TITLE 1 GENERAL GOVERNMENT
ADMINISTRATION
CHAPTER 10 ELECTIONS AND ELECTED OFFICIALS
PART 22 PROVISIONAL VOTING
1.10.22.1 ISSUING AGENCY: Office of the Secretary of State, 325 Don Gaspar, Suite 300, Santa Fe, New Mexico, 87503.
[1.10.22.1 NMAC - Rp, 1.10.22.1 NMAC, 4-28-06]
1.10.22.2 SCOPE: This rule applies to any special statewide election, general election, primary election, countywide election or elections to fill vacancies in the office of United States representative and regular or special school district elections as modified by the School Election Law (Sections 1-22-1 to 1-22-19 NMSA 1978).
[1.10.22.2 NMAC - Rp, 1.10.22.2 NMAC, 4-28-06]
1.10.22.3 STATUTORY AUTHORITY: Election Code, Section 1-2-1 NMSA 1978; Chapter 356, Laws 2003, Public Law 107-252, The Help America Vote Act of 2002; Chapter 270, Laws 2005. The issuing authority shall issue rules to ensure securing the secrecy of the provisional ballot and protect against fraud in the voting process, create a uniform process and set of criteria for deciding if provisional, absentee and other paper ballots shall be counted, and ensure the secrecy of provisional ballots, especially during canvassing, reviewing or recounting.
[1.10.22.3 NMAC - Rp, 1.10.22.3 NMAC, 4-28-06; A/E, 10-2-08]
1.10.22.4 DURATION: Permanent.
[1.10.22.4 NMAC -
Rp, 1.10.22.4 NMAC, 4-28-06]
1.10.22.5 EFFECTIVE DATE: April 28, 2006 unless a later date is cited at the end of a section.
[1.10.22.5 NMAC - Rp, 1.10.22.5 NMAC, 4-28-06]
1.10.22.6 OBJECTIVE: The Election Code (Section 1-1-1 NMSA through 1-24-4 NMSA 1978) was amended by Chapter 356, Laws 2003. The purpose of the amendment is compliance with the provisions of PL 107-252, effective October 29, 2002, which allows a voter whose name does not appear on the roster at the polling place or a new voter whose name does not appear on the roster and has not provided the required identification to cast a provisional ballot. The purpose of this rule is to ensure the secrecy of the provisional ballot and protect against fraud in the voting process. Chapter 270, Laws 2005 amended the Election Code to require a uniform process and set of criteria for deciding if provisional, absentee and other paper ballots shall be counted, and to ensure the secrecy of provisional ballots, especially during canvassing, reviewing or recounting.
[1.10.22.6 NMAC - Rp, 1.10.22.6 NMAC, 4-28-06; A/E, 10-2-08]
1.10.22.7 DEFINITIONS:
A. “Abbreviated address” means a voter using initials to designate a city within New Mexico and includes, but is not limited to, “LC” for Las Cruces, “SF” for Santa Fe, or “ABQ” for Albuquerque.
B. “Abbreviated name” means shortened given or surname including, but not limited to, ‘Pat’ for Patrick, Patricio, or Patricia, ‘Wm’ or ‘Bill’ for William, ‘Rick’ for Ricardo or Richard, ‘Mtz’ for Martinez.
C. “Absentee ballot” means a method of voting by ballot, accomplished by a voter who is absent from the voter’s polling place on election day.
D. “Absentee ballot register” means a list of the name and address of each applicant; the date and time of receipt of the application; the disposition of the application; the date of issue of the absentee ballot; the applicant’s precinct; whether the applicant is a voter, federal voter, qualified federal elector or an overseas citizen voter and the date and time of receipt of the ballot.
E. “Absentee precinct board” means the voters of a county who are appointed by the county clerk to open, tabulate, tally and report absentee ballot results.
F. “Absentee provisional ballot” means the paper ballot card issued to an absent provisional voter.
G. “Alternate location” means a site outside the office of the county clerk, established by the county clerk, where a voter may cast a ballot seventeen (17) days prior to an election and includes mobile alternate voting locations.
H. “Alternative voter” means a voter, who, after the deadline for requesting an absentee ballot and due to unforeseen illness or disability, resulting in confinement to a hospital, sanatorium, nursing home or residence, is unable to vote at his precinct polling place.
I. “Ballot” means a paper ballot card that is used on an optical scan vote tabulating machine or hand tallied or the electronic image on a direct recording electronic voting system that presents a sequence of contests, ballot measures or both.
J. “Challenger” means a voter in that county to which he is appointed under the provisions of the Election Code.
K. “Contest” means court litigation that seeks to overturn the outcome of an election pursuant to Section 1-14-1 NMSA 1978.
L. “County canvassing board” means the board of county commissioners in each county.
M. “Designated polling place” means the voting location assigned to a voter based on that voter’s residence within a precinct of the county.
N. “Direct recording electronic (DRE) voting system” means a voting system that records votes by means of a ballot display provided with mechanical or electro-optical components that can be actuated by the voter, that processes the data by means of a computer program, and that records voting data and cast vote records by in internal and external memory components. It produces a tabulation of the voting data stored in a removable memory component or in printed copy.
O. “Early voter” means a voter who votes in person before election day and not by mail.
P. “Election” means any special statewide election, general election, primary election or special election to fill vacancies in the office of United States representative and regular or special school district elections.
Q. “Electronic vote tabulating (EVT) marksense voting system” or “optical scan vote tabulating system” means a voting system which records and counts votes and produces a tabulation of the vote count using one ballot card imprinted on either or both faces with text and voting response locations. The marksense or optical scan vote tabulating voting system records votes by means of marks made in the voting response locations.
R. “Emergency paper ballot” means the paper ballot card used in a polling place on election day when a voting system is disabled, cannot be repaired in a reasonable length of time and when no other voting system is available to the voter.
S. “Federal ballot” means a paper ballot card that contains only federal candidates or questions.
T. “High speed central count marksense ballot tabulator” means a self-contained optical scan ballot tabulator that uses an automatic ballot feeder to process ballots placed in the tabulator in any orientation. Ballots are processed at high speed and the tabulator has a built in sorting system to divert processed ballots into appropriate bins.
U. “Marksense or optical scan ballot” means a paper ballot card used on an electronic vote tabulating marksense vote tabulating system, optical scan vote tabulating system or high-speed central count marksense vote tabulator.
V. “In-lieu of absentee ballot” means a paper ballot card provided to a voter at his polling place when the absentee ballot was not received by the voter before election day.
W. “Naked ballot’ means an absentee ballot, provisional ballot, alternative ballot, replacement absentee ballot or in-lieu of absentee ballot that has not been placed in the inner secrecy envelope by the voter.
X. “Observer” means a voter of a county who has been appointed by a candidate, political party chair or election related organization pursuant to the provisions of the Election Code.
Y. “Overvoted ballot” means a paper ballot card on which the voter has selected more than the number of alternatives allowed in a contest or on a question.
Z. “Precinct board” means the appointed election officials at a polling place, consolidated polling place, absentee precinct or alternate location.
AA. “Presidential ballot” means a paper ballot card containing only names of candidates for United States president.
BB. “Provisional absentee voter” means a voter who votes on a provisional absentee ballot after initially attempting to vote by absentee ballot but whose name does not appear on the roster or has failed to meet the voter identification requirements, pursuant to the provisions of the Election Code.
CC. “Provisional ballot” means a marksense or optical scan paper ballot card that is marked by a provisional voter.
DD. “Provisional ballot tally sheet” means a document prepared and used by the county clerk for the counting of votes cast by qualified provisional voters for candidates and questions.
EE. “Provisional ballot transmission envelope” means a sealed envelope or pouch marked and designated by the county clerk to transmit provisional ballots from the polling place or alternate location to the office of the county clerk.
FF. “Provisional voter” means a voter casting a provisional ballot pursuant to the provisions of the Election Code.
GG. “Replacement absentee ballot” means a paper ballot card issued by the county clerk prior to 5:00 p.m. on the Monday immediately preceding the date of the election to a voter who has applied for but not received an absentee ballot.
HH. “Signature roster” means the certified list of voters at a polling place which is signed by a voter when presenting himself on election day.
II. “Tally sheet” means a document prepared by the county clerk and used for the counting of provisional ballots, hand tallied absentee ballots, in-lieu of absentee ballots and emergency paper ballots.
JJ. “Verification process” means the reviewing process used by a county clerk to determine the eligibility of a provisional or in-lieu of absentee voter.
KK. “Voter” means any person who is qualified to vote under the provisions of the constitution of New Mexico and the constitution of the United States and who is registered under the provision of the Election Code of the state of New Mexico.
LL. “Voting response area” means the place on a paper ballot card where the voter is instructed to mark his preference for a candidate or question.
[1.10.22.7 NMAC - Rp, 1.10.22.7 NMAC, 4-28-06; A/E, 10-2-08]
1.10.22.8 PRECINCT BOARD PROCEDURES:
A. A voter whose name does not appear on the roster or is required to present identification at the polling place and fails to do so shall be entitled to cast a vote on a provisional ballot. The precinct board shall instruct the voter that the required identification must be taken to the office of the county clerk before the county canvass begins for the vote to be qualified. The precinct judge shall give the voter written instructions on how the voter may determine whether the vote was counted and, if the vote was not counted, the reason it was not counted. The precinct board shall ensure that each provisional voter is provided with a toll free telephone number that may be called fourteen (14) days after the election for a determination on whether the provisional ballot was counted.
B. Each polling place shall post the phone numbers of the county clerk and the secretary of state and a map of the precincts represented in that polling place and an alphabetical list of the voters in each precinct in that polling place. The precinct board shall not accept any verbal authorization from the county clerk to allow a person to vote as a regular voter whose name is not on the roster. The precinct board shall not accept any verbal authorization from the county clerk to allow a person to vote as a regular voter who is required to provide identification pursuant to the Election Code. The precinct board shall also ensure that the provisional voter, absentee provisional ballot or in-lieu of absentee voter shall fill out all required information on the provisional ballot affidavit or in-lieu of absentee ballot affidavit and place the ballot in the inner secrecy envelope and outer envelope prescribed by the secretary of state. The precinct board shall ensure that the name of a provisional voter, absentee provisional ballot or in-lieu of absentee ballot voter is entered in the roster on the line immediately following the last entered voter’s name, pursuant to the Election Code.
C. The precinct board shall ensure that each provisional voter completes the certificate of voter registration attached to the provisional ballot outer envelope and that the certificate of registration is not placed in the envelope but returned to the county clerk.
D. The precinct board shall ensure that
each provisional ballot, absentee provisional ballot or in-lieu of absentee ballot
cast at a polling place or alternate site is placed in an inner or secrecy
envelope prior to placing the inner or secrecy envelope in the outer envelope
containing the voter’s oath or affirmation.
E. The precinct board shall ensure emergency paper ballots shall be handled and tallied pursuant to the provisions of the Election Code.
F. The precinct board shall ensure provisional voters are not subject to challenge at the time of voting under the procedures provided in the Election Code.
G. The precinct board shall ensure the voter registration card attached to the outer provisional ballot envelope shall be placed in the provisional ballot transmission envelope and returned to the county clerk.
H. The precinct board shall ensure a provisional ballot, absentee provisional ballot, or in-lieu of absentee ballot shall not be placed in a ballot box at the polling place, alternate location or county clerk’s office. Provisional ballots shall be deposited in a special sealed provisional ballot transmission envelope or pouch designated by the county clerk for that purpose. The precinct board shall not open any absentee ballots delivered to the precinct but shall deliver the unopened official mailing envelopes to the absentee precinct boards.
I. Absentee precinct boards are governed by 1.10.12.1 NMAC. Absentee precinct boards shall not open or tally any provisional absentee ballots, but shall convey them to the county clerk for processing according to the provisions of the Election Code and 1.10.22 NMAC. Identification documents submitted with provisional absentee ballots shall be attached to the voter’s certificate of registration and a notation that the documents have been submitted shall be entered into the electronic file of registered voters.
[1.10.22.8 NMAC - Rp, 1.10.22.8 NMAC, 4-28-06]
1.10.22.9 COUNTY CLERK PROCEDURES:
A. The provisional ballot outer envelope containing the voter’s oath shall not be opened until the county clerk has determined the reason the provisional voter’s name was not on the signature roster, or whether the voter has provided identification, if required, by the Election Code. The county clerk shall place any naked ballot in an individual manila envelope to replace the inner secrecy envelope and mark the voter’s correct voting precinct on that envelope.
B. The county clerk has the authority to determine the qualification of a provisional ballot, absentee provisional ballot or in-lieu of absentee ballot but shall not disqualify any provisional ballot, absentee provisional ballot or in-lieu of absentee ballot because the voter’s address on the affidavit does not match the voter’s address on the voter’s certificate of registration, provided the county clerk can identify the voter with other information provided on the affidavit.
C. The county clerk shall determine the qualification or a provisional ballot, absentee provisional ballot or in-lieu of absentee ballot but shall not disqualify any provisional ballot, absentee provisional ballot or in in-lieu of absentee ballot because the voter has used an abbreviated name, address, middle name, middle initial or suffix, provided the county clerk can identify the voter with other information provided on the affidavit.
D. The county clerk shall determine the qualification of a provisional ballot but shall not disqualify any provisional ballot because the voter did not sign both the affidavit and the polling place roster if the voter provided a valid signature and the county clerk can identify the voter with information provided on the outer envelope of the paper ballot or affidavit.
E. A provisional ballot shall be qualified if both:
(1) the voter has provided all the information under Section 1-12-25.3 and Section 1-12-25.4 NMSA 1978, provided that a voter shall not have his vote disqualified under Subsections B, C or D of this section, and
(2) if the county clerk can determine the voter is a registered voter in the county; if a voter is registered in county, but cast a provisional ballot at the wrong polling place, the county clerk shall ensure that only those votes for the positions or measures for which the voter was eligible to vote are counted; if there is a conflict between New Mexico statute and this statewide standard, the statute will control.
F. A provisional ballot shall be rejected if: (a) the voter has not provided all the information under Sections 1-12-25.3 and 1-12-25.4 NMSA 1978 subject to the provision in Subsections B, C or D of this section; (b) the clerk cannot determine the voter is a registered voter in the county; (c) the voter has voted outside his county of registration; (d) voter has voted an absentee ballot in the election; (e) voter’s registration was properly cancelled; or (f) voter failed to meet the voter identification requirements. If there is a conflict between New Mexico statute and this statewide standard, the statute will control.
G. A county canvass observer, pursuant to Section 1-2-31 NMSA 1978 may be present during the provisional ballot qualification process and canvass. At all times while observing the process and canvass, the observer shall wear self-made badges designating them as authorized observers of the organizations which they represent. They shall not wear any other form of identification, party or candidate pins. The observer shall not: (a) perform any duty of the workers; (b) handle any material; (c) interfere with the orderly conduct of workers conducting the process; and (d) use cell phones, audio or video tape equipment while observing the process. The provisional ballot qualification process shall be run with the county clerk staff member reading aloud the name and address of the provisional ballot. A county canvass observer may interpose a challenge to the qualification of the voter consistent with Subsections A - E of Section 1-12-20 NMSA 1978. The county clerk staff member shall handle the challenge consistent with Section 1-12-22 NMSA 1978. The county clerk staff member will then announce aloud his or her decision regarding whether that provisional vote will or will not be qualified; the county clerk shall assign a different county clerk staff member than those involved in the qualification process to receive and open the ballot from outer envelope for the tallying process. The observer may preserve for future reference written memorandum of any action and may raise it at the canvass meeting. Observers shall not be in the line of sight or view or make notes of the voter’s personal information: date of birth, party affiliation, and social security number.
H. The determination of the provisional voter’s status and whether the ballot shall be counted, along with the research done by the county clerk shall be noted on the provisional ballot outer envelope. The county clerk shall, after status determination, separate qualified ballots from unqualified ballots. Unqualified ballots shall not be opened and shall be deposited in an envelope marked “unqualified provisional ballots” and retained for twenty-two (22) months, pursuant to 42 USC 1974. The outer provisional ballot envelope for qualified provisional ballots shall be opened and deposited in an envelope marked “qualified provisional ballot outer envelopes” and retained for twenty-two (22) months, pursuant to 42 USC 1974. The county clerk shall mark the number of the voter’s correct precinct on the inner secrecy envelope and ballot for the purposes of a recount or contest, but no other information indicating the identity of the voter shall be furnished to the county canvassing board or any other person. After the tally of qualified provisional ballots, the county clerk shall deposit the counted provisional ballots in an envelope marked “counted provisional ballots” and retained for twenty-two (22) months, pursuant to 42 USC 1972.
I. The county canvassing board shall direct the county clerk to prepare a tally of qualified provisional ballots, in-lieu of absentee ballots and absentee provisional ballots and include them in the canvass presented to the county canvassing board to be tallied and included in the canvass of that county for the appropriate precinct. Provisional ballots, in-lieu of absentee ballots and absentee provisional ballots shall be tallied on separate tally sheets. The county clerk shall process provisional absentee ballots using the same procedures used for provisional ballots cast at the polling place or alternate location. The tally sheet may be a photocopy of a precinct tally sheet, however it shall be clearly marked as designated for provisional ballots, in-lieu of absentee ballots or provisional absentee ballots. Upon the conclusion of the county canvass, the county clerk shall transmit the provisional ballot tally to the office of the secretary of state. The county clerk shall also prepare a report, on behalf of the county canvassing board, on the disposition of all provisional ballots cast within the county. The report shall contain the name, address and correct precinct number of each provisional voter, in-lieu of absentee ballot voter or provisional absentee ballot voter. The report shall be transmitted to the secretary of state within 10 days of the election. Pursuant to the Help America Vote Act, information about access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot. The report shall include an explanation why a provisional voter’s name was not included on the signature roster and the reason why any provisional voter’s ballot, in-lieu of absentee voter’s ballot or provisional absentee voter’s ballot was not counted. The report shall be in alphabetical order.
J. Counting procedures for provisional ballots. The county clerk shall count the qualified provisional ballots using the hand tally method. One team of at least two persons shall be used to count each qualified provisional ballot. The team shall consist of one reader and one marker, not of the same political party whenever feasible. The reader shall read the ballot to the marker and the marker shall observe whether the reader has correctly read the ballot; the marker shall then mark the tally sheet of the precinct where the vote was cast, and the reader shall observe whether the marker correctly marked the tally sheet.
K. Votes to be counted. When counting provisional ballots, votes shall be counted for only those positions or measures for which the voter was eligible to vote. If a ballot is marked indistinctly or not marked according to the instructions for that ballot type, the counting team shall count a vote as provided for in Subsection A and Paragraphs (1) through (4) of Subsection B of Section 1-9-4.2 NMSA 1978. In no case, shall the counting team mark or re-mark the ballot. 1.10.23.12 NMAC contains illustrative examples of how to discern voter intent.
L. The county clerk shall establish a free access system, such as a toll-free telephone number or internet web site, that a voter who casts a provisional paper ballot may access to ascertain whether the voter’s ballot was counted, and, if the vote was not counted, the reason it was not counted. Access to this system is restricted to the voter who cast the ballot.
M. The county clerk may designate emergency paper ballots for use as provisional ballots.
N. The county clerk shall notify by certified mail each voter whose provisional ballots was not counted of the reason the ballot was not counted. The clerk shall send out this notification any time between the closing of the polls on election day through the tenth calendar day following the election. The voter shall have until the Friday prior to the meeting of the state canvassing board to appeal this decision to the county clerk.
O. The appeal process pursuant to Subsection C of Section 1-12-25.2 NMSA 1978 shall be conducted as follows:
(1) the county clerk shall select a hearing officer(s) from staff or a person from the community who is not affiliated with any candidate on the ballot and knowledgeable of election law and the clerk shall provide a disability accessible room for the hearing officer to work;
(2) the voter shall schedule an appointment time for an appeal by calling the county clerk’s office and shall appear under oath and show by a preponderance of the evidence that the vote should be counted;
(3) the voter may appear with counsel;
(4) the appeal hearing shall be an open meeting, but the voter’s personal information:
(a) date of birth;
(b) party affiliation, and
(c) social security number shall not be stated out loud and the public shall not be in the line of sight or view or make notes of the voter’s personal information;
(5) county clerk staff and the public may make brief public comment and offer relevant exhibits but only the hearing officer shall be permitted to cross examine the witness;
(6) the hearing officer shall not be bound by the rules of civil procedure, but may use them for guidance and shall make an immediate oral decision or send by certified mail a letter decision to the voter;
(7) there is no statutory right of appeal;
(8) all decisions shall cite a provision of the Election Code explaining the disposition and be announced or mailed by the Monday before the state canvassing board meeting;
(9) if the voter prevails, the hearing officer shall direct the county clerk staff to handle the ballot as a qualified provisional ballot as found above; and
(10) the county clerk shall notify the county canvassing board of the completion and results of the appeals process.
[1.10.22.9 NMAC - Rp, 1.10.22.9 NMAC, 4-28-06; A/E, 10-2-08; A/E, 11-3-08]
1.10.22.10 SECRETARY OF STATE PROCEDURES:
A. Provisional voters wishing to determine the disposition of their ballot may call the office of the secretary of state fourteen (14) days after the election. The secretary of state shall make the agency toll free number available to county clerks for the purpose of determining the status of provisional ballots. The secretary of state, prior to providing information to a voter on the disposition of his ballot, shall verify the identity of the voter by name, address, date of birth and social security number.
B. The secretary of state shall not discuss the disposition of any provisional ballot with any person other than the provisional voter.
[1.10.22.10 NMAC - Rp, 1.10.22.10 NMAC, 4-28-06]
1.10.22.11 [RESERVED]
[1.10.22.11 NMAC - N, 4-28-06; A/E, 10-2-08]
1.10.22.12 [RESERVED]
[1.10.22.12 NMAC - N, 4-28-06; A/E, 10-2-08]
1.10.22.13 [RESERVED]
[1.10.22.13 NMAC - N, 4-28-06; A/E, 10-2-08]
HISTORY OF 1.10.22 NMAC:
History of Repealed Material:
1.10.22 NMAC Provisional Voting Security (filed 8-1-03) - Repealed effective 4-28-06