1. A. An absent voter election board may convene as provided in this section to process the official mailing envelopes that have been returned. Before opening an official mailing envelope, the presiding judge and the election judges shall determine that the county clerk has verified the required information on the reverse side of the official mailing envelope.
2. B. No sooner than the Monday before the election and before the absent voter election board adjourns, the board shall review each uncured returned official mailing envelope that the county clerk determined was missing a signature or the last four digits of the voter's social security number or for which the social security number did not match the information available to the county clerk and determine if the official mailing envelope should be qualified or rejected. An official mailing envelope rejected by the absent voter election board may be qualified if the reason for the rejection is cured at any time before the approval of the county canvass report or prior to the conclusion of an appeal by the voter.

3. C. Subject to the limitations in Subsection A of Section 1-2-25 NMSA 1978, 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. (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. (2) the official mailing envelope does not contain a signature;
   3. (3) the official mailing envelope does not contain the required voter identification; or
   4. (4) the person offering to vote is not a voter as provided in the Election Code.
4. 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.
5. E. If the form on the reverse of the official mailing envelope has been completed by the voter with the voter's correct information, as verified by the county clerk, and the ballot has not been successfully challenged, the judges or election clerks shall make the appropriate notation in the ballot register.
6. 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 by generating the report of the ballot results beginning no sooner than 9:00 a.m. on election day.
7. 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 by generating the report of the ballot results beginning no sooner than 9:00 a.m. on election day.
8. 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.
9. I. Mailed ballots shall be counted and tallied, where possible, on an electronic voting machine as provided in the Election Code.
10. J. If a mailed ballot is rejected for any reason and not cured by the Friday following election day, it shall be handled by the county clerk in the same manner as a disqualified provisional paper ballot in accordance with the Election Code.
11. K. On election night, the absent voter election board shall recess upon the earlier of completion of its work or 11:00 p.m. An absent voter election board that recesses at 11:00 p.m. shall continue its work only between the hours of 9:30 a.m. and 9:30 p.m. on each subsequent day until the board has completed its work. If the absent voter election board does not complete its work by 11:00 p.m. on election night, the county clerk shall notify the county sheriff's office that a deputy is required to be present to secure the room or facility where uncounted ballots are locked overnight. If the sheriff indicates that a sheriff's deputy is unavailable, the county clerk shall notify the secretary of state, who shall request state police to assign a state police officer or other certified law enforcement officer to secure the ballots. The county clerk shall provide as much notice as is practicable in order to secure law enforcement personnel to secure the uncounted ballots overnight. Beginning at 11:00 p.m. on election night, a sheriff's deputy, state police officer or other certified law enforcement officer is required for overnight watch any time the absent voter election board is not present until the return of the absent voter election board. If a sheriff's deputy, a state police officer or other certified law enforcement officer is not available, the county clerk or county clerk's agent shall remain on-site with or near the uncounted ballots until the return of the absent voter election board and shall allow any watcher or observer to remain present as well. A class A county shall also have video surveillance in the area containing uncounted ballots, which shall be considered a record related to voting pursuant to Section 1-12-69 NMSA 1978.

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; 2023, ch. 39, § 32.

ANNOTATIONS

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 2023 amendment, effective June 16, 2023, revised the duties of the county clerk and the election board related to handling mailed ballots; in Subsection A, deleted "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." and added "An absent voter election board may convene as provided in this section to process the official mailing envelopes that have been returned.", after "shall determine that", added "the county clerk has verified, and after "required information", deleted "has been completed"; deleted former Subsection B and added a new Subsection B; in Subsection C, added "Subject to the limitations in Subsection A of Section 1-2-25 NMSA 1978"; in Subsection E, after "If the", added "form on the reverse of the", after "official mailing envelope has been", deleted "properly subscribed" and added "completed by the voter with the voter's correct information, as verified by the county clerk", after "election clerks shall", deleted "enter the voter's name and residence address as shown on the official mailing envelop and shall", after "appropriate notation", deleted "opposite the voter's name in the 'Notations' column of"; in Subsection F, after "until votes are counted", deleted "and canvassed following the closing of the polls on election night" and added "by generating the report of the ballot results beginning no sooner than 9:00 a.m. on election day"; in Subsection J, after "for any reason", added "and not cured by the Friday following election day", and after "shall be handled", added "by the county clerk"; and added Subsection K.

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.