A. In addition to other penalties that may be applicable, a person who violates a provision of the Voter Action Act is subject to a civil penalty of up to ten thousand dollars ($10,000) per violation. In addition to a fine, a certified candidate found in violation of that act may be required to return to the fund all amounts distributed to the candidate from the fund. If the secretary makes a determination that a violation of that act has occurred, the secretary shall impose a fine and transmit the finding to the attorney general for criminal prosecution pursuant to Subsection B of this section. In determining whether a certified candidate is in violation of the expenditure limits of that act, the secretary may consider as a mitigating factor any circumstances out of the candidate's control.
B. A person who willfully or knowingly violates the provisions of the Voter Action Act or knowingly makes a false statement in a report required by that act is guilty of a fourth degree felony and, if the person is a certified candidate, shall return to the fund all money distributed to that candidate.
History: Laws 2003, ch. 14, § 17; 2019, ch. 175, § 10.
ANNOTATIONSThe 2019 amendment, effective July 1, 2019, clarified certain penalty provisions; in Subsection A, after "impose a fine", deleted "or" and added "and", added "criminal" preceding "prosecution", and after "prosecution", added "pursuant to Subsection B of this section"; and in Subsection B, after "Voter Action Act", deleted "or rules of the secretary".
Imposition of a fine by the secretary of state. — If the secretary of state elects not to refer a violation of the Voter Action Act to the attorney general for possible criminal prosecution, then the secretary is statutorily obligated to impose a civil penalty under the act. The secretary has discretion only to determine the amount of the penalty. Montoya v. Herrera. 2012-NMSC-011, 276 P.3d 952.
Where the applicant candidate violated the Voter Action Act by contributing more than $8,000 of the candidate's own funds to the candidate's election campaign and the secretary of state elected not to refer the violation to the attorney general for possible criminal prosecution, the secretary had the statutory obligation to impose a fine on the candidate and the secretary had the discretion to impose a $2,000 fine on the candidate. Montoya v. Herrera. 2012-NMSC-011, 276 P.3d 952.
Attorney general's authority to initiate criminal prosecutions. — Section 1-19A-17 NMSA 1978 does not limit the attorney general's authority to initiate criminal prosecutions of the Voter Action Act. The attorney general is not required to first receive a referral from the secretary of state before the attorney general can initiate criminal proceedings. State v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.
Double jeopardy. — The civil penalty authorized under Section 1-19A-17 NMSA 1978 is remedial and does not constitute punishment for double jeopardy purposes. The imposition of a civil penalty does not bar a subsequent criminal prosecution under the Voter Action Act for the same conduct for which the secretary of state assessed the civil penalty. State v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.
Imposition of civil penalty and subsequent criminal prosecution. — Where the secretary of state assessed civil penalties against defendant for violations of the Voter Action Act; the secretary of state did not refer the matter to the attorney general for criminal prosecution; and the attorney general subsequently filed criminal charges against defendant for the same violations of the act, the attorney general was authorized to initiate the criminal prosecution and the assessment of the civil penalties did not preclude the subsequent criminal prosecution. State v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.