07/21/2023
ELECTION INTEGRITY ALERT — July 21, 2023
New Mexico law—adopted this past March—now requires county clerks to VERIFY the VOTER's SIGNATURE on the ABSENTEE ballot's Official Mailing Envelope. This is a significant positive step in Elections Integrity.
HOWEVER, the Secretary of State is proposing a RULE that COMPLETELY IGNORES THE NEW STATUTORY REQUIREMENT.
This New Proposed Rule would continue to allow county clerks to merely note that there is "something" in the signature box on the mailing envelope — be it a signature, mark, or any kind of cursive writing. Such a rule would NOT comply with the bill passed this past session and signed into law by the Governor.
Today, Friday, July 21st, the The New Mexico Justice Project submitted the following comments to the Office of the NM Secretary of State:
The New Mexico Justice Project
Public Comments on the Secretary of State’s Proposed Rule Changes—specifically the Proposed Amendments to 1.10.12 of the New Mexico Administrative Code (NMAC)
Regarding ABSENTEE BALLOT ENVELOPES
Summary: Section 1-6-10 NMSA 1978 now requires each county clerk to “verify that the voter signed the official mailing envelope.” However, the Proposed Rule overlooks that new requirement, adopted by the legislature this past March, and fails to establish the now-mandated signature verification process as required by Section 1-6-10 NMSA 1978 of the Election Code.
This Comment addresses the Amendment to NMAC 1.10.12.16: MAILED BALLOT CURING PROCESS, addressing the amended section of 1-6-10 NMSA 1978:
VERIFICATION of the VOTER’S SIGNATURE
In Senate Bill 180, introduced in January 2023 and signed into law this past spring, Section 1-6-10, NMSA 1978, was amended to provide that the county clerk is now required to verify the voter’s signature. This newly adopted, very specific, statutory requirement is not currently included in the proposed rule change. As of today, here is what the New Mexico statute provides in § 1-6-10:
B. … Within one business day of receiving a
returned official mailing envelope, the county clerk
shall remove the privacy flap to verify that the
voter signed the official mailing envelope and to
confirm that the last four digits of the social
security number provided by the voter match the
information available to the county clerk...
C. If the voter's signature is present and the last
four digits of the voter's social security number
match, the county clerk shall note in the absentee
ballot register that the information required to be
provided by the voter under the privacy flap has
been verified and shall safely keep the official
mailing envelope unopened in a locked and
number-sealed ballot box until it is delivered to the
absent voter election board.
In both Sections B and C of the statute, the new requirement is not to merely note the existence of “any” signature, (which would include any random mark or scribble) but for the presence of the voter’s signature. (This is because of the new language that includes the verb “verify,” the relevance of which is further explained below in reference to this same requirement found in 27 states, for which New Mexico now joins as the 28th.)
This new statutory provision requires the county clerk to compare the signature of the voter on the outer envelope with the voter registration certificate at the same time that the county clerk confirms that the last four digits of the social security number match the voter’s registration record, which is found on the very same certificate as the signature.
According to the National Council of State Legislatures (NCSL):
“the most common method to verify that absentee
/mail ballots come from the intended voter is to
conduct signature verification. When voters return
an absentee/mail ballot, they must sign an
affidavit on the ballot envelope. When the ballot is
returned to the election office, election officials
have a process for examining each and every
signature and comparing it to other documents in
their files that contain the voter signature—usually
the voter registration record.”
NCSL further notes:
“If a ballot is missing a signature or the signature
does not match the one on file, some states offer
voters the opportunity to ‘cure’ their ballots. The
election official will contact the voter explaining
the problem and asking them to verify their
information and that they did in fact cast the ballot.
Some states have other methods for verifying
absentee/mail ballots, such as requiring voters to
provide a copy of an identification document or to
have the absentee/mail ballot witnessed or
notarized.
“Twenty-seven states conduct signature
verification on returned absentee/mail ballots:
Arizona, California, Colorado, Florida, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kentucky, Maine,
Massachusetts, Michigan, Montana, Nevada, New
Hampshire, New Jersey, New York, North Dakota,
Ohio, Oregon, South Dakota, Tennessee, Texas,
Utah, Washington and West Virginia.”
The NCSL notes that, for this process, nine (9) states, along with the US Virgin Islands and Washington, D.C., merely determine that an absentee/mail ballot envelope contains a signature of some kind, but do not conduct actual signature verification.
New Mexico has been included in that list (of non-verification states) because of its omission of the requirement to verify a signature, as opposed to merely note the presence of any signature or mark in the space.
However, the changes to Section 1-6-10 and the inclusion of the provision that county clerks will “verify that the voter signed the official mailing envelope” statutorily removes New Mexico from the group of nine states that do not verify signatures and adds New Mexico as the twenty-eighth state to require signature verification.
▪️THE PROPOSED RULE DIVERGES FROM THE
LEGISLATIVE ACT
The Proposed Rule would continue having New Mexico in the current grouping of states that merely note the presence of cursive writing or other random marks in a space. It fails to adopt a uniform and nondiscriminatory standard for the new statutory requirement for actual signature verification.
It does not establish the process, which is now required, to verify that the actual registered voter, himself or herself, signed the official mailing envelope. And again, the mere presence of any signature or mark, however random it may be, in the signature box of the outer envelope, does not meet the requirement of the newly adopted statute.
In published public comments, the Chaves County clerk requested clarification on the process to “verify” the voter’s signature.
As the Chaves County clerk is alluding, it is incumbent on the Secretary of State to propose and adopt administrative rules which actually apply the requirements of the now-current statute.
According to newly adopted New Mexico law, the County Clerks must review the signature of that voter on the electronic voter registration certificate to verify that the signature that appears on the envelope is the registered voter’s signature on file.
Clearly, the current Proposed Rule fails in this regard. It has been written in a way that does not require any verification of the voter’s signature.
Under the Proposed Rule, the county clerks are instructed to continue treating the signatures on the mailed ballot outer envelopes in the same way that they have been handled in the past by the absent voter election board.
Under that old process, the board merely checked to see if there existed the presence of any signature, or cursive script, or mark. This is because the previous statutory provisions for qualifying mailed ballots did not include the requirement to verify.
With regard to the only other component of voter identification—the “last four” of the voter’s social security number—the Proposed Rule is both adequate and proper in that it sets out a detailed process for the County Clerk to “confirm” the accuracy of the last four digits of the voter’s social security number.
It is vitally important to note that this does not mean “any” set of four numbers—which would be the equivalent of the proposed standard for verifying the signature.
Clearly, both of these voter identification elements require the same degree of verification. However, in moving on to the signature verification requirement, the proposed rule completely ignores the statute.
Accordingly, the Proposed Rule must be amended to provide a process for verifying the voter’s signature, and for the voter to be able to cure the ballot in the event of a signature mismatch.
Republican Party of New Mexico, Taos County Republican Party, Republican Party of Bernalillo County, Republican Party of Santa Fe County, The Republican Party of Torrance County, Republican Party of Rio Arriba County, Republican Party of Los Alamos; Republican Party of Sandoval County, Republicans of San Juan County NM Group; Republican Party of Valencia County; Doña Ana Republican Party; New Mexico Young Republicans; The Republican Party of Chaves County; Republican Party of Lea County; Republican Party of Curry County; Republican Party in Roosevelt County New Mexico; Republican Party of Eddy County; Republican Party of New Mexico; Lincoln County Republican, Lincoln County Republican Party; Grant County Republican Party