New Mexico Register / Volume XXXIV, Issue 16 / August 29,
2023
This is an amendment to 1.10.19 NMAC, Sections 3, 7, 8, 9,
13, and 14 effective 8/31/2023.
1.10.19.3 STATUTORY AUTHORITY: This rule is
authorized by Section 1-2-1 and Section 1-6-9 NMSA 1978.
[1.10.19.3 NMAC - N, 8/24/2021]
1.10.19.7 DEFINITIONS:
A. “Permanent ballot
drop box” means the
same thing as “secured container,” and the terms may be used synonymously.
B. “Secured
container” means a permanent and secure receptacle, that meets the
requirements of Subsection E of Section 1-6-9 NMSA 1978, and is established by
the county clerk whereby voters and those authorized to deliver a voted mailed
ballot pursuant to Section 1-6-10.1 NMSA 1978 may return an official mailing
envelope to the election official from whom it was obtained.
C. “Temporary ballot
drop box” means a
secure receptacle supervised by election workers or county employees located
inside the office of the county clerk, an alternate voting location, a mobile
voting location, or election day voting location to collect official mailing
envelopes dropped off pursuant to Subsection D of Section 1-6-9 NMSA 1978.
D. “Video surveillance” means
internet security systems or internet protocol cameras that use the internet by
networking to send and receive data.
E. “Sensors” means a device which
detects or measures physical property and records, and indicates, or otherwise
responds to them.
F. “Sensor alert” means when a
device detects events that are not part of the normal working environment and
then sends signals to warn of abnormality.
[1.10.19.7 NMAC – N, 8/24/2021; A. 8/31/2023]
1.10.19.8 CAPACITY REQUIREMENTS:
A. To
meet the requirement of Subsection E of Section 1-6-9 NMSA 1978, which provides
that all voters have the option to use a secured container to return official
mailing envelopes, county clerks shall provide one ballot box per 25,000
registered voters in the county with a minimum of two secured containers
required per county. County clerks may
request a waiver from the secretary of state to the minimum requirement set by
the formula with consideration given for special geographic or security
constraints.
B. Secured
containers shall be located in a manner that provides
the greatest convenience and accessibility to voters. County clerks may consider providing secured
containers at main county or city office buildings. Other locations to consider
include college campuses, libraries, community centers, and other public
buildings with adequate accessibility, lighting, and [the ability] network
access to install the required video surveillance system.
C. When possible, secured containers
should be placed in such a way to be accessible to voters with
disabilities. For example, the secured
container should be placed along an accessible path near an Americans with Disabilities
[(ADA)] Act compliant parking space. If there is no accessible pathway from the
parking lot, there should be signs directing the voter to the nearest
accessible secured container.
D. In
accordance with Paragraph (1) of Subsection E of Section 1-6-9 NMSA 1978, the
county clerk shall set the days and times the secured containers are
available. To maximize the convenience
to the voters, the county clerk shall, whenever possible, make secured
containers available for use by a voter 24 hours a day starting 28 days before
an election and on election day.
E. A
temporary ballot drop box shall be made available to drop off official mailing
envelopes inside all in-person voting locations pursuant to Subsection D of
Section 1-6-9 NMSA 1978. This is to ensure that a dedicated receptacle is
available to secure and isolate voted mailed ballots
being returned to a voting location.
F. Only
ballots secured in the absentee official mailing envelope placed inside of a
permanent and temporary ballot drop box shall be counted. Under no circumstance
should provisional ballots, hand tally sheets, or
ballots voted in person be intermingled with voted mailed ballots collected in
the drop boxes.
[1.10.19.8 NMAC – N, 8/24/2021; A, 8/31/2023]
1.10.19.9 SECURED CONTAINER SECURITY REQUIREMENTS:
A. A
county clerk shall request approval from the secretary of state prior to
installation of a secured container to ensure it meets minimum security
requirements. The secretary of state shall respond to such requests within 14
days.
[A]
B. A secured container
shall be permanently bolted to the ground in accordance with the instructions
provided by the container manufacturer.
A secured container shall be constructed of weather-resistant metal and
capable of securely receiving and holding voted mailed ballots. [A county clerk shall request approval
from the secretary of state prior to installation of a secured container to
ensure it meets minimum security requirements.] A secured container
shall have network accessibility and shall have installed heat, humidity and
motion sensors.
[B.] C. A secured container and monitoring
network hardware shall be secured and locked at all times. Only the county clerk or deputy county clerk,
election board member or appointed messenger shall have access to the keys
or combination of the lock. [In addition to locks, all secured containers
shall be sealed with one or more tamper-evident seals while in use] The
county clerk shall maintain a key control log on a form prescribed by the
secretary of state to document the utilization of and to account for secured
container keys. All keys issued by the secretary of state shall be controlled,
accounted for, and not easily accessible. Upon the election or appointment of a
new county clerk and after each U.S. presidential election, lock combinations
shall be changed and documented on a form prescribed by the secretary of state.
All forms utilized pursuant to this section shall be retained by the county
clerk as a record related to voting pursuant to Subsection G of Section 1-12-69
NMSA 1978.
D. In addition to locks, all
secured containers shall be sealed with one or more tamper-evident seals while
in use. Lock combinations shall be changed when a new clerk is appointed or
elected and after each U.S. presidential election. Combination lock changes
shall be documented by the county clerk.
[C.] E. Secured containers shall be installed in a
lighted area and monitored by a centralized video surveillance camera system
provided by the secretary of state. The
video surveillance system shall otherwise be monitored and controlled by the
county clerk through a video surveillance dashboard. The county clerk shall [, at a minimum,]
immediately review [and monitor] video surveillance footage upon
receiving a report of an irregular or illegal incident or upon receipt of a [system]
sensor alert and:
(1) beginning 28 days prior to election day and through the certification of
the county canvass, the county clerk shall log into the video surveillance
dashboard each day. During all other weeks of a calendar year, the county clerk
shall log into the video surveillance dashboard on a weekly basis.
(2) The county
clerk shall maintain a list of the clerk’s office personnel with access to the
video surveillance dashboard and shall notify the secretary of state’s office
of any changes to the list. The county clerk shall contact the secretary of
state for required training and shall ensure that all persons granted dashboard
access complete required training, provided by the secretary of state, prior to
utilizing the dashboard.
F. The
county clerk shall contact the secretary of state’s office with security or
operational concerns immediately upon discovery.
[D.] G. When
secured containers are not in use and immediately after 7:00 P.M. on election
day as is practical, the county clerk shall install the slot closer on the
secured container to prevent access.
Covers may also be placed over the secured container to protect the
container when not in use.
[1.10.19.9 NMAC – N, 8/24/2021; Rn & A, 8/31/2023]
1.10.19.13 BALLOT RETRIEVAL PROCEDURES:
A. [Paragraph] Pursuant to Paragraph (5) of Subsection E of
Section 1-6-9 NMSA 1978, the county clerk, [or a full-time] deputy
county clerk, election board member or an appointed messenger shall
collect the ballots from a secured container.
One or more [full-time] deputy county clerks may be hired by the
county clerk on a temporary basis to fulfill this requirement for the time period in which a secured container is available for
use. Only personnel designated to
retrieve the ballots may transport the retrieved ballots.
B. The
county clerk shall provide the approximate time the ballots will be collected
from a secured container. Ballots shall
be collected at least once [a day every day] every three days
beginning 28 days prior to election day through 7:00 P.M. on election day.
C. Ballots
shall be transported in a secure ballot transport container.
D. A
chain of custody form shall be completed by the person collecting the ballots
every time ballots are collected. A
separate chain of custody form is required for each permanent or temporary drop
box. The chain of custody form shall be
prescribed by the secretary of state and shall include:
(1) the
location of the drop box;
(2) date
and time of arrival;
(3) number
of ballots retrieved;
(4) security
seal number when box is opened;
(5) security
seal number when box is locked and sealed again;
(6) full
name of the person retrieving the ballots; and
(7) any
other observations of note to include any appearance of tampering or damage to
the drop box.
E. The
person collecting the ballots from the permanent or temporary drop box shall
also record the date, time, drop box location, and identity of the person
collecting the boxes on each of the official mailing envelopes collected.
F. Upon
the arrival of the collected ballots at the office of the county clerk or other
designated ballot intake or central count location, the county clerk or
designee shall receive the ballots and complete the bottom of the chain of
custody form to include:
(1) date
and time of receipt;
(2) number
of ballots received (which should match the number in the upper section of the
form provided by the person collecting the ballots);
(3) a
verified comparison to the previous days seal number, if applicable; and
(4) full
name and signature of the receiving staff member.
G. Any
ballots retrieved from a permanent or temporary ballot drop box shall be
processed and secured in the same manner as those absentee ballots otherwise
delivered to the office of the county clerk, such as by the United States postal
service.
H. All
temporary ballot drop boxes and ballot transport
containers shall be numbered and kept in a log to ensure all are returned at
the end of a voting day and on election night.
[1.10.19.13 NMAC – N, 8/24/2021; A, 8/31/2023]
1.10.19.14 REIMBURSEMENT BY THE SECRETARY OF STATE:
[A. County clerks may request
reimbursement from the secretary of state for the costs of hiring additional
staff necessary for:
(1) monitoring
secured container video surveillance,
(2) installing
and maintaining secured containers, and
(3) collecting
ballots from permanent and temporary ballot drop boxes.]
[B.] A. County clerks may request reimbursement from the secretary
of state for purchasing approved containers and supplies related to maintaining
permanent and temporary ballot drop boxes.
[C.] B. Requests
for reimbursement made to the secretary of state are required to be submitted
in a manner prescribed by the secretary of state no later than 45 days after
election day.
[D.]
C. The secretary of state
shall reimburse county clerks for all expenses deemed by the secretary of state
to be in compliance with this section.
[1.10.19.14 NMAC – N, 8/24/2021; A, 8/31/2023]