New
Mexico Register / Volume XXXIV, Issue 16 / August 29, 2023
This is an amendment to 1.10.22 NMAC, Sections 7, 10, and
11 effective 8/31/2023.
1.10.22.7 DEFINITIONS:
A. “Adjudicate” means a decision made by a precinct board, in accordance with the Election Code, of a ballot signifying a voter’s intent to mark their selection for a candidate contest or ballot question.
B. “Alternate voting location” means a location outside
the office of the county clerk, established by the county clerk, where a voter
may cast an early in person ballot on voting tabulator. This includes mobile alternate voting
locations.
C. “Blank ballot” means a paper ballot on which the voter has not selected any of the alternatives allowed in any candidate contest or ballot question.
D. “Canvass” means the process 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 pursuant to Subsection F of Section 1-2-31 NMSA 1978.
E. “Challenger” means a voter of a
precinct located in that county, who has completed the required training
pursuant to Section 1-2-22 NMSA 1978, and to which the voter is appointed
in conformance with the Election Code, [Section 1-2-21 to 1-2-22 NMSA 1978]
for the purpose of carrying out such duties as prescribed in the Election Code,
[Section 1-2-23 to 1-2-26 NMSA 1978].
F. “Contest” means court litigation that seeks to overturn the outcome of an election pursuant to the Election Code, Section 1-14-1 NMSA 1978.
G. “County canvass observer” a voter of the county, who has completed the
required training pursuant to Section 1-2-22 NMSA 1978, and to which they
are appointed, in accordance with the Election Code, Section 1-2-31 NMSA 1978,
and permitted to be present at any time from the time the county canvassing
begins until the completion of the canvass, and strictly limited to observing
and documenting the canvassing process.
H. “County canvassing board” means the board of county commissioners in each county, convened for the purposes of conducting the county canvass or the board of registration as designated by the board of county commission pursuant to Section 1-13-1 NMSA 1978.
I. “County voter file” means the computerized version of the county register, comprising a portion of the statewide voter file.
J. “Health care provider” means an
individual licensed, certified or permitted by law to provide health care in
the ordinary course of business or practice of a profession.
K. “Inner envelope” means the official
envelope, prescribed by the secretary of state, given to the voter along with [an
absentee] a mailed or provisional ballot into which the voter places
the ballot after it is voted and which is used to
preserve the secrecy of the voter’s ballot.
L. “Naked
ballot” means a provisional or [absentee] mailed ballot that
has not been placed in the inner envelope by the voter.
M. “Overvoted ballot” means a ballot on which the voter has selected more than the number of candidates to be elected for that contest, or has voted in both the affirmative and negative on a ballot question.
N. “Precinct” means [a part of a county with definite
boundaries established for electoral administrative functions] a
designated division of a county for election and redistricting.
O. “Provisional ballot envelope” means the official envelope, prescribed by the secretary of state, which has information that will identify the provisional voter, purpose the provisional ballot was issued and contains a sworn affidavit and a blank voter registration certificate, into which the provisional voter places the inner envelope.
P. “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.
Q. “Qualification process” means the process used by a county clerk to determine the qualifications of a voter who voted on a provisional ballot.
R. “Replacement absentee ballot” means a ballot that is processed as a provisional ballot, that is provided to a voter whose name appears on the absentee ballot register or signature roster as having been issued an absentee ballot, and who has affirmed that the ballot was not received or voted on pursuant to the Election Code, Section 1-6-16 NMSA 1978. The ballot shall be placed in a provisional ballot envelope prescribed by the secretary of state and processed within the timeframe specified in the Election Code, Section 1-6-16 NMSA 1978.
S. “Signature roster” means [the certified list of
voters at a polling place, which is signed by a voter or county voter file at a
consolidated polling place] a physical or electronic copy of a voter
list with space provided opposite each voter’s name for the voter’s signature
or witnessed mark.
T. “Tally sheet” means a [document] form prescribed
by the secretary of state used for the counting and tallying of votes cast on a
ballot that has not been fed into a voting tabulator.
U. “Undervoted
ballot” means a paper ballot
that is not a blank ballot, and on which the voter has selected at least one
candidate or answered at least one ballot question in accordance with the
instructions for that ballot type, but on which the voter has selected fewer
than the number of alternatives allowed in a candidate contest or on a ballot
question.
[1.10.22.7 NMAC - Rp, 1.10.22.7 NMAC, 4/24/2018; A, 8/31/2023]
1.10.22.10 TABULATION AND CANVASSING OF QUALIFIED PROVISIONAL
BALLOT PROCEDURES:
A. Qualified
provisional ballots shall be counted for the reporting of votes by precinct and
voting method for each candidate contest or ballot question, as specified in
the Election Code, Section 1-12-70 NMSA 1978.
Only the votes for those candidate contests or ballot questions for
which the voter is eligible to vote shall be counted, as follows:
(1) A
qualified [absentee by-mail] mailed ballot, processed as a
provisional ballot, in a provisional ballot envelope prescribed by the
secretary of state because the first time
voter did not provide the required form of physical identification prior to the
ballot issuance, shall be hand tallied and recorded in the absentee
provisional by hand tally counting group, or tabulated by a voting tabulator
designated, programmed and certified for such specific use, and recorded in the
absentee provisional by machine counting group.
(2) A
qualified absentee replacement ballot, processed as a provisional ballot, in a
provisional ballot envelope prescribed by the secretary of state because the
absentee voter did not receive, or if received, did not vote the [absentee
by-mail] mailed ballot, shall be hand tallied and recorded in the
absentee provisional by hand tally counting group, or tabulated by a voting
tabulator designated, programmed and certified for such specific use, and
recorded in the absentee provisional by machine counting group.
(3) A
qualified provisional ballot issued during early voting in the office of the
county clerk, alternate voting location or mobile alternate voting location
shall be hand tallied and recorded in the early voting provisional by hand
tally counting group, or tabulated by a voting tabulator designated, programmed
and certified for such specific use, and recorded in the early voting provisional
by machine counting group.
(4) A
qualified provisional ballot issued on election day shall be hand tallied and
recorded in the election day provisional by hand tally counting group, or
tabulated by a voting tabulator designated, programmed and certified for such
use, and recorded in the election day provisional by machine counting group.
(5) A
qualified federal write-in absentee ballot shall be hand tallied and shall be
counted and recorded in the federal overseas hand tally counting group.
(6) The
hand tally of votes from qualified provisional ballots shall be conducted in
accordance with 1.10.23 NMAC by a team of at least two persons. The team shall consist of one reader and one
marker, not of the same political party, if possible. The reader shall read the ballot to the
marker and the marker shall observe whether the reader has correctly read each
vote from the ballot; the marker shall then mark the tally sheet of the
precinct, voting method and voting location where the ballot was cast, and the
reader shall observe whether the marker correctly marked the tally sheet. The hand tally team shall observe the
following:
(a) Only
the votes for the candidates or ballot questions from the precinct the voter is
eligible to vote for shall be counted;
(b) Each
ballot shall increase the ballots cast count by one;
(c) Only
those contests receiving no more than the allotted selections for the number of
candidates to be elected or ballot questions where there is one selection for
either the affirmative or negative will be hand tallied on overvoted ballots;
(d) No
votes for either candidate contests or ballot questions will be hand tallied
for blank ballots;
(e) Only
those candidate contests or ballot questions receiving a selection by the voter
will be hand tallied on an undervoted ballot; and,
(f) Overvoted,
blank or undervoted ballots cast by voters, after
going through the above process shall be recorded as a “ballot cast” and proper
voting credit shall be given on the respective voter registration record on
file with the county clerk.
(7) When a voting tabulator is used for the counting and recording of
qualified provisional ballots of voters who were issued a ballot for their
correct voting precinct, a member of the county canvassing board shall feed the
ballots into the voting tabulator.
(a) An overvoted or blank provisional
ballot shall be accepted by the voting tabulator after it has been adjudicated
by the county canvassing board. The
ballot will be counted and recorded in the appropriate machine counting group,
as detailed above.
(b) If
a provisional ballot is misread after being fed into a voting tabulator, a
county canvass board member shall feed it into the voting tabulator a second
time. A provisional ballot that is
rejected after two attempts shall be adjudicated by the county canvass board,
hand tallied, counted and recorded in the appropriate hand tally counting
group, as detailed above.
B. During the
counting of qualified provisional ballots, the county clerk shall ensure that
observers are not permitted to see the identity of any voter whose ballot is
being tallied. If, in the instance of
only one provisional ballot cast in an alternate voting location, mobile voting
location or election day polling place, the observer may know the identity of
the voter, but may not observe the tally of the ballot.
C. Upon the
conclusion of the county canvass, the county clerk shall transmit the
provisional ballot results to the office of the secretary of state in
accordance with the Election Code, Subsection H of Section 1-12-25.4 NMSA 1978,
and the county canvassing board shall direct the county clerk to prepare the
required provisional ballot report.
D. If there is a discrepancy in the number of provisional ballots returned based on the number of provisional ballots issued, the county canvassing board shall follow the procedures set out in the Election Code, Section 1-13-1 to 1-13-22 NMSA 1978.
[1.10.22.10 NMAC - N, 4/24/2018; A, 8/31/2023]
1.10.22.11 PROVISIONAL VOTER NOTIFICATION AND
HEARING PROCESS:
A. In accordance with [Subsection A of]
Section [1-12-12.2] 1-12-25.2 NMSA 1978, the county clerk shall
notify each provisional voter whose provisional ballot was rejected and inform
the voter of [their ability] the right to appeal such rejection and
provide information or documentation to cure the reason the ballot was rejected
until the Friday prior to the meeting of the state canvassing board. [,
by requesting a hearing.] The appeal
process shall be conducted as follows:
(1) the
voter shall submit a written request for a hearing to appeal the rejection, and
at any time up to and including the appeal hearing, the voter may provide
information or documentation to satisfy the reason the ballot was rejected;
[(1)]
(2) the county clerk shall
select a hearing officer(s) from staff or a person who is not affiliated with any
candidate to be voted for at the election and knowledgeable of election law;
[(2)]
(3) the county clerk shall
provide a disability accessible room for the appeal hearing to be held;
[(3)]
(4) 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;
[(4)]
(5) the voter may appear with
an advocate;
[(5)]
(6) the appeal hearing shall
be a public meeting, but the voter’s date of birth and 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;
[(6)]
(7) the county clerk and the
public may make a brief public comment and offer relevant exhibits but only the
hearing officer shall be permitted to cross examine the witness;
[(7)]
(8) 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 explaining the decision by citing a
provision of the Election Code;
[(8) there
is no statutory right of appeal; and]
(9) if the voter prevails, the hearing officer shall direct
the county clerk to handle the ballot as a qualified provisional ballot.
B. The county clerk shall notify the county canvassing board of the completion and results of the appeals process.
[1.10.22.11 NMAC - N, 4/24/2018; A & Rn, 8/31/2023]