on each signature roster and checklist of voters shall be numbered consecutively beginning with the number "1".

C.  On each page of each signature roster and each checklist of voters there shall be printed the page number and the date and name of the election for which they are to be used.

History: 1953 Comp., § 3-5-7, enacted by Laws 1969, ch. 240, § 109; 1975, ch. 255, § 66; 1985, ch. 77, § 2; 1993, ch. 363, § 2; 2005, ch. 270, § 27; 2008, ch. 59, § 3; 1978 Comp., § 1-5-7 recompiled as § 1-12-7.3 by Laws 2011, ch. 137, § 109.

ANNOTATIONS

Recompilations. — Laws 2011, ch. 137, § 109 recompiled former 1-5-7 NMSA 1978 as 1-12-7.3 NMSA 1978 effective July 1, 2011.

The 2008 amendment, effective May 14, 2008, deleted "precinct voter lists", added "checklist of voters" and deleted the requirement that the signature roster and checklist of voters contain the last four digits of the voter’s social security number.

The 2005 amendment, effective July 1, 2005, changed "voter list" to "precinct voter list"; added Subsection A(4) to provide that the precinct voter lists and signature rosters shall contain the last four digits of the voter's social security number; and deleted former Subsection D, which related to the dissemination of voter telephone numbers.

The 1993 amendment, effective June 18, 1993, added Subsection D.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 109.

29 C.J.S. Elections § 47.

1-12-7.4. Signature roster; checklist of voters; voter list; number; distribution.

A.  The county clerk shall prepare and certify the accuracy of one signature roster and one checklist of voters for each precinct. The county clerk shall deliver such roster and checklist to each precinct board [election board]. The voter shall sign the signature roster before receiving a ballot. The precinct board [election board] member shall mark the checklist of voters to verify the voters on the list who have voted.

B.  The county clerk shall prepare an alphabetical listing of voters in each precinct, which will be delivered to each precinct board [election board] and posted inside the polling place for public use.

C.  After the polls have closed, the presiding judge shall deliver the signed signature roster to the county clerk and mail the checklist of voters to the secretary of state.

History: 1953 Comp., § 3-5-8, enacted by Laws 1969, ch. 240, § 110; 1975, ch. 255, § 67; 1977, ch. 222, § 9; 1987, ch. 249, § 15; 1987, ch. 327, § 3; 1993, ch. 314, § 36; 1993, ch. 316, § 36; 1995, ch. 166, § 2; 2005, ch. 270, § 28; 2007, ch. 337, § 8; 2008, ch. 59, § 4; 1978 Comp., § 1-5-8 recompiled as § 1-12-7.4 by Laws 2011, ch. 137, § 109.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Recompilations. — Laws 2011, ch. 137, § 109 recompiled former 1-5-8 NMSA 1978 as 1-12-7.4 NMSA 1978 effective July 1, 2011.

1-12-8. Conduct of election; provisional voting.

A.  A person shall be permitted to vote on a provisional paper ballot even though the person's original certificate of registration cannot be found in the county register or even if the person's name does not appear on the signature roster, provided:

(1)       the person's residence is within the boundaries of the county in which the person offers to vote;

(2)       the person's name is not on the list of persons submitting absentee ballots; and

(3)       the person executes a statement swearing or affirming to the best of the person's knowledge that the person is a qualified elector, is currently registered and eligible to vote in that county and has not cast a ballot or voted in that election.

B.  A voter shall vote on a provisional paper ballot if the voter:

(1)       has not previously voted in a general election in New Mexico or has been purged from the voter list;

(2)       registered to vote by mail;

(3)       did not submit the physical form of the required voter identification with the certificate of registration form; and

(4)       does not present to the election judge a physical form of the required voter identification.

C.  A voter shall vote on a provisional paper ballot in accordance with the provisions of Section 1-12-7.1 NMSA 1978 if the voter does not provide the required voter identification to the election judge.

D.  A judge or election clerk shall have the voter sign the signature roster and issue the voter a provisional paper ballot, an outer envelope and an official inner envelope. The voter shall vote on the provisional paper ballot in secrecy and, when done, place the ballot in the official inner envelope and place the official inner envelope in the outer envelope and return it to the judge or election clerk. The judge or election clerk shall ensure that the required information is completed on the outer envelope, have the voter sign it in the appropriate place and place it in an envelope designated for provisional paper ballots.

E.  Knowingly executing a false statement constitutes perjury as provided in the Criminal Code [Chapter 30 NMSA 1978], and voting on the basis of such falsely executed statement constitutes fraudulent voting.

History: 1953 Comp., § 3-12-11, enacted by Laws 1969, ch. 240, § 247; 1971, ch. 317, § 20; 1977, ch. 222, § 37; 1979, ch. 24, § 10; 1987, ch. 249, § 26; 1993, ch. 314, § 55; 1993, ch. 316, § 55; 1995, ch. 198, § 14; 2003, ch. 356, § 30; 2005, ch. 270, § 64; 2011, ch. 137, § 85.

ANNOTATIONS

Cross references. — For false voting, see 1-20-8 NMSA 1978.

For falsifying election documents, see 1-20-9 NMSA 1978.

For false swearing, see 1-20-10 NMSA 1978.

For perjury, see 30-25-1, NMSA 1978.

The 2011 amendment, effective July 1, 2011, in Subsection D, required election clerks to have a voter sign the signature roster and issue a provisional ballot and required the voter to return the ballot to the judge or election clerk.

The 2005 amendment, effective July 1, 2005, in Subsection B(1), provided that a voter shall vote on a provisional ballot if the voter has been purged from the voter list; deleted the former provision of Subsection B(2) that the voter shall vote on a provisional ballot if the voter did not register to vote in person; in Subsection B(2), provided that the voter shall vote on a provisional ballot if the voter registered to vote by mail; in Subsection B(3), provided that the voter shall vote on a provisional ballot if the voter did not submit the physical form of identification; in Subsection B(4), deleted the former provision that the voter shall vote on a provisional ballot if the voter does not submit the a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter that matches the name and address on the voter's certificate of registration; in Subsection B(4), provided that the voter shall vote on a provisional ballot if the voter does not submit a physical form of the required voter identification; and added Subsection C to provide that a voter shall vote on a provisional ballot if the voter does not provide the required voter identification.

The 2003 amendment, effective July 1, 2003, substituted "provisional" for "voter's copy or certificate" in the section heading; in Subsection A, deleted "Notwithstanding the provisions of Section 1-12-7 NMSA 1978" and inserted "on a provisional paper ballot" following "vote"; substituted "county" for "precinct" in Subparagraph A(1) and present Subparagraph A(3); redesignated former Subparagraph A(4) as present Subparagraph A(3) and deleted former Subparagraph A(3); added present Subsection B and redesignated former Subsections B and C as present Subsections C and D; rewrote Subsection C; and deleted former Subsections D and E, concerning signature stamp and investigation of statements.

The 1995 amendment, effective April 6, 1995, in Subsection A, deleted Paragraph (2) which read "his name is not on the purged list;", redesignated former Paragraphs (3) to (5) as Paragraphs (2) to (4), and substituted "his voter identification card that" for "the voter's copy of the certificate of registration which" in Paragraph (3); and deleted "such" preceding "actions" in Subsection E.

The 1993 amendment, effective June 18, 1993, substituted "certificate" and "certificate of registration" for "affidavit" throughout the section; inserted "of eligibility" throughout the section; and made several minor stylistic changes.

1-12-8.1. Conduct of election; use of voter's receipt of certificate of registration; procedures.

If a voter whose name is not in the signature roster presents the voter's receipt of the voter's certificate of registration, the voter shall be allowed to vote on a provisional paper ballot in the proper precinct in accordance with the provisions of Section 1-12-7.1 NMSA 1978. The judge or election clerk shall inform the voter that the voter will be notified by the county clerk to provide a copy of the receipt of the certificate of registration to the county clerk if the original certificate is not located. A note shall be entered on the signature roster indicating that the voter's certificate of registration should be checked by the county clerk. For the purposes of investigation or prosecution, the county clerk shall provide the district attorney and the secretary of state with the person's name and address and the corresponding receipt number of the person's certificate of registration for each person whose certificate of registration is not located.

History: Laws 2005, ch. 270, § 62; 2007, ch. 336, § 15; 2011, ch. 137, § 86.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, required election clerks to inform the voter that the voter will be notified if the original certificate is not located.

The 2007 amendment, effective April 2, 2007, provided that for purposes of investigation or prosecution, the county clerk shall provide the district attorney and the secretary of state with the person’s name and address and the receipt number of the person’s certificate of registration of each person whose certificate of registration is not located.

1-12-8.2. Conduct of election; election day delivery of absentee ballot by voter; procedures.

A.  A voter who requested and received an absentee ballot shall be allowed to deliver the official mailing envelope containing the voter's absentee ballot on election day to any polling location in the county in which the voter is registered if the voter presents the official mailing envelope to the presiding judge before the polls close on election day.

B.  The judge shall note that the voter delivered the absentee ballot in person on election day. The official mailing envelope shall not be opened but shall be placed in an envelope provided for delivery to the county clerk. The precinct board [election board] shall deliver the unopened official mailing envelopes to the county clerk before midnight on election day.

C.  If the unopened official mailing envelope is received by the county clerk from a precinct board [election board] before the absent voter precinct board [election board] has adjourned, it shall be logged and transmitted to the absent voter precinct board [election board] to be tallied immediately. If the unopened mailing envelope is received by the county clerk from a precinct board [election board] after the absent voter precinct board [election board] has adjourned, it shall be logged and transmitted to the county canvassing board to be tallied and included in the canvass of that county for the appropriate precinct.

History: Laws 2005, ch. 270, § 60; 2007, ch. 336, § 16; 2011, ch. 137, § 87.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

The 2011 amendment, effective July 1, 2011, permitted voters to return absentee ballots to any polling place in the county; provided that official mailing envelopes for absentee ballots that are delivered to a judge shall be delivered to the county clerk unopened; and provided for the processing of absentee ballots by the county clerk.

The 2007 amendment, effective April 2, 2007, provided that the precinct board shall deliver unopened envelopes to the county clerk.

1-12-10. Conduct of election; voter's name, address and signature.

A.  A voter at the polls shall announce the voter's name and address in an audible tone of voice. When a judge or election clerk finds the voter's name in the signature roster, the judge or election clerk shall in like manner repeat the name of the voter. The judge or election clerk shall then ask the voter to provide the required voter identification. The voter shall then sign the voter's name or make the voter's mark on the signature line in the copy of the signature roster to be returned to the county clerk. Upon the voter's name or mark being written in the signature roster, a challenge may be interposed as provided in the Election Code [Chapter 1 NMSA 1978].

B.  If a voter fails to provide the required voter identification, the voter shall be allowed to vote on a provisional paper ballot.

History: 1953 Comp., § 3-12-13, enacted by Laws 1969, ch. 240, § 249; 1987, ch. 249, § 27; 1991, ch. 105, § 26; 2005, ch. 270, § 65; 2011, ch. 137, § 88.

ANNOTATIONS

Cross references. — For interposing challenges, see 1-12-20 NMSA 1978.

The 2011 amendment, effective July 1, 2011, included election clerks within the scope of this section.

The 2005 amendment, effective July 1, 2005, in Subsection A, provideed that the election judge shall ask the voter to provide the required voter identification; and added Subsection B to provide that if a voter fails to provide the required voter identification, the voter shall vote on a provisional ballot.

The 1991 amendment, effective April 2, 1991, deleted "and address" following "name" in the second sentence; substituted "or make his mark on the signature line" for "and write his address or, if he is unable to write, shall have his name and address written for him by the election clerk and initialed by the presiding judge" in the third sentence; and inserted "or mark" in the fourth sentence.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 329.

29 C.J.S. Elections §§ 197, 205.

1-12-10.1. Conduct of elections; voting information.

A.  The secretary of state shall provide voting information, which the county clerks shall display, in accordance with the federal Help America Vote Act of 2002, in each polling place and in each county clerk's office and at any location where voting is taking place.

B.  The county clerk shall ensure that in each polling place there is posted the phone numbers of the county clerk and the secretary of state.

History: Laws 2003, ch. 356, § 2; 2005, ch. 270, § 66; 2015, ch. 145, § 61.

ANNOTATIONS

Cross references. — For the Help America Vote Act of 2002, see 42 U.S.C. § 15301.

The 2015 amendment, effective July 1, 2015, required the secretary of state to provide voting information to the county clerks, required the county clerks to ensure that in each polling place there is posted phone numbers of the county clerk and the secretary of state, and removed the requirement that a map of the precincts and a voter list be posted at each polling place; in the catchline, deleted "voter" and added "voting"; in Subsection A, after "state shall", deleted "issue rules describing the voter information" and added "provide voting information, which", after "in each polling place", deleted "on election day", after "county clerk’s office and", deleted "alternate" and added "at any", and after "location where", deleted "absentee or early"; in Subsection B, added "The county clerk shall ensure that in", after "each polling place", deleted "shall post" and added "there is posted", after "secretary of state", deleted "and a map of the precincts represented in that polling place and an alphabetical list of the voters in each precinct represented in that polling place".

The 2005 amendment, effective July 1, 2005, added Subsection B to provide that each polling place shall post a map of the precincts represented in that polling place and an alphabetical list of voters in each precinct.

1-12-34. Conduct of election; copies of election return certificates.

Upon completion of the certificate of returns, the presiding judge shall deliver all returns to the county clerk on election night with the exception of the one legible copy from each voting machine posted on the outside of the entrance door to the polling place.

History: 1953 Comp., § 3-12-58, enacted by Laws 1969, ch. 240, § 294; 1991, ch. 105, § 33.

ANNOTATIONS

The 1991 amendment, effective April 2, 1991, rewrote this section which read "Upon completion of the certificate of returns, the presiding judge shall deliver upon demand, one copy thereof to a representative of each political party present, bearing the precinct board signatures, the same as on the original. The presiding judge shall also post one signed copy of the certificate in the polling place. Certified copies of the certificate may be taken and used as evidence in all cases the same as the original certificate. The secretary of state shall supply printed forms of such additional certificates."

ANNOTATIONS

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 400.

29 C.J.S. Elections § 237(4).

1-12-37. Conduct of election; voting machines; verification of returns.

Two election officials of different parties 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 constitutional amendment or other question submitted, and the return shall be signed by each member of the precinct board [election board] and two watchers of opposing interest, if there be such.

History: 1953 Comp., § 3-12-61.1, enacted by Laws 1973, ch. 358, § 2; 1977, ch. 222, § 43; 1981, ch. 149, § 7; 2011, ch. 137, § 97.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

The 2011 amendment, effective July 1, 2011, eliminated the procedure for canvassing machine-printed returns that are not legible.

Law reviews. — For note, "Why Gunaji v. Macias Matters to Candidates and Voters: Its Impact on New Mexico Election Law", see 33 N.M.L. Rev. 431 (2003).

1-12-38. Voting machines; printomatic voting machine; admittance of watchers and candidates; proclamation of results.

During the reading of the results of the votes cast, any candidate or watcher who desires to be present shall be admitted to the polling place. The proclamation of the result of the votes cast shall be distinctly announced by the presiding judge, who shall read the name of each candidate and the vote registered on the printed returns. The presiding judge shall also read the vote cast for and against each constitutional amendment or other 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, and any necessary corrections shall then and there be made by the precinct board [election board].

History: 1953 Comp., § 3-12-62.1, enacted by Laws 1973, ch. 358, § 3.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Cross references. — For permissible and impermissible activities of watchers, see 1-2-29 NMSA 1978.

1-12-39. Conduct of election; voting machine; completion of locking procedures.

Before adjourning, the precinct board [election board] shall complete the locking procedures on the voting machine.

History: 1953 Comp., § 3-12-63, enacted by Laws 1969, ch. 240, § 299.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

1-12-42. Conduct of election; employees; time to vote.

A.  On election day a voter may absent himself from employment in which he is engaged for two hours for the purpose of voting between the time of opening and the time of closing the polls. The voter shall not be liable to any penalty for such absence; however, the employer may specify the hours during this period in which the voter may be absent.

B.  The provisions of Subsection A of this section do not apply to an employee whose work day begins more than two hours subsequent to the time of opening the polls, or ends more than three hours prior to the time of closing the polls.

C.  The provisions of Subsection A of this section apply to elections of Indian nations, tribes or pueblos for a voter who is enrolled as a member of the Indian nation, tribe or pueblo and is qualified to vote in the election.

D.  A person who refuses the right granted in this section to an employee is guilty of a misdemeanor and shall be punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100).

History: 1953 Comp., § 3-12-66, enacted by Laws 1969, ch. 240, § 302; 2001, ch. 106, § 1.

ANNOTATIONS

The 2001 amendment, effective June 15, 2001, added present Subsection C; redesignated former Subsection C as Subsection D; and in present Subsection D, deleted "or corporation" preceding "who refuses".

Adjustment of working hours allowed. — An employer's adjustment of its customary daily work schedule on election day, so as to release its employees from work more than three hours prior to the closing of the polls, without any wage deduction for the shortened workday, came within the exception provided by Subsection B and did not, therefore, violate Subsection A. State v. Kenneth P. Thompson Co., 1985-NMCA-098, 103 N.M. 453, 708 P.2d 1054.

Work day means the normal or usual work day as scheduled by the employer during the course of the year. An employer may not adjust the working hours on election day to bring the working hours of employees within the exemption provision. 1974 Op. Att'y Gen. No. 74-36.

Employer not to designate lunch or other period outside normal hours. — The employer may not designate a period in which the employee may absent himself that includes either the employee's normal lunch period or that includes a period either prior or subsequent to his normal working hours. 1974 Op. Att'y Gen. No. 74-36.

1-12-43. Emergency situations.

A.  If any electronic vote tabulator becomes disabled while being used to the extent that any voter is unable to cast a vote for all the candidates or questions of the voter's choice and have such vote recorded by the electronic vote tabulator, it shall be repaired, if possible, or another electronic vote tabulator shall be promptly substituted.

B.  If a disabled electronic vote tabulator cannot be repaired in a reasonable length of time and if there are no other electronic vote tabulators available for substitution, the presiding judge shall order marked ballots to be collected and securely preserved until they may be tabulated pursuant to rules promulgated by the secretary of state.

C.  A voter shall not be denied the opportunity to mark a ballot for later tabulation due to the lack of a functioning electronic vote tabulator.

D.  The county clerk shall provide additional ballots if needed and when requested by the precinct board [election board].

History: 1953 Comp., § 3-12-77, enacted by Laws 1977, ch. 222, § 46; 2009, ch. 150, § 19; 2011, ch. 137, § 98.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

Cross references. — For care and custody of voting machines, see 1-9-12 NMSA 1978.

The 2011 amendment, effective July 1, 2011, eliminated the requirement that counties appropriate funds for maintaining electronic vote tabulators.

The 2009 amendment, effective June 19, 2009, in Subsection A, after "If any", deleted "voting machine" and added "electronic vote tabulator", after "recorded by the", deleted "machine" and added "electronic vote tabulator"; and after "or another", deleted "machine" and added "electronic vote tabulator"; in Subsection B, after "substituting", deleted "voting machines" and added "electronic vote tabulators"; in Subsection C, after "If a disabled", deleted "voting machines" and added "electronic vote tabulators"; after "there are no other", deleted "voting machines" and added "electronic vote tabulator"; after "judge shall order", deleted "emergency paper" and added "marked" and after "ballots to be", deleted "substituted and used" and added the remainder of the sentence; added Subsection D; and in Subsection E, after "provide additional", deleted "emergency paper".

Booth necessary for paper ballots. — At least one voting booth should be supplied to take care of the voting that may be necessary for voting by paper ballots at voting machine polling places. 1954 Op. Att'y Gen. No. 54-5920 (opinion rendered under former law).

1-12-51. Paper ballots; unauthorized receipt or delivery of paper ballot.

Except for absentee ballots and unless otherwise provided by law, a voter shall not receive a paper ballot from any person other than from a member of the precinct board [election board] or at an alternate voting location. No person other than a member of the precinct board [election board] or officer authorized by law shall deliver a paper ballot to any voter.

History: 1953 Comp., § 3-12-85, enacted by Laws 1977, ch. 222, § 54; 2009, ch. 150, § 20; 2011, ch. 137, § 99.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

The 2011 amendment, effective July 1, 2011, eliminated the restriction that prohibited a voter from receiving a paper ballot from a polling place where the voter is not authorized to vote.

The 2009 amendment, effective June 19, 2009, at the beginning of the sentence, added "Except for absentee ballots and"; after "shall not receive", deleted "an emergency"; after "authorized to vote", added "or at an alternate early voting location"; and after "law shall deliver", deleted "an emergency".

1-12-55. Paper ballots; marking.

All marks on the paper ballot shall be made only with the recommended or provided marking device.

History: 1953 Comp., § 3-12-89, enacted by Laws 1977, ch. 222, § 58; 1979, ch. 57, § 5; 2009, ch. 150, § 21.

ANNOTATIONS

The 2009 amendment, effective June 19, 2009, deleted former language which required ballots to be marked with a cross or a check and defined each term.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 341 et seq.

29 C.J.S. Elections §§ 176 to 178.

After marking and preparing a paper ballot in a polling place, the voter:

A.  shall not show it to any person in the polling place in such a way as to reveal its contents; and

B.  shall feed the paper ballot into the electronic vote tabulator.

History: 1953 Comp., § 3-12-91, enacted by Laws 1977, ch. 222, § 60; 2009, ch. 150, § 22; 2019, ch. 212, § 115.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, in the introductory clause, after "polling place", deleted "alternate voting location" and in Subsection A, after "any person in", added "the polling place in".

The 2009 amendment, effective June 19, 2009, after "After marking and preparing", deleted "his emergency"; after "paper ballot", added "in a polling place or alternate voting location"; deleted former Subsection A, which require a voter to fold the ballot so that the number on the ballot appears on the outside; in Subsection B, at the beginning of the sentence, deleted "deliver it to the presiding judge who shall then detach the visible number on the ballot, hand it to the voter, then deposit the emergency" and added "feed the"; and after "paper ballot", deleted "in the ballot box in the presence of the voter" and added the remainder of the sentence.

Power of election judges to reject ballots. — After ballots had been tendered by the voter and deposited in the ballot box, the quasi-judicial function to reject ballots given election judges by Comp. Laws 1897, §§ 1665, 1668 became exhausted, and thereafter their powers as to such ballots became purely ministerial. Territory of New Mexico ex rel. Lester v. Suddith, 1910-NMSC-068, 15 N.M. 728, 110 P. 1038 (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections §§ 328, 337.

29 C.J.S. Elections §§ 206, 207.

1-12-59. Viewing marked paper ballot.

A.  A voter may, on the voter's own initiative and using whatever form of communication or media chosen by the voter, voluntarily communicate any information regarding:

(1)       the name of any candidate in a candidate contest for whom the voter voted or for whom the voter abstained from voting;

(2)       the affirmative or negative vote cast by the voter on a ballot question or nonpartisan judicial retention election; or

(3)       any other information regarding the manner in which a voter marked a paper ballot in an election.

B.  No person shall solicit a voter to show the voter's marked paper ballot or coerce a voter to reveal any of the information listed in Subsection A of this section.

C.  No person shall disclose without the consent of the voter any of the information listed in Subsection A of this section.

D.  A violation of Subsection B or C of this section may constitute the crime of offering a bribe, coercion of employees, coercion of voters, intimidation or conspiracy to violate the Election Code.

History: 1953 Comp., § 3-12-93, enacted by Laws 1977, ch. 222, § 62; 2009, ch. 150, § 24; 2019, ch. 212, § 116.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, authorized voters to disclose information on their ballot, and prohibited the disclosure of information on a ballot without the voter’s consent; added a new Subsection A; in Subsection B, after "paper ballot", added "or coerce a voter to reveal any of the information listed in Subsection A of this section."; and added Subsections C and D.

The 2009 amendment, effective June 19, 2009, deleted the first sentence "Only the presiding judge shall receive from any voter an emergency paper ballot prepared by such voter"; after "No person shall", deleted "examine or"; and after "voter to show", deleted "his emergency" and added the remainder of the sentence.

1-12-61. Removal of paper ballots from polling place.

No person shall remove any paper ballot from any polling place unless authorized by law.

History: 1953 Comp., § 3-12-95, enacted by Laws 1977, ch. 222, § 64; 2009, ch. 150, § 25.

ANNOTATIONS

The 2009 amendment, effective June 19, 2009, after "remove any", deleted "emergency" and after "polling place", deleted "before the completion of the ballot count", and added the remainder of the sentence.

1-12-62. Paper ballots; spoiled or defaced.

A.  A voter who accidentally spoils or erroneously prepares the voter's paper ballot may return the spoiled or erroneously prepared paper ballot to the presiding judge and receive a new paper ballot.

B.  The presiding judge in delivering the new paper ballot shall announce the name of the voter and the number of the new paper ballot in an audible tone.

 

C.  Upon the announcement of the presiding judge, the election clerks shall make a record in the signature roster and checklist of registered voters that the voter received a replacement ballot.

D.  The voter shall mark the spoiled or erroneously prepared paper ballot with the word "SPOILED" and shall place it in a separate envelope marked "SPOILED BALLOTS", which shall be returned to the county clerk.

History: 1953 Comp., § 3-12-96, enacted by Laws 1977, ch. 222, § 65; 1987, ch. 249, § 40; 1991, ch. 105, § 36; 2009, ch. 150, § 26.

ANNOTATIONS

The 2009 amendment, effective June 19, 2009, in Subsection A after "erroneously prepares", deleted "his emergency" and added "the voter’s"; after "erroneously prepared", deleted "emergency" and after "receive a new", deleted "emergency"; in Subsection B, after "new" in two places, deleted "emergency"; in Subsection C, after "election clerks shall", deleted "cross out the number of the spoiled or erroneously prepared emergency paper ballot" and added "make a record"; and after "registered voters", deleted "with a single line and shall insert in lieu thereof the number of the new emergency paper" and added the remainder of the sentence; and in Subsection D, after "The", deleted "presiding judge" and added "voter" and after "prepared", deleted "emergency".

The 1991 amendment, effective April 2, 1991, in Subsection C, inserted "and checklist of registered voters" following "roster" and deleted a second sentence which read "In similar manner, an election judge shall correct the voter's original affidavit of registration" and made a minor stylistic change in Subsection B.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 204.

1-12-63. Election judges; unused paper ballots.

Immediately upon the time of the closing of the polls, the election judges and presiding judge, in the presence of those lawfully permitted to be present, shall publicly destroy all unused paper ballots.

History: 1953 Comp., § 3-12-97, enacted by Laws 1977, ch. 222, § 66; 2009, ch. 150, § 27.

ANNOTATIONS

The 2009 amendment, effective June 19, 2009, after "Immediately upon", added "the time of"; after "closing of the polls", deleted "and before any ballot box is unlocked"; and after "unused", deleted "emergency".

Am. Jur. 2d, A.L.R. and C.J.S. references. — Treatment of excess or illegal ballots when it is not known for which candidate or on which side of a proposition they were cast, 155 A.L.R. 677.

ballots, effective June 19, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com.

1-12-65. Emergency situations; paper ballots; counting and tallying procedures.

A.  The presiding judge and the election judges, assisted by the election clerks, shall count the number of paper ballots that were not tabulated by the electronic vote tabulator, write the number of such ballots on each copy of the certificate of returns for that polling place and place the paper ballots that were not tabulated by the electronic vote tabulator in an envelope provided for that purpose.  The envelope shall not be locked in the ballot box but shall instead be transmitted directly to the county clerk for machine-tabulation or hand-tallying of the ballots.

B.  The presiding judge and the election judges, assisted by the election clerks, shall count the number of machine-tabulated paper ballots with write-in votes, write the number of such ballots on each copy of the certificate of returns for that polling place and place those paper ballots with write-in votes in an envelope provided for that purpose.  The envelope shall not be locked in the ballot box but shall instead be transmitted directly to the county clerk for manual counting of the write-in votes.

C.  The tallying of paper ballots that were not tabulated by the electronic vote tabulator at the polling place and the counting of ballots with write-in votes shall be in accordance with procedures prescribed by the secretary of state.

History: 1953 Comp., § 3-12-99, enacted by Laws 1977, ch. 222, § 68; 1991, ch. 105, § 37; 2009, ch. 150, § 28; 2019, ch. 212, § 117.

ANNOTATIONS

Cross references. — For marking emergency paper ballots, see 1-12-53 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the procedure for counting paper ballots when the paper ballots were not tabulated by the electronic vote tabulator; in Subsection A, after "shall count", deleted "and tally", after the next occurrence of "the", added "number of", after "electronic vote tabulator", deleted "and certify the results of the election on the form on the tally sheet setting opposite the name of each candidate in figures the total number of votes cast for the candidate, and they shall set forth in the spaces provided therefor the total number of votes cast for and against each constitutional amendment and other questions.  Paper ballots not marked as required by the Election Code shall not be counted.  The precinct board shall sign the tally sheet certificate" and added "write the number of such ballots on each copy of the certificate of returns for that polling place and place the paper ballots that were not tabulated by the electronic vote tabulator in an envelope provided for that purpose.  The envelope shall not be locked in the ballot box but shall instead be transmitted directly to the county clerk for machine-tabulation or hand-tallying of the ballots."; added a new Subsection B and redesignated former Subsection B as Subsection C; and in Subsection C, deleted "counting and", and after "paper ballots", deleted "in an emergency situation" and added "that were not tabulated by the electronic vote tabulator at the polling place and the counting of ballots with write-in votes".

The 2009 amendment, effective June 19, 2009, in Subsection A, after "tally the", deleted "emergency"; after "paper ballots", added "that were not tabulated by the electronic vote tabulator"; and at the beginning of the second sentence, deleted "Emergency"; and in Subsection B, after "tallying of", deleted "emergency"; and after "paper ballots", added "in emergency situations".

The 1991 amendment, effective April 2, 1991, in Subsection A, in the first sentence, substituted "on the tally sheet" for "in the tally books", deleted "words and" following "candidate in" and substituted "and against" for "or against" near the end and, in the third sentence, substituted "sheet" for "books".

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 385 et seq.

Excess or illegal ballots, treatment of, when it is not known for which candidate or upon which side of a proposition they were cast, 155 A.L.R. 677.

29 C.J.S. Elections §§ 221 to 240.

1-12-66. Paper ballots; signature rosters, checklist of voters and tally sheets; disposition.

A.  After all certificates have been executed, the presiding judge and the two election judges shall place the checklist of voters and one copy of the certificate of returns in that polling place in the stamped, addressed envelope provided for that purpose and an election judge shall immediately mail it to the secretary of state.

B.  The signature roster and the original certificate of returns in that polling place shall be returned to the county clerk.  The signature roster and the certificate of returns shall not be placed in the ballot box.

C.  Signature rosters, checklists of registered voters, certificates of returns and tally sheets in the custody of the county clerk and the secretary of state may be destroyed only pursuant to Section 1-12-69 NMSA 1978.

History: 1953 Comp., § 3-12-100, enacted by Laws 1977, ch. 222, § 69; 1987, ch. 249, § 41; 1991, ch. 105, § 38; 2009, ch. 150, § 29; 2011, ch. 137, § 100; 2019, ch. 212, § 118.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "tally sheet" with "certificate of return"; in Subsection A, after "After", deleted "the counting and tallying of paper ballots are completed and after", and after "one copy of the", deleted "tally sheet" and added "certificate of returns in that polling place"; in Subsection B, after "original", deleted "tally sheet" and added "certificate of returns in that polling place", and after "roster and the", deleted "tally sheet" and added "certificate of returns"; and in Subsection C, after "registered voters,", added "certificate of returns".

The 2011 amendment, effective July 1, 2011, permitted voter records to be destroyed only pursuant to Section 1-12-69 NMSA 1978.

The 2009 amendment, effective June 19, 2009, in Subsection A, after "tallying of", deleted "emergency"; after "judges shall place", deleted "one copy of the signature roster" and added "the checklist of voters"; and in Subsection B, after "The", deleted "remaining copy of the".

The 1991 amendment, effective April 2, 1991, inserted "checklists of registered voters" in Subsection C.

1-12-67. Paper ballots to be placed in ballot box.

After all certificates have been executed, the election board shall place the bundles of tabulated paper ballots in the ballot box and the ballot box shall be closed and locked.

History: 1953 Comp., § 3-12-101, enacted by Laws 1977, ch. 222, § 70; 1987, ch. 249, § 42; 2009, ch. 150, § 30; 2019, ch. 212, § 119.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "precinct board" with "election board"; and deleted "the paper ballots are tallied, the precinct" and added "all certificates have been executed, the election", and after "bundles of", deleted "counted" and added "tabulated".

The 2009 amendment, effective June 19, 2009, after "After the" deleted "emergency"; after "board shall place", deleted "the following in the ballot box:"; after "bundles of counted" deleted "emergency"; deleted former Subsection A(2), which required envelopes containing spoiled ballots to be placed in the ballot box; deleted former Subsection A(3), which required envelopes containing rejected ballots to be placed in the ballot box; and in former Subsection B, at the beginning of the sentence, deleted "After the required items have been placed".

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 234.

The 1991 amendment, effective April 2, 1991, rewrote the first sentence which read "After the election, the county clerk shall see that the voting machines are turned back to the custody of the board of county commissioners" and substituted "county clerk" for "board of county commissioners" in the second sentence.

1-3-1. Nature of a precinct; maps.

A.  Each precinct as nearly as practicable shall be composed of contiguous and compact areas having clearly definable boundaries.  All precinct boundaries shall comply with the provisions of the Precinct Boundary Adjustment Act [1-3-10 to 1-3-14 NMSA 1978].

B.  A precinct shall be divided or its boundaries adjusted if the precinct has had more than:

(1)       seven hundred fifty votes cast by voters of that precinct at a general election, based on the two most recent general elections; or

(2)       two thousand five hundred persons residing within the boundaries of the precinct, based on the most recent federal decennial census.

C.  A precinct may be combined with another precinct or its boundaries adjusted if the precinct has had less than:

(1)       one hundred votes cast by voters of that precinct at a general election, based on the two most recent general elections; or

(2)       five hundred persons residing within the boundaries of the precinct, based on the most recent federal decennial census.

D.  A precinct shall not be combined with an adjoining precinct as provided in Subsection C of this section if the combination of the two precincts would:

(1)       violate the maximum votes cast or population requirements of Subsection B of this section; or

(2)       cross any local, state or federal district or districted boundary lines.

E.  The secretary of state shall provide and maintain a suitable map showing the current geographical boundaries with designation of each precinct, local government, representative district and senatorial district in the county.  The size and form of such maps shall be prescribed by the secretary of state.  A word description of the geographical boundaries shall be attached to each map, along with a description of the changes from the previous map of the area.  The map, with attached description, is a public record.

History: 1953 Comp., § 3-3-1, enacted by Laws 1969, ch. 240, § 50; 1975, ch. 255, § 27; 1977, ch. 64, § 1; 1984 (1st S.S.), ch. 3, § 1; 1991 (1st S.S.), ch. 6, § 1; 1995, ch. 126, § 1; 2019, ch. 212, § 35.

ANNOTATIONS

Cross references. — For definition of precinct, see 1-1-11 NMSA 1978.

For Absent Voter Precinct Act, see 1-6-19 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the provisions related to precinct boundaries; in Subsection B, after "A precinct", deleted "for general or primary election purposes shall not have had more than eight" and added "shall be divided or its boundaries adjusted if the precinct has had more than", added new paragraph designation "(1)", in Paragraph B(1), after the paragraph designation, added "seven", after "hundred", added "fifty", after "votes cast", deleted "in person in" and added "by voters of", after "precinct at", deleted "the last preceding", and after "general election,", added "based on the two most recent general elections; or", and added new Paragraph B(2); added new Subsections C and D and redesignated former Subsection C as Subsection E; in Subsection E, after the subsection designation, deleted "Each county clerk" and added "The secretary of state", after "each precinct,", added "local government", and after "attached to each map,", deleted "Such" and added "along with a description of the changes from the previous map of the area.  The"; and deleted former Subsection D, which related to the delivery of each map to the secretary of state.

The 1995 amendment, effective June 16, 1995, deleted "provided that on and after January 1, 1990, such precinct" at the end of the first sentence and inserted "all precinct" at the beginning of the second sentence in Subsection A.

The 1991 (1st S.S.) amendment, effective October 4, 1991, deleted a proviso from the end of Subsection B relating to precincts having more than 800 votes cast in the last general election; deleted former Subsection C, which provided "Precincts for election purposes shall be designated consecutively in the county by number"; redesignated former Subsections D and E as Subsections C and D; and added the second sentence in Subsection C.

Commissioner to locate polling places to accommodate voters. — This section specifically requires that the board of county commissioners so locate polling places that no polling place located within any precinct or election district may be required to accommodate more than 600 (now 800) voters. 1962 Op. Att'y Gen. No. 62-34.

Accommodation requirements not impliedly repealed. — Section 1-9-5 NMSA 1978 is determinative of the number of machines which the board of county commissioners [now county clerk] must acquire for use at any general or special election, but does not repeal by implication the provisions of this section limiting the number of voters which any polling place may be required to accommodate. 1962 Op. Att'y Gen. No. 62-34.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 7, 8, 9, 13, 16, 17, 21, 24, 25, 28 et seq., 51.

Voter's right to set aside apportionment because of discrimination, 2 A.L.R. 1332, 22 A.L.R. 1189.

Want of contiguity as invalidating apportionment, 2 A.L.R. 1337.

Inequality of population or lack of compactness of territory as invalidating apportionment of representatives, 2 A.L.R. 1337.

Power of judiciary to compel legislature to make apportionment of representatives of election districts as required by constitutional provision, 46 A.L.R. 964.

Detachment of land from municipality as invalid alteration of legislative districts, 117 A.L.R. 267.

Inequalities in population of election districts or voting units, other than districts or units for election to congress or state or territorial offices, as rendering apportionment violative of Federal Constitution - post-Baker cases, 143 A.L.R. Fed. 631.

29 C.J.S. Elections § 53.

1-3-2. Precincts; duties of county commissioners.

For the conduct of any statewide election during the period beginning January 1 of the next succeeding even-numbered year until December 31 of the odd-numbered year thereafter, in June or July of each odd-numbered year, the board of county commissioners shall by resolution:

A.  designate the polling place of each precinct that shall provide individuals with physical mobility limitations an unobstructed access to at least one voting machine;

B.  consolidate any precincts pursuant to Section 1-3-4 NMSA 1978;

C.  designate any mail ballot election precincts pursuant to Section 1-6-22.1 NMSA 1978; and

D.  create additional polling places in existing precincts pursuant to Section 1-3-7.1 NMSA 1978.

History: 1953 Comp., § 3-3-2, enacted by Laws 1969, ch. 240, § 51; 1975, ch. 255, § 28; 1977, ch. 64, § 2; 1979, ch. 105, § 1; 1984 (1st S.S.), ch. 3, § 2; 1989, ch. 392, § 4; 1991 (1st S.S.), ch. 6, § 2; 1995, ch. 126, § 2; 2009, ch. 251, § 3; 2009, ch. 274, § 2; 2011, ch. 131, § 2; 2018, ch. 79, § 3; 2019, ch. 212, § 36.

ANNOTATIONS

Temporary provisions. — Laws 2019, ch. 212, § 277 provided that polling places for the 2019 regular local election shall be the same polling places that were used in the 2018 general election, unless the board of county commissioners amends the 2017 polling place resolution no later than July 1, 2019.

The 2019 amendment, effective April 3, 2019, revised the provisions related to precincts; deleted subsection designation "A." and redesignated former Paragraphs A(1) through A(3) as Subsections A through C, respectively, in the introductory clause, added "For the conduct of any statewide election during the period beginning January 1 of the next succeeding even-numbered year until December 31 of the odd-numbered year thereafter"; in Subsection B, after "any precincts", deleted "for the next succeeding primary and general elections"; in Subsection C, after "precincts", deleted "for the next succeeding primary and general elections;" and added "pursuant to Section 1-6-22.1 NMSA 1978; and"; deleted former Paragraphs A(4) through A(6) and redesignated former Paragraph A(7) as Subsection D; in Subsection D, after "existing precincts", deleted "as necessary"; deleted Paragraph A(8); and deleted former Subsections B through D.

The 2018 amendment, effective July 1, 2018, provided additional duties for county commissioners regarding consolidating precincts, and changed the deadline by when the board of county commissioners must adopt its precinct resolution; in Subsection A, deleted "Not later than the first Monday in November" and added "In June or July", added new Paragraphs A(2) through A(5) and redesignated former Paragraphs A(2) and A(3) as Paragraphs A(6) and A(7), respectively, deleted Paragraph A(4) and redesignated former Paragraph A(5) as Paragraph A(8), and deleted former Paragraph A(6); added a new Subsection B and redesignated former Subsections B and C as Subsections C and D, respectively; and in Subsection D, after "next succeeding primary and general elections", added "and the regular local election following the next succeeding general election".

The 2011 amendment, effective July 1, 2011, authorized the consolidation of precincts.

The 2009 amendment, effective July 1, 2009, added Paragraph (5) of Subsection A; and in Subsection C, in the second sentence, after "first Monday in December of" deleted "that" and added "each odd-numbered"

Laws 2009, ch. 251, § 3 and Laws 2009, ch. 274, § 2 enacted identical amendments to this section. The section was set out as amended by Laws 2009, ch. 274, § 2. See 12-1-8 NMSA 1978.

The 1995 amendment, effective June 16, 1995, deleted "boards of county commissioners" from the end of Paragraph (4) in Subsection A and inserted "proposed" in Subsection B.

The 1991 (1st S.S.) amendment, effective October 4, 1991, in Subsection A, substituted "November" for "December" near the beginning and "that" for "which" in Paragraph (1), rewrote Paragraphs (2) and (3), and added Paragraph (4); in Subsection B, inserted "precincts or" and "and each new or changed precinct" and deleted "or reorganization of polling places" following "polling places"; rewrote Subsection C; and deleted former Subsection D, relating to a requirement beginning January 1, 1990, for precincts which have been consolidated pursuant to the provisions of the Precinct Boundary Adjustment Act.

Legislature did not intend using school buildings as polling place except upon approval. — The legislature did not intend that the institutional buildings of the New Mexico school for the visually handicapped be made available as voting sites for election purposes when the board of regents of such institution determines otherwise. While it is not mandatory that the board of regents of such institution provide a building for use in connection with the holding of elections within the precinct or election district, it should be noted, however, that buildings of such institution or a portion of such institution may, upon approval of the board of regents of the institution, be made available as an election site whenever the board of regents may grant such permission. However, the using of such property of the New Mexico school for the visually handicapped as an election polling place would be contingent upon the approval by the board of regents of the institution and their determination that such use would not endanger the lives and safety of the students of the school. 1961 Op. Att'y Gen. No. 61-130.

Voting machines do not change requirement that polling place to accommodate voters. — Notwithstanding the fact that voting machines may accommodate more than 600 voters, enactment of Laws 1951, ch. 192 (now repealed) did not supersede or repeal 3-2-1, 1953 Comp., requiring county commissioners to divide precincts and voting districts so that no polling place will be required to accommodate more than 600 voters. 1952 Op. Att'y Gen. No. 52-5489.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 54.

1-3-4. Consolidation of precincts; voter convenience centers.

A.  The board of county commissioners may permit voters in the county to cast ballots in statewide elections at voter convenience centers through the use of consolidated precincts authorized pursuant to this section.

B.  When precincts are consolidated and voter convenience centers are established for statewide elections:

(1)       the resolution required by Section 1-3-2 NMSA 1978, in addition to the other matters required by law, shall state therein which precincts have been consolidated and the location of the voter convenience center within that consolidated precinct;

(2)       any voter of the county shall be allowed to vote on a regular ballot at any voter convenience center in the county;

(3)       each voter convenience center shall be a consolidated precinct composed of no more than ten precincts;

(4)       each voter convenience center shall comply with the provisions of Section 1-3-7 NMSA 1978;

(5)       each voter convenience center shall have a broadband internet connection and real-time access to the voter registration electronic management system;

(6)       the county clerk may maintain any alternate voting locations or mobile alternate voting locations previously used in the same election open for voting on election day as a voter convenience center, in addition to the voter convenience center established within each consolidated precinct; provided that the locations otherwise meet the requirements of a voter convenience center; and

(7)       the board of county commissioners may permit certain precincts to be exempted from operating as a voter convenience center or being a part of a consolidated precinct; provided that if the precinct is not designated as a mail ballot election precinct pursuant to Section 1-6-22.1 NMSA 1978 and the polling place for that precinct does not have real-time access to the voter registration electronic management system, voters registered in a precinct as described in this paragraph are permitted to vote at any voter convenience center on election day only by use of a provisional paper ballot, which shall be counted after the county clerk confirms that the voter did not also vote in the same election on any other ballot.

C.  Unless the county clerk receives a written waiver from the secretary of state specifying the location and specific provision being waived, each voter convenience center shall:

(1)       have ballots available for voters from every precinct authorized to vote at that voter convenience center;

(2)       have at least one optical scan tabulator programmed to read every ballot style able to be cast at that voter convenience center;

(3)       have at least one voting system available to assist disabled voters to cast and record their votes;

(4)       have sufficient spaces for at least five voters to simultaneously and privately mark their ballots, with at least one of those spaces wheelchair-accessible;

(5)       have sufficient check-in stations to accommodate voters throughout the day as provided in Section 1-9-5 NMSA 1978;

(6)       have a secure area for storage of preprinted ballots or for storage of paper ballot stock and a system designed to print ballots at a polling location;

(7)       issue a ballot to voters who have provided the required voter identification after the voter has signed a signature roster or an electronic equivalent approved by the voting system certification committee or after the voter has subscribed an application to vote on a form approved by the secretary of state; and

(8)       be in a location that is accessible and compliant with the requirements of the federal Americans with Disabilities Act of 1990.

D.  As a prerequisite to consolidation, the authorizing resolution must find that consolidation will make voting more convenient and accessible to voters of the consolidated precinct and will not result in delays for voters in the voting process and that the voter convenience center will be centrally located within the consolidated precinct. The board of county commissioners shall give due consideration to input received from any local public body in the county regarding the location of voter convenience centers.

History: 1953 Comp., § 3-3-4, enacted by Laws 1975, ch. 255, § 30; 2011, ch. 131, § 3; 2015, ch. 145, § 11; 2018, ch. 79, § 4; 2019, ch. 212, § 37.

ANNOTATIONS

Cross references. — For the federal Americans with Disabilities Act of 1990, see titles 29, 42 and 47 of the U.S. Code.

For consolidated precinct defined, see 1-1-12 NMSA 1978.

For contents of notice of election, see 1-11-2 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the provisions related to consolidated precincts, and provided for voter convenience centers and mobile alternate voting locations; in the section heading, added "voter convenience centers"; in Subsection A, after the subsection designation, deleted "Precincts may be consolidated by", after "county commissioners", deleted "for the following elections:" and added "may permit voters in the county to cast ballots in statewide elections at voter convenience centers through the use of consolidated precincts authorized pursuant to this section", and deleted former Paragraphs A(1) and A(2); in Subsection B, in the introductory clause, after "consolidated", deleted "for a primary and general election or a regular local election" and added "and voter convenience centers are established for statewide elections", added new paragraph designation "(1)" and redesignated former Paragraphs B(1) and B(2) as Paragraphs B(2) and B(3), respectively, in Paragraph B(1), after "consolidated and the", deleted "designation of the polling place.  In addition, when consolidating precincts" and added "location of the voter convenience center within that consolidated precinct", in Paragraph B(2), after "allowed to vote", deleted "in any consolidated precinct polling location" and added "on a regular ballot at any voter convenience center", in Paragraph B(3), after "each", deleted "consolidated precinct in a primary or general election" and added "voter convenience center", deleted former Paragraph B(3), in Paragraph B(4), after "each", deleted "consolidated precinct" and added "voter convenience center", in Paragraph B(5), after "each", deleted "consolidated precinct polling location" and added "voter convenience center", in Paragraph B(6), after "alternate voting location", added "or mobile alternate voting locations", after "voting on election day", deleted "for any voter in the county" and added "voter convenience center", after "in addition to the", deleted "polling location" and added "voter convenience center", and after "consolidated precinct;", added "provided that the locations otherwise meet the requirements of a voter convenience center", in Paragraph B(7), after "may permit", deleted "rural" and added "certain", after "from operating as", added "a voter convenience center", after "real-time access to the", deleted "statewide", after "vote at any", deleted "consolidated precinct polling location" and added "voter convenience center", and after "also vote in the", deleted "rural precinct" and added "same election on any other ballot"; in Subsection C, replaced "consolidated precinct" with "voter convenience center" throughout the subsection; and in Subsection D, after "process and that the", deleted "consolidated precinct voting location" and added "voter convenience center", and added the last sentence.

The 2018 amendment, effective July 1, 2018, revised the list of elections where precincts may be consolidated by the board of county commissioners, removed from the governing body of a municipality and from local school boards for certain elections the authority to consolidate precincts, revised certain rules for consolidating precincts, and made minor technical changes; in Subsection A, Paragraph A(2), deleted "statewide special" and added "local", and deleted former Paragraphs A(3) and A(4), which related to countywide special elections and elections to fill vacancies in the office of the United States representative; deleted former Subsections B and C, which related to other entities’ authority to consolidate precincts, and redesignated Subsection D as Subsection B; in Subsection B, in the introductory paragraph, after "general election" added "or a regular local election", and after "when consolidating precincts", deleted "for primary and general elections", added Paragraph B(3) and redesignated former Paragraphs D(3) through D(6) as Paragraphs B(4) through B(7); and deleted former Subsections E and F and redesignated Subsections G and H as Subsections C and D, respectively.

The 2015 amendment, effective July 1, 2015, required that each consolidated precinct polling location shall have sufficient check-in stations to accommodate voters throughout the day as provided in Section 1-9-5 NMSA 1978, and made other technical amendments; in Paragraph (4) of Subsection A, after "the office of", deleted "the", and after "United States", deleted "house of representatives" and added "representative"; in Paragraph (2) of Subsection D, after "consolidated precinct", added "in a primary or general election", and after "shall be", deleted "comprised" and added "composed"; in Subsection F, after the first occurrence of "vacancy in the office of", deleted "the", after "United States", deleted "house of representatives" and added "representative", after the second occurrence of "vacancy in the office of", deleted "the", and after "United States", deleted "house of representatives" and added "representative"; and added a new Paragraph (5) of Subsection G and redesignated the succeeding paragraphs accordingly.

The 2011 amendment, effective July 1, 2011, authorized governing bodies of counties, municipalities and local schools to consolidate precincts and provided requirements and procedures for consolidating precincts and voting in consolidated precincts.

1-3-5. Precincts; powers of county commissioners.

A.  The board of county commissioners shall by resolution:

(1)       create additional precincts to meet the requirements of Section 1-3-1 NMSA 1978; and

(2)       divide, abolish, combine or adjust the boundaries of any precincts as necessary to meet legal and constitutional requirements for redistricting.

B.  Any necessary precinct boundary adjustments shall be submitted to the secretary of state no later than the first Monday in December of each odd-numbered year to become effective January 1 next succeeding the approval of the boundary adjustment.  No precinct shall be created, divided, abolished or combined or the boundaries adjusted less than four months prior to a statewide election, except by order of the district court.

C.  The county clerk shall notify the secretary of state in writing of any proposed changes in precincts or the designation of polling places made by the board of county commissioners and shall furnish the current geographical boundaries, designation and word description of each new polling place and each new or changed precinct.

D.  The secretary of state shall review all new or changed precinct maps submitted pursuant to this section for compliance under the Precinct Boundary Adjustment Act [1-3-10 to 1-3-14 NMSA 1978] and Section 1-3-1 NMSA 1978.

E.  Precincts shall be designated solely by whole numbers.

History: 1953 Comp., § 3-3-6, enacted by Laws 1969, ch. 240, § 55; 1975, ch. 255, § 31; 2019, ch. 212, § 38.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, provided additional duties for the board of county commissioners relating to precincts; added a new Subsection A and subsection designation "B."; in Subsection B, after the subsection designation, added the first sentence, after "divided, abolished or", deleted "consolidated" and added "combined", after "boundaries", deleted "or polling place therein changed" and added "adjusted", and after "prior to", deleted "each" and added "statewide"; and added new Subsections C through E.

Court action required to change precinct boundaries. — Precinct boundaries cannot be changed less than four months before any election unless court action is initiated as prescribed in 1-3-6 NMSA 1978. 1960 Op. Att'y Gen. No. 60-67.

To create new precincts it is necessary to follow the procedure set forth in 4-38-21 NMSA 1978 [repealed]. 1946 Op. Att'y Gen. No. 46-4841.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 54.

1-3-6. Precincts; boundaries; protest.

A.  Any twenty-five or more voters of a precinct dissatisfied with the boundaries fixed for a precinct or location of the polling place designated by the board of county commissioners for that precinct may, within one hundred eighty days from the date a change to the boundaries of a precinct was approved in the case of a protest to the boundaries of a precinct, or at any time not less than one hundred twenty days prior to any statewide election, petition the district court of that county, setting forth the facts and reasons for their dissatisfaction and requesting that the board of county commissioners be required by mandamus to change the boundaries or polling place as set forth in the petition.

B.  Upon filing of the petition, the court shall fix a time and place for hearing, which time shall not be more than twenty days from the date the petition was filed.  Each member of the board of county commissioners and the person whose name appears first on the petition as a signer shall immediately be given notice by the court of the filing of the petition and the date set for hearing.

C.  On the date set for the hearing on the petition, the court shall hear the evidence, decide the issues involved and issue its order as the law and facts require.

History: 1953 Comp., § 3-3-7, enacted by Laws 1969, ch. 240, § 56; 1995, ch. 126, § 3; 2019, ch. 212, § 39.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, changed the period in which voters may petition the district court to protest boundaries fixed for a precinct or the location of the polling place designated by the board of county commissioners; and in Subsection A, after "precinct may", added "within one hundred eighty days from the date a change to the boundaries of a precinct was approved in the case of a protest to the boundaries of a precinct, or", after "not less than", deleted "fifty-five" and added "one hundred twenty", and after "prior to any", deleted "general" and added "statewide".

The 1995 amendment, effective June 16, 1995, substituted "twenty-five" for "ten" in Subsection A.

Petition to be filed 45 days prior to general election regardless of primary date. — This statute is specific in referring to a general election. However, it is also specific in providing that the petition may be filed at any time not less than 45 days prior to the general election. In speaking of the time within which the commissioners may themselves order an abolishment or boundary change of a precinct or election district, the statute requires that action be taken not less than four months prior to any election. When speaking of the time within which a petition must be filed by dissatisfied electors, the statute uses the term general election. There obviously was an intention on the part of the legislature to make a distinction. The term "general election" has an obvious meaning. Therefore, the petition may be filed at any time not less than 45 days prior to the general election regardless of the time relation between the date the petition is filed and the date of the primary. 1962 Op. Att'y Gen. No. 62-43 (opinion rendered under former law).

The 1991 (1st S.S.) amendment, effective October 4, 1991, deleted "consolidation of certain precincts permitted" from the section heading; added Subsections A and C; rewrote Subsection B; and deleted former Subsections C and D, relating to precincts shown upon the standard base maps as the official precincts for each county and changes in precinct boundaries made subsequent to 1990, respectively.

1-3-12. Adjusting precinct boundaries.  (Effective January 1, 2023.)

A.  Before each federal decennial census, every precinct shall comply with the requirements of Section 1-3-1 NMSA 1978, and if necessary its boundary shall be adjusted to coincide with a feature or a boundary that is:

(1)       shown on the standard base maps developed pursuant to Subsection B of this section;

(2)       a designated census block boundary on the proposed federal PL 94-171 2020 census block maps; or

(3)       approved by the secretary of state and the United States census bureau.

B.  Prior to commencement of the federal decennial census, the secretary of state shall have prepared and shall furnish to each county clerk standard base maps of the county.  The standard base map for urban and nonurban areas of the county shall, as nearly as practical, show:

(1)       all state and federal highways;

(2)       all numbered and named county roads that have been certified to the department of transportation;

(3)       all military installation boundaries and federal and state prison boundaries;

(4)       all major railroad lines;

(5)       federal, state and county political boundaries, municipal boundaries and school district boundaries;

(6)       all streets within urban areas; and

(7)       other major terrain features, such as flowing rivers and streams, arroyos, power lines, pipelines, roads, trails and ridgelines and other acceptable census block boundaries.

C.  The board of county commissioners, upon receipt of the standard base maps from the secretary of state and upon the recommendation of the county clerk, shall:

(1)       adjust all precinct boundaries to coincide with numbered or named street boundaries or suitable visible terrain features shown on the standard base map; provided that the precincts shall be composed of contiguous and compact areas, and state, county, municipal, school district and other special district or political boundary lines shall serve as precinct boundaries whenever possible; and

(2)       upon the completion of the precinct boundary adjustments as required in this section, indicate on the standard base maps the boundaries for both urban and nonurban precincts and, together with a written description of the precincts, shall send an electronic copy to the secretary of state for approval.

D.  The precincts shown upon the standard base maps submitted pursuant to the provisions of this section and as revised and approved by the secretary of state pursuant to the Precinct Boundary Adjustment Act [1-3-10 to 1-3-14 NMSA 1978] shall become the official precincts of each county for the 2021 redistricting.  For the 2022 and subsequent statewide elections, changes in precincts shall be made in accordance with the provisions of Chapter 1, Article 3 NMSA 1978.

E.  In the same calendar year in which the state receives the results of a federal decennial census, the state legislature shall redistrict federal representative districts, each chamber of the legislature, public education commission districts and any other state districts requiring redistricting.

F.   In the calendar year following the receipt of the results of a federal decennial census, each local public body subject to districting shall create or redraw districts for the local public body.  A local public body, when creating or redrawing districts, shall not split a precinct into two or more districts for any elected office unless necessary to comply with federal law or to preserve communities of interest.

History: 1978 Comp., § 1-3-12, enacted by 1984 (1st S.S.), ch. 3, § 4; 1991 (1st S.S.), ch. 6, § 7; 1995, ch. 126, § 5; 1997, ch. 85, § 1; 2005, ch. 270, § 16; 2009, ch. 222, § 2; 2019, ch. 212, § 41; 2020, ch. 9, § 1.

ANNOTATIONS

Contingent effective date. — Laws 2020, ch. 9, § 1 amended 1-3-12 NMSA 1978, effective January 1, 2023, contingent upon the adoption of Laws 2019, SJC/SRC/SJR Nos. 1 and 4, Constitutional Amendment 1, at the general election held on November 3, 2020.  Constitutional Amendment 1 was adopted by a vote of 445,655 for and 355,471 against.

The 2020 amendment, effective January 1, 2023, removed the requirement that the state legislature redistrict public regulation commission districts upon receiving the results of the federal decennial census, and made certain technical amendments; and in Subsection E, after "chamber of the legislature", deleted "public regulation commission districts".

1-3-13. Adjusting precinct boundaries; time lines for legislative and local public body redistricting; release of nominating petitions.

A.  Prior to commencement of the federal decennial census, the secretary of state shall review all county precinct maps submitted pursuant to Section 1-3-12 NMSA 1978 for compliance with the provisions of the Precinct Boundary Adjustment Act and Section 1-3-1 NMSA 1978.  Those county precinct maps determined not to be in compliance with the precinct boundary criteria set forth in Subsection A of Section 1-13-12 NMSA 1978 or Section 1-3-1 NMSA 1978 shall be rejected and returned to the appropriate county clerk with a written statement setting forth those instances in which the map does not comply.  The county clerk and the board of county commissioners shall make the required adjustments within thirty days after receiving notice of noncompliance.

B.  Following receipt of the results of a federal decennial census, the secretary of state shall again follow the procedures outlined in Subsection A of this section to allow the counties to make any necessary adjustments.  For any county that does not make the required adjustments within thirty days after receiving notice of noncompliance following receipt of the results of a federal decennial census, the secretary of state shall send a second notice of noncompliance, and no later than ninety days following receipt of the results of the federal decennial census, if any precinct boundary adjustments are necessary to meet the legal requirements of redistricting, pursuant to Sections 1-3-1 and 1-3-12 NMSA 1978, the secretary of state shall adjust the boundaries of the precincts only to the extent necessary to achieve compliance with the requirements of those sections and notify the county of those boundary adjustments.

C.  The precincts shown upon the standard base maps submitted pursuant to the provisions of this section and as revised and approved by the secretary of state pursuant to the Precinct Boundary Adjustment Act shall become the official precincts of each county for redistricting.

D.  Following completion of the procedures outlined in Subsection B of this section and in the same calendar year in which the state receives the results of a federal decennial census:

(1)       the legislature shall redistrict federal congressional districts, each house of the legislature and any other state districts requiring redistricting; and

(2)       each local public body subject to districting and whose governing body members are not elected at the regular local election shall create or redraw districts for the local public body.

E.  In the calendar year following the receipt of the results of a federal decennial census, each local public body subject to districting and whose governing body members are elected at the regular local election shall create or redraw districts for the local public body.

F.   A local public body shall establish districts in which the number of persons in each district, as shown in the most recent federal decennial census, is as nearly equal in population as practical, but within five percent of the mean.  A local public body subject to districting shall not split a precinct into two or more districts for any elected office unless necessary to comply with federal law or to preserve communities of interest.  Each local public body subject to districting shall create or redraw districts pursuant to the time lines of this section.

G.  During years in which districts are redrawn pursuant to the provisions of this section, nominating petitions shall not be made available for relevant offices until completion of the procedures specified in Subsection D or E of this section, as applicable.

H.  As used in this section:

(1)       "local public body subject to districting" means any political subdivision of the state with elected governing body members who:

(a) must reside in designated areas of the political subdivision to qualify for election; or

(b) are elected by a geographically defined subset of voters within the boundaries of the political subdivision; and

(2)       "mean" means the total number of persons residing within a political subdivision of the state divided by the number of districts from which governing body members are elected.

History: Laws 1983, ch. 223, § 4; 1984 (1st S.S.), ch. 3, § 5; 1991, ch. 40, § 1; 1991, ch. 237, § 1; 1991 (1st S.S.), ch. 6, § 8; 1997, ch. 85, § 2; 2009, ch. 222, § 3; 2019, ch. 212, § 42; 2021, ch. 79, § 12.

ANNOTATIONS

The 2021 amendment, effective July 1, 2021, provided new redistricting provisions, set time lines for legislative and local public body redistricting, provided that during years in which districts are redrawn, nominating petitions shall not be made available for relevant offices until completion of the procedures set forth in this section, and defined "local public body subject to redistricting" and "mean", as used in this section; in the section heading, deleted "Secretary of state powers and duties" and added "Adjusting precinct boundaries; time lines for legislative and local public body redistricting; release of nominating petitions"; in Subsection B, after "no later than", deleted "June 30 of the same year" and added "ninety days following receipt of the results of the federal decennial census"; and added Subsections C through H.

The 2019 amendment, effective April 3, 2019, provided additional duties for the secretary of state prior to and following receipt of the federal decennial census; in Subsection A, after the subsection designation, added "Prior to commencement of the federal decennial census", after "Precinct Boundary Adjustment Act", added "and Section 1-3-1 NMSA 1978", after "Section 1-3-12 NMSA 1978", added "or Section 1-3-1 NMSA 1978", and after "required adjustments", deleted "and resubmit one copy of the corrected county precinct map"; and in Subsection B, after the subsection designation, deleted "Prior to January 1, 2020" and added "Following receipt of the results of a federal decennial census, the secretary of state shall again follow the procedures outlined in Subsection A of this section to allow the counties to make any necessary adjustments.  For any county that does not make the required adjustments within thirty days after receiving notice of noncompliance following receipt of the results of a federal decennial census, the secretary of state shall send a second notice of noncompliance and no later than June 30 of the same year", after "meet the legal", deleted "and constitutional", after "redistricting", added "pursuant to Sections 1-3-1 and 1-3-12 NMSA 1978", after "secretary of state shall", added "adjust the boundaries of the precincts only to the extent necessary to achieve compliance with the requirements of those sections and", and after "adjustments", deleted the remainder of the subsection, which related to approval of precincts for prior elections years.

The 2009 amendment, effective April 7, 2009, in Subsection B, in the first sentence, changed "January 1, 2002" to "January 1, 2012", and after "constitutional requirements of", deleted "legislative reapportionment" and added "redistricting"; and in the last sentence, changed "2002" to "2012".

The 1997 amendment, effective on June 20, 1997, in the second sentence of Subsection A, inserted "with the precinct boundary criteria set forth in Subsection A of Section 1-13-12 NMSA 1978", deleted "of noncompliance" following "statement", and substituted "does not comply" for "is in default"; and, in Subsection B, substituted "2002" for "1992" in two places.

The 1991 (1st S.S.) amendment, effective October 4, 1991, substituted "one copy" for "four copies" in the last sentence in Subsection A; deleted former Subsection B, relating to duty of secretary of state to send county's new precinct map to bureau of census"; and redesignated former Subsection C as Subsection B.

The 1991 amendment, effective April 4, 1991, substituted "Section 1-3-12 NMSA 1978" for "Section 3 of the Precinct Boundary Adjustment Act" and "the Precinct Boundary Adjustment Act" for "that Act" in the first sentence in Subsection A and added Subsection C.

1-3-14. Standard base map required.

All precinct maps prepared by the county clerk as required in the Precinct Boundary Adjustment Act [1-3-10 to 1-3-14 NMSA 1978] shall be on a standard base map as prescribed by the secretary of state in order to achieve as nearly as practicable uniformity of size and scale.

History: Laws 1983, ch. 223, § 5; 1995, ch. 126, § 6.

ANNOTATIONS

The 1995 amendment, effective June 16, 1995, deleted "Sections 3 and 4 of" preceding "the Precinct Boundary Adjustment Act".

1-3-18. Polling places; building requirements; inspection.

A.  The location of each polling place within a building shall be clearly designated by appropriate signs, displayed prominently and clearly.  Signs for each polling place shall also be clearly displayed outside the building where polling takes place.

B.  Not less than thirty days prior to each election at which a building is intended for use as an alternate voting location, a mobile alternate voting location or an election day polling place, the county clerk or the clerk's designated representative shall physically inspect each such facility to determine its suitability for use as a polling place and its capability of handling heavy voter traffic in the most expeditious manner with a maximum efficiency and minimum discomfort of the voter.  The county clerk shall maintain a log of the day and time each facility was physically inspected, whether the inspection was performed by the county clerk, and if the inspection was not performed by the county clerk, the name of the person designated by the county clerk to perform the inspection.

C.  Each polling place shall be furnished and have available equipment necessary to assist voters in reading the ballot.

History: Laws 1989, ch. 199, § 1; 2011, ch. 131, § 5; 2019, ch. 212, § 43.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, removed certain restrictions related to polling places; deleted Subsections A and B and redesignated former Subsections C through E as Subsections A through C; in Subsection A, after "appropriate signs,", added "displayed", and after "clearly", deleted "displayed at a height no less than six feet from the floor"; and in Subsection B, after "intended for use as", deleted "a" and added "an alternative voting location, a mobile alternate voting location or an election day", and after "discomfort of the voter.", deleted "In the event the building is found to meet these standards, the county clerk shall certify for the record its acceptability." and added the remainder of the subsection.

The 2011 amendment, effective July 1, 2011, exempted precincts consolidated pursuant to Section 1-3-4 NMSA 1978 from the restrictions in Subsection A.

1-3-19. Election-day polling places; adequate resources.

A.  Each election-day polling place in a statewide election that does not contain mail ballot election precincts or precincts consolidated pursuant to Section 1-3-4 NMSA 1978 shall comply with the requirements for polling places and precincts as provided in Subsections B and C of this section, unless the county clerk receives a written waiver from the secretary of state specifying the location and specific provision being waived.

B.  Each election-day polling place shall:

(1)       have at least one voting system available to assist disabled voters to cast and record their votes; and

(2)       be in a location that is accessible and compliant with the requirements of the federal Americans with Disabilities Act of 1990.

C.  Each precinct polling place located within a single polling place shall have:

(1)       a separate election board and signature roster for the precinct;

(2)       at least one optical scan tabulator for the precinct; and

(3)       sufficient spaces for at least five voters to simultaneously and privately mark their ballots, with at least one of those spaces wheelchair-accessible, for the precinct.

History: Laws 2013, ch. 189, § 1; 2019, ch. 212, § 44.

ANNOTATIONS

Compiler’s notes. — Laws 2015, ch. 145, § 12, effective July 1, 2015, enacted a new section that is identical to Laws 2013, ch. 189, § 1 (compiled as 1-3-19 NMSA 1978), and was therefore not compiled.

The 2019 amendment, effective April 3, 2019, changed "precinct board" to "election board", and made certain clarifying amendments; in Subsection A, after "polling place in a", deleted "primary or general" and added "statewide"; in Subsection B, in the introductory clause, after "Each", added "election-day"; and in Subsection C, Paragraph C(1), after "separate", deleted "precinct" and added "election".

1-3-20. Secretary of state; geographic information system data.

A.  Beginning January 1, 2022, the secretary of state shall collect and make publicly available on the secretary of state's website the geographic information system data for each voting district in the state.

B.  The geographic information system data shall be accessible free of charge and provided in shapefile format or any comparable open source or convertible geographic information system file format.

C.  In the event of a change in voting district boundaries or precinct boundary adjustments, the secretary of state shall promptly update the geographic information system data accordingly.

D.  For the purposes of this section, "voting district" means a political subdivision or boundary located in a geographical area that is represented by an elected office.

History:  Laws 2021, ch. 79, § 1.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 1 effective July 1, 2021.

1-3A-2. Definitions.

As used in the Redistricting Act:

A.  "committee" means the citizen redistricting committee;

B.  "community of interest" means a contiguous population that shares common economic, social or cultural interests;

C.  "district plan" means an entire plan of single-member districts for electing members to the United States house of representatives, the state house of representatives, the state senate or other state offices requiring redistricting;

D.  "lobbyist" means a person who is required to register as a lobbyist pursuant to the provisions of the Lobbyist Regulation Act [Chapter 2, Article 11 NMSA 1978];

E.  "political party" means a political party that has been qualified in accordance with the provisions of the Election Code [Chapter 1 NMSA 1978]; and

F.   "public official" means a person elected to an office of the executive or legislative branch of the state.

History:  Laws 2021, ch. 79, § 3.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 3 effective July 1, 2021.

1-3A-3. Citizen redistricting committee created; membership; terms.

A.  The "citizen redistricting committee" is created.

B.  The committee is composed of seven members, appointed, with due regard to the cultural and geographic diversity of the state, as follows:

(1)       one member appointed by the speaker of the house of representatives;

(2)       one member appointed by the minority floor leader of the house of representatives;

(3)       one member appointed by the president pro tempore of the senate;

(4)       one member appointed by the minority floor leader of the senate;

(5)       two members appointed by the state ethics commission, who shall not be members of the largest or second largest political parties in the state; and

(6)       one member appointed by the state ethics commission, who shall be a retired justice of the New Mexico supreme court or a retired judge of the New Mexico court of appeals, and who shall chair the committee.

C.  No more than three members of the committee shall be members of the same political party.  A member of the committee shall not have changed party registration in the two years preceding the member's appointment in such a manner that the member's prior party registration would cause one political party to have more than three members.  A member of the committee shall not continue to serve on the committee if the member changes party registration after the date of appointment in such a manner as to cause one political party to have more than three members.

D.  Members shall be appointed not later than July 1, 2021, and August 1 of each year ending in the number zero thereafter, and shall serve until a district plan for each of New Mexico's congressional districts, the state house of representatives, the state senate and other state offices requiring redistricting is submitted to the legislature.

E.  When any member of the committee dies, resigns or no longer has the qualifications required for the member's original appointment, the member's position on the committee becomes vacant and the chair shall notify the original appointing authority of the vacant position.  The vacancy shall be filled by appointment by the original appointing authority no later than fifteen days following notification of the vacancy.

F.   The committee shall meet as necessary to carry out its duties pursuant to the Redistricting Act.

G.  Members are entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] and shall receive no other compensation, perquisite or allowance.

History:  Laws 2021, ch. 79, § 4.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 4 effective July 1, 2021.

1-3A-4. Members; qualifications; limitations.

A.  To qualify for appointment to the committee, a person shall:

(1)       be a qualified elector of New Mexico and a voter; and

(2)       not be, or in the two years prior to appointment have been, in New Mexico, any of the following:

(a) a public official;

(b) a candidate for public office;

(c)  a lobbyist;

(d) an office holder in a political party at the state or federal level;

(e) a relative in the first degree of consanguinity of a member of congress, the state house of representatives, the state senate or the public education commission;

(f)  an employee of congress, the legislative branch of government or other state office required to be redistricted by the committee; or

(g) an employee of the executive branch of government.

B.  Before entering upon the duties of the office of member, a member shall review the Redistricting Act and take the oath of office as provided by state law.

History:  Laws 2021, ch. 79, § 5.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 5 effective July 1, 2021.

1-3A-5. Committee; duties.

A.  Beginning July 1, 2021, and every August 1 of each year ending in the number zero thereafter, the committee shall:

(1)       no later than October 30, 2021, or as soon thereafter as practicable, and September 1 of each year ending in the number one thereafter, adopt three district plans each for:

(a) New Mexico's congressional districts;

(b) the state house of representatives;

(c)  the state senate; and

(d) the other state offices required to be redistricted;

(2)       hold no fewer than six public meetings that allow for virtual participation before publishing the district plans for public comment; provided that in-person meetings shall not be required if such meetings would violate a public health order;

(3)       hold no fewer than six public meetings that allow for virtual participation for the purpose of adopting district plans; provided that in-person meetings shall not be required if such meetings would violate a public health order;

(4)       conduct all meetings pursuant to the requirements of the Open Meetings Act; and

(5)       compile, index, maintain and provide public access to the committee's record for each district plan it adopts.

B.  Beginning no later than July 1, 2021, and August 1 of each year ending in the number zero thereafter, the committee may:

(1)       develop and adopt procedures for public hearings; and

(2)       hire staff and enter into contracts and any interagency agreements, including agreements to provide for professional technical or legal services, as necessary to accomplish the duties set forth in this section.

History:  Laws 2021, ch. 79, § 6.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 6 effective July 1, 2021.

1-3A-6. Committee meetings before proposing district plans.

A.  Before the committee issues proposed district plans for public comment, the committee shall hold no fewer than six public meetings at which the committee shall receive testimony, documents and information regarding the identification of communities of interest and other testimony, documents and information regarding the creation of district plans.  The committee shall provide the public with notice not later than thirty days before these meetings and the notice shall include information about how the public may participate and submit testimony, documents and information.  The committee shall hold meetings in various regions across the state, including in central New Mexico and in each of the four geographic quadrants of the state, with at least one meeting on tribal lands.

B.  The committee shall compile, index, maintain and provide public access to all testimony, documents and information received in the meetings conducted before issuing proposed district plans for public comment.

C.  The proposed district plans that the committee issues for public comment shall be based, in part, on the testimony, documents and information received.

History:  Laws 2021, ch. 79, § 7.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 7 effective July 1, 2021.

1-3A-7. District plans; requirements and prohibitions.

A.  The committee shall develop district plans in accordance with the following provisions:

(1)       congressional districts shall be as equal in population as practicable;

(2)       state districts shall be substantially equal in population; no plans for state office will be considered that have a total deviation of more than ten percent;

(3)       the committee shall use the most recent federal decennial census data generated by the United States census bureau and may use other reliable sources of demographic data as determined by majority vote of the committee;

(4)       proposed redistricting plans to be considered by the legislature shall not be composed of districts that split precincts;

(5)       plans must comport with the provisions of the federal Voting Rights Act of 1965, as amended, and federal constitutional standards; plans that dilute a protected minority's voting strength are unacceptable; race may be considered in developing redistricting plans but shall not be the predominant consideration; traditional race-neutral districting principles shall not be subordinated to racial considerations;

(6)       all redistricting plans shall use only single-member districts;

(7)       districts shall be drawn consistent with traditional districting principles;

(8)       districts shall be composed of contiguous precincts and shall be reasonably compact;

(9)       to the extent feasible, districts shall be drawn in an attempt to preserve communities of interest and shall take into consideration political and geographic boundaries, including the boundaries of Indian nations, tribes and pueblos; and

(10)     in addition, and to the extent feasible, the committee may seek to preserve the core of existing districts.

B.  The committee may incorporate suggested changes to its proposed district plans in accordance with public comments and testimony it receives, but shall not subordinate the requirements of Paragraphs (1) through (9) of Subsection A of this section in doing so.

C.  When proposing or adopting district plans, the committee shall not:

(1)       use, rely upon or reference partisan data, such as voting history or party registration data; provided that voting history in elections may be considered to ensure that the district plan complies with applicable federal law; or

(2)       consider the voting address of candidates or incumbents, except to avoid the pairing of incumbents unless necessary to conform to other traditional districting principles.

History:  Laws 2021, ch. 79, § 8.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 8 effective July 1, 2021.

1-3A-8. Committee adoption of district plans.

The committee shall adopt at a minimum three district plans for each of New Mexico's congressional districts, the state house of representatives, the state senate and other state offices required to be redistricted at an open meeting.  After the committee adopts the district plans, the committee shall provide written evaluations of each district plan that address the satisfaction of the requirements set forth in the Redistricting Act, the ability of racial and language minorities to elect candidates of their choice, a measure of partisan fairness and the preservation of communities of interest.

History:  Laws 2021, ch. 79, § 9.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 9 effective July 1, 2021.

1-3A-9. Legislative selection of district plans.

A.  The committee shall deliver its adopted district plans and accompanying written evaluations and all accompanying concise explanatory statements to the legislature by October 30, 2021, or as soon thereafter as practicable, and September 1 of each year ending in the number one thereafter.

B.  The legislature shall receive the adopted district plans for consideration in the same manner as for legislation recommended by interim legislative committees.

History:  Laws 2021, ch. 79, § 10.

ANNOTATIONS

Effective dates. — Laws 2021, ch. 79, § 13 made Laws 2021, ch. 79, § 10 effective July 1, 2021.

Intimate Partner Violence Survivor Suffrage

1-6C-2. Definitions.

As used in the Intimate Partner Violence Survivor Suffrage Act:

A.  "administrator" means the person appointed by the secretary of state to administer the election component of the confidential substitute address program;

B.  "appropriate county clerk" means the county clerk of the county in which the residential address on a voter registration certificate is located and includes the elected official, the county clerk's chief deputy, an appointed election board and employees or agents of the county clerk with duties related to the Intimate Partner Violence Survivor Suffrage Act;

C.  "certification" means the procedure provided by the Confidential Substitute Address Act [40-13B-1 to 40-13B-9 NMSA 1978] for a person to be certified as a participant in the confidential substitute address program;

D.  "confidential substitute address program" means the program administered by the secretary of state pursuant to the Confidential Substitute Address Act;

E.  "decertification" means the procedure provided by the Confidential Substitute Address Act for a person to be decertified as a participant in the confidential substitute address program;

F.   "delivery address" means the address where a voter-participant receives mail;

G.  "election" means a statewide or special election called, conducted and canvassed pursuant to the provisions of the Election Code;

H.  "participant" means a person certified to participate in the confidential substitute address program pursuant to the procedures of the Confidential Substitute Address Act; and

I.    "voter-participant" means a participant who is also a voter.

History: Laws 2019, ch. 226, § 2.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 2 effective July 1, 2019.

1-6C-3. Elections covered; automatic delivery of ballots; form of ballot and ballot materials; confidentiality.

A.  The procedures in the Intimate Partner Violence Survivor Suffrage Act apply to all elections and operate notwithstanding other provisions of the Election Code or state or local laws related to elections to the contrary.

B.  Upon a person's certification as a participant, the administrator shall determine whether the participant is a voter.  If the participant is not a voter but appears to be a qualified elector, the administrator shall offer the participant the opportunity to register to vote.

C.  A voter-participant shall vote exclusively by mailed absentee ballot or mailed ballot.  In each election in which a voter-participant is eligible to vote, the administrator shall send a mailed absentee ballot or a mailed ballot to the voter-participant without requiring a request or application to receive a ballot.

D.  The form of the ballot for a voter-participant shall be the same as the ballot provided to all other voters.  A voter-participant may vote for all candidates and on all questions as if the voter were casting a ballot in person.

E.  The form of the ballot materials for voter-participants shall be the same as the ballot materials provided to all other voters, except as required to implement the Intimate Partner Violence Survivor Suffrage Act.

F.   With regard to communications related to participants and participant records related to voting:

(1)       any communication between the secretary of state and any county clerk related to the Intimate Partner Violence Survivor Suffrage Act shall be maintained as confidential in accordance with the confidentiality provisions of Subsection A of Section 40-13B-8 NMSA 1978 and shall not be disclosed except as provided by that section; and

(2)       once a person is decertified, records related to that voter are no longer confidential pursuant to Paragraph (1) of this subsection and may be disclosed in the same manner provided for disclosure of voter information pursuant to the provisions of the Election Code.

History: Laws 2019, ch. 226, § 3.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 3 effective July 1, 2019.

1-6C-4. Voter records; certification; decertification; cancellation.

Notwithstanding the provisions of the Voter Records System Act [Chapter 1, Article 5 NMSA 1978], the secretary of state shall:

A.  maintain within the state voter registration electronic management system a secured module.  Voter-participant registration records shall be maintained in the secured module and shall be accessible only as required by staff designated by the secretary of state.  Voter-participant registration records shall not appear in the voter file or the county voter list, be accessible by any county user or be viewable by the public;

B.  maintain a register of voter-participants, which shall serve as a supplement to the county register for the county in which each voter-participant's voter registration residential address is located.  The register maintained by the secretary of state shall be filed in a fire-resistant container;

C.  upon the determination that a participant is an existing voter, proceed to transfer all voter registration records related to the voter-participant from the voter file to the secured module and shall notify the appropriate county clerk, who shall immediately transfer the voter-participant's voter registration documents from the county register to the secretary of state.  Voter registration records related to a voter-participant shall not be maintained in the county register or by the county clerk;

D.  when a participant executes a new or updated certificate of registration, fulfill the duties of the appropriate county clerk in placing the voter-participant's certificate of registration in the register maintained by the secretary of state and entering the information into the secured module;

E.  upon decertification of a person who is a voter:

(1)       transfer the person's voter registration information from the secured module into the voter file; and

(2)       deliver the certificate of voter registration to the appropriate county clerk for placement in the county register;

F.   upon the cancellation of a person's voter registration when the person is also decertified as a participant:

(1)       transfer the canceled voter registration information from the secured module into the voter file; and

(2)       deliver the certificate of registration and other documents pertaining to the canceled voter registration to the appropriate county clerk for placement in the county register for the retention period; and

G.  upon the cancellation of a participant's voter registration when the person remains a participant, perform the duties of the county clerk in the cancellation of registration and retention of records; provided that when the person is decertified, the secretary of state shall:

(1)       transfer the canceled voter registration information from the secured module into the voter file; and

(2)       if the retention period for voter registration records provided in Section 1-4-32 NMSA 1978 has not expired, deliver the certificate of registration and other documents pertaining to the canceled voter to the appropriate county clerk for placement in the county register for the remainder of the retention period.

History: Laws 2019, ch. 226, § 4.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 4 effective July 1, 2019.

1-6C-5. Random identifier and verification code.

A.  Prior to each election, the administrator shall assign to each voter-participant eligible to vote in that election a random identifier and a verification code for use in that election only.

B.  In the mailed absentee ballot or mailed ballot process, the random identifier shall be used in place of the voter-participant's required voter identification and the verification code shall be used in place of the voter-participant's signature.

C.  At the same time a ballot is mailed to a voter-participant, the administrator shall separately send the voter-participant the verification code assigned to the voter-participant for that election, along with instructions to place the verification code where a voter normally provides a signature under the privacy flap of a mailed absentee ballot or mailed ballot.

History: Laws 2019, ch. 226, § 5.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 5 effective July 1, 2019.

1-6C-6. Transmission of ballots to voter-participants.

A.  On the thirty-fifth day before an election, on behalf of each voter-participant eligible to vote in that election, the administrator shall request from each appropriate county clerk the ballot to be used by each voter-participant registered to vote in that county.

B.  The request shall not reveal the name or address of the voter-participant.  In place of a voter-participant's name and address, the administrator shall provide the appropriate county clerk the random identifier and verification code associated with the voter-participant for that election.  The request made pursuant to this section is a record related to voting subject to the disclosure and retention procedures of Section 1-12-69 NMSA 1978.

C.  No later than thirty-two days before the election, the appropriate county clerk shall transmit to the administrator the ballot for each voter-participant registered to vote in that county.

D.  Twenty-eight days before the election, the administrator shall mail a ballot and balloting materials to a voter-participant's delivery address, along with a return envelope necessary to return the voted ballot to the appropriate county clerk.  The return envelope shall be the same as for all other voters, except that in place of the required voter identification to be written under the privacy flap, the administrator shall provide the random identifier assigned to that voter-participant for that election.  The return envelope for the voted ballot shall be postage-paid and the return address shall be the address for the appropriate county clerk.

E.  When a participant registers to vote or updates a voter registration after the thirty-fifth day before an election but before the deadline to register to vote or to update an existing registration pursuant to Section 1-4-8 NMSA 1978, the administrator shall:

(1)       request from the appropriate county clerk, and the appropriate county clerk shall transmit to the administrator as soon as practicable, a ballot and balloting materials; and

(2)       send a voter-participant the ballot and balloting materials within twenty-four hours of receipt from the appropriate county clerk.

F.   When an unvoted ballot is transmitted to the administrator on behalf of a voter-participant, the appropriate county clerk shall note in the ballot register the random identifier in place of the voter-participant's name and the address of the confidential substitute address program in place of the voter-participant's address and shall not note the voter-participant's gender or year of birth.

History: Laws 2019, ch. 226, § 6.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 6 effective July 1, 2019.

1-6C-7. Receipt of voted ballots from voter-participants.

A.  A voted ballot shall be returned by the voter-participant to the appropriate county clerk.  A voted ballot from a voter-participant shall be considered timely if it is received no later than the deadline for receiving mailed absentee ballots or mailed ballots pursuant to Section 1-6-10 NMSA 1978.

B.  When a voted ballot is received from a voter-participant, the appropriate county clerk or election board shall compare the random identifier provided by the voter-participant under the privacy flap to the list of random identifiers provided by the administrator for that election.  If the random identifier appears in both places, the appropriate county clerk shall verify that the verification code assigned to that random identifier for that election matches the verification code provided by the voter-participant under the privacy flap in lieu of the voter's signature.  If the verification code is on the list provided by the administrator for use in that election and matches the random identifier assigned by the administrator to identify the voter-participant, the ballot shall be qualified and processed in the same manner as mailed absentee ballots or mailed ballots received and qualified in that election.

C.  If either the random identifier or the verification code is missing, or if the random identifier and verification code under the privacy flap do not match, the ballot shall not be qualified and shall be disposed of in the same manner as mailed absentee ballots or mailed ballots received in that election and not qualified.

D.  Following an election and within the time frames provided in the Election Code, the appropriate county clerk shall provide to the administrator using the random identifier for that election the voter credit information for each voter-participant who voted and the appropriate notations for any voter-participant whose election mail was returned as undeliverable.

History: Laws 2019, ch. 226, § 7.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 7 effective July 1, 2019.

1-6C-8. Statewide election; state canvass report.

The secretary of state shall prepare a public report to be included with the state canvass results of each statewide election.  The report shall include the total number of statewide:

A.  participants;

B.  voter-participants who were sent a ballot;

C.  voter-participants who returned a ballot; and

D.  ballots from voter-participants that were qualified and counted.

History: Laws 2019, ch. 226, § 8.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 8 effective July 1, 2019.

1-6C-9. Judicial proceedings.

A.  In a judicial proceeding related to an election, upon good cause shown and only as is required to complete the judicial proceeding, a judge may permit in-camera inspection of a voter-participant's voter registration information and information related to participation in the confidential substitute address program.

B.  The administrator shall be notified and joined as an indispensable party on behalf of the confidential substitute address program in a judicial proceeding related to an election whenever a judge considers permitting in-camera inspection of any information related to a voter-participant and before such determination is made.

C.  In a judicial proceeding related to an election in which the secretary of state is a party in the secretary's capacity as the chief election officer of the state and the administrator is joined as an indispensable party on behalf of the confidential substitute address program, the attorney general shall provide separate representation for the secretary of state and for the administrator.

D.  Information reviewed in-camera pursuant to this section shall not be admitted into evidence unless the information is the basis for the final judgment by the court.

History: Laws 2019, ch. 226, § 9.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 226, § 13 made Laws 2019, ch. 226, § 9 effective July 1, 2019.

1-11-6.1. Electronic voting machines; testing.

All programming of vote tabulating machines shall be tested under the supervision of the county clerk. The machines shall be programmed so that votes will be counted in accordance with the specifications for electronic voting machines.

History: 1978 Comp., § 1-11-6.1, enacted by Laws 1985, ch. 207, § 26; 1991, ch. 105, § 21; 2011, ch. 137, § 76.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, eliminated the requirement that county clerks test electronic voting machines ten days before the election and retain the logic and accuracy test printout; and eliminated the requirement that all counters be set at zero and sealed after they are tested.

The 1991 amendment, effective April 2, 1991, in Subsection A, substituted "logic and accuracy test printout, known as the internal audit trail" for "test cards and results of the test" in the third sentence and "test ballots used in the marksense voting machines" for "test cards used in the electronic vote tabulating machines" in the fourth sentence.

1-11-7. Voting machine; certificate of preparation.

Immediately after each electronic voting machine has been prepared for the election, the county clerk shall prepare a written certificate, which shall be filed in the county clerk's office. A copy of the certificate shall be posted on the voting machine, and one copy shall be forwarded to the secretary of state. The certificate shall show the serial number for the voting machine, whether or not the machine has all of its public counters set at zero and whether or not the machine has been tested by voting on each public counter to prove the counter is in perfect condition. The certificate shall also show the number of the seal that has sealed the machine and the number registered on the public counter.

History: 1953 Comp., § 3-11-8, enacted by Laws 1969, ch. 240, § 217; 1981, ch. 137, § 2; 1985, ch. 207, § 27; 2011, ch. 137, § 77.

ANNOTATIONS

Cross references. — For manner of preparing voting machine, see 1-11-6 NMSA 1978.

For notice of sealing, see 1-11-8 NMSA 1978.

The 2011 amendment, effective July 1, 2011, made stylistic changes.

1-11-8. Voting machines; notice of sealing.

A.  At least three days before preparing any type of voting machine for an election, the county clerk shall send notice to the county chair of each political party having a candidate on the ballot in the election. The notice shall state the times when and places where the voting machines will be prepared.

B.  Party and organization representatives, election observers and candidates may be present at the preparation, inspection and sealing of the voting machines to ensure compliance with the Election Code.

History: 1953 Comp., § 3-11-9, enacted by Laws 1969, ch. 240, § 218; 1985, ch. 207, § 28; 2011, ch. 137, § 78.

ANNOTATIONS

Cross references. — For challengers examining machine seals, see 1-2-23 NMSA 1978.

For watchers examining voting machines, see 1-2-29 NMSA 1978.

The 2011 amendment, effective July 1, 2011, required county clerks to notify the county chair of each political party at least three days before the county clerk prepares a voting machine for an election.

1-11-10. Voting machines; objections to use.

Unless an objection to the use of a particular voting machine is filed in the district court within two days after it is prepared, inspected and sealed, the voting machine when certified to be correct by the county clerk shall be conclusively presumed to be properly prepared for the election. Any objection so filed shall specify the number of the voting machine objected to and the reason for the objection.

History: 1953 Comp., § 3-11-11, enacted by Laws 1969, ch. 240, § 220.

1-11-11. Election supplies; voting machines; delivery.

A.  Voting machines shall be delivered to the assigned precinct polling place at least three days before the polls are required to be opened. The election supplies and the keys of voting machines shall be delivered to the presiding judge at least one hour before the polls are required to be opened.

B.  The county clerk of any county shall certify to the secretary of state on forms provided by the secretary of state, that he has inspected each voting machine after delivery but before the date of the election and has found each machine to have been correctly labeled, that there has been no obvious external damage in delivery and that each machine has been delivered to the proper polling place in each precinct.

History: 1953 Comp., § 3-11-12, enacted by Laws 1969, ch. 240, § 221; 1977, ch. 222, § 32; 1989, ch. 392, § 22.

ANNOTATIONS

Cross references. — For election supplies, see 1-11-18 NMSA 1978.

1-11-13. Index of voters.

Upon the written request of a qualified political party, a candidate, an election-related organization or an election observer, the secretary of state shall send to the requester an index of all voters and their addresses, their party affiliation, their precinct, their voter history, their unique identifier and their early or absentee voting status in any election currently underway. Each index shall be certified by the secretary of state as being an accurate listing of all voters in each requested county. The written request shall specify whether the information is to be received electronically or on paper, the electronic or physical delivery address, the time period during which the information is to be received, the frequency of receiving the information and the method of payment.

History: 1953 Comp., § 3-11-14, enacted by Laws 1969, ch. 240, § 223; 2011, ch. 137, § 79.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, rewrote this section to require the secretary of state to furnish an index of voters and registration information to political parties, candidates, election-related organizations and election observers upon request.

Certified copies of registration lists not part of return. — Under former statute (1929 Comp. § 41-229), certified copies of registration lists filed with secretary of state were not part of "returns" required to be canvassed by state canvassing board (1929 Comp. § 41-347 et seq.). Chavez v. Hockenhull, 1934-NMSC-093, 39 N.M. 79, 39 P.2d 1027.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 109.

29 C.J.S. Elections §§ 47, 197.

1-11-14. Tally sheets and statements of canvass; preparation.

Prior to election day, the secretary of state shall cause to be printed in the tally sheets and statements of canvass, in the proper places and under the proper designations, the names of all candidates appearing on the official ballot. The secretary shall approve a county's use of computer-based tally sheets upon recommendation of the voting system certification committee if the county submits the software program to be used for tallying to the secretary of state at least ninety days prior to the election and the voting system certification committee determines that the program is acceptable for the proposed use.

History: 1953 Comp., § 3-11-15, enacted by Laws 1969, ch. 240, § 224; 1981, ch. 137, § 3; 2003, ch. 226, § 1; 2011, ch. 137, § 80.

ANNOTATIONS

Cross references. — For form for tally sheets, see 1-11-15 NMSA 1978.

For tally books in emergency situations, see 1-12-66 NMSA 1978.

The 2011 amendment, effective July 1, 2011, permitted the use of computer-based tally sheets upon recommendation of the voting system certification committee.

The 2003 amendment, effective June 20, 2003, added the last sentence.

1-11-15. Signature rosters; checklist of registered voters; tally sheets; form.

Signature rosters, checklists of registered voters and tally sheets shall be in the form prescribed by the secretary of state.

History: 1953 Comp., § 3-11-17, enacted by Laws 1969, ch. 240, § 226; 1977, ch. 222, § 33; 1981, ch. 137, § 4; 1985, ch. 207, § 31; 1991, ch. 105, § 23.

ANNOTATIONS

Cross references. — For preparation of tally sheets, see 1-11-14 NMSA 1978.

For tally sheets in emergency situations, see 1-12-66 NMSA 1978.

The 1991 amendment, effective April 2, 1991, inserted references to "checklist of registered voters" in the section heading and in the text.

1-11-16. Signature roster certificates; checklist of registered voter's certificates; precinct board [election board] member's oath.

The secretary of state shall prescribe the form of the signature roster certificates, checklist of registered voter's certificates and the precinct board [election board] member's oath.

History: 1953 Comp., § 3-11-19, enacted by Laws 1969, ch. 240, § 228; 1971, ch. 317, § 19; 1981, ch. 137, § 5; 1985, ch. 207, § 32; 1991, ch. 105, § 24.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.

The 1991 amendment, effective April 2, 1991, inserted "checklist of registered voter's certificates" in the section heading and in the text of the section.

1-11-18. Election supplies.

The secretary of state shall prescribe the types and number of election supplies to be used in the precincts.

History: 1953 Comp., § 3-11-27.1, enacted by Laws 1977, ch. 222, § 34.

ANNOTATIONS

Rubber stamps for write-in candidate not necessary supplies. — Under the former statutory provision calling for necessary election supplies to be delivered to each polling place, rubber stamps bearing a write-in candidate's name were not necessary election supplies, nor was a county clerk authorized to affix the stamps to a voting machine. 1964 Op. Att'y Gen. No. 64-131.

1-11-19. Costs of elections; local election assessment; election fund established.

A.  There is created in the state treasury the "election fund" solely for the purposes of:

(1)       paying the costs of conducting and administering statewide elections required by the Election Code;

(2)       reimbursing the counties for the costs of conducting and administering statewide elections required by the Election Code;

(3)       paying the administrative costs of the office of the secretary of state for administering elections required by the Election Code and for administering the election fund; and

(4)       carrying out all other specified provisions of the Election Code not already covered by another fund administered by the secretary of state. 

B.  The state treasurer shall invest the election fund as other state funds are invested, and all income derived from the fund shall be credited directly to the fund.  Remaining balances at the end of a fiscal year shall remain in the fund and not revert to the general fund.  Money in the fund is appropriated to the office of the secretary of state for the purposes authorized in Subsection A of this section.  Money in the fund shall only be expended on warrants of the department of finance and administration pursuant to vouchers signed by the secretary of state or the secretary's designee.

C.  Money received from the following sources shall be deposited directly into the election fund: 

(1)       money appropriated to the fund by the legislature;

(2)       reimbursements from the state or a local government for elections costs; and

(3)       grants received by the secretary of state.

D.  In the event that current year balances in the election fund do not cover the costs of elections, the secretary of state may apply to the state board of finance for an emergency grant to cover those costs pursuant to Section 6-1-2 NMSA 1978.

History: Laws 2018, ch. 79, § 33; recompiled and amended as § 1-11-19 by Laws 2019, ch. 212, § 110.

ANNOTATIONS

Recompilations. — Laws 2019, ch. 212, § 110 recompiled and amended former 1-22-20 NMSA 1978 as 1-11-19 NMSA 1978, effective April 3, 2019.

Temporary provisions. — Laws 2019, ch. 212, § 282 provided that in fiscal years 2019 and 2020, if sufficient funding is deemed available by the secretary of state no later than May 1, 2019 and May 1, 2020, money in the election fund may be expended to reimburse local governments for transitional costs associated with implementation of the Local Election Act, based on written guidance provided by the secretary of state and posted on the secretary's website no later than May 1, 2019 and May 1, 2020.

The 2019 amendment, effective April 3, 2019, effective April 3, 2019, revised the purpose of the election fund; changed "Local Election Act" to "Election Code" throughout; in Subsection A, added a new Paragraph A(1) and redesignated former Paragraphs A(1) through A(3) as Paragraph A(2) through A(4), in Paragraph A(4), after "Election Code" added "not already covered by another fund administered by the secretary of state"; in Subsection B, after "revert to the general fund", added the remainder of the subsection; in Subsection C, deleted former Paragraph C(1) and redesignated former Paragraph C(2) as Paragraph C(1), added new Paragraphs C(2) and C(3); deleted Subsection D and redesignated former Subsection E as Subsection D; and deleted former Subsection F.

1-7-1. Political parties; conditions for use of ballot.

All nominations of candidates for public office in New Mexico made by political parties shall be made pursuant to the Election Code [Chapter 1 NMSA 1978]. No political party shall be permitted to have the names of its candidates printed on any election ballot unless and until it has qualified as provided in the Election Code.

History: 1953 Comp., § 3-7-1, enacted by Laws 1969, ch. 240, § 144.

ANNOTATIONS

Party must file rules and regulations with secretary of state before candidates appear on ballot. — The first step that must be taken by a political party before the names of its candidates may be placed upon the ballot in the general election is to make, adopt and file through its state central committee, or other governing body, a set of rules and regulations providing for its convention and organization, the manner of calling and conducting its elections, the mode of selection of delegates to such conventions, the manner of selecting members of its state central committee, the state chairman and other officers and members of its governing bodies, the powers and duties of such officers, committees and governing bodies, the method of selecting nominees for such offices, and the means and manner of filling vacancies in such offices, committees and governing bodies and on the party ballot. Such rules and regulations must be filed with the secretary of state within 30 days after the organization of the party and at least 60 days before the general election, if the party desires to have the names of its candidates placed on the ballot for national, state or district officers. 1960 Op. Att'y Gen. No. 60-113 (opinion rendered under former law).

Political party must hold convention for purpose of nominating candidates for such offices. 1960 Op. Att'y Gen. No. 60-113 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 198 et seq.

29 C.J.S. Elections § 84.

1-7-2. Qualification; removal; requalification.

A.  To qualify as a political party in New Mexico, each political party through its governing body shall adopt rules providing for the organization and government of that party and shall file the rules with the secretary of state. Uniform rules shall be adopted throughout the state by the county organizations of that party, where a county organization exists, and shall be filed with the county clerks. At the same time the rules are filed with the secretary of state, the governing body of the political party shall also file with the secretary of state a petition containing the hand-printed names, signatures, addresses of registration and counties of residence of at least one-half of one percent of the total votes cast for the office of governor at the preceding general election who declare by their signatures on the petition that they are voters of New Mexico and that they desire the party to be a qualified political party in New Mexico. Blank petition forms shall be available at any time from the secretary of state.

B.  Each county political party organization may adopt supplementary rules insofar as they do not conflict with the uniform state rules or do not abridge the lawful political rights of any person. Such supplementary rules shall be filed with the county clerk and the secretary of state in the same manner as other rules are filed.

C.  A qualified political party shall cease to be qualified for the purposes of the Election Code [Chapter 1 NMSA 1978] if two successive general elections are held without at least one of the party's candidates on the ballot or if the total votes cast for the party's candidates for governor or president of the United States, provided that the party has a candidate seeking election to either of these offices, in a general election do not equal at least one-half of one percent of the total votes cast for the office of governor or president of the United States, as applicable. No later than March 15 of an odd-numbered year, the secretary of state shall send notice of nonqualification to the state chair of any political party that fails to remain qualified. The notice shall be delivered by registered mail to the last known address of the state chair of the political party, and a copy shall be kept in the secretary of state's file of parties qualified in New Mexico.

D.  The secretary of state shall then notify all county clerks of the removal and nonqualification of the political party and shall post the notice on the web site maintained by the secretary of state. The secretary of state shall within forty-five days notify by mail all voters registered as members of such party of the removal and nonqualification of the party.

E.  To requalify, the party shall again comply with the provisions of the Election Code dealing with filing requirements for political parties.

History: 1953 Comp., § 3-7-2, enacted by Laws 1969, ch. 240, § 145; 1975, ch. 255, § 97; 1979, ch. 378, § 4; 1981, ch. 141, § 1; 1989, ch. 392, § 16; 1990, ch. 39, § 1; 1995, ch. 124, § 8; 2011, ch. 137, § 49.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, required the secretary of state to make blank petition forms available at all times and to send notice of nonqualification to the state chair of any political party that fails to remain qualified and to post the notice on the secretary of state’s web site and imposed a forty-five day deadline for sending notice to registered voters who are members of the party.

The 1995 amendment, effective January 1, 1996, inserted "where a county organization exists" and made a minor stylistic change in the second sentence of Subsection A, and inserted "provided that the party has a candidate seeking election to either of these offices" in the second sentence of Subsection C.

The 1990 amendment, effective March 1, 1990, substituted "desire the party to be a qualified political party in New Mexico" for "support the official recognition of that party" at the end of Subsection A and, in Subsection C, substituted the first two sentences for the former first sentence which read "Beginning with the general election in 1988, if two successive general elections are held without at least one candidate from the qualified political party on the ballot or that party does not receive at least one-half of one percent of the total votes cast for the office of governor or president, the party will no longer be considered 'qualified' for purposes of the Election Code."

Constitutionality. — Subsection A's former requirement that a new political party must provide petitions containing 500 signatures from registered voters who declare that they are members of that party was unconstitutional, imposing an unnecessary burden on those signatories' First Amendment rights. Workers World Party v. Vigil-Giron, 693 F. Supp. 989 (D.N.M. 1988).

Maintaining major party status. — To maintain recognition as a major political party in an upcoming general election, a political party must satisfy the same requirements necessary for initial recognition as a major political party. The party must: 1) have run at least one candidate in one of the last two general elections, with its candidate for governor or U.S. president, if any, having received the statutorily prescribed minimum number of votes, 2) have a candidate who received, in the last preceding general election, the min imum number of votes required, and 3) have in its membership on the day of the primary election proclamation registered voters sufficient to satisfy the minimum membership requirement. 1996 Op. Att'y Gen. No. 96-01.

1-7-3. Rules and regulations; contents.

The secretary of state and the county clerk shall not accept the rules and regulations of any political party for filing unless such rules and regulations provide:

A.  a method for nominating candidates for the general election;

B.  a method for calling and conducting conventions;

C.  a method for selection of delegates to conventions;

D.  a method for selection of state central committee members, a state chairman and other party officers, and all other members of governing bodies of the party;

E.  a method for filling vacancies in party offices, committees and other governing bodies;

F.   the powers and duties of party officers, committees and other governing bodies;

G.  for the structure of the state and county party organizations;

H.  that meetings to elect any party officers, including delegates, shall be held at a public place during the week specified by the state party chairman;

I.    that notice of such meetings shall be published by the officers of the county party organization in a newspaper of general circulation at least fourteen days prior to the meeting and the notice shall specify the time, date and place for holding the meeting; and

J.   a method for amending the party rules and regulations.

History: 1953 Comp., § 3-7-3, enacted by Laws 1969, ch. 240, § 146.

ANNOTATIONS

County chairman and precinct chairman not automatically delegates. — Nowhere in the New Mexico statutes is it provided that county chairmen and precinct chairmen automatically become delegates by virtue of their positions. In order to be delegates they must be elected in the same manner that other delegates are elected. 1966 Op. Att'y Gen. No. 66-17.

Party to file with secretary of state to place candidates on ballots for national, etc., offices. — When a party wishes to place candidates on the ballots for national, state, district and legislative offices from multiple county districts, such party must comply with this section by filing its rules and regulations with the secretary of state. 1956 Op. Att'y Gen. No. 56-6559.

Party must file with county clerk for county offices. — If a party is interested in having candidates on the ballot for county offices, such party must comply with this section by filing its rules and regulations with the county clerk. 1956 Op. Att'y Gen. No. 56-6559.

Rules need not be filed with county clerk for election of district attorney. — The secretary of state is not concerned with the question of whether there have been party rules and regulations filed with county clerks with reference to the nomination or election to the office of the district attorney. The office of district attorney is a state office. 1956 Op. Att'y Gen. No. 56-6559.

Nominations for congress must follow rules and regulations. — It is clear that nominations to fill vacancies in United States congress are to be made in accordance with the rules and regulations of the respective parties. 1956 Op. Att'y Gen. No. 56-6540.

1-7-4. Rules and regulations; filing; fee.

A.  Each political party shall file its rules and regulations, along with petitions containing the required number of signatures, if the signature provision is applicable to the party, within thirty days after its organization and no later than twenty-three days after the primary election before any general election in which it is authorized to participate.

B.  Within seven days after the filing of the political party's rules and qualifying petitions, the secretary of state shall notify the political party whether the rules and qualifying petitions are in proper order and that the party has qualified. The secretary of state shall notify all county clerks in the state of the qualification of that political party and post notice of qualification on the secretary of state's web site.

C.  Political parties filing rules and regulations with the county clerk shall pay the standard filing fee.

History: 1953 Comp., § 3-7-4, enacted by Laws 1969, ch. 240, § 147; 1977, ch. 222, § 17; 1983, ch. 232, § 8; 1995, ch. 124, § 9; 2014, ch. 40, § 1; 2014, ch. 81, § 1.

ANNOTATIONS

The 2014 amendment, effective March 12, 2014, provided for the filing of a qualifying petition and notice of qualification as a party; provided for standardized filing dates; in Subsection A, after "rules and regulations", added "along with petitions containing the required number signatures, if the signature provision is applicable to the party", after "no later than" deleted "the first Tuesday in April" and added "twenty-three days after the primary election", and after "before any", added "general"; and added Subsection B.

Laws 2014, ch. 40, § 1, effective March 7, 2014, and Laws 2014, ch. 81, § 1, effective March 12, 2014, enacted identical amendments to this section. The section was set out as amended by Laws 2014, ch. 81, § 1. See 12-1-8 NMSA 1978.

The 1995 amendment, effective January 1, 1996, substituted "first Tuesday in April" for "second Tuesday in July" in Subsection A.

Party must file with secretary of state for national, etc., offices. — When a party wishes to place candidates on the ballots for national, state, district and legislative offices from multiple county districts, such party must comply with this section by filing its rules and regulations with the secretary of state. 1956 Op. Att'y Gen. No. 56-6559 (opinion rendered under former law).

1-7-5. Rules and regulations; amendment.

Political party rules and regulations filed as required by the Election Code [Chapter 1 NMSA 1978] are subject to amendment only in the manner provided for in such rules and regulations. No amendments shall be made less than one hundred twenty days prior to any general election, nor shall any amendment be effective until thirty days after being filed. Amendments shall be filed in the same manner as original party rules and regulations are filed.

History: 1953 Comp., § 3-7-5, enacted by Laws 1969, ch. 240, § 148; 1975, ch. 255, § 98.

1-7-6. Party name and emblem.

A.  The chairman of the state central committee of a qualified political party shall file with the secretary of state a certificate setting forth the name selected for the political party and showing a representation of the emblem by which the party is to be represented.

B.  The certified party name and emblem shall thereafter be used to designate the ticket of that political party on all ballots.

C.  The secretary of state shall certify the party name and emblem of the party to each county clerk.

D.  The state convention of a political party may change the party name and party emblem by adopting in their stead another name and emblem. The new party name and party emblem shall be filed in the same manner as was the original party name and party emblem, provided the certificate shall be signed by the presiding officer and the secretary of the state convention adopting the new party name and party emblem.

E.  No political party shall adopt any party name or party emblem which is the same as, similar to, or which conceivably can be confused with or mistaken for the party name or party emblem of any other qualified political party in New Mexico.

History: 1953 Comp., § 3-7-6, enacted by Laws 1969, ch. 240, § 149.

1-7-7. Major political party; minor political party.

As used in the Election Code [Chapter 1 NMSA 1978]:

A.  "major political party" means any qualified political party, any of whose candidates received as many as five percent of the total number of votes cast at the last preceding general election for the office of governor or president of the United States, as the case may be, and whose membership totals not less than one-third of one percent of the statewide registered voter file on the day of the governor's primary election proclamation; and

B.  "minor political party" means any qualified political party that is not qualified as a major political party pursuant to Subsection A of this section.

History: 1953 Comp., § 3-1-8, enacted by Laws 1969, ch. 240, § 8; 1975, ch. 255, § 3; 1983, ch. 258, § 1; 1995, ch. 124, § 1; 1978 Comp., § 1-1-9, recompiled and amended as § 1-7-7 by Laws 2011, ch. 137, § 48.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, modified the definition of "minor political party" by eliminating the requirement that candidates of the party receive not more than five percent of the votes cast in the preceding general election for the office of governor or president of the United States.

The 1995 amendment, effective January 1, 1996, inserted the language beginning "and whose membership" and ending "election proclamation" in Subsection A.

Minimum vote requirement for major party. — To satisfy the minimum vote requirement for recognition as a major political party, at least one candidate of the qualified political party, irrespective of office sought, must have received at least five percent of the total votes cast at the last preceding general election for the office of governor or U.S. president, whichever election is applicable. Additionally, Subsection A requires that the political party must satisfy a minimum membership requirement of at least one-third of one percent of the statewide registered voter file on the day of the primary election proclamation. 1996 Op. Att'y Gen. No. 96-01.

Maintaining major party status. — To maintain recognition as a major political party in an upcoming general election, a political party must satisfy the same requirements necessary for initial recognition as a major political party. The party must: 1) have run at least one candidate in one of the last two general elections, with its candidate for governor or U.S. president, if any, having received the statutorily prescribed minimum number of votes, 2) have a candidate who received, in the last preceding general election, the minimum number of votes required, and 3) have in its membership on the day of the primary election proclamation registered voters sufficient to satisfy the minimum membership requirement. 1996 Op. Att'y Gen. No. 96-01.

Candidate for governor or president not required. — The intent of the Election Code is to permit qualified political parties to run candidates for governor or U.S. president, but not to mandate that they do so. Accordingly, Subsection A does not require a major political party to run a candidate for governor or U.S. president in each general election in which the office is to be filled. 1996 Op. Att'y Gen. No. 96-01.

1-6B-9. Emergency response providers.

A.  An emergency response provider may benefit from the ability to apply for a mailed ballot and to return the marked ballot in the same manner as provided in the Uniform Military and Overseas Voters Act for federal qualified electors; provided that the emergency response provider may not use the federal postcard application or the federal write-in absentee ballot.

B.  The county clerk shall transmit to, receive from and process a mailed ballot of an emergency response provider in the same manner as provided in the Uniform Military and Overseas Voters Act for a federal qualified elector.  

C.  As used in this section, "emergency response provider" means a resident of this state who otherwise satisfies this state's voter eligibility requirements and who, in response to an emergency, is temporarily assigned by a governmental or nongovernmental relief agency or employer to provide support to the victims of the emergency or to rebuild the infrastructure in the affected area and:

(1)       the assignment is for a period beginning on or after the thirty-five days immediately prior to an election;

(2)       the affected area is outside the individual's county of residence; and

(3)       the president of the United States or the governor of a state has declared an emergency in the affected area.

History: Laws 2015, ch. 145, § 33; 2019, ch. 212, § 84.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, replaced "absentee ballot" with "mailed ballot" throughout the section.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-10. Use of federal write-in absentee ballot; qualification.

A.  A federal qualified elector may use a federal write-in absentee ballot to vote for all offices and ballot questions in an election.

B.  In completing the federal write-in absentee ballot, the federal qualified elector may designate a candidate by writing in the name of the candidate.  In a general election when voting for a specified office, a federal qualified elector may in the alternate complete the federal write-in absentee ballot by writing in the name of a political party, in which case the ballot shall be counted for the candidate of that political party.

C.  A qualified federal write-in absentee ballot shall be processed by the canvassing board in the same manner as a provisional ballot.  A federal write-in absentee ballot from a federal qualified elector shall not be qualified if the federal qualified elector voted on any other type of ballot.  A federal write-in absentee ballot of an overseas voter shall not be qualified if the ballot is submitted from any location in the United States.

History: Laws 2015, ch. 145, § 34; 2019, ch. 212, § 85.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, in Subsection A, after "offices and ballot", deleted "measures" and added "questions".

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-11. Confirmation of receipt of application and voted ballot.

The secretary of state, upon the recommendation of the voting system certification committee, shall implement an electronic free-access system by which a federal qualified elector may determine by telephone, electronic mail or internet whether the federal qualified elector's:

A.  federal postcard application or other registration or military-overseas ballot application has been received and accepted; and

B.  military-overseas ballot has been received and the current status of the ballot.

History: Laws 2015, ch. 145, § 35.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 35 effective January 1, 2018.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-12. Use of voter's electronic-mail address.

A.  The county clerk shall request an electronic-mail address from each federal qualified elector who registers to vote.  An electronic-mail address provided by a federal qualified elector shall not be made available to the public and is exempt from disclosure pursuant to the Inspection of Public Records Act.  The electronic-mail address may be used only for official communication with the voter about the voting process, including the secured transmission of military-overseas ballots and ballot materials if the voter has requested secured transmission, and verifying the voter's mailing address and physical location.  The request for an electronic-mail address shall describe the purposes for which the electronic-mail address may be used and include a statement that any other use or disclosure of the electronic-mail address is prohibited.

B.  If a mailed ballot is transmitted to a federal qualified elector via secured transmission, the county clerk shall note in the ballot register the voter's registration address, that the ballot was delivered to the voter electronically and the date on which it was sent, but shall not disclose the voter's electronic-mail address.

C.  A federal qualified elector who provides an electronic-mail address may request that the voter's application for a military-overseas ballot be considered a standing request for secured electronic delivery of a ballot for all elections in the election cycle.  The county clerk shall provide a military-overseas ballot to a voter who makes a standing request for each election to which the request is applicable as an automatic application for a military-overseas ballot.

History: Laws 2015, ch. 145, § 36; 2019, ch. 212, § 86.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, changed "absentee ballot" to "mailed ballot", and required that the transmission of military-overseas ballots be secured; in Subsection A, after "including", deleted "transmitting" and added "the secured transmission of", after "requested", deleted "electronic" and added "secured", and after "transmission", deleted "by electronic mail"; in Subsection B, after "If", deleted "an absentee" and added "a mailed", after "elector via", deleted "electronic mail" and added "secured transmission", and after "note in the", deleted "absentee"; and in Subsection C, after "request for", added "secured".

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-13. Prohibition of nonsubstantive requirements.

A.  If the intention of the voter is clearly discernable in accordance with the provisions of Section 1-1-5.2 NMSA 1978, an abbreviation, misspelling or other minor variation in the form of the name of a candidate or a political party shall be accepted as a valid vote.

B.  Failure to satisfy a nonsubstantive requirement, such as using paper or envelopes of a specified size or weight, does not invalidate a document submitted pursuant to the Uniform Military and Overseas Voters Act.

C.  Notarization is not required for the execution of any document required by the Uniform Military and Overseas Voters Act."

History: Laws 2015, ch. 145, § 37.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 37 effective July 1, 2015.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-14. Absentee ballots; reports.

A.  Within thirty days following a general election, the county clerk shall report to the secretary of state the number of absentee ballots transmitted in the general election to uniformed-service voters and overseas voters for the election and the number of those ballots returned, rejected or counted.

B.  Within ninety days following a general election, the secretary of state shall report to the federal election assistance commission the combined absentee ballot numbers submitted by the counties pursuant to this section.

History: Laws 2015, ch. 145, § 38.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 38 effective July 1, 2015.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-15. Equitable relief.

A court of competent jurisdiction of this state may issue an injunction or grant other equitable relief appropriate to ensure substantial compliance with, or enforce, the Uniform Military and Overseas Voters Act on application by:

A.  a federal qualified elector alleging a grievance under the Uniform Military and Overseas Voters Act; or

B.  an election official in this state.

History: Laws 2015, ch. 145, § 39.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 39 effective July 1, 2015.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-16. Uniformity of application and construction.

In applying and construing the Uniform Military and Overseas Voters Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History: Laws 2015, ch. 145, § 40.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 40 effective July 1, 2015.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-6B-17. Relation to Electronic Signatures in Global and National Commerce Act.

The Uniform Military and Overseas Voters Act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

History: Laws 2015, ch. 145, § 41.

ANNOTATIONS

Effective dates. — Laws 2015, ch. 145, § 103 made Laws 2015, ch. 145, § 41 effective July 1, 2015.

Applicability. — Laws 2015, ch. 145, § 102 provided that the Uniform Military and Overseas Voters Act is applicable to any federal postcard application received as of the first day of the current election cycle.

1-5-2. Definitions.

As used in the Election Code [Chapter 1 NMSA 1978]:

A.  "county" means any county in this state;

B.  "county register" means an official file of original certificates of registration of the county or any of its precincts;

C.  "county voter list" means a voter list arranged in alphabetical order of voter surname within and for each county;

D.  "data processor" means a data processing facility and its associated employees and agents contracted to provide data processing services required by the Voter Records System Act;

E.  "data recording media" means a manual, electronic or other device containing data capable of being read and processed by any means for the eventual preparation of voter lists;

F.   "election campaign purposes" means relating in any way to a campaign in an election conducted by a federal, state or local government;

G.  "file maintenance list" means any prepared listing that reflects additions, deletions or changes to the voter file;

H.  "governmental purposes" means noncommercial purposes relating in any way to the structure, operation or decision making of a federal, state or local government;

I.    "mailing labels" mean prepared mailing labels of selected voters arranged in the order in which requested and providing only the name and address of the voter;

J.   "precinct voter list" means a voter list arranged in alphabetical order of voter surname within and for each precinct;

K.  "signature roster" means a copy of a voter list with space provided opposite each voter's name for the voter's signature or witnessed mark;

L.   "special voter list" means a prepared list of selected voters arranged in the order in which requested;

M.  "voter data" means selected information derived from the voter file;

N.  "voter file" means all voter registration information required by law and by the secretary of state that has been extracted from the certificate of registration of each voter in the county, stored on data recording media and certified by the county clerk as the source of all information required by the Voter Records System Act; and

O.  "voter list" means any prepared list of voters.

History: 1953 Comp., § 3-5-2, enacted by Laws 1969, ch. 240, § 104; 1975, ch. 255, § 63; 1985, ch. 77, § 1; 1987, ch. 249, § 14; 1989, ch. 392, § 7; 1993, ch. 314, § 32; 1993, ch. 316, § 32; 1993, ch. 363, § 1; 1995, ch. 166, § 1; 2001, ch. 146, § 1; 2005, ch. 270, § 24.

ANNOTATIONS

The 2005 amendment, effective July 1, 2005, deleted the former definitions of "county register", "voter list", "signature roster", "active data processing media", "intermediate records", "voter file", "program records", "mailing labels", "special voter lists", "statistical data", "voter data", "data processor", "file maintenance list", "precinct voter list", "county voter list", "unofficial election canvassing file", "unofficial election canvassing system", "election campaign purposes", and "governmental purposes" in Subsections B through T respectively, and added the definitions in Subsections B through O.

The 2001 amendment, effective June 15, 2001, deleted "arranged in alphabetical order by voter surname and, if for more than one precinct, without regard to precincts" from the end of Subsection B; substituted "prepared list" for "machine-prepared list" throughout the section; in Subsection E, deleted "punched cards, punched tape, magnetic cards" following "means", substituted "computer" for "suitable machinery", deleted "machine" preceding "preparation"; and added Subsections S and T.

The 1995 amendment, effective June 16, 1995, substituted "certificates" for "affidavits"in Subsection B; in Subsection G, substituted "that" for "which" and "certificate" for "affidavit"; deleted "and providing no more than the name, gender, address, telephone number if its dissemination is not prohibited by the voter, political party affiliation and precinct of the voter", from the end of Subsection J; deleted "and includes no more than the precinct, gender, political party affiliation and year of birth" from the end of Subsection K; and deleted "and includes no more than the voter's name, gender, address, telephone number if its dissemination is not prohibited by the voter, political party affiliation and precinct" from the end of Subsection L.

The 1993 amendment, effective June 18, 1993, inserted "telephone number if its dissemination is not prohibited by the voter" in Subsections J and L, and made a stylistic change in Subsection N.

1-5-3. Act is mandatory and supplemental to Election Code.

A.  The Voter Records System Act is mandatory and supplemental to the provisions of the Election Code [Chapter 1 NMSA 1978]. The provisions of that act shall be implemented in all counties by order of the secretary of state in accordance with the provisions of the federal Help America Vote Act of 2002.

B.  The secretary of state shall maintain the official state voter file based on county registers and shall provide access to the file to the county clerks. The secretary of state shall prescribe any rules, forms and instructions necessary to implement procedures required by the Voter Records System Act and federal law. The secretary of state shall maintain a log, which shall be public, containing all transactions regarding requests for current registration lists of state voters. The log shall indicate the requesting party, the date of the request, the date of fulfilling the request, charges made and any other information deemed advisable by the secretary of state. Requests for registration lists in printed or electronic form shall be fulfilled within a period of ten working days.

C.  All registration records required by the Election Code shall be maintained for each of the precincts in addition to those records required by the Voter Records System Act and federal law.

History: 1953 Comp., § 3-5-3, enacted by Laws 1969, ch. 240, § 105; 1975, ch. 255, § 64; 1983, ch. 227, § 1; 1984 (1st S.S.), ch. 4, § 1; 1993, ch. 314, § 33; 1993, ch. 316, § 33; 2005, ch. 270, § 25.

ANNOTATIONS

Cross references. — For the Help America Vote Act of 2002, see 42 U.S.C. Sections 15301 et seq.

The 2005 amendment, effective July 1, 2005, in Subsection A, provided that the Voter Records System Act shall be implemented in all counties by the secretary of state in accordance with the federal Help America Vote Act of 2002; in Subsection B, provided that the secretary of state shall keep the official state voter file which is based on the county registers and shall provide access to the file to the county clerks; that the secretary of state shall implement procedures required by the Voter Records System Act and federal law; and that registration lists requested in electronic form shall be fulfilled within the time specified; in Subsection C, deleted the former provision that the procedures of the Automated Voter Records System Act shall be used in lieu of procedures prescribed in the Election Code; and in Subsection C, provided that records shall be maintained in addition to records required by the Voter Records System Act and federal law.

he 1993 amendment, effective June 18, 1993, deleted former Subsection D, relating to the destruction of duplicate affidavits of registration by the county clerk. Laws 1993, ch. 314, § 33 enacted identical amendments to this section.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 180, 181.

9 C.J.S. Elections §§ 37, 50.

1-5-4. County register; establishment.

The board of county commissioners shall direct the county clerk to establish a county register. The county register shall be filed in fire-resistant containers in the county courthouse. The files containing the county register shall be arranged to provide ready and convenient access and shall be kept locked except when being used by authorized persons in accordance with the Election Code [Chapter 1 NMSA 1978].

History: 1953 Comp., § 3-5-4, enacted by Laws 1969, ch. 240, § 106.

1-5-5. Entry of data into data processing system; county register; maintenance.

A.  The county clerk, upon receipt of a proper certificate of registration within the period prescribed for registration, shall immediately enter in the proper spaces thereon the precinct of the voter.

B.  All information required shall then be entered into the voter file and evidenced by the file maintenance list. A new certificate of registration, or change of information to an existing certificate of registration, shall not be inserted into the county register until the county clerk has had all pertinent information necessary for the preparation of voter files and voter lists transcribed from it to a record appropriate for use for preparation of such lists.

C.  After entry of data into the data processing system, the county clerk shall insert each original certificate of registration in its proper order in the county register.

D.  A certificate of registration shall not be removed from the county register pursuant to a cancellation of registration until the county clerk has entered into the voter file all deletions and changes and such deletions and changes are evidenced by the file maintenance list.

History: 1953 Comp., § 3-5-5, enacted by Laws 1969, ch. 240, § 107; 1975, ch. 255, § 65; 1993, ch. 314, § 34; 1993, ch. 316, § 34; 2001, ch. 146, § 2.

ANNOTATIONS

The 2001 amendment, effective June 15, 2001, deleted "machine" preceding "data processing" in the section heading; deleted "machine" preceding "preparation" at the end of Subsection B; and deleted "machine" preceding "processing system" in Subsection C.

The 1993 amendment, June 18, 1993, deleted "affidavit of" preceding "registration until" in Subsection D and substituted "certificate" for "affidavit" throughout the section.

1-5-6. Precinct voter lists; signature roster preparation.

The county clerk shall provide for preparation of precinct voter lists and signature rosters generated from the official state voter file for any precincts. The precinct voter lists and signature rosters shall be used at any election for which registration of voters is required in lieu of bound original certificates of registration and poll books.

History: 1953 Comp., § 3-5-6, enacted by Laws 1969, ch. 240, § 108; 1993, ch. 314, § 35; 1993, ch. 316, § 35; 2001, ch. 146, § 3; 2005, ch. 270, § 26.

ANNOTATIONS

The 2005 amendment, effective July 1, 2005, changed "voter lists" to "precinct voter lists" and provided that the precinct voter lists and signature rosters shall be generated from the official state voter file.

The 2001 amendment, effective June 15, 2001, substituted "signature roster preparation" for "signature rosters; machine prepared" in the section heading; and deleted "machine" preceding "preparation" in the first sentence.

The 1993 amendment, effective June 18, 1993, substituted "certificates" for "affidavits" in the second sentence.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 109.

29 C.J.S. Elections § 47.

-4-7. Registration by temporary absentees.

A qualified elector who is temporarily out of his county of residence or out of New Mexico, may, upon request to the county clerk of his county of residence, obtain the prescribed certificate of registration form. After the certificate of registration has been subscribed, the qualified elector shall return it to the county clerk of his county of residence by mail. Upon receipt of the completed certificate of registration, the county clerk shall ascertain if such certificate of registration is to be filed or rejected in accordance with the Election Code [Chapter 1 NMSA 1978].

History: 1953 Comp., § 3-4-7, enacted by Laws 1969, ch. 240, § 65; 1993, ch. 314, § 8; 1993, ch. 316, § 8.

ANNOTATIONS

1993 amendments. — Identical amendments to this section were enacted by Laws 1993, ch. 314, § 8 and Laws 1993, ch. 316, § 8, both effective June 18, 1993, which substituted "certificate of registration form" for "blank affidavit of registration in triplicate and fill it out. The qualified elector who is temporarily outside of New Mexico shall subscribe to the affidavit of registration before a person authorized to administer oaths. The qualified elector who is in New Mexico but temporarily out of his county shall subscribe to the affidavit of registration before a registration officer" in the first sentence; in the second sentence, substituted "certificate" for "affidavit" and deleted "and attested" following "subscribed"; and, in the third sentence, substituted "certificate" and "certificate of registration" for "affidavit". The section was set out as amended by Laws 1993, ch. 316, § 8. See 12-1-8 NMSA 1978.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Nonregistration as affecting legality of votes cast by persons otherwise qualified, 101 A.L.R. 657.

Military service, registration by persons in, 152 A.L.R. 1459; 153 A.L.R. 1434; 154 A.L.R. 1459; 155 A.L.R. 1459.

Absentee voters' laws, construction and effect of, 97 A.L.R.2d 257.

1-4-8. Duties of county clerk; acceptance of registration; close of registration; late registration.

For qualified electors seeking to register to vote or update an existing voter registration in the state, the following provisions shall apply:

A.  to participate in an election, the deadline to register to vote or update an existing voter registration is twenty-eight days prior to that election;

B.  the county clerk shall receive certificates of registration at all times during normal working hours, except that the clerk shall not process any certificate of registration subscribed and sworn beginning the first business day after the deadline to register to vote or update an existing voter registration before an election if the residential address on the certificate of registration indicates that the registration is for a:

(1)       statewide election, within the county; or

(2)       special election, within any precinct in the county in which votes may be cast in the special election;

C.  between the deadline to register to vote or update an existing voter registration through the day of the election, the county clerk shall process all:

(1)       new voter registrations that meet the requirements of this section;

(2)       updates to existing voter registrations in this state that meet the requirements of this section; provided that an update to an existing registration in this state shall not be processed if the voter has requested or been sent a ballot in the election, unless the voter executes an affidavit stating that the voter has not and will not vote the ballot that was issued and the ballot register does not show that a ballot from the voter has been cast in the election; and

(3)       pending cancellations of existing voter registrations in this state through the day of the election; provided that a cancellation of an existing voter registration shall not be processed if the voter has requested or been sent a ballot in the election;

D.  certificates of registration and cancellations of existing voter registrations not processed pursuant to Subsection B or C of this section shall be processed beginning thirty-five days after an election, at which time a voter information document shall be mailed to the registrant at the address shown on the certificate of registration; provided that if there is a subsequent election scheduled at which a qualified elector or voter would be eligible to vote if the certificate of registration were processed on an earlier date, the certificate of registration for that qualified elector or voter shall be processed by the county clerk on a day and in a manner to ensure the ability of the qualified elector or voter to vote in the subsequent election;

E.  when the deadline to register to vote or update an existing voter registration prior to an election referred to in this section is a Saturday, Sunday or state holiday, registration certificates shall be accepted through the next succeeding business day for the office of the county clerk; and

F.   the county clerk shall accept for filing and process any certificate of registration that is subscribed and dated on or before the deadline to register to vote or update an existing voter registration prior to an election and:

(1)       received by the county clerk by the end of the last regular business day of the week for the office of the county clerk immediately following the deadline to register to vote or update an existing voter registration prior to an election;

(2)       mailed and postmarked on or before the day of the deadline to register to vote or update an existing voter registration prior to any election referred to in this section; or

(3)       accepted at a state agency designated pursuant to Section 1-4-5.2 NMSA 1978.

History: 1953 Comp., § 3-4-8, enacted by Laws 1969, ch. 240, § 66; 1971, ch. 317, § 5; 1973, ch. 118, § 1; 1975, ch. 255, § 36; 1985, ch. 207, § 2; 1987, ch. 327, § 2; 1993, ch. 314, § 9; 1993, ch. 316, § 9; 1995, ch. 198, § 4; 2003, ch. 355, § 2; 2005, ch. 270, § 21; 2008, ch. 58, § 1; 2015, ch. 145, § 16; 2017, ch. 101, § 2; 2019, ch. 212, § 49.

ANNOTATIONS

Cross references. — For election seminars, see 1-2-5 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the provisions related to voter registration; in the introductory clause, after "qualified electors", added "seeking to register to vote or update an existing voter registration in the state"; added a new Subsection A and redesignated former Subsection A as Subsection B; in Subsection B, after "the clerk shall", deleted "close registration at the end of the twenty-eighth day immediately preceding any election at which the registration books are to be furnished to the precinct board;" and added the remainder of the subsection; deleted former Subsections B through D and added new Subsections C and D; in Subsection E, after "when the", deleted "twenty-eighth day prior to any" and added "deadline to register to vote or update an existing voter registration prior to an", and after "Sunday or", deleted "legal" and added "state"; and in Subsection F, in the introductory clause, after "dated on or before", deleted "the twenty-eighth day preceding", and after the next occurrence of "the", added "deadline to register to vote or update an existing voter registration prior to an", in Paragraph F(1), after "end of the", added "last", after "regular business day", added of the week", after "office of the county clerk", deleted "on the Friday", after "following the", deleted "close of registration" and added "deadline to register to vote or update an existing voter registration prior to an election", and in Paragraph F(2), after "postmarked", deleted "not less than twenty-eight days" and added "on or before the day of the deadline to register to vote or update an existing voter registration".

The 2017 amendment, effective June 16, 2017, changed voter registration closure times; in Subsections A, C and E, deleted "5:00 p.m. on" and added "the end of"; and in Subsection F, Paragraph F(1), after "county clerk", deleted "before 5:00 p.m." and added "by the end of the regular business day for the office of the county clerk".

The 2015 amendment, effective July 1, 2015, removed references to federal qualified elector and overseas voters relating to duties of the county clerk and acceptance of registration; in the catchline, after "close of registration", deleted "federal qualified electors and overseas voters"; deleted the subsection designation of Subsection A; in the undesignated introductory sentence that was formerly Subsection A, after "qualified electors", deleted "other than federal qualified electors or overseas voters"; redesignated former Paragraphs (1) through (6) of Subsection A as Subsections A through F, respectively; in Subsection D, after "shall not file", deleted "the" and added "any"; redesignated former Subparagraphs A(6)(a) through A(6)(c) as Paragraphs (1) through (3) of Subsection F, respectively; and deleted former Subsection B, relating to certificates of registration from federal qualified electors and overseas voters.

The 2008 amendment, effective February 29, 2008, in Subsection A(6), deleted the requirements that the county clerk receive a certificate of registration that is mailed by 5:00 p.m. on Friday following the close of registration or that a state agency receive the certificate of registration not later than twenty-eight days prior to an election.

The 2005 amendment, effective July 1, 2005, in Subsection A(6), provided that the county clerk shall accept any certificate that is subscribed and dated on or before the twenty-eighth day preceding the election and received by the county clerk by the specified deadline and that the county clerk shall accept any mailed certificate that is received by 5:00 p.m. on the Friday immediately following the close of registration.

The 2003 amendment, effective June 20, 2003, inserted "federal qualified electors and overseas voters; late registration" in the section heading; redesignated former Subsections A through F as Subparagraphs A(1) through A(6) and added the introductory paragraph in Subsection A; and added Subsection B.

The 1995 amendment, effective April 6, 1995, substituted "voter identification card" for "copy" in Subsection D; and in Subsection F, deleted "or received in the mail" following "hand delivered" and added the last two sentences of the subsection beginning "The county clerk shall accept".

The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "certificates" for "affidavits" and inserted "during normal working hours"; in Subsection D, substituted "certificates" for "affidavits", "certificate of registration" for "affidavit" twice, and "a" for "the triplicate affidavit" preceding "copy"; and, in Subsection F, substituted "certificate" for "affidavit" and deleted "from, a deputy registration officer" following "mail".

Procedure for accepting affidavits when election within 28 days of one another. — The procedure which should be followed with respect to the acceptance of voter registration affidavits when elections are scheduled within 42 (now 28) days of one another is that the county clerk must receive affidavits of registration during the period in which registration is closed prior to the first election and place them in readiness for filing on the Monday after the first election. On the Monday following the first election, the county clerk shall enter the affidavits of registration which were received during the period between the 42nd (now 28th) day prior to the first election and the 42nd (now 28th) day prior to the second election. 1976 Op. Att'y Gen. No. 76-26.

Term "close registration", as used in Subsection A(1) of this section, means merely closing the registration book and not filing the affidavits of registration. 1969 Op. Att'y Gen. No. 69-128.

Affidavits received while books closed to be filed on Monday following election. — Subsection B (now A(2)) of this section specifically provides that affidavits of registration should be filed by the county clerks on the Monday following the election if such applications are received during the period when the registration books have been closed. 1969 Op. Att'y Gen. No. 69-128.

Procedure when elections overlap. — Even though registration is closed 30 (now 28) days prior to a municipal election and the municipal election is within 30 days of a primary election, the county clerk may receive affidavits of registration for the primary election up to 30 (now 28) days prior to that election. On the Monday following the municipal election, the registration books should be reopened for the sole purpose of filing therein the affidavits of registration received more than 30 (now 28) days prior to the primary election. 1963 Op. Att'y Gen. No. 63-155 (opinion rendered under former law).

Close of registration transfer before municipal elections. — Original registration closes 30 (now 28) days before a municipal election. Registered voters may transfer their registration from one voting division to another up to five days preceding a municipal election, at which time the registration books are to be closed for all purposes. 1948 Op. Att'y Gen. No. 48-5128 (opinion rendered under former law).

When closing day falls on Sunday. — County clerk should receive affidavits of registration until 5:00 p.m. on the Monday following a Sunday which falls on the thirtieth (now twenty-eighth) day before a primary election. 1944 Op. Att'y Gen. No. 44-4482 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 185, 186.

29 C.J.S. Elections § 39.

1-4-9. Duties of county clerk; registration of language minorities.

The county clerk shall initiate nonpartisan measures to urge and facilitate registration of language minority voters and other voters.

History: 1953 Comp., § 3-4-8.1, enacted by Laws 1977, ch. 124, § 3.

ANNOTATIONS

Recompilations. — Laws 2011, ch. 137, § 109 recompiled 1-4-10 NMSA 1978 as 1-12-71 NMSA 1978 effective July 1, 2011.  Laws 2019, ch. 212, § 284 repealed 1-12-71 NMSA 1978, effective April 3, 2019.

1-4-11. Duties of county clerk; upon receipt of certificates.

A.  Upon receipt of a complete certificate of registration, if the certificate of registration is in proper form, the county clerk shall determine if the qualified elector applying for registration is already registered in the registration records of the county.  If the qualified elector is not already registered in the county and if the certificate of registration is received within the time allowed by law for filing certificates of registration in the county clerk's office, the county clerk shall sign or stamp, in the space provided therefor on each copy of the certificate, the qualified elector's name and the date the certificate was accepted for filing in the county registration records.  Voter information shall be handed or mailed immediately to the qualified elector and to no other person.

B.  If the applicant's certificate of registration is rejected for any reason, the county clerk shall stamp or write the word "rejected" on the new certificate of registration and hand or mail it, if possible, to the applicant with an explanation of why the new certificate of registration was rejected and what remedial action, if any, the applicant must take to bring the registration up to date or into compliance with the Election Code.

C.  The county clerk shall reject any certificate of registration that does not contain the qualified elector's name, address and date of birth, along with a signature or usual mark.  If the qualified elector is a new voter, the county clerk shall reject any certificate of registration that does not contain the qualified elector's driver's license or state identification number issued by the motor vehicle division of the taxation and revenue department, social security number or last four digits of the qualified elector's social security number.  The county clerk shall reject any certificate of registration in which the question regarding citizenship is not answered or is answered in the negative.

D.  A social security number is required to finish processing a new voter registration in this state.  If the certificate of registration does not contain a social security number, the county clerk shall ascertain the qualified elector's social security number from the qualified elector's previous certificate of registration, from the motor vehicle division of the taxation and revenue department or from the secretary of state.

E.  If the county clerk rejects a certificate of registration because required information is not provided on the certificate or cannot ascertain the qualified elector's social security number, the county clerk shall indicate this on the qualified elector's certificate of registration and shall make the appropriate notation in the voter file, indicating that the voter may only vote on a provisional ballot.  The provisional ballot shall be counted once the required information is provided or the voter's social security number is ascertained. 

F.   If the qualified elector does not register in person, has not previously voted in an election in New Mexico and does not provide the registration officer with the required documentary identification, the registration officer shall indicate this on the qualified elector's certificate of registration and the county clerk shall note this on the appropriate precinct signature roster.

History: 1953 Comp., § 3-4-9, enacted by Laws 1969, ch. 240, § 67; 1987, ch. 249, § 8; 1993, ch. 314, § 10; 1993, ch. 316, § 10; 1995, ch. 198, § 5; 2003, ch. 356, § 12; 2007, ch. 336, § 6; 2015, ch. 145, § 17; 2019, ch. 212, § 50.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, revised the duties of the county clerk upon receipt of certificates of registration; in Subsection B, after the subsection designation, deleted "If the qualified elector is already registered in the county as shown by the qualified elector’s original certificate of registration currently on file in the county registration records, the county clerk shall not accept the new certificate of registration unless it is filed pursuant to Section 1-4-13, 1-4-15, 1-4-17 or 1-4-18 NMSA 1978"; in Subsection C, after "qualified elector’s name, address", deleted "social security number", and after "usual mark.", added the next sentence; added new Subsections D and E and redesignated former Subsection D as Subsection F; and in Subsection F, after "register in person", deleted "indicates that the qualified elector".

The 2015 amendment, effective July 1, 2015, authorized the county clerk to reject certain certificates of registration; in Subsection A, after "complete certificate of registration, if", added "the certificate of registration is"; and added a new Subsection C and redesignated the succeeding subsection accordingly.

The 2007 amendment, effective April 2, 2007, in Subsection A, eliminated the requirement that a "voter identification card" be mailed to qualified electors.

The 2003 amendment, effective July 1, 2003, added Subsection C.

The 1995 amendment, effective April 6, 1995, substituted "voter identification card" for "copy of the certificate of registration" in Subsection A , and substituted "Section" for "Sections" in Subsection B.

The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "a complete certificate" for "the original and the voter's copy of the properly executed affidavit" in the first sentence, substituted "certificate" for "affidavit" throughout the second and third sentences, and made a minor stylistic change; in Subsection B, substituted "certificate" for "affidavit" throughout the subsection and inserted "unless it is filed pursuant to Sections 1-4-13, 1-4-15, 1-4-17 or 1-4-18 NMSA 1978. He".

1-4-12. Duties of county clerk; filing of certificates.

A.  Certificates of registration, if in proper form, shall be processed and filed by the county clerk as follows:

(1)       a voter information document shall be delivered or mailed to the voter; and

(2)       the original certificate shall be filed alphabetically by surname and inserted into the county register pursuant to Section 1-5-5 NMSA 1978.

B.  The county clerk shall, on Monday of each week, process all certificates of registration that are in proper form and that were received in the county clerk's office up to 5:00 p.m. on the preceding Friday. The county clerk shall not process certificates of registration when the registration books are closed pursuant to Section 1-4-8 NMSA 1978, during the county canvass or during the period of time following the county canvass when voter credit is entered into the voter registration electronic management system, provided such credit is entered for all voters no later than forty-five days following an election.

History: 1953 Comp., § 3-4-10, enacted by Laws 1969, ch. 240, § 68; 1987, ch. 249, § 9; 1993, ch. 314, § 11; 1993, ch. 316, § 11; 1995, ch. 198, § 6; 2003, ch. 356, § 13; 2015, ch. 145, § 18.

ANNOTATIONS

The 2015 amendment, effective July 1, 2015, amended the duties of the county clerk relating to processing certificates of registration, and removed the provision stating that the contents of certificates of registration, with certain exceptions, are public record; in Paragraph (1) of Subsection A, after "a voter", deleted "identification card" and added "information document"; in Subsection B, after "were received in", deleted "his" and added "the county clerk’s", and added the last sentence of the subsection; and deleted Subsection C.

The 2003 amendment, effective July 1, 2003, inserted the exception in Subsection C.

The 1995 amendment, effective April 6, 1995, substituted "a voter identification card" for "the voter's copy of the certificate" in Paragraph (1) of Subsection A; in Subsection B, substituted "that" for "which" and inserted "and" following "form"; and in Subsection C, substituted "The contents of" for "Original" and deleted "and their contents" following "registration".

The 1993 amendment,. effective June 18, 1993, substituted "Certificates" for "Affidavits", "certificate" for "affidavit", and "certificates" for "affidavits" throughout the section and made several minor stylistic changes.

Right to copy voter registration records. — The right to inspect or examine public records, such as voter registration, commonly includes the right of making copies thereof as the right to inspect would be valueless without this correlative right. 1959 Op. Att'y Gen. No. 59-170.

Clerk must accept affidavits in proper order even if from different office. — Affidavits which are in the proper order, acknowledged by a notary public, even though not obtained from the county clerk's office which has to register the voter have to be accepted by the county clerk. 1952 Op. Att'y Gen. No. 52-5505.

ANNOTATIONS

Cross references. — For the federal National Voter Registration Act of 1993, see 42 U.S.C. § 1973gg et seq.

For the federal Voting Rights Act of 1965, see 42 U.S.C. § 1973 et seq.

For determination of voter's death, see 1-4-25 NMSA 1978.

The 2019 amendment, effective April 3, 2019, revised the provisions related to voter eligibility following a change of residence; in Subsection C, deleted Paragraph C(5), which provided guidance to voters who want to remain eligible to vote following a change of residence outside of the county; in Subsection D, added the introductory clause and new paragraph designation "(1)", in Paragraph D(1), added "in the same county", after "information obtained on the", deleted "prepaid and pre-addressed", after "return card", deleted "to a new address in the same county, and such names shall not be removed from the list of eligible voters for reason of change of residence", and added new Paragraph D(2); and in Subsection E, Paragraph E(2), after "place outside the", deleted "county" and added "state".

The 2011 amendment, effective July 1, 2011, required the secretary of state to identify voters who no longer reside at their registration address and to give such voters notice between ninety and one hundred twenty days before an election directing the voter to provide the voter’s current address and informing the voter of the consequences of not providing the information; required county clerks to correct the list of voters in accordance with the information provided in the responses to the notice; and required the cancellation of the registration of any voter who has not responded to the notice or voted during the period from the date of the notice to the day after the second election since the date of the notice or who has changed residence to a place outside the county.

The 2008 amendment, effective February 29, 2008, deleted former Subsections A through E that provided for the cancellation of voters who failed to vote and added new Subsections A and B.

The 1995 amendment, effective April 6, 1995, in Subsection A, substituted "statewide or local election" for "general election or one primary election", and inserted "after being placed on an inactive voter list"; substituted "four-year period, establishing an inactive voter list and providing notice of inactive status to voters on the inactive voter list" for "two general elections" in Subsection B; rewrote Subsection E; and deleted Subsection F prohibiting stamping the certificate "cancelled" until the end of the 60-day period.

The 1993 amendment, effective June 18, 1993, substituted "certificate" for "affidavit" throughout the section; in Subsection A, substituted "in at least one" for "at the last", and "or one" for "and", inserted "in a four-year period", and deleted "affidavits of" preceding the first occurrence of "registration"; in Subsection B, inserted "least once in" and "two", and made a minor stylistic change; and, in Paragraph (E)(2), inserted "two" and "least one of", and made a minor stylistic change.

Compiler's notes. — Since the following opinions were rendered, the 1979 amendment has substituted "last general election" for "last two general elections" in Subsections A and B and substituted "the last general election" for "either one or both of the last two general elections" in Subsection E(2).

Legislative intent. — The legislature intended that whenever a person fails to vote in two general elections that such person's registration should be canceled. The legislature provided that an additional check should be made if the election affidavit would cause the board of registration to doubt that it was properly marked, and if the pollbook showed that the party had "voted in one of such elections, the registration was not to be canceled." 1957 Op. Att'y Gen. No. 57-281 (opinion rendered under former law).

Voter may retain registration upon giving legitimate reason for failure to vote. — A person who failed to vote at the last two preceding general elections may upon giving a legitimate reason retain his original registration without cancellation, since such person could re-register immediately after the cancellation. 1944 Op. Att'y Gen. No. 44-4550 (opinion rendered under former law).

1-4-29. Board of registration; county clerk; failure to cancel; duty of the secretary of state.

A.  If the board of registration or the county clerk of any county does not cancel registration certificates as required by law, the secretary of state shall investigate the registration records, election returns and other pertinent records of that county and file a petition with the district court for the cancellation of the certificates of those persons as the investigation determines should have been canceled by the board of registration or the county clerk.

B.  In such a proceeding, the court shall determine the cost of the investigation, and if it finds that the board of registration or the county clerk did not cancel certificates of registration in the manner provided by law, shall enter judgment against the county for the cost of the investigation.

History: 1953 Comp., § 3-4-27, enacted by Laws 1975, ch. 255, § 47; 1979, ch. 24, § 3; 1993, ch. 314, § 25; 1993, ch. 316, § 25.

ANNOTATIONS

Repeals and reenactments. — Laws 1975, ch. 255, § 47, repealed former 3-4-27, 1953 Comp., relating to cancellation of registration, failure to vote and notice, and enacted a new 3-4-27, 1953 Comp.

1993 amendments. — Identical amendments to this section were enacted by Laws 1993, ch. 314, § 25 and Laws 1993, ch. 316, § 25, both effective June 18, 1993, which substituted "certificates" for "affidavits" throughout the section. The section was set out as amended by Laws 1993, ch. 316, § 25. See 12-1-8 NMSA 1978.

Compiler's notes. — The following opinions were rendered prior to the 1979 amendment of 1-4-29 NMSA 1978. Cancellation now is grounded upon failure to vote in the last general election rather than the last two general elections.

Cancellation for failure to vote not discretionary. — Cancellation of registration for failure to vote in the previous two general elections is not discretionary but an absolute duty. 1961 Op. Att'y Gen. No. 61-135 (opinion rendered under former law).

Where person has registered twice and failed to vote. — Where a person has registered twice, the first registration being subject to cancellation because the person has not voted in the last two general elections under this registration, the older registration should be cancelled. Once the older registration is cancelled, the newer one is valid. 1961 Op. Att'y Gen. No. 61-135 (opinion rendered under former law).

1-4-30. Cancellation of registration; voter's request.

A.  The county clerk shall cancel a certificate of registration upon the request of a voter only for the following reasons:

(1)       when the voter changes the voter's registered residence address to another county within the state;

(2)       when the voter moves to another state; and

(3)       upon the written request of the voter.

B.  A written request by a voter to cancel the voter's registration shall be in writing and subscribed before a registration officer or a person authorized to administer oaths or on a form prescribed by the secretary of state.

C.  The voter's certificate of registration shall be deemed canceled upon receipt by the county clerk of the request when the request is for the reasons specified in Subsection A of this section.

History: 1953 Comp., § 3-4-28, enacted by Laws 1969, ch. 240, § 86; 1975, ch. 255, § 48; 1993, ch. 314, § 26; 1993, ch. 316, § 26; 2011, ch. 137, § 37.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, permitted county clerks to cancel a voter’s registration upon the written request of the voter.

The 1993 amendment, effective June 18, 1993, substituted "a certificate" for "an affidavit" in Subsection A; deleted "affidavit of" preceding the first occurrence of "registration" and made a minor stylistic change in Subsection B; deleted "affidavit of" preceding both occurrences of "registration" in Subsection C; and, in Subsection D, substituted "certificate" for "affidavit" and corrected a misspelling of "canceled".

1-4-32. Cancellation of registration; duties of county clerk; retention of records.

A.  When a registration is canceled, the county clerk shall remove, endorse and file the original certificate of registration according to procedures prescribed by the secretary of state.

B.  Canceled original certificates of registration along with any written application of the voter for cancellation or other pertinent orders or certificates shall be retained for six years and then may be destroyed; provided that such records may be destroyed prior to the expiration of the six-year period with the approval of the state records administrator and upon their being properly microfilmed and stored.

History: 1953 Comp., § 3-4-30, enacted by Laws 1969, ch. 240, § 88; 1975, ch. 255, § 50; 1979, ch. 24, § 5; 1987, ch. 249, § 12; 1993, ch. 314, § 28; 1993, ch. 316, § 28.

ANNOTATIONS

1993 amendments. — Identical amendments to this section were enacted by Laws 1993, ch. 314, § 28 and Laws 1993, ch. 316, § 28, both effective June 18, 1993, and both approved April 8, 1993, which deleted "an affidavit of" and made a related stylistic change in Subsection A, and substituted "certificate" for "affidavit" in Subsection A and "certificates" for "affidavits" near the beginning of Subsection B. The section was set out as amended by Laws 1993, ch. 316, § 28. See 12-1-8 NMSA 1978.

1-4-34. Board of registration; board of county commissioners; appointment.

A.  The board of county commissioners shall, at its first regular scheduled meeting in June of each odd-numbered year, appoint five voters who shall constitute the board of registration for the county; provided that a class B county as defined in Section 4-44-1 NMSA 1978 shall appoint three voters who shall constitute the board of registration for the county.

B.  Members of the board of registration shall not during their service be county employees, elected officials or candidates for public office, and not more than two members of the board of registration shall be members of the same political party at the time of their appointment; provided that:

(1)       a member of the board of registration shall not have changed party registration in the two years next preceding the member's appointment in such a manner that the member's prior party registration would make the member ineligible to serve on the board of registration; and

(2)       a member of the board of registration shall not continue to serve on the board of registration if the member changes party registration after the date of appointment in such a manner to make the member ineligible to serve on the board of registration.

C.  In the event that a position on the board of registration becomes vacant for any of the reasons described in Section 10-3-1 NMSA 1978, the board of county commissioners shall appoint a replacement who shall qualify pursuant to Subsection B of this section and serve until the expiration of the original term.

History: 1953 Comp., § 3-4-32, enacted by Laws 1969, ch. 240, § 90; 1975, ch. 255, § 52; 1981, ch. 136, § 1; 1995, ch. 124, § 5; 2019, ch. 212, § 55.

ANNOTATIONS

Cross references. — For voter defined, see 1-1-5 NMSA 1978.

For boards of registration, not more than two members to be of same party, see N.M. Const., art. VII, § 1.

The 2019 amendment, effective April 3, 2019, revised the duties of the board of county commissioners, and revised the requirements for members of the board of registration; in Subsection A, after "meeting in", deleted "February" and added "June", after "appoint", deleted "three" and added "five", and after "registration for the county;", added "provided that a class B county as defined in Section 4-44-1 NMSA 1978 shall appoint three voters who shall constitute the board of registration for the county"; in Subsection B, after the subsection designation, deleted "No" and added "Members of the board of registration shall not during their service be county employees, elected officials or candidates for public office, and not", after "more than two", deleted "of the three persons appointed to" and added "members of", and after "time of their appointment; deleted "provided that if a major party has no registered, qualified elector who is able to fill the position, a registered, qualified elector from another major party may be chosen by the county clerk" and added the remainder of the subsection; and deleted former Subsections C and D and added a new Subsection C.

The 1995 amendment, effective January 1, 1996, rewrote Subsection B which read: "Two of the three persons appointed to the board of registration shall be members of each of the major political parties respectively at the time of their appointment."

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections §§ 183, 188.

29 C.J.S. Elections § 42.

1-4-35. Board of registration; secretary.

The county clerk or the county clerk's authorized deputy shall be secretary to the board of registration.

History: 1953 Comp., § 3-4-33, enacted by Laws 1969, ch. 240, § 91; 2019, ch. 212, § 56.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, removed the provision prohibiting additional compensation for the secretary to the board of registration; after "secretary to the board of registration", deleted "and shall serve without additional compensation".

1-4-36. Board of registration; compensation.

Each member of the board of registration shall be paid per diem and mileage as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] for nonsalaried public officers. Such compensation shall be included as an item in the regular county budget.

History: 1953 Comp., § 3-4-34, enacted by Laws 1969, ch. 240, § 92; 1973, ch. 4, § 2; 1975, ch. 255, § 53.

ANNOTATIONS

Am. Jur. 2d, A.L.R. and C.J.S. references. — 29 C.J.S. Elections § 44.

A.  The term of office of members of the board of registration is from July 1 of an odd-numbered year until June 30 of the next succeeding odd-numbered year.  Members of the board of registration shall hold office until their successors are appointed and qualified.

B.  Members of the board of registration shall qualify by taking and filing in the office of the county clerk the oath required of county officials.

History: 1953 Comp., § 3-4-35, enacted by Laws 1969, ch. 240, § 93; 2019, ch. 212, § 57.

ANNOTATIONS

Cross references. — For county officers' oaths, see N.M. Const., art. XX, § 1 and 10-1-13 NMSA 1978.

The 2019 amendment, effective April 3, 2019, provided the term of office for members of the board of registration; and in Subsection A, added the first sentence.

One contemplating becoming candidate may serve on board. — Even though a justice of the peace (now magistrate) contemplates becoming a candidate in the ensuing election, he may serve as a member of the board of registration and he would not be disqualified from doing so. 1946 Op. Att'y Gen. No. 46-4849 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 90.

29 C.J.S. Elections § 42.

1-4-38. Board of registration; meetings.

A.  All meetings of the board of registration shall be open meetings held in accordance with the Open Meetings Act [Chapter 10, Article 15 NMSA 1978].

B.  All reports and other records of the board of registration shall be open to public inspection pursuant to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978].

C.  A person's month and day of birth, and any part of a person's driver's license number or other identifier assigned by the motor vehicle division of the taxation and revenue department, state or federal tax identification number or social security number shall not be disclosed in any meeting or in any record of the board of registration made available to the public.  This subsection does not preclude disclosure of a person's unique identifier as defined in Section 1-1-23 NMSA 1978.

D.  Members of the board of registration are entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978], to be paid out of the election funds appropriated to the county clerk from the county general fund.

History: 1953 Comp., § 3-4-36, enacted by Laws 1969, ch. 240, § 94; 1975, ch. 255, § 54; 2019, ch. 212, § 58.

ANNOTATIONS

The 2019 amendment, effective April 3, 2019, completely rewrote the section; after the section heading, deleted "The board of registration shall meet at the office of the county clerk"; and added new Subsections A through D.

1-4-39 to 1-4-45. Repealed.

ANNOTATIONS

Repeals. — Laws 1995, ch. 198, § 17 repealed 1-4-39 through 1-4-45 NMSA 1978, as enacted by Laws 1971, ch. 195, §§ 1 and 2, and Laws 1969, ch. 240, §§ 97 to 101, relating to deputy registration officers, effective April 6, 1995. For provisions of former sections, see the 1994 NMSA 1978 on NMOneSource.com.

Compiler's notes. — Laws 1995, ch. 124, § 6 amended former 1-4-40 NMSA 1978, effective January 1, 1996. However, because of the repeal of that section by Laws 1995, ch. 198, the amendment was not given effect.

1-4-46. Clerical assistance for county clerk.

The board of county commissioners shall provide for necessary clerical assistance to the county clerk to perform work pertaining to registration. Such clerical assistance shall be paid for by order of the board of county commissioners. Such expenditure shall be included as an item in the regular county budget.

History: 1953 Comp., § 3-4-44, enacted by Laws 1969, ch. 240, § 102; 1973, ch. 4, § 3.

1-4-47. Driver's license voter registration.

A.  Every person who is a qualified elector and is applying for a driver's license, to renew a driver's license or for an identification card shall, if qualified to register to vote, with the consent of the applicant be simultaneously registered to vote.

B.  The secretary of taxation and revenue shall select certain employees of the motor vehicle division of the taxation and revenue department or employees of entities on contract to provide field services to the motor vehicle division to provide assistance to any applicant requesting voter registration assistance.

C.  Every motor vehicle division office, field office or contract field office of the division shall display within the offices clearly visible signs stating "voter registration assistance available" and:

(1)       personnel in each office shall advise each person who is a qualified elector and an applicant for licensure or renewal or for an identification card that initial voter registration or a change of address for voter registration may be made simultaneously with the motor vehicle application;

(2)       voter registration shall be conducted in a manner such that the applicant completes the full certificate of registration electronically; and

(3)       the applicant's digital signature shall be affixed to the certificate of registration using an electronic signature in conformance with the Electronic Authentication of Documents Act [Chapter 14, Article 15 NMSA 1978] and the Uniform Electronic Transactions Act [Chapter 14, Article 16 NMSA 1978].

D.  A motor vehicle division employee or contractor shall not intentionally influence the prospective registrant in the selection of political party, or independent status, by word or act. A motor vehicle division employee or contractor shall not reveal the existence of or the nature of the voter registration to anyone other than a registration officer.

E.  Any voter registration made or accepted at a motor vehicle division office or motor vehicle division field office shall be transmitted to the secretary of state and the appropriate registration officer within seven calendar days.

F.   The secretary of state shall work with the motor vehicle division to:

(1)       ensure compliance in the application of the provisions of this section with the federal National Voter Registration Act of 1993;

(2)       ensure consistent implementation in the various counties, based on county classification and developing technology; and

(3)       develop procedures to ensure that, once voter registration information is transmitted to the appropriate registration officer, the voter's certificate of registration is printed and placed in the county's register of voters.

History: 1978 Comp., § 1-4-47, enacted by Laws 1991, ch. 80, § 4; 1995, ch. 198, § 12; 2013, ch. 184, § 1.

ANNOTATIONS

The 2013 amendment, effective July 1, 2013, provided for electronic submittal of a voter’s certificate of registration form by the motor vehicle division of the taxation and revenue department; in Subsection A, after "Every person", added "who is a qualified elector and is" and after "card shall, if", deleted "otherwise"; in Subsection B, after "motor vehicle division", deleted "of the taxation and revenue department"; in Paragraph (1) of Subsection C, after second occurrence of "office shall advise", deleted "any" and added "each person who is a qualified elector and an"; added Paragraphs (2) and (3) of Subsection C; in Subsection E, after "shall be transmitted to the", added "secretary of state and"; and added Subsection F.

The 1995 amendment, effective April 6, 1995, in Subsection A, deleted "or" preceding "to renew" and inserted "or for an identification card" near the beginning, and substituted "with the consent of the applicant be simultaneously registered to vote" for "be permitted to register to vote with a motor vehicle deputy registration officer. The applicant shall complete an affidavit of voter registration"; in Subsection B, substituted "provide assistance to any applicant requesting voter registration assistance" for "be motor vehicle deputy registration officers"; in Subsection C, rewrote the last sentence which read "Personnel in the offices shall make available a motor vehicle deputy registration officer to any person requesting to be registered as a voter"; in Subsection D, substituted "division employee or contractor" for "deputy registration officer" and added the last sentence of Subsection D; and added Subsection E.

1-4-48. Agency registration.

A.  The secretary of state shall adopt and publish in accordance with the State Rules Act [Chapter 14, Article 4 NMSA 1978] rules for the administration of a state-agency-based voter registration program. The rules shall provide for distribution of voter registration forms, provisions for the acceptance of voter registration forms and procedures for reporting voter registration activity in accordance with the federal National Voter Registration Act of 1993.

B.  Voter registration shall be made available at all state agencies providing public assistance or services to people with disabilities. The secretary of state may, with the agreement of those offices, designate other state and local public offices to provide voter registration services.

C.  Each state agency participating in the voter registration program shall maintain sufficient records for the secretary of state to comply with federal voter registration reporting requirements and the federal Help America Vote Act of 2002. Any records maintained by a state agency regarding voter registration activities in that agency are confidential and shall not be released as public records.

 

D.  Any voter registration made or accepted at a state agency pursuant to this section shall be transmitted to the appropriate registration officer within ten calendar days.

E.  A state agency employee or agency contractor who participates in the voter registration process may not intentionally influence the prospective registrant in the selection of political party, or independent status, by word or act. A state agency employee or agency contractor who participates in the voter registration process may not reveal the existence of or the nature of the voter registration to anyone other than a registration officer.

History: 1978 Comp., § 1-4-48, enacted by Laws 1995, ch. 198, § 13; 2003, ch. 356, § 14.

ANNOTATIONS

Cross references. — For the federal National Voter Registration Act of 1993, see 42 U.S.C. § 1973gg et seq.

For the federal Help America Vote Act of 2002, see 42 U.S.C. § 15301 et seq.

The 2003 amendment, effective July 1, 2003, substituted "rules" for "regulations" in two places in Subsection A; inserted "of state" following "secretary" in the second sentence of Subsection B; and inserted "and the federal Help America Vote Act of 2002" in the first sentence of Subsection C.

1-4-49. Third-party registration agents; registration required; procedures; reports; penalty.

A.  Registration agents who either register or assist persons to register to vote on behalf of an organization that is not a state or federal agency shall register with the secretary of state, and the organization shall register and provide the secretary of state with:

(1)       the names of the officers of the organization and the name and permanent address of the organization;

(2)       the names, permanent addresses, temporary addresses, if any, and dates of birth of each person registering persons to vote in the state on behalf of the organization; and

(3)       a sworn statement from each registration agent employed by or volunteering for the organization stating that the agent will obey all state laws and rules regarding the registration of voters on a form that gives notice of the criminal penalties for false registration.

B.  Organizations employing registration agents or using volunteer registration agents shall deliver or mail a certificate of registration to the secretary of state or county clerk within forty-eight hours of its completion by the person registering to vote or deliver it the next business day if the appropriate office is closed for that forty-eight-hour period.

C.  The secretary of state may issue rules to ensure the integrity of the registration process, including rules requiring that organizations account for all state and federal registration forms used by their registration agents.

D.  A person who intentionally violates the provisions of this section is guilty of a petty misdemeanor and the person's third-party registration agent status shall be revoked. If the person who violates a provision of this section is an employee of an organization and has decision-making authority involving the organization's voter registration activities or is an officer of the organization, that organization shall be subject to civil penalties as described in Subsection E of this section.

E.  If the secretary of state reasonably believes that a person committed a violation of the provisions of this section, the secretary of state shall refer the matter to the attorney general or a district attorney for enforcement. The attorney general or district attorney may institute a civil action in district court for a violation of the provisions of this section or to prevent a violation of the provisions of this section. An action for relief may include a permanent or temporary injunction, a restraining order or any other appropriate order, including a civil penalty of two hundred fifty dollars ($250) for each violation, not to exceed five thousand dollars ($5,000).

History: Laws 2005, ch. 270, § 17; 2007, ch. 336, § 7.

ANNOTATIONS

The 2007 amendment, effective April 2, 2007, in Subsection A, required registration agents to register with the secretary of state and provide the names of the officers of the organization; in Subsection D, provided that if a person who violates this section is an employee of an organization and has decision-making authority involving voter registration activities or is an officer of the organization, the organization is subject to civil penalties; and added Subsection E.

Constitutionality. — Section 1-4-19 NMSA 1978 is not void for vagueness or unconstitutionally overbroad. The National Voting Rights Act does not preempt New Mexico's third-party voter registration law, or violate N.M. Const., art. II, § 8. Am. Ass'n of Disabilities v. Herrera, 690 F. Supp. 2d 1183 (D.N.M. 2010).

The requirement in 1-4-49 NMSA 1978 that county clerks train and educate registration agents does not violate the New Mexico constitutional principle of non-delagation and the due process clause. Am. Ass'n of Disabilities v. Herrera, 690 F. Supp. 2d 1183 (D.N.M. 2010).

1-4-50. Prohibition on release of registration information.

The secretary of state, county clerk or any other registration agent shall not release to the public a voter's social security number or a voter's month and day of birth, and no person shall release to the public or share that information with someone other than a registration officer if the person learned of that information from the voter's certificate of registration.

History: Laws 2007, ch. 337, § 1; 2011, ch. 137, § 38.

ANNOTATIONS

Cross references. — For the Voter Records System Act, see 1-5-1 NMSA 1978.

The 2011 amendment, effective July 1, 2011, prohibited the disclosure of the month and day of a voter’s birth except to a registration officer.

1-9-1. Secretary of state; duties; voting system defined.

A.  The secretary of state shall study, examine and certify all voting systems used in elections for public office in New Mexico. The secretary of state shall maintain a current list of certified voting systems and copies of filed testing and evaluation reports accessible by the public on the secretary of state's web site. Only voting systems certified by the secretary of state and acquired pursuant to a competitive bid process in accordance with the provisions of the Procurement Code [13-1-28 to 13-1-199 NMSA 1978] shall be used in any election for public office in New Mexico.

B.  As used in Chapter 1, Article 9 NMSA 1978, "voting system" means a combination of mechanical, electromechanical or electronic equipment, including the software and firmware required to program and control the equipment, that is used to cast and count votes, and also including any type of system that is designed to print or to mark ballots at a polling location; equipment that is not an integral part of a voting system but that can be used as an adjunct to it is considered to be a component of the system.

History: 1953 Comp., § 3-9-2, enacted by Laws 1969, ch. 240, § 184; 1976 (S.S.), ch. 5, § 1; 2001, ch. 233, § 1; 2010, ch. 28, § 10; 2011, ch. 137, § 69.

ANNOTATIONS

Cross references. — For unlawful opening of voting machines, see 1-20-5 NMSA 1978.

The 2011 amendment, effective July 1, 2011, made stylistic changes.

The 2010 amendment, effective March 3, 2010, in the catchline, added ";voting system defined"; in Subsection A, in the first sentence, after "study, examine and", deleted "approve" and added "certify"; at the beginning of the second sentence, deleted "Any type of"; added the second sentence; at the beginning of the third sentence, added "Only"; and in the third sentence, after "voting systems", deleted "not approved" and added "certified"; after "secretary of state", added "and acquired pursuant to a competitive bid process in accordance with the provisions of the Procurement Code"; and after "Procurement Code shall", deleted "not"; and in Subsection B, after "component of the system", added the remainder of the sentence.

The 2001 amendment, effective June 15, 2001, inserted the Subsection A designation and added Subsection B; in Subsection A, substituted "voting systems" for "voting machines" in two places.

Machines do not change requirement that precincts accommodate voters. — Notwithstanding the fact that voting machines may accommodate more than 600 voters, enactment of Laws 1951, ch. 192 (now repealed) did not supersede or repeal 3-2-1, 1953 Comp., requiring county commissioners to divide precincts and voting districts so that no polling place will be required to accommodate more than 600 voters. 1952 Op. Att'y Gen. No. 52-5489 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections §§ 365, 431.

29 C.J.S. Elections §§ 153, 203.

ANNOTATIONS

Cross references. — For provision as to number of voters a polling place is to accommodate, see 1-3-1 NMSA 1978.

The 2015 amendment, effective July 1, 2015, provided that the secretary of state shall provide to the county clerk of each county at least one optical scan tabulator and a sufficient number of check-in stations for use in each polling location in the primary and general election when electronic rosters or their equivalents are used; in the catchline, added "sufficient check-in stations and voting booths"; in Subsection B, after "at least one", deleted "voting system" and added "optical scan tabulator", and after "in the general and primary elections.", added the remainder of the subsection; and added a new Subsection C and redesignated former Subsection C as Subsection D.

The 2010 amendment, effective March 3, 2010, in the catchline, after "Requirement to" deleted "Purchase and"; in Subsection A, at the beginning of the sentence, added "Certified" and after "used in all", deleted "precincts" and added "polling locations"; in Subsection B, after "The", added "secretary of state shall provide to the"; after "clerk of each county", deleted "shall provide" and added "at least"; after "voting system", deleted "in each precinct"; after "for use in", added "each polling location in"; and after "primary elections", deleted "when the total number of registered voters in that precinct amounted to fewer than six hundred at the close of registration"; in Subsection C, at the beginning of the sentence, deleted "At least one additional voting system shall be provided in such precinct for every six hundred registered voters in that precinct; provided that if the voting system used in the precinct is a paper ballot system" and after "booths are provided", deleted "in lieu of providing more electronic vote tabulators"; deleted former Subsection D, which provided for the acquisition of new or previously owned voting or electronic vote tabulating systems for use in elections for public office and that the acquisition of these systems may be in excess of the number provided in this section; deleted former Subsection E, which provided that except for intercounty acquisitions of equipment, a previously owned voting or electronic vote tabulating system shall have a warranty equal to the warranty required of a new voting or electronic system; and added "to ensure that voters in each polling location may cast their ballots in secret".

The 2006 amendment, effective May 17, 2006, provides in Subsection C that if the voting system is a paper ballot system, the county clerk shall provide an adequate number of voting booths.

The 2001 amendment, effective June 15, 2001, substituted "voting systems" for "voting machines" throughout the section; and substituted "six hundred" for "four hundred" in Subsections B and C.

The 1993 amendment, effective June 18, 1993, inserted "new or previously owned voting or" in the first sentence of Subsection D and added Subsection E.

The 1991 amendment, effective April 2, 1991, in Subsection B, substituted "county clerk" for "board of county commissioners" and deleted "according to the county clerk" following "four hundred".

Commissioners to provide machines based on number of preceding election ballots. — It is the duty of county commissioners to provide voting machines for use in primary elections, the number of required machines to be based on the total number of ballots cast in the precinct or voting division in the preceding general election. 1964 Op. Att'y Gen. No. 64-52 (opinion rendered under former law).

Section does not impliedly repeal polling place requirement to accommodate voters. — This section is determinative of the number of machines which the board of county commissioners must acquire for use at any general or special election, but does not repeal by implication the provisions of 1-3-1 NMSA 1978 limiting the number of voters which any polling place may be required to accommodate. 1962 Op. Att'y Gen. No. 62-34 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Voting machines, constitutionality of statutes providing for use of, 66 A.L.R. 855.

1-9-6. Voting systems; use in other elections.

A.  The county clerk may provide for the use of voting systems in other elections or for educational purposes; provided, however, that the county clerk shall make available:

(1)       to the school district for use in the school district election, a sufficient number of voting systems necessary to conduct the election in those polling places located within that county; and

(2)       to a municipality located in the county, a sufficient number of voting systems to conduct the municipal election.

B.  The county clerk shall schedule the use of the voting systems.

History: 1953 Comp., § 3-9-7, enacted by Laws 1975, ch. 255, § 116; 1991, ch. 106, § 3; 2001, ch. 233, § 4.

ANNOTATIONS

Repeals and reenactments. — Laws 1975, ch. 255, § 116 repealed 3-9-7, 1953 Comp., relating to voting machines, use in other elections, and enacted a new section.

The 2001 amendment, effective June 15, 2001, substituted "voting systems" for "voting machines" throughout the section.

The 1991 amendment, effective April 2, 1991, in the introductory phrase of Subsection A, substituted "county clerk" for "board of county commissioners" and "the county clerk shall" for "it shall".

Voting for justices of the peace (now magistrates) and constables may be properly conducted by voting machines where all other provisions of the law applicable to the installation and operations of voting machines are observed. 1953 Op. Att'y Gen. No. 53-5737.

Constitutional requirement for separate ballot boxes in municipal bond election. — That portion of 3-4-3 (now repealed) relating to the use of voting machines in bond elections should be regarded as inconsistent with N.M. Const., art. IX, § 12, requiring separate ballot boxes and for that reason separate ballot boxes should be used in all municipal bond elections. 1953 Op. Att'y Gen. No. 53-5643.

Machines do not change requirement that precincts accommodate voters. — Notwithstanding the fact that voting machines may accommodate more than 600 voters, enactment of Laws 1951, ch. 192 (now repealed) did not supersede or repeal 3-2-1, 1953 Comp., requiring county commissioners to divide precincts and voting districts so that no polling place will be required to accommodate more than 600 voters. 1952 Op. Att'y Gen. No. 52-5489.

1-9-7. Voting systems; acquisition.

A.  The secretary of state shall provide to the county clerk of each county a sufficient number of voting systems as required by the Election Code for the conduct of primary and general elections.

B.  When authorized by the state board of finance, the board of county commissioners may acquire new or previously owned voting systems. No less than ninety days prior to each primary and general election, the board of county commissioners of each county may make application to the state board of finance for any additional voting systems to be acquired by a county in excess of the number of voting systems required by the Election Code for the conduct of primary and general elections.

C.  The additional voting systems shall be of a type certified by the secretary of state. They shall be purchased by the state board of finance. Unless paid in full by the county at the time of purchase, the cost of the voting systems, including all transportation costs, shall be paid out of the voting system revolving fund. The state board of finance shall cause to be delivered to each county clerk the additional voting systems.

D.  Except for intercounty acquisitions of equipment approved by the secretary of state, a previously owned voting system shall have a warranty equal to the warranty required of a new voting system.

History: 1953 Comp., § 3-9-8, enacted by Laws 1969, ch. 240, § 190; 1972, ch. 28, § 2; 1976 (S.S.), ch. 5, § 5; 1989, ch. 141, § 1; 1991, ch. 106, § 4; 2001, ch. 233, § 5; 2010, ch. 28, § 12; 2015, ch. 145, § 56.

ANNOTATIONS

Cross references. — For electronic voting system revolving fund, see 1-9-19 NMSA 1978.

The 2015 amendment, effective July 1, 2015, provided that unless new voting systems are paid for in full by the county at the time of purchase, the cost of the voting system shall be paid out of the voting system revolving fund; and in Subsection C, after "board of finance.", added "Unless paid in full by the county at the time of purchase".

The 2010 amendment, effective March 3, 2010, added Subsection A; in Subsection B, added the first sentence; at the beginning of the second sentence, added "No less than"; in the second sentence, after "commissioners of each county", deleted "shall" and added "may"; after "board of finance for", deleted "those" and added "any"; after "additional voting systems", deleted "required by the Election Code" and added the remainder of the sentence; in Subsection C, in the first sentence, after "shall be of a type", deleted "approved" and added "certified" and in the third sentence, after "paid out of the", deleted "electronic"; and added Subsection D.

The 2001 amendment, effective June 15, 2001, substituted "voting systems" for "voting machines" throughout the section; and inserted "electronic" in the second sentence of Subsection B.

The 1991 amendment, effective April 2, 1991, substituted "county clerk" for "board of county commissioners" in the final sentence in Subsection B.

1-9-7.1. Voting system; use of paper ballot; access for blind or visually impaired voters.

A.  All voting systems used in elections covered by the Election Code shall use a paper ballot on which the voter physically or electronically marks the voter's choices on the ballot itself.

B.  The secretary of state shall purchase the paper ballots for all counties to use for primary and general elections. If a system designed to print ballots at a polling location is certified and the voting system certification committee finds that its use in a polling place would result in cost savings, the secretary of state shall acquire such systems and paper ballot stock in lieu of fully preprinted paper ballots for those polling places where cost savings would be realized.

C.  The paper ballot shall be used in a recount proceeding, and in case of a discrepancy, the paper ballot shall be considered the true and correct record of the voter's choices.

D.  The secretary of state shall establish by rule procedures to enable blind or visually impaired voters to independently mark a paper ballot using nonvisual access or low vision access technology, whether voting in a polling place or by absentee ballot.

History: Laws 2005, ch. 270, § 56; 2006, ch. 43, § 2; 2010, ch. 28, § 13; 2017, ch. 101, § 11.

ANNOTATIONS

The 2017 amendment, effective June 16, 2017, required the secretary of state to establish procedures by which blind or visually impaired voters may independently mark their ballots; in the catchline, added "access for blind or visually impaired voters"; and added Subsection D.

The 2010 amendment, effective January 1, 2011, in Subsection A, deleted former language, which provided that voting systems owned or used by a county on May 1, 2006 that do not use a paper ballot may be used until an adequate supply of voting systems is available and funds are available to replace the voting system, to acquire the necessary software and to hold the counties harmless for payments due for voting systems under lease-purchase agreements; in Subsection B, after "secretary of state", deleted "to" and added "shall"; after "all counties to use", deleted "on the new voting system"; deleted former Subsection B, which provided that a voting system shall not be used if it has not been certified by the secretary of state and if a competitive bid process has not been conducted by the secretary of state; in new Subsection B, added the second sentence; and in Subsection C, after "ballot shall be used", deleted "by the state or its contractor to check either the veracity of a machine count or the count itself, and shall be used" and after "recount proceeding", deleted "as are absentee ballots".

The 2006 amendment, effective May 17, 2006, in Subsection A, provided that all voting systems shall use a paper ballot on which the voter physically or electronically marks choices on the ballot itself except that voting systems owned or used on May 1, 2006 do not have to use a paper ballot until an adequate supply of voting systems and funds are available; added Paragraphs (1) through (4) of Subsection A, which provided criteria for compliance with the requirement to replace existing voting systems with paper ballot systems; added the provision to Subsection B that no voting system shall be used if a competitive bid process has not be conducted by the secretary of state pursuant to Chapter 13, Article 1 NMSA 1978; deleted former Subsection C, which defined "voting system" and "voter-verifiable and auditable paper trail"; and in Subsection C, deleted "trail" and inserted "ballot" and provided that ballots shall be used on a recount proceeding as are absentee ballots.

1-9-7.2. Voting systems; testing of previously certified systems.

The secretary of state may voluntarily test and certify voting systems without an application by the manufacturer if the system has been previously certified by the United States election assistance commission. Tests and inspections conducted pursuant to this section shall follow the procedures in Section 1-9-14 NMSA 1978; provided, however, if the manufacturer has not applied for certification of that voting system, the manufacturer shall not be required to pay for the costs of testing and certification.

History: Laws 2005, ch. 270, § 57; 2010, ch. 28, § 14; 2017, ch. 101, § 12.

ANNOTATIONS

The 2017 amendment, effective June 16, 2017, removed the deadline by which tests and inspections of voting systems must be completed; and after "Section 1-9-14 NMSA 1978", deleted "and shall be completed within six months of the date on which the secretary of state orders testing to begin".

The 2010 amendment, effective March 3, 2010, in the first sentence, after "previously certified by", deleted "other states or by the national association of state election directors" and added "the United States election assistance commission"; and in the second sentence, after "section shall follow the", deleted "testing", and after "six months of the date on which", deleted "testing begins" and added "the secretary of state orders testing to begin".

1-9-7.3. Voting systems records.

For each certified voting system purchased in 2006 and after, including any separate component, the secretary of state shall maintain records of the voting system and any component, including:

A.  a description of each voting system and any of its components;

B.  its serial number or other identification number;

C.  the name of the vendor, the titleholder and the acquisition date;

D.  its cost;

E.  the percentage of federal participation covering the cost of acquisition;

F.   its location, use and condition; and

G.  its ultimate disposition, including the date of disposal and sale price.

History: Laws 2010, ch. 28, § 1.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.4. Voting systems; authority of the secretary of state to recertify and decertify.

A.  Each voting system certified for use in the state shall be reviewed for recertification by the secretary of state during the year following a presidential election. Tests and inspections conducted pursuant to this section shall begin no later than June 1 and shall follow the procedures in Section 1-9-14 NMSA 1978.

B.  If at any time the secretary of state becomes aware that a voting system certified for use in this state does not comply with all requirements in the Election Code [Chapter 1 NMSA 1978] or meet federal election standards, the secretary of state shall undertake an investigation to determine if the voting system should continue to be certified for use in the state. Tests and inspections conducted pursuant to this section shall commence upon the order of the secretary of state and shall follow the procedures in Section 1-9-14 NMSA 1978. A voting system that does not comply with all requirements in the Election Code and the most recent voluntary voting system guidelines adopted by the United States election assistance commission shall be decertified for use in this state.

History: Laws 2010, ch. 28, § 2.

NNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.5. Voting systems; voting system certification committee; members.

A.  The "voting system certification committee" is created. The committee shall review written test reports and the findings of the secretary of state on the certification, recertification and decertification of voting systems for use in elections in the state.

B.  The voting system certification committee shall be composed of:

(1)       the secretary of information technology or the secretary's designee from within the department of information technology; and

(2)       four additional members as follows:

(a) one member appointed by the president pro tempore of the senate;

(b) one member appointed by the minority floor leader of the senate;

(c)  one member appointed by the speaker of the house of representatives; and

(d) one member appointed by the minority floor leader of the house of representatives.

C.  The four additional members appointed pursuant to Paragraph (2) of Subsection B of this section shall be county clerks or their chief deputies or other persons knowledgeable of elections in this state. Members shall be appointed for terms of two years beginning on May 1 of each even-numbered year. Vacancies shall be filled by the original appointing authority.

D.  The members of the committee shall select a committee member to serve as chair of the committee. No person who is currently or has been within the previous twelve months an employee or contractor of a voting machine vendor or the office of the secretary of state may serve as a member of the committee. Members of the committee are entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act [Chapter 10, Article 8 NMSA 1978], to be paid out of the funds appropriated to the secretary of state.

E.  All meetings of the voting system certification committee shall be open meetings held in accordance with the Open Meetings Act [Chapter 10, Article 15 NMSA 1978]. All reports and other records that are used, created, received, maintained or held by or on behalf of the voting system certification committee shall be open to public inspection pursuant to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978].

History: Laws 2010, ch. 28, § 3; 2011, ch. 137, § 70.

ANNOTATIONS

The 2011 amendment, effective July 1, 2011, in Subsection C, provided that the terms of members begin on May 1 of each even-numbered year; and in Subsection D, provided that per diem and mileage will be paid from funds appropriated to the secretary of state.

1-9-7.6. Voting systems; storage; custody and maintenance; authority to enforce.

A.  The secretary of state shall prescribe by rule promulgated pursuant to the provisions of the State Rules Act [Chapter 14, Article 4 NMSA 1978] specifications for the proper storage of voting systems.

B.  Voting systems shall be held in the custody of the county that uses the voting systems. All voting systems shall be properly stored pursuant to specifications promulgated by the secretary of state. The board of county commissioners shall be responsible for the costs of properly storing voting systems in custody of the county.

C.  The secretary of state may pay from the voting system revolving fund the costs of all hardware, software, firmware, maintenance and support for voting systems, whether state- or county-owned, certified for use in state elections.

D.  If the secretary of state becomes aware that state- or county-owned voting systems in the custody of a county are not being stored pursuant to specifications promulgated by the secretary of state, the secretary of state may take action as is deemed appropriate to protect the voting equipment. Such action may include requesting a court to order the county to implement the specifications promulgated by the secretary of state or the secretary of state taking immediate physical control of the voting systems until the county has complied with the storage specifications.

History: Laws 2010, ch. 28, § 4.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.7. Voting systems; technical requirements.

Voting systems certified for use in state elections shall:

A.  have a unique embedded internal serial number for audit purposes;

B.  be supplied with a dust- and moisture-proof cover for transportation and storage purposes;

C.  if the net weight of the system, or aggregate of voting device parts, is over twenty pounds, have self-contained wheels so that the system can be easily rolled by one person on rough pavement and can roll through a standard thirty-inch door frame;

D.  be a stand-alone, non-networked election system such that all pre-election, election day and post-election events and activities can be recorded and retained in each device;

E.  employ scalable technology allowing easy enhancements that meet United States election assistance commission standards and state law;

F.   have ancillary equipment, such as printers, power sources, microprocessors and switch and indicator matrices, that is installed internally or is modular and transportable;

G.  display publicly the number of ballots processed;

H.  be able to print:

(1)       an alphanumeric printout of the contests, candidates and vote totals when the polls are opened so that the poll workers can verify that the counters for each candidate are on zero;

(2)       an alphanumeric printout of the contests, candidates and vote totals at the close of the polls, which printouts shall contain the system serial number and public counter total; and

(3)       as many copies of the alphanumeric printouts as necessary to satisfy state law; and

I.    include a feature to allow reports to be sent to an electronic data file.

History: Laws 2010, ch. 28, § 5.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.8. Voting systems; operational requirements.

Voting systems certified for use in state elections shall:

A.  have internal application software that is specifically designed and engineered for the election application;

B.  include comprehensive diagnostics designed to ensure that failures do not go undetected;

C.  have a real-time clock capable of recording and documenting the total time polls are opened; and

D.  have a self-contained, internal backup battery that powers all components of the system that are powered by alternating current power; and, in the event of a power outage in the polling place:

(1)       the self-contained, internal backup battery power shall engage with no disruption of operation for at least two hours and with no loss of data; and

(2)       the system shall maintain all vote totals, public counter totals and the internal clock time in the event that the main power and battery backup power fail.

History: Laws 2010, ch. 28, § 6.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.9. Voting systems; memory; removable storage media device; requirements.

Voting systems certified for use in state elections shall:

A.  be programmable with removable storage media devices;

B.  contain ballot control information, summary vote totals, maintenance logs and operator logs on the removable storage media device;

C.  ensure that the votes stored on the removable storage media device accurately represent the actual votes cast;

D.  be designed so that no executable code can be launched from random access memory;

E.  have any operating system software stored in nonvolatile memory, which shall include internal quality checks such as parity or error detection and correction codes, and which software shall include comprehensive diagnostics to ensure that failures do not go undetected;

F.   allow for pre-election testing of the ballot control logic and accuracy, with results stored in the memory that is used on election day, and shall be capable of printing a zero-results printout prior to these tests and a results printout after the test;

G.  have internal audit trail capability such that all pre-election, election day and post-election events shall be stored, recorded and recovered in an easy-to-read printed form and be retained within memory that does not require external power for memory retention;

H.  possess the capability of remote transmission of election results to a central location only by reading the removable storage media devices once they have been removed from the tabulation device after the poll closing sequence has been completed; and

I.    prevent data from being altered or destroyed by report generation or by the transmission of results.

History: Laws 2010, ch. 28, § 7.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.10. Voting systems; ballot handling and processing requirements.

Voting systems certified for use in state elections shall:

A.  accept a ballot that is a minimum of six inches wide and a maximum of twenty-four inches long, in dual columns and printed on both sides;

B.  accept a ballot in any orientation when inserted by a voter;

C.  have the capability to reject a ballot on which a voter has made more than the allowable number of selections in any contest;

D.  be designed to accommodate the maximum number of ballot styles or ballot variations encountered in the largest New Mexico election jurisdiction; and

E.  be able to read a single ballot with at least four hundred twenty voting positions.

History: Laws 2010, ch. 28, § 8.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

1-9-7.11. Voting systems; source code; escrow.

As a condition of initial certification and continued certification, the source code that operates a voting system shall be placed in escrow and be accessible to the state of New Mexico in the event the manufacturer ceases to do business or ceases to support the voting system.

History: Laws 2010, ch. 28, § 9.

ANNOTATIONS

Emergency clauses. — Laws 2010, ch. 28, § 24 contained an emergency clause and was approved March 3, 2010.

ANNOTATIONS

The 2017 amendment, effective June 16, 2017, removed the deadline by which tests and inspections of voting systems must be completed; and in Subsection B, deleted "These tests and inspections shall be completed within six months of the date of application.".

The 2010 amendment, effective March 3, 2010, in the catchline, deleted "Computer voting devices" and added "Voting systems" and after "test;", added "certification"; in Subsection A, in the first sentence, deleted "Notwithstanding any other provision of the Election Code"; after "testing and evaluation of", deleted "internal computers" and added "voting systems"; and added the second sentence; in Subsection B, in the first sentence, after "Any person who has", deleted "an internal computer which" and added "a voting system that" and after "examined and tested", added "for certification"; in the second sentence, after "application is made", added "for initial certification"; in the third sentence, after "examine and study the", deleted "computer" and after "voting system" added the remainder of the sentence; in the fourth sentence, after "operation and component parts of", deleted "an internal computer for recording and tabulating votes" and added "voting systems"; and in the fifth sentence, after "in one or more", deleted "precincts" and added "polling places"; in Subsection C, in the first sentence, after "findings and shall", deleted language that required the secretary of state to submit a report of the findings to a committee composed of the secretary of state, the state chief information officer and a county clerk appointed by the governor and added the remainder of the sentence; and added the second sentence; deleted former Subsection D, which provided that if the committee approves the use of internal computers, then the secretary of state shall prescribe specifications for internal computers designed to provide a system of recording and tabulating votes to secure the integrity of the ballot; in new Subsection D, added the first sentence; in the second sentence, after "The", added "voting system certification"; and deleted the former second sentence, which provided that the report shall be a public record; added Subsections E, F and G; in Subsection H, after "If the", added "voting system certification"; after "committee recommends that the", deleted "internal computer for recording and tabulating votes" and added "voting system"; after "suitable for use in", deleted "polling places for the conduct of"; after "New Mexico,", deleted "such" and added "within thirty days of receiving the recommendation, the secretary of state shall certify or recertify the"; after "recertify the equipment", deleted "shall be deemed approved"; and at the end of the sentence, deleted "no later than January 1 of the succeeding year"; and added Subsection I.

The 2001 amendment, effective June 15, 2001, substituted "system" for "machine" throughout Subsection A; and substituted "state chief information officer" for "director of the information systems division of the general services department" in Subsection B.

The 1991 amendment, effective April 2, 1991, in Subsection A, rewrote the third sentence which read "At the time application is made, the applicant shall pay to the secretary of state an examination fee of two thousand five hundred dollars ($2,500) per machine to be tested", deleted "and examination fee" following "application" in the fourth sentence, deleted the former sixth sentence which read "The application fee shall be used to pay for the cost of such testing" and, at the beginning of the present sixth sentence, substituted "The secretary of state may" for "In addition, the secretary of state shall".

Applicability of Procurement Code. — This section does not bar application of the Procurement Code, 13-1-28 to 13-1-199 NMSA 1978, to the purchase of internal computers used to record and tabulate votes, and the Procurement Code applies to such devices so used after November 1, 1984. 1988 Op. Att'y Gen. No. 88-68.

1-9-17. Additional voting systems; state board of finance; lease-purchase contract; terms.

A.  The state board of finance shall execute a lease-purchase contract with the county for purchase of additional voting systems and the necessary support equipment upon receipt of the application of the board of county commissioners pursuant to Section 1-9-7 NMSA 1978.

B.  The lease-purchase contract shall include, but not be limited to, the following terms:

(1)       the county agrees to purchase from the state board of finance the specified number of voting systems and the necessary support equipment;

(2)       the county will pay for the cost of the systems and support equipment, including reimbursement for costs of transportation;

(3)       the term of the lease-purchase contract shall not exceed ten years;

(4)       the care, custody and proper storage of the systems and support equipment pursuant to specifications issued by the secretary of state is the responsibility of the county clerk; and

(5)       upon good cause shown, the terms of the lease-purchase contract may, at any time, be renegotiated.

History: 1978 Comp., § 1-9-17, enacted by Laws 1985, ch. 207, § 16; 1991, ch. 106, § 10; 2001, ch. 233, § 12; 2010, ch. 28, § 18.

ANNOTATIONS

Cross references. — For the state board of finance, see 6-1-1 NMSA 1978.

The 2010 amendment, effective March 3, 2010, in the catchline, deleted "Electronic" and added "Additional", and after "voting systems;", added "state"; in Subsection A, after "purchase of", deleted "electronic" and added "additional" and after "county commissioners", added "pursuant to Section 1-9-7 NMSA 1978"; in Subsection B(1), after "specified number of", deleted "electronic"; in Subsection B(3), after "shall not exceed", deleted "twenty" and added "ten"; and in Subsection B(4), after "custody and", deleted "maintenance" and added "proper storage", and after "support equipment", added "pursuant to specifications issued by the secretary of state".

The 2001 amendment, effective June 15, 2001, substituted "systems" for "machines" throughout the section.

The 1991 amendment, effective April 2, 1991, purported to amend this section but made no change.

1-9-17.1. Voting systems; renegotiation of lease-purchase contract; disposition of voting systems.

A.  A lease-purchase contract for a voting system entered into between the state board of finance and a county pursuant to Section 1-9-17 NMSA 1978, after a renegotiation pursuant to Paragraph (5) of Subsection B of that section, may include provisions providing that, upon the return of physical control of the voting systems to the state board of finance, the contract shall be terminated and no additional payments from the county shall be due. The state board of finance may dispose of voting systems returned pursuant to this subsection in any manner that is consistent with the interests of the state.

B.  Upon application by the board of county commissioners, the secretary of state shall dispose of voting systems and support equipment purchased after January 1, 2007 by the board of county commissioners. The application shall include a provision for the transfer of ownership in the voting systems to the state without fee or compensation to the county.

History: 1978 Comp. § 1-9-17.1, as enacted by Laws 2009, ch. 173, § 1; 2010, ch. 28, § 19.

ANNOTATIONS

The 2010 amendment, effective March 3, 2010, in the catchline, deleted "electronic", and after "purchase contract;", added "disposition of voting systems"; in Subsection A, in the first sentence, after "contract for", deleted "an electronic" and added "a"; after "Section", deleted "1-19-17" and added "1-9-17"; after "providing that, upon the", deleted "transfer of the ownership in" and added "return of physical control of" and after "physical control of the", deleted "electronic"; and in the second sentence, after "may dispose of", deleted "electronic" and after "voting systems", deleted "acquired" and added "returned"; and added Subsection B.

1-9-18. Electronic voting systems; method of payment by counties.

A.  The department of finance and administration and the board of county commissioners shall budget annually for as many years as may be necessary from county funds in each county acquiring electronic voting systems and support equipment an amount sufficient to enable the county to pay to the state board of finance installment payments required to be paid under the terms of the lease-purchase contract.

B.  The board of county commissioners of each county having a lease-purchase contract with the state board of finance shall pay such payments, at the times and in the amounts as provided by the terms of the lease-purchase contract. The state board of finance shall deposit the payments into the severance tax bonding fund if the electronic voting systems and support equipment were originally purchased with severance tax bond proceeds. The state board of finance shall deposit the payments into the electronic voting system revolving fund if the electronic voting systems were originally purchased with money from the electronic voting system revolving fund.

History: 1978 Comp., § 1-9-18, enacted by Laws 1985, ch. 207, § 17; 2001, ch. 233, § 13.

ANNOTATIONS

Cross references. — For the electronic voting machine revolving fund, see 1-9-19 NMSA 1978.

For the severance tax bond fund, see 7-27-2 NMSA 1978.

The 2001 amendment, effective June 15, 2001, substituted "systems" for "machines" and "system" for "machine" throughout the section.

1-9-19. Voting system revolving fund.

A.  The "voting system revolving fund" is created. The voting system revolving fund may be used:

(1)       by the secretary of state to pay for hardware, software, firmware, maintenance and support for voting systems, whether state- or county-owned, certified for use in state elections; and

(2)       by the counties to finance, by contract, the purchase of voting systems and necessary support equipment under the conditions stated in Section 1-9-17 NMSA 1978; provided that no expenditure shall be made pursuant to this paragraph if it would result in a fund balance of less than one million dollars ($1,000,000).

B.  The voting system revolving fund may be expended upon vouchers signed by the secretary of finance and administration.

C.  If at the end of a fiscal year the voting system revolving fund exceeds six million five hundred thousand dollars ($6,500,000), the amount in excess of six million five hundred thousand dollars ($6,500,000) shall revert to the general fund.

History: 1978 Comp., § 1-9-19, enacted by Laws 1985, ch. 207, § 18; 2001, ch. 233, § 14; 2003, ch. 356, § 27; 2010, ch. 28, § 20.

ANNOTATIONS

Cross references. — For the general fund, see 6-4-2 NMSA 1978.

The 2010 amendment, effective March 3, 2010, in the catchline, deleted "Electronic"; in Subsection A, in the first sentence, after "The", deleted "electronic", and in the second sentence, after "The", deleted "electronic"; added Paragraph (1) of Subsection A; in Subsection A(2), at the beginning of the sentence, added "by the counties to"; after "the purchase of", deleted "electronic"; and after "Section 1-9-17 NMSA 1978;", added the remainder of the sentence; in Subsection B, in the first sentence, after "The", deleted "electronic"; and in Subsection C, after "fiscal year the", deleted "electronic".

The 2003 amendment, effective July 1, 2003, substituted "six million five hundred thousand dollars ($6,500,000)" for "four million dollars ($4,000,000)" in the last sentence.

The 2001 amendment, effective June 15, 2001, substituted "systems" for "machines" and "system" for "machine" throughout the section; and substituted "four million dollars ($4,000,000)" for "two million dollars ($2,000,000)" in two places at the end of the section.

1-9-20. Systems designed to print ballots at polling locations; ballot preparation requirements.

Systems designed to print ballots at polling locations shall provide the general capabilities for ballot preparation and shall be capable of:

A.  enabling the automatic formatting of ballots in accordance with the requirements of the Election Code, as amended from time to time, for offices, candidates and questions qualified to be placed on the ballot for each political subdivision and election district;

B.  supporting the maximum number of potentially active voting positions;

C.  generating ballots for a primary election that segregate the choices in partisan contests by party affiliation;

D.  generating ballots that contain identifying codes or marks uniquely associated with each format;

E.  ensuring that voting response fields properly align with the specific candidate names or questions printed on the ballot;

F.   generating ballots that can be tabulated by all certified voting systems in the state;

G.  generating a ballot for an individual voter based on voter registration data provided by state or county;

H.  functionality in absentee, early and election day voting environments;

I.    providing absentee ballot tracking ability;

J.   uniform allocation of space and fonts used for each office, candidate and question such that the voter perceives no active voting position to be preferred to any other;

K.  rendering the ballot in any of the written languages required by the federal Voting Rights Act of 1965, as amended;

L.   conformity with optical scan vote tabulator vendor specifications for type of paper stock, weight, size and shape; size and location of voting positions used to record votes; folding; bleed-through; and ink for printing; and

M.  interfacing with the statewide voter file for the exchange of data.

History: Laws 2011, ch. 137, § 66.

ANNOTATIONS

Effective dates. — Laws 2011, ch. 137, § 111 made Laws 2011, ch. 137, § 66 effective July 1, 2011.

1-9-21. Systems designed to print ballots at polling locations; security requirements.

Systems designed to print ballots at polling locations shall provide the security capabilities for ballot preparation and shall be capable of:

A.  providing a full audit trail of individual voter activity;

B.  providing full ballot production audit logs for all activity, including absentee voting by mail, in-person absentee voting, early voting, provisional voting and spoiling ballots;

C.  creation and preservation of an audit trail of every ballot issued, including during a period of interrupted communication in the event of loss of network connectivity;

D.  suitable security passwords at user, administrator and management levels;

E.  preventing the modification of ballot formatting by polling place users; and

F.   retaining full functionality and capability of printing ballots during a period of interrupted communication in the event of loss of network connectivity.

History: Laws 2011, ch. 137, § 67.

ANNOTATIONS

Effective dates. — Laws 2011, ch. 137, § 111 made Laws 2011, ch. 137, § 67 effective July 1, 2011.

1-9-22. Systems designed to print ballots at polling locations; hardware, software and usability requirements.

Systems designed to print ballots at polling locations shall:

A.  provide hardware requirements that:

(1)       shall be networkable and scalable for multi-user environments;

(2)       function without degradation in capabilities after transit to and from the place of use;

(3)       function without degradation in capabilities after storage between elections;

(4)       function in the natural environment, including variations in temperature, humidity and atmospheric pressure;

(5)       function in an induced environment, including proper and improper operation and handling of the system and its components during the election process;

(6)       contain prominent instructions as to any special requirements;

(7)       have no restrictions on space allowed for installation, except that the arrangement of the system shall not impede the performance of duties by election workers, the orderly flow of voters through the polling place or the ability of voters to vote in private; and

(8)       operate with the electrical supply ordinarily found in polling place, nominal one hundred twenty volts alternating current, sixty hertz, single phase;

B.  provide software requirements that shall:

(1)       be capable of exporting voter data and voter activity status data to state and county voter registration systems;

(2)       be capable of generating all required absentee and early voting signature rosters in a state-approved format;

(3)       generate daily and to-date activity reports based on user-defined criteria; and

(4)       have both single transaction and batch transaction absentee production capability; and

C.  be capable of being operated by computer users familiar with a graphical user interface.

History: 2011, ch. 137, § 68.

ANNOTATIONS

Effective dates. — Laws 2011, ch. 137, § 111 made Laws 2011, ch. 137, § 68 effective July 1, 2011.