A. At any time after mailed ballots have been sent to voters and until the fifth day before the election, the county clerk may convene an election board to meet during the normal business hours of the office of the county clerk to qualify the mailed ballots that are returned. Before opening an official mailing envelope, the presiding judge and the election judges shall determine that the required information has been completed on the reverse side of the official mailing envelope.
B. If the voter's signature or the required voter identification is missing, the presiding judge shall write "Rejected" on the front of the official mailing envelope. The judge or election clerk shall enter the voter's name in the signature rosters or register and shall write the notation "Rejected--Missing Signature" or "Rejected--Missing Required Voter Identification" in the "Notations" column of the register. The presiding judge shall place the official mailing envelope unopened in a container provided for rejected ballots.
C. A lawfully appointed challenger may view the official mailing envelope and may challenge the ballot of any mailed ballot voter for the following reasons:
(1) the official mailing envelope has been opened by someone other than the voter prior to being received by the absent voter election board;
(2) the official mailing envelope does not contain a signature;
(3) the official mailing envelope does not contain the required voter identification; or
(4) the person offering to vote is not a voter as provided in the Election Code.
D. If a challenge is upheld by unanimous vote of the presiding judge and the election judges, the official mailing envelope shall not be opened but shall be placed in a container provided for challenged ballots. If the reason for the challenge is satisfied by the voter before the conclusion of the county canvass or as part of an appeal, the official mailing envelope shall be opened and the vote counted.
E. If the official mailing envelope has been properly subscribed and the voter has not been challenged, the judges or election clerks shall enter the voter's name and residence address as shown on the official mailing envelope and shall make the appropriate notation opposite the voter's name in the "Notations" column of the register.
F. For any election in which fewer than ten thousand mailed ballots were sent to the voters of a county, only between 8:00 a.m. and 10:00 p.m. on the five days preceding the election, and beginning at 7:00 a.m. on election day, under the personal supervision of the presiding election judge, shall the election judges open the official mailing envelope and the official inner envelope and insert the enclosed ballot into an electronic voting machine to be registered and retained until votes are counted and canvassed following the closing of the polls on election night.
G. For any election in which ten thousand or more mailed ballots were sent to the voters of a county, only during the regular business hours of the office of the county clerk during the two weeks preceding the election, between 8:00 a.m. and 10:00 p.m. on the four days preceding the election and beginning at 7:00 a.m. on election day, under the personal supervision of the presiding election judge, shall the election judges open the official mailing envelope and the official inner envelope and insert the enclosed ballot into an electronic voting machine to be registered and retained until votes are counted and canvassed following the closing of the polls on election night.
H. It is unlawful for a person to disclose the results of a count and tally or the registration on a voting machine of mailed ballots prior to the later of the closing of the polls or the deadline for receiving mailed ballots pursuant to Section 1-6-10 NMSA 1978.
I. Mailed ballots shall be counted and tallied, where possible, on an electronic voting machine as provided in the Election Code.
J. If a mailed ballot is rejected for any reason, it shall be handled in the same manner as a disqualified provisional paper ballot in accordance with the Election Code.
History: 1953 Comp., § 3-6-14, enacted by Laws 1971, ch. 317, § 11; 1975, ch. 255, § 90; 1977, ch. 222, § 12; 1977, ch. 269, § 8; 1983, ch. 232, § 6; 1985, ch. 207, § 5; 1987, ch. 249, § 21; 1989, ch. 392, § 14; 1993, ch. 20, § 5; 1999, ch. 267, § 16; 2003, ch. 354, § 1; 2003, ch. 356, § 22; 2005, ch. 270, § 51; 2007, ch. 336, § 11; 2009, ch. 251, § 11; 2011, ch. 137, § 45; 2019, ch. 212, § 73.
ANNOTATIONSRepeals and reenactments. — Laws 1971, ch. 317, § 11, repealed former 3-6-14, 1953 Comp., relating to handling absentee ballots by precinct board, and enacted a new 3-16-14, 1953 Comp.
Cross references. — For definition of voter, see 1-1-5 NMSA 1978.
For closing of polls, see 1-12-1 NMSA 1978.
For grounds for interposing challenges, see 1-12-20 NMSA 1978.
For opening of outer envelope prior to counting ballots as ground for challenge, see 1-12-20 NMSA 1978.
For disposition of challenges, see 1-12-22 NMSA 1978.
For time of closing the polls, see 1-12-26 NMSA 1978.
The 2019 amendment, effective April 3, 2019, revised the procedure for qualifying returned mailed ballots; in the section heading, added "mailed"; in Subsection A, added "At any time after mailed ballots have been sent to voters and until the fifth day before the election, the county clerk may convene an election board to meet during the normal business hours of the office of the county clerk to qualify the mailed ballots that are returned."; in Subsection B, after "If the voter's signature", added "or the required voter identification", after "'Rejected--Missing Signature'", added "or 'Rejected--Missing Required Voter Identification'", after "provided for rejected ballots", deleted "seal the envelope and write the voter's name on the front of the envelope and deposit it in the locked ballot box"; in Subsection C, in the introductory clause, after "ballot of any", deleted "absentee" and added "mailed ballot", in Paragraph C(1), after "absent voter", deleted "precinct" and added "election", added new Paragraph C(3) and redesignated former Paragraph C(3) as Paragraph C(4); in Subsection D, after "conclusion of the county canvass", added "or as part of an appeal", and after "vote counted.", deleted the last sentence of the subsection, which related to the procedure for determining the validity of other challenged ballots; in Subsection E, deleted paragraph designation "(1)" and redesignated former Paragraph E(2) as Subsection F; in Subsection F, after the subsection designation, added "For any election in which fewer than ten thousand mailed ballots were sent to the voters of a county", and after "preceding the election", deleted "day, including Saturday and Sunday"; added new Subsection G and redesignated former Subsections F and G as Subsections H and I, respectively; in Subsection H, after "machine of", deleted "absentee" and added "mailed", after "prior to the", added "later of the", and after "polls", added "or the deadline for receiving mailed ballots pursuant to Section 1-6-10 NMSA 1978"; in Subsection I, after the subsection designation, deleted "Absentee" and added "Mailed"; deleted former Subsections H and I; added new subsection designation "J."; and in Subsection J, after the subsection designation, added "If a mailed ballot is rejected for any reason", after "handled", added "in the same manner", and after "as a", added "disqualified".
The 2011 amendment, effective July 1, 2011, permitted a judge to enter the voter's name in the signature rosters or register; permitted a challenger to challenge a ballot when the mailing envelope does not contain a signature; eliminated the requirement that challenges of ballots follow the procedure for challenging ballots when a person attempts to vote in person; required a challenge to be upheld by the unanimous vote of the presiding judge and the election judges; and provides that a vote will be counted if the reason for the challenge is satisfied by the voter before the county canvass is concluded.
The 2009 amendment, effective June 19, 2009, in Subsection D(2), after "8:00 a.m.; and", deleted "5:00" and added "10:00".
The 2007 amendment, effective April 2, 2007, in Subsection G, provided a specific NMSA 1978 section number of the Election Code.
The 2005 amendment, effective July 1, 2005, in Subsection D(1), deleted the former provision which provided that the election judge shall open the official mailing envelope and deposit the ballot in its still sealed official inner envelope in the locked ballot box; added Subsection D(2) to provide the time and procedure for opening official mailing envelopes and official inner envelopes; in Subsection E, deleted the former provision which provided the time and procedure for counting and tallying absentee ballots; and in Subsection H, deleted the former provisions which provided the time for convening the absent voter precinct board and the procedure for processing absentee ballots.
The 2003 amendment, effective July 1, 2003, at the beginning of Subsection C, substituted "A lawfully appointed challenger" for "The accredited challengers"; in Subsection C(2), deleted "citizen" following "overseas"; in Subsection E, substituted "each major political party" for "party"; and added Subsection I.
The 1999 amendment, effective June 18, 1999, inserted "absent voter" preceding "precinct board" in Subsection C(1); substituted "count and tally the absentee ballots on an electronic voting machine" for "register the results of each absentee ballot on a voting machine" in Subsection E; substituted "on an electronic voting machine as provided in the Election Code" for "or registered on a lever voting machine or an electronic voting machine as provided in the Election Code provided that any county with a population in excess of one hundred thousand shall count and tally or register absentee ballots on an electronic voting machine" in Subsection F; and added Subsection H.
The 1993 amendment, effective June 18, 1993, substituted "information has been completed" for "oath has been executed" in Subsection A, "the voter's signature is" for "one or both signatures are" in the first sentence of Subsection B, and "have been properly subscribed" for "have properly executed oaths" in the introductory paragraph of Subsection D.
Voiding of ballot precluded. — There is no statutory provision that permits voiding a ballot if the electronic counting machine refuses to accept it, when a straight ticket is indicated but the ballot is actually voted a split ticket, or when the ballot is marked with two choices for a particular office but is properly voted for only one choice in each of the remaining races. Klumker v. Van Allred, 1991-NMSC-045, 112 N.M. 42, 811 P.2d 75.
Procedures for counting ballots. — If a voter votes for more than one candidate in a particular race, the votes for the remaining candidates are still to be counted. Klumker v. Van Allred, 1991-NMSC-045, 112 N.M. 42, 811 P.2d 75.
Qualification of an absentee ballot. — An absentee ballot is qualified only if the voter provides the voter's proper identification in the outer envelope. 2004 Op. Att'y Gen. No. 04-05.