THE LAW OF UNINTENDED CONSEQUENCES

 

How 2007 Changes to the Election Code Could Disenfranchise Voters

Revised 20 August 2007

Background

The Election Code (NMSA 1978 §§ 1-1-1 et seq.) specifically gives the voter the right to decide whether to present physical identification at the polls or to simply give name, year of birth and “unique identifier” (§ 1-1-24). Under the 2005 provisions of the Election Code, “unique identifier” was defined as the last four digits of one’s social security number (§ 1-1-23). Poll workers were provided signature rosters and checklists of voters that contained a voter’s name, year of birth and last four digits of the social security number. If the line at a polling place exceeds 45 minutes, the Election Code requires (with limited exceptions dependent upon agreement by judges of different parties) that the presiding judge dispense with physical identification and use the—presumably faster—voter’s statement of name, year of birth and unique identifier (§ 1-12-4.1).

 

The “unique identifier” is also required when a person submits a request for an absentee ballot (§ 1-6-4.D) and must be included on the outside of the mailing envelope when the voter mails in the absentee ballot (§ 1-6-8.D). Before opening the official mailing envelope and counting the absentee ballot, the election judges must determine that the required information (including “unique identifier”) has been completed on the mailing envelope. When a voter submits a provisional ballot for any reason, s/he must include on the outer envelope the date of birth and social security number (§ 1-12.25.3.A (3) & (6)). Although a provisional ballot will not be rejected per se for lack of this information, the clerk must be able to determine whether the voter is a qualified elector (§1-2.25.3B). One of the five bases for challenging a voter is that s/he is not a qualified elector (§ 1-12-20.C).

 

The Changes

In 2007, the legislature passed HB 1155 and HB 1156. Section 3 of HB 1155 revoked the authority of elections administrators to use an elector’s date of birth or any portion of his/her social security number for purposes of voting (§ 1-4-5.E) – such use is now limited to purposes of the registration process.  Section 4 of HB 1156 changed the definition of “unique identifier” ( § 1-1-23) from the last four digits of a person’s social security number to “a randomly generated series of numbers, letters or symbols assigned to a voter, which shall not be the voter’s social security number or date of birth.” (While the changes did not provide specifics on implementation, the Secretary of State’s Office considers the unique identifier to be the statewide voter registration number issued to each qualified elector upon registration to vote. Thus, the “unique identifier” is no longer something with which most voters are familiar.)

 

The Consequences

  • Election administrators can no longer use readily remembered dates of birth or the last four digits of a social security number to conduct elections.

 

  • The right of the voter to decide whether to provide physical identification or a simple statement of name, year of birth and “unique identifier” has been effectively eliminated.

 

  • Voters who forget their wallets or purses in their cars will have to wait in line twice – causing many voters who are working people or have other commitments to give up and not vote.

 

  • If lines exceed 45 minutes, the requirement to suspend physical identification -- except when judges of both parties agree not to -- will generate confusion, argument and further delays in the line.

 

  • A large percentage of requests for absentee ballots will be rejected and/or result in calls to county clerks to find out a voter’s “unique identifier.” Such delays, (added to the elimination of the voter’s statutory right to request electronic transmittal of absentee ballots) will make it impossible for many people to vote in time.

 

  • Absentee ballots submitted without the “unique identifier” on the outside of the mailing envelope will not be opened and/or will result in legal challenges.

 

  • Presiding Judges who tell voters to place dates of birth and social security numbers on provisional ballots will be in violation of one section of the election code. However under a different section of code, if the provisional ballots do not include dates of birth and social security numbers the ballots could be not opened or challenged.

 

THE SOLUTION

 

  • On July 25, 2007, the Director of the New Mexico Bureau of Elections stated to two state representatives and the chairs of the Democratic and Republican parties of Doña Ana County that corrective action will be placed on the Governor’s call for the 2008 legislative session. No specific proposal or language will be announced until late September or sometime in October.

 

  • On September 6, 2007, at a statewide meeting, the county clerks and supervisors of elections will consider a recommendation that election administrators be allowed to used dates of birth and social security numbers in the voting process, that the voters’ “unique identifier” be defined as the voter’s name and date of birth, and that the copies of precinct voter lists posted and accessible to the voting public not contain voters’ dates of birth.

 

  • Other options and changes to the Election Code might be desirable in the future. However, any remedial action by the legislature in January 2008 should – like the county clerks’ proposal above -- be simple and unambiguous to permit the Secretary of State and the county clerks to write implementing regulations, publish training materials, train poll workers and educate the public before June 2008.

 

FOR FURTHER INFORMATION:

Democratic Party of Doña Ana County

Voter Protection, Peter Ossorio Ossorios@zianet.com (505) 644-8436