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Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

New Mexico

The complete research by Election Law @ Moritz for New Mexico can be found below.

Institutional Arrangements

State Chief Election Authorities

Elected individual (D)

Chief election authority: Secretary of State. N.M.S.A. 1978, § 1-2-1.

Method of selection: Elected. Const. Art. 5, § 1.

Current officer: Mary Herrera (D). Vote fraud tales rile county clerks, Albuquerque Tribune, February 2, 2007. (Last updated 1/1/08)

State High Court Composition

D heavy/elected

Method of selection: Partisan election with subsequent retention election. Const. Art. 6, § 33.

Justices: Edward Chavez (D), Charles W. Daniels (appointed by D), Patricio M. Serna (D), Petra Jimenez Maes (D), Richard C. Bosson (D) (Last updated 12/22/07)

Sources:

  • Incumbent judges succeed in N.M., Albuquerque Tribune, November 3, 2004.
  • Our view: State’s New Justice a Good Choice, Santa Fe New Mexican (NM), October 23, 2007.
  • Court sides with Secretary of State in New Mexico voter ID dispute, AP Alert – Political, September 29, 2004, Deborah Baker, 07:00:55.
  • Voters Return Most Incumbent Judges to the Bench, Albuquerque Journal, November 3, 2004.  

Local Administrator Training

Periodic pre-election training/mandatory

Before each statewide election, the secretary of state must organize and conduct seminars on the administration of the Election code. NMSA 1-2-5. County clerks must attend the seminars with a designated deputy and a voting machine technician. Attendance is mandatory, but no consequence for failure to show is prescribed.

Who tallies precinct results?

County canvassing board - partisanship unconstrained

The board of county commissioners tallies precinct results. NMSA 1-13-1.  County commissioners are elected.  NMSA 4-38-6.

Who counts provisional ballots?

Local election authority - partisanship unconstrained

The county clerk determines whether to count provisional ballots. NMSA 1-12-25.4. County clerks are elected. Const. Art. 6, 2.

Who performs state canvass?

Special canvassing commission - elected/partisanship unconstrained

 

The state canvassing board performs the state canvass. NMSA 1-13-15.  The state canvassing board consists of the Secretary of State, the governor, and the chief justice of the state supreme court. Const. Art. 5, 2.  The chief justice is elected.  Const. Art. 6, 33.

Local Administrator

County official - elected

At the local level, New Mexico elections are run by the county clerk. NMSA 1-2-10, 1-4-8, 1-6-5, 1-9-12. County clerks are elected. Const. Art. 6, 2. However, registration duties are split between the clerk and the three-member county boards of registration. These boards are appointed by the elected board of county commissioners. NMSA 1-4-34. No more than two of the three members may be of the same political party.

Local Administrators' Party Affiliation

D heavy/elected

County Population Administrator/Affiliation Selection Voting Technology
Bernalillo 615,099 Maggie Toulouse Oliver (D) [1] Elected ES&S [6] OS [7]
Dona Ana 193,888 Rita Torres (D) [2] Elected ES&S OS
Santa Fe 142,407 Valerie Espinoza (D) [3] Elected ES&S OS
San Juan 126,473 Fran Hanhardt (R) [4] Elected ES&S OS
Sandoval 113,772 Sally G. Padilla (D) [5] Elected ES&S OS
Total 1,954,599 (60.9% of pop.)
  • [1] Bernalillo County office endorsements, Albuquerque Journal, May, 15, 2008.
  • [2] Its over, Albuquerque Journal, November 17, 2004.
  • [3] Vote fraud tales rile county clerks, Albuquerque Tribune, February 2, 2007.
  • [4] http://www.sjcounty.net/Dpt/Clerk/viewPDFDetail.aspx?DocumentID=181
  • [5] Candidates File for County, State Races, Albuquerque Journal, March 19, 2008.
  • [6] ES&S is the sole vendor of voting equipment in New Mexico. Loan provided to maintain software of NM voting equipment, AP Alert, May 21, 2008.
  • [7] New Mexico uses M100 and Automark voting machines. Ballot Busters, The Santa Fe Reporter, January 23, 2008.

Voter Registration

Registration Deadline

28 days before election

Registration closes 28 days before an election. NMSA 1-4-8(A)(1). Mail registrations post-marked by this date and hand-delivered registrations subscribed and dated by this date and received by the Friday after close will also be accepted. NMSA 1-4-8(A)(6).

Notice of Registration Error

Yes

If the applicant's registration application is rejected for any reason, the county clerk shall send notice of the error and how to correct it. NMSA 1-4-11(B).

Opportunity to Correct after Registration Deadline

Unclear under state law

No written law or procedure was found stating whether corrections submitted after the deadline will make an application effective for the upcoming election. The law states that new applications submitted after the deadline will not be processed until after the election, but makes no mention of corrections. NMSA 1-4-8.

HAVA matching standards

N/A - currently this state does not match

New Mexico does not currently have a matching program. Its registration form only requests social security numbers and does not allow for entry of driver's license or state ID numbers. However, a staff member at the Secretary of State's office indicated that they would like to perform matching in the future against the SSA database.

Source: Phone conversation, Secretary of State's office, August 8, 2008.

Will the inability to verify social security number or driver's license number prevent registration?

N/A - this state has no matching program

New Mexico currently does not attempt to verify the identity of voters at the point of registration.

Source:  Phone conversation, New Mexico Secretary of State's office.

 

Challenges

Pre-election challenges

Challege decided by court

Any twenty voters can challenge the eligibility of any voter in the county by filing a petition in the local trial court. NMSA 1-4-22. The petition must state the facts upon which the challenge is based. All such challenges must be filed 42 days before the election or earlier. The court will schedule a hearing and send notice to the parties. If the court finds the challenge was justified, it will order the registrations cancelled.

Election day challenges

Successfully challenged voter must cast a provisional ballot

A challenge may be interposed by a member of the precinct board or by a party challenger on election day. NMSA 1-12-20. The challenge must be unanimously affirmed by the poll workers (presiding judge and the two other election judges). If this happens, the voter may cast a paper ballot but it will be placed in an envelope labeled "Rejected" and will not be counted. If the challenge is not unanimously affirmed, the voter may cast a regular ballot. NMSA 1-12-22.

Challengers are appointed by the county political parties and must be registered in that county. NMSA 1-2-21; 1-2-22. Challengers may not perform any poll worker duties or interfere with elections. NMSA 1-2-25. Only one challenger or alternate challenger for each political party in each precinct shall be permitted at one time in the room in which the voting is being conducted. They must wear ID badges at all times at the polls. NMSA 1-2-24. It is a misdemeanor to prevent challengers from challenging, inspecting poll books and performing any permitted activity. NMSA 1-2-26.

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter was registered and eligible and properly filled out paperwork

Provisional ballots cast by voters whose names did not appear in the poll roster will be counted if the voter signs the roster or ballot envelope and officials determine that the voter was registered and eligible. NMSA 1978, 1-12-25.4. The ballot will also count if the voter's registration was canceled, but officials determine that the cancelation was an error. The ballot will not count if officials cannot determine whether the voter was registered and eligible. NM ADC 1.10.22.

Provisional ballot - voter cast ballot in wrong precinct

Ballot may be at least partially counted

If the voter casts a provisional ballot in the wrong precinct, some votes will count.  However, this is only true if the voter cast their ballot in the correct county.  Furthermore, only votes cast for races in which the voter was eligible to vote, based on the voter's residence, will count.  NMSA 1978 1-12-25.4.  Votes cast in the wrong county will not count at all.  NM ADC 1.10.22.

Provisional Ballot Casting Rate - 2006

.5-1 percent of ballots cast at polls

0.8%

Provisional Ballot Counting Rate - 2006

40-50 percent

46.7%

Early and Absentee Voting

Convenience Voting

Early voting and "no excuse" absentee voting

Early voting begins the third Saturday prior to election day and ends the Saturday immediately prior.  NMSA 1-6-5.7.

Any person may cast an absentee ballot.  NMSA 1-6-3.  Ballot applications will be effective any time prior to election day.  NMSA 1-6-4.  To count, completed ballots must be received by 7:00 p.m. on election day.  NMSA 1-6-10.

 

Voting Technology

Voting Technology

Predominately or 100% OS

County Population Administrator/Affiliation Selection Voting Technology
Bernalillo 615,099 Maggie Toulouse Oliver (D) [1] Elected ES&S [6] OS [7]
Dona Ana 193,888 Rita Torres (D) [2] Elected ES&S OS
Santa Fe 142,407 Valerie Espinoza (D) [3] Elected ES&S OS
San Juan 126,473 Fran Hanhardt (R) [4] Elected ES&S OS
Sandoval 113,772 Sally G. Padilla (D) [5] Elected ES&S OS
Total 1,954,599 (60.9% of pop.)
  • [1] Bernalillo County office endorsements, Albuquerque Journal, May, 15, 2008.
  • [2] Its over, Albuquerque Journal, November 17, 2004.
  • [3] Vote fraud tales rile county clerks, Albuquerque Tribune, February 2, 2007.
  • [4] http://www.sjcounty.net/Dpt/Clerk/viewPDFDetail.aspx?DocumentID=181
  • [5] Candidates File for County, State Races, Albuquerque Journal, March 19, 2008.
  • [6] ES&S is the sole vendor of voting equipment in New Mexico. Loan provided to maintain software of NM voting equipment, AP Alert, May 21, 2008.
  • [7] New Mexico uses M100 and Automark voting machines. Ballot Busters, The Santa Fe Reporter, January 23, 2008.

Does state law require a VVPAT?

No

According to this release, New Mexico signed a bill that required voting systems to include VVPAT.   However, it appears that the bill was not enacted because there is no provision under the applicable section of the state statutes.

NMSA 1-14-13.1 discusses the "voter verifiable and auditable paper trail" for contests and recounts but there is no provision requiring VVPAT.

 According to the secretary of state's website, New Mexico uses optical scan voting ballots.

Polling Place Operations

Who are poll workers?

Appointed by local administrator/some minority party representation

The county clerk appoints poll workers. NMSA 1-2-6. The county clerk appoints members first from lists provided by the major political parties, then from a “standby list” of independents, and finally from any other list of qualified voters. NMSA 1-2-10. Each precinct has a head poll worker who may be from either party, but the remainder of the poll workers must come in bipartisan pairs.

Poll worker training

Every year

Poll workers cannot work the polls unless they have attended training in the calendar year of the election in which they wish to serve. 1-2-17. County clerks conduct the training and the Secretary of State supervises it. Training must occur no less than 7 days before each election.

Polling hours extension

Unclear

Polls are required to open at 7 a.m. and close at 7 p.m. N. M. S. A. 1978, § 1-12-1. No cases were found on the extension of polling hours. New Mexico law requires ballots cast after hours pursuant to a court or other order to be cast on paper provisional ballots that are kept separate from other provisional ballots. N. M. S. A. 1978, § 1-12-27.1. However, this does not necessarily suggest that polling hours actually can be extended. Rather, with this provision New Mexico is merely copying a provision of HAVA into its own law.

"[I]f at the hour of closing there are other voters in the polling place, or in line at the door, who are qualified to vote and have not been able to do so since appearing, the polls shall be kept open a sufficient time to enable them to vote." N. M. S. A. 1978, § 1-12-26.

Polling place closing times - local times

7:00 PM local time

Polling place closing times - by Eastern time zone

9:00 PM Eastern time

Ballot Security

Voter ID requirements

Voters may identify themselves verbally

New Mexico law requires that voters either provide a physical form of ID or, alternatively, a verbal or written statement of the voter's name, address, and year of birth. NMS 1-1-24, 1-12-7.1. The physical form of identification may be: (a) an original or copy of a current and valid photo identification with or without an address (the address need not match that contained in other records) or (b) an original or copy of a utility bill, bank statement, government check, paycheck, student identification card or other government document, including identification issued by an Indian nation, tribe or pueblo, that shows the name and address of the person (again, the address need not match existing records).

Albuquereque passed an ordinance in 2005 requiring in-person voters to present ID to vote. Enforcement of the ordinance was enjoined in 2006 and the case is currently on appeal to the 10th Circuit. Oral arguments are scheduled for September 28, 2008.

Consequences of failure to present ID

Voters must cast provisional ballot

If a voter does not provide the required form of identification, the voter may cast a provisional ballot. NMS 1-12-7.1. However, note that New Mexico's ID requirement permits voters to identify themselves verbally by providing their name, address, and date of birth. This should allow most voters to avoid having to cast a provisional ballot.

Follow-up required of voter

Voter must return with ID


<p>The voter must provide the required voter identification to the county clerk’s office before the county canvass begins for his or her provisional ballot to be counted. NMS 1-12-7.1. The county canvassing committee meets 3 days after the election to canvass the returns. NMSA 1-13-3. The voter may also provide the required voter identification to the precinct board before the polls close.  However, note that discussion of this whole issue is largely academic, as voters should be able to comply with the voter ID requirement when they appear at the polls merely by verbally identifying themselves.<p>
<p>See here:  http://web.state.nm.us/pdf/NMVoterIDReq.pdf<p>

Emergency Preparedness

Natural Disasters or Emergencies

No election-specific emergency provision

New Mexico has no emergency provisions in its election code.  However, there are a few precautions required by the law that could help in case of emergency.  NMSA 1-5-18 requires redundant software systems so that voter registration records are preserved in case of disaster.  Precincts must also be equipped with a number of emergency ballots equal to five percent of the total voters in the precinct.  NMSA 1-12-48.  Voters can use these ballots if touchscreen voting machines cease working.

Ballot Shortages

Unclear under state law

Ballots other than those prepared by the county clerk shall not be used in elections conducted under New Mexico's election code. NMSA 1-10-2. Literally interpreted, this means poll workers could not photocopy or produce other ballots in the event of a shortage. However, it is not clear that courts would interpret the statute so literally. Besides this provision, the law is silent on what to do in case of a ballot shortage.

In 2006, ballots ran out in several precincts and voters left without voting. They were not offered provisional ballots. The number of regular ballots ordered and sent to the precincts was accidentally truncated causing some precincts to receive only 10% of the ballots they needed. The precincts had to continually request more ballots from local officials as election day wore on. Wilson, Republicans cry foul as precincts run out of ballots, The Albuquerque Tribune, Nov. 7, 2006.

Provisional ballots were reportedly handed out in New Mexico during the 2008 presidential primary that saw long lines and ballot shortages. Clinton Wins New Mexico, The New York Times, Feb. 14, 2008.

What if touchscreens break down?

Wait for repair or substitution


If touchscreen voting machines malfunction and cannot be promptly repaired, administrators will supply a substitute machine. NM Stat. Ann. 1-12-43. If that is not possible, they will supply emergency paper ballots.

Note that touchscreen malfunction is not an issue in New Mexico, because the state uses optical scan systems exclusively.

Post-Election Processes

State certification deadline

About 30 days after election

The state canvassing board meets on the third Tuesday after each election to canvass and declare the results. NMSA 1-13-15. The board must complete the canvass by the 31st day after an election and issue a certificate of election to the appropriate candidate. NMSA 1-13-16.

Election contest deadline

30-31 days after state certification

The deadline for filing an election contest is 30 days after certification of the results. NMSA 1-14-3. Certification of the results must occur by the 31st day after an election. NMSA 1-13-16.

New Mexico requires that the complaint of contest be filed in the district court of the county where either party resides no later than 30 days after the issuance of the certification of election. NMSA 1-14-3. It is not clear what this rule would mean in the context of a contest between two presidential candidates, neither of whom reside in New Mexico.

New Mexico law authorizes any candidate to contest an election. NMSA 1-14-1.

Local count deadline

Between 8 and 14 days after the election

The county canvassing committee meets 3 days after the election to canvass the returns. NMSA 1-13-3. The committee must declare the results within 10 days after the election and certify the results to the state canvassing board upon completion. NMSA 1-13-13.

Audit type

Manual

Audits of touchscreens are performed by manually reviewing the machines' paper trails. NMSA 1-14-13.1.

The secretary of state directs county clerks to audit 2% of the voting systems in the state. NMSA 1-14-13.1. The statute does not state how the systems are selected. A discrepancy of 1.5% or more will trigger a full recount in the legislative districts where the discrepancy occurred.

Audit scope

2% of machines

The secretary of state directs county clerks to audit 2% of the voting systems in the state. NMSA 1-14-13.1. The statute does not state how the systems are selected. A discrepancy of 1.5% or more will trigger a full recount in the legislative districts where the discrepancy occurred.

Candidate-requested recounts

Upon request

Any candidate may obtain a recount by filing a request within 6 days of completion of the canvass. NMSA 1-14-14.

Administrative Recounts

Not explicitly authorized

No black-letter law was found authorizing administrative recounts.

Automatic Recounts

None

No authorization for automatic recounts was found.

Defintion of a vote

Concrete standard

New Mexico law defines effective votes as votes cast in accordance with the instructions on the ballot, votes where the candidate's name is circled, votes where there is a cross or check mark in the in the response area, or any mark that causes poll workers to "unanimously agree that the voter's intent is clearly discernable." NMSA 1978, 1-9-4.2. The state Attorney General belives that this definition is too indefinite to comply with the federal Help America Vote Act (see here http://www.nmag.gov/Opinions/Opinion.aspx?OpID=423).

Election Contest Scenario #1: Unverified Ballots

Unclear

New Mexico law does not explicitly state how unverified ballots will affect an election. Generally New Mexico courts will reject the entire precinct vote when precinct workers fail to substantially comply with the law and the failure was either intentional or violated the “sanctity of the ballot.” §1-14-13; Gunaji v. Macias, 130 N.M. 734, 738 (N.M., 2001). However, no relevant cases were found and it is not clear whether unverified ballots violate the substantial compliance standard. Even if they do violate that standard, it is not clear that the court will find that they violated the sanctity of the ballot.

The New Mexico Supreme Court rejected the entire precinct vote in a somewhat analogous case where a number of problematic ballots were commingled with unproblematic ones and the problematic ballots exceeded the margin of victory. Gunaji, above.  

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Errors will disqualify ballots where they make it impossible to determine registration and eligibility

New Mexico law states that voter errors or omissions in filling out provisional ballot paperwork will not result in rejection of the ballot so long as the voter “provides a valid signature and sufficient information for the clerk to determine the voter is a qualified elector.” § 1-12-25.3; NM ADC 1.10.22. The ballot will not be rejected even if the address does not match the one contained in registration records and even if the voter uses an abbreviated name or address so long as “the county clerk can identify the voter with other information provided on the affidavit.” NM ADC 1.10.22. The valid signature may appear either on the provisional ballot paperwork itself or in the poll book. § 1-12-25.4(B); N.M. A.G. Op. No. 04-05.

What Court Would Hear a Presidential Contest?

Trial Court

New Mexico authorizes election contests generally. N.M.S.A. 1978, § 1-14-1. Contests are tried in district (trial) court. The governor appoints judges of the district court from a list supplied by a nominating committee. N.M. Const. art. VI, § 36. 

Who Performs Presidential recounts?

Bipartisan

Recounts are conducted by precinct boards. 1-14-16. Precinct boards consist of a presiding judge as well as some election judges and clerks, the number of which depends on the number of voting machines in the precinct and whether absentee ballots are being counted there. 1-2-12. The party affiliation of the election judges and clerks are adjusted to ensure both major parties are represented equally. 1-2-12. Precinct board members are appointed by the county clerk. 1-2-6. County clerks are elected. Const. Art. 10, s 2. The precinct board conducts the recount in the presence of the county clerk and the local district judge. 1-14-16. District judges are elected and subject to subsequent nonpartisan retention elections. Const. Art. 6, s 33.