ELECTION RIGHTS & TROOPS AT ELECTIONS

SRC/SB 264
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AN ACT
RELATING TO THE PUBLIC PEACE, HEALTH, SAFETY AND WELFARE;
AMENDING AND ENACTING SECTIONS OF THE ELECTION CODE;
PROHIBITING PERSONS ACTING UNDER COLOR OF LAW OR OTHERWISE
FROM ORDERING TROOPS TO A PLACE WHERE AN ELECTION IS HELD
UNLESS NECESSARY TO REPEL ARMED ENEMIES OF THE UNITED STATES;
PROHIBITING INTERFERENCE WITH A PERSON'S RIGHT OF SUFFRAGE AT
AN ELECTION; PROVIDING PENALTIES; PROVIDING REMEDIES;
PROVIDING PROCEDURES FOR ELECTIONS FOLLOWING A DECLARATION OF
A STATE OF EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Election Code, Section
1-1-29 NMSA 1978, is enacted to read:
"1-1-29. UNDER COLOR OF LAW.--As used in the Election
Code, "under color of law" means acting or purporting to act
in the performance of official duties, under the authority of
a statute, ordinance, regulation, proclamation or order of
the United States or this state."
SECTION 2. A new section of the Election Code, Section
1-1-30 NMSA 1978, is enacted to read:
"1-1-30. PEACE OFFICER.--As used in the Election Code,
"peace officer" means any full-time salaried or certified
part-time salaried officer of a police or sheriff's
department that is part of or administered by the state or
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any political subdivision of the state who by virtue of
office or public employment is vested by law with the duty to
maintain the public peace."
SECTION 3. A new section of the Election Code is
enacted to read:
"INTERFERENCE WITH ELECTIONS.--
A. A person acting under color of law or otherwise
shall not:
(1) order, bring or keep a troop or armed
person or persons in the civil, military or naval service of
the United States to any location used as a polling place,
including parking areas for the polling location, or within
fifty feet of a monitored secured container as used in
Subsection E of Section 1-6-9 NMSA 1978, beginning
twenty-eight days before an election through election day,
unless such force is necessary to repel armed enemies of the
United States;
(2) prescribe, fix or attempt to prescribe
or fix the qualifications of voters at an election in this
state contrary to the laws of the state;
(3) impose or attempt to impose a rule,
standard or practice for conducting an election in this state
contrary to the laws of the state; or
(4) interfere in any manner with the conduct
of the election or the secretary of state, a county clerk, a
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municipal clerk or an employee or agent of the secretary of
state, an employee or agent of a county clerk, an employee or
agent of a municipal clerk or a member of an election board,
voter, challenger or watcher in the discharge of the person's
duties pursuant to the Election Code.
B. A person who violates Subsection A of this
section is guilty of a fourth degree felony, in addition to
any other offense provided by law.
C. The following persons may bring a civil action
in district court to enforce the provisions of this section:
(1) the attorney general;
(2) the secretary of state;
(3) a county clerk with respect to
violations that occur within the county clerk's county; and
(4) a voter who experienced intimidation as
used in Section 1-20-14 NMSA 1978, or was not able to vote
due to obstruction or disturbance of the polling place as
used in Sections 1-20-17 and 1-20-20 NMSA 1978, as a result
of a violation of this section.
D. In a civil action brought pursuant to this
section, a court may:
(1) grant temporary, preliminary or
permanent injunctive relief;
(2) impose a civil penalty of not less than
five thousand dollars ($5,000) and not more than fifty
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thousand dollars ($50,000) per violation; and
(3) award any other appropriate relief.
E. A court shall expedite the scheduling and
disposition of a civil action brought pursuant to this
section if the action is filed during the period beginning
twenty-eight days before election day and ending with the
completion of the state canvass.
F. A prevailing plaintiff who is a voter with
standing pursuant to Subsection C of this section shall be
awarded reasonable attorney fees and litigation costs.
G. The provisions of this section shall not
prevent a qualified elector from exercising the right of
suffrage in an election in this state and shall not be
construed to authorize an action that would be prohibited by
federal law or to limit any federal authority that is validly
exercised pursuant to federal law."
SECTION 4. A new section of the Election Code is
enacted to read:
"EMERGENCY ELECTIONS PROCEDURES.--
A. Upon issuance of an executive order declaring a
state of emergency or an executive order for an impending
emergency, the secretary of state shall authorize county
clerks in impacted counties to evaluate and develop emergency
contingency plans to ensure maximum participation in the
electoral process and to provide a safe and orderly procedure
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for impacted elections.
B. A county clerk shall notify the secretary of
state in writing of a natural disaster or other emergency
impacting election operations. As soon as possible following
the issuance of an executive order declaring an emergency:
(1) the county clerk shall identify the
number of polling places that are functional and the number
of polling places that are no longer functional. If a
polling place is destroyed, inaccessible or unsafe, the
county clerk shall work with federal, state and local
emergency management agencies to permit the orderly
establishment of a new polling place. An alternate emergency
location shall be designated by the county clerk and
authorized by the secretary of state and shall meet the
requirements for a voter convenience center pursuant to
Section 1-3-4 NMSA 1978. The designation of a new polling
location shall not require court approval. The secretary of
state may authorize a county to loan a mobile voting unit to
another county;
(2) the county clerk shall notify the
secretary of state in writing of any impact to mailed ballot
delivery. The secretary of state may authorize the county
clerk to transmit ballot and balloting materials by secured
electronic transmission available to the county clerk to
voters who have submitted an emergency mailed ballot request
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on a form prescribed by the secretary of state. Any delays,
closures of secured monitored containers or additional
changes affecting the ability of voters to receive or return
a mailed ballot shall be posted as soon as practicable on the
county clerk's website with information on how voters may
participate in the election;
(3) the county clerk shall publish in a
newspaper of general circulation in the county and post to
the county clerk's website the details of any changes to the
voting process pursuant to this section, including any
changes to voting times and locations; and
(4) contingency plans involving the
elimination or consolidation of a polling place or the
establishment of an alternative voting or mobile voting unit
within an Indian nation, tribe or pueblo shall occur pursuant
to Section 1-21A-9 NMSA 1978.
C. Nothing in this section shall be interpreted as
extending or authorizing an extension of the time period for
an election."
SECTION 5. Section 1-12-5 NMSA 1978 (being Laws 1969,
Chapter 240, Section 244, as amended) is amended to read:
"1-12-5. CONDUCT OF ELECTION--STATE POLICE--OTHER PEACE
OFFICERS.--
A. Any member of the New Mexico state police or
other peace officer may enter a polling place upon request
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for the purpose of observing the conduct of the election.
B. No member of the New Mexico state police or
other peace officer shall interfere in any way with a member
of the election board, a voter or the conduct of the election
except to assist in maintaining order and orderly control of
access when requested by the presiding judge, an election
judge, a county clerk or the secretary of state.
C. Any member of the New Mexico state police or
other peace officer violating Subsection B of this section is
guilty of a petty misdemeanor and in addition to any other
penalty provided by law shall be subject to dismissal and is
ineligible for reinstatement."
SECTION 6. Section 1-20-3 NMSA 1978 (being Laws 1969,
Chapter 240, Section 428, as amended by Laws 1993, Chapter
314, Section 60 and by Laws 1993, Chapter 316, Section 58) is
amended to read:
"1-20-3. REGISTRATION OFFENSES.--
A. Registration offenses consist of performing,
under color of law or otherwise, any of the following acts
willfully and with knowledge and intent to deceive any
registration officer or to subvert the registration
requirements of the law or rights of any qualified elector:
(1) signing or offering to sign a
certificate of registration when not a qualified elector;
(2) falsifying any information on the
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certificate of registration;
(3) soliciting, procuring, aiding, abetting,
inducing or attempting to solicit, procure, aid, abet or
induce any person to register or attempt to register with the
name of any other person, whether real, deceased or
fictitious; or
(4) destroying the certificate of
registration of any qualified elector, or removing such
certificate from its proper binder or file, except as
provided in the Election Code.
B. Whoever commits a registration offense is
guilty of a fourth degree felony, in addition to any other
offense provided by law."
SECTION 7. Section 1-20-4 NMSA 1978 (being Laws 1969,
Chapter 240, Section 429) is amended to read:
"1-20-4. UNLAWFUL OPENING OF A BALLOT BOX.--
A. Unlawful opening of a ballot box consists of,
under color of law or otherwise, opening any ballot box or
inspecting or removing the contents thereof without lawful
authority, or conspiring with others to have the same done.
B. Whoever commits unlawful opening of a ballot
box is guilty of a fourth degree felony, in addition to any
other offense provided by law."
SECTION 8. Section 1-20-5 NMSA 1978 (being Laws 1969,
Chapter 240, Section 430) is amended to read:
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"1-20-5. UNLAWFUL OPENING OF A VOTING MACHINE.--
A. Unlawful opening of a voting machine consists
of, under color of law or otherwise, without lawful
authority, opening, unlocking, inspecting, tampering,
resetting or adjusting a voting machine owned by any county,
or conspiring with others to have the same done.
B. Whoever commits unlawful opening of a voting
machine is guilty of a fourth degree felony, in addition to
any other offense provided by law."
SECTION 9. Section 1-20-6 NMSA 1978 (being Laws 1969,
Chapter 240, Section 431, as amended) is amended to read:
"1-20-6. UNLAWFUL POSSESSION OF KEYS.--
A. Unlawful possession of keys consists of, under
color of law or otherwise, the possession at any time of any
key to a voting machine, ballot box or monitored secured
container, or possession of an imitation or duplicate
thereof, or making or causing to be made any imitation or
duplicate thereof, unless authorized by the Election Code.
B. Whoever commits unlawful possession of keys is
guilty of a fourth degree felony, in addition to any other
offense provided by law."
SECTION 10. Section 1-20-7 NMSA 1978 (being Laws 1971,
Chapter 111, Section 1, as amended) is amended to read:
"1-20-7. UNLAWFUL POSSESSION OF ABSENTEE BALLOT.--
Unlawful possession of absentee ballot consists of, under
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color of law or otherwise, the possession at any time of
absentee ballot materials when not authorized by the Election
Code to be in possession of such materials, or when such
materials were obtained in an unlawful manner, and includes
the establishment, designation or operation of any container
or receptacle to receive voted ballots by a person who is not
authorized by the Election Code and entering information into
or altering the absentee ballot register. As used in this
section, "absentee ballot materials" means an absentee
ballot, absentee ballot envelopes, the absentee ballot
register or an absentee ballot return. Whoever commits
unlawful possession of absentee ballot is guilty of a fourth
degree felony, in addition to any other offense provided by
law."
SECTION 11. Section 1-20-9 NMSA 1978 (being Laws 1969,
Chapter 240, Section 433, as amended) is amended to read:
"1-20-9. FALSIFYING ELECTION DOCUMENTS.--
A. Falsifying election documents consists of,
under color of law or otherwise, performing any of the
following acts willfully and with knowledge and intent to
deceive or mislead any voter, precinct board, canvassing
board or other election official:
(1) printing, causing to be printed,
distributing or displaying false or misleading instructions
pertaining to voting or the conduct of the election;
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(2) printing, causing to be printed,
distributing or displaying any official ballot, sample
ballot, facsimile diagram or pretended ballot that includes
the name of any person not entitled by law to be on the
ballot, or omits the name of any person entitled by law to be
on the ballot, or otherwise contains false or misleading
information or headings;
(3) defacing, altering, forging, making
false entries in or changing in any way a certificate of
nomination, registration record or election return required
by or prepared and issued pursuant to the Election Code;
(4) suppressing any certificate of
nomination, registration record or election return required
by or prepared and issued pursuant to the Election Code;
(5) preparing or submitting any false
certificate of nomination, registration record or election
return; or
(6) knowingly falsifying any information on
a nominating petition.
B. Whoever falsifies election documents is guilty
of a fourth degree felony, in addition to any other offense
provided by law."
SECTION 12. Section 1-20-13.1 NMSA 1978 (being Laws
1995, Chapter 198, Section 15) is amended to read:
"1-20-13.1. COERCION OF VOTERS.--
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A. Coercion of voters consists of, under color of
law or otherwise, compelling any voter at any election to
vote for or to refrain from voting for any candidate, party,
proposition, question or constitutional amendment either
against the voter's will or in the absence of the voter's
ability to understand the purpose and effect of the voter's
vote.
B. Whoever commits coercion of voters is guilty of
a fourth degree felony, in addition to any other offense
provided by law, and shall be sentenced pursuant to the
provisions of Section 31-18-15 NMSA 1978."
SECTION 13. Section 1-20-14 NMSA 1978 (being Laws 1969,
Chapter 240, Section 438, as amended) is amended to read:
"1-20-14. INTIMIDATION.--
A. Intimidation consists of inducing or attempting
to induce fear in the secretary of state, a county clerk, a
municipal clerk or an employee or agent of the secretary of
state, an employee or agent of a county clerk, an employee or
agent of a municipal clerk, a member of an election board, a
voter, a challenger or a watcher by use of or threatened use
of force, violence, infliction of damage, harm or loss, or
any form of economic retaliation upon the secretary of state,
a county clerk, a municipal clerk or an employee or agent of
the secretary of state, an employee or agent of a county
clerk, an employee or agent of a municipal clerk, a member of
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an election board, a voter, a challenger or a watcher for the
purpose of impeding or preventing the free exercise of the
elective franchise or the impartial administration of the
election or Election Code, under color of law or otherwise.
B. Whoever commits intimidation is guilty of a
fourth degree felony, in addition to any other offense
provided by law."
SECTION 14. Section 1-20-15 NMSA 1978 (being Laws 1969,
Chapter 240, Section 439) is amended to read:
"1-20-15. CONSPIRACY TO VIOLATE ELECTION CODE.--
A. Conspiracy to violate the Election Code
consists of, under color of law or otherwise, knowingly
combining, uniting or agreeing with any other person to omit
any duty or commit any act, the omission of which duty, or
commission of such act, would by the provisions of the
Election Code constitute a fourth degree felony.
B. Whoever commits conspiracy to violate the
Election Code is guilty of a fourth degree felony, in
addition to any other offense provided by law."
SECTION 15. Section 1-20-16 NMSA 1978 (being Laws 1969,
Chapter 240, Section 440, as amended) is amended to read:
"1-20-16. ELECTIONEERING TOO CLOSE TO THE POLLING PLACE.--
A. Electioneering too close to the polling place
consists of, under color of law or otherwise, any form of
campaigning within:
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(1) one hundred feet of the building in
which the polling place is located on election day when
voting at a school, church or private residence; and
(2) one hundred feet of the door through
which voters may enter to vote at the office of the county
clerk, an alternate voting location, a mobile voting site or
any location used as a polling place on election day that is
not a school, church or private residence.
B. Electioneering includes the display or
distribution of signs or campaign literature, campaign
buttons, t-shirts, hats, pins or other such items and
includes the verbal or electronic solicitation of votes for a
candidate or question.
C. Whoever commits electioneering too close to the
polling place is guilty of a petty misdemeanor, in addition
to any other offense provided by law."
SECTION 16. Section 1-20-17 NMSA 1978 (being Laws 1969,
Chapter 240, Section 441, as amended) is amended to read:
"1-20-17. OBSTRUCTING THE POLLING PLACE.--
A. Obstructing the entrance to the polling place
consists of, under color of law or otherwise, a person other
than an authorized individual approaching nearer than fifty
feet from the door through which voters may enter to vote at
a polling place or a person who willfully blocks access to a
monitored secured container or the entrance to a polling
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place so as to prevent free ingress and egress.
B. Intentionally obstructing access to the polling
place consists of, under color of law or otherwise,
intentionally preventing free ingress and egress to or from a
voting location due to rendering ingress or egress
impassable, intimidation or disturbance of the polling place
as used in Sections 1-20-14 NMSA 1978 and 1-20-20 NMSA 1978.
C. A person conducting lawful,
non-election-related business nearer than fifty feet from the
door through which voters may enter to vote is not guilty of
obstructing a polling place, provided the person does not
willfully block access to a monitored secured container or
the entrance to the polling place.
D. As used in this section, "authorized
individual" means an individual who is not electioneering and
who is:
(1) a voter offering to vote;
(2) a member of the election board;
(3) a lawfully appointed watcher, challenger
or election observer;
(4) an individual giving assistance to a
specific person offering to vote;
(5) an election official or contractor
having business in the polling place;
(6) an attorney representing the county or
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state, a political party or a candidate having business in
the polling place; or
(7) a language translator where required by
federal law.
E. Whoever obstructs the entrance to the polling
place is guilty of a petty misdemeanor, in addition to any
other offense provided by law.
F. Whoever intentionally obstructs the polling
place is guilty of a fourth degree felony, in addition to any
other offense provided by law."
SECTION 17. Section 1-20-20 NMSA 1978 (being Laws 1969,
Chapter 240, Section 444) is amended to read:
"1-20-20. DISTURBING THE POLLING PLACE.--
A. Disturbing the polling place consists of, under
color of law or otherwise, creating any disorder or
disruption at the polling place beginning twenty-eight days
before an election through election day.
B. Whoever disturbs the polling place is guilty of
a petty misdemeanor, in addition to any other offense provided
by law."