New Mexico Statutes
Article 15 - Presidential Electors, Senators, Congressmen and Expiring Terms
Section 1-15-18.1 - United States representative; vacancy.

A. Within ten days after a vacancy occurs in the office of United States representative, the secretary of state shall, by proclamation, call an election to be held not less than seventy-seven nor more than ninety-one days after the date of the vacancy for the purpose of filling the vacancy, except as provided in Subsections H and I of this section.
B. The proclamation shall forthwith be filed by the secretary of state in the office of the secretary of state. The proclamation shall specify the:
(1) date on which the election will be held;
(2) purpose for which the election is called;
(3) date on which declarations of candidacy are to be filed;
(4) date on which declarations of intent to be a write-in candidate are to be filed; and
(5) date certificates of registration are to be subscribed and sworn to participate in the election as required by law.
C. After the proclamation is issued pursuant to Subsection B of this section, the secretary of state shall within five days certify the proclamation to each county clerk with precincts located in the United States representative district in which the vacancy exists. Beginning not less than sixty-three days before the date of the election, the secretary of state shall publish the proclamation once each week for two consecutive weeks in a newspaper of general circulation.
D. Upon the issuance of the proclamation, each qualified political party may nominate in the manner provided by the rules of that party a candidate to fill the vacancy in the office of United States representative; provided that such nomination is certified to the secretary of state by the state chair of that party no later than 5:00 p.m. on the fifty-sixth day preceding the date of the election.
E. Declarations of unaffiliated candidacy to fill the vacancy in the office of United States representative and nominating petitions pertaining thereto shall be filed with the secretary of state no later than 5:00 p.m. on the fifty-sixth day preceding the date of the election.
F. Declarations of intent to be a write-in candidate to fill a vacancy in the office of United States representative shall be filed with the secretary of state no later than 5:00 p.m. on the fifty-sixth day preceding the date of the election.
G. Elections called for the purpose of filling a vacancy in the office of United States representative shall be conducted in accordance with the provisions of the Election Code for general elections; provided, however, if there is a conflict between this section and other provisions of the Election Code, the provisions of this section shall control. The secretary of state shall, only when necessary, adjust the day provided in the Uniform Military and Overseas Voters Act [1-6B-1 to 1-6B-17 NMSA 1978] to send ballots to federal qualified electors in an election to fill a vacancy in the office of United States representative. The adjusted day shall be immediately posted on the website of the secretary of state and reported to the federal voting assistance program.
H. If a vacancy occurs in the office of United States representative beginning one hundred sixty days and no less than sixty-three days before a statewide election, the vacancy shall be filled at the next statewide election; provided that when filling a vacancy:
(1) at a general election, candidates seeking the office of United States representative in that general election for the next succeeding term shall be deemed to be candidates for the unexpired term as well, and the candidate elected shall take office upon the certification of the election results; or
(2) at a political party primary or a regular local election, each ballot shall contain the election to fill the vacancy in the office of United States representative listed before the contests in the political party primary or regular local election, and ballots containing only the election of the vacancy in the office of United States representative shall be available to voters who do not otherwise qualify to vote in the political party primary or that regular local election.
I. If a vacancy occurs in the office of United States representative in extraordinary circumstances when there are more than one hundred vacancies in the United States house of representatives and there are more than seventy-five days before a regularly scheduled election, then pursuant to 2 U.S.C. Section 8(b):
(1) the governor shall immediately issue a writ of election, upon which the secretary of state shall, by proclamation, call an election to be held not more than forty-nine days after the vacancy is announced and file the proclamation along with the writ in the office of the secretary of state;
(2) the secretary of state shall immediately certify the proclamation to each county clerk with precincts located in the United States representative district in which the vacancy exists, and beginning not less than thirty-five days before the date of the election, the secretary of state shall publish the proclamation once each week for two consecutive weeks in a newspaper of general circulation;
(3) each qualified political party may nominate in the manner provided by the rules of that party a candidate to fill the vacancy in the office of United States representative; provided that such nomination is certified to the secretary of state by the state chair of that party no later than 5:00 p.m. on the tenth business day following announcement of the vacancy;
(4) declarations of independent candidacy to fill the vacancy in the office of United States representative and nominating petitions pertaining thereto shall be filed with the secretary of state no later than 5:00 p.m. on the tenth business day following announcement of the vacancy; and
(5) declarations of intent to be a write-in candidate to fill the vacancy in the office of United States representative shall be filed with the secretary of state no later than 5:00 p.m. on the tenth business day following announcement of the vacancy.
J. The state shall pay all costs of an election to fill a vacancy in the office of United States representative when the election is not held on the same ballot as a statewide election.
History: 1978 Comp., § 1-15-18.1, enacted by Laws 1983, ch. 232, § 16; 2008, ch. 58, § 4; 2019, ch. 212, § 131.
Temporary provisions. — Laws 2021, ch. 17, § 1, effective April 1, 2021, repealed effective December 31, 2021, provided:
A. This section regulates the conduct of any election held in 2021 to fill a vacancy in the office of United States representative. To the greatest extent possible, the provisions of this section are to be read as supplemental to and in harmony with the provisions of the Election Code; provided, however, that if a direct conflict exists with other provisions in the Election Code, the provisions of this section shall apply.
B. Each election day polling location located in the district established in the 2019 polling place resolution for each county or a location in the district established by any subsequent amendment to such a resolution shall operate as a voter convenience center.
C. A polling place located on Indian nation, tribal or pueblo land shall not be closed or consolidated with other polling locations, nor shall the days and times of voting be modified, without the written agreement of the Indian nation, tribe or pueblo where the polling location is located. If, as a result of public health concerns, voters registered within the Indian nation, tribe or pueblo are unable to leave the Indian nation, tribe or pueblo during the time when voting occurs for the election, regardless of whether voters residing outside the boundaries of the Indian nation, tribe or pueblo are able to access such polling locations, there shall be at least one polling location within the boundaries of the Indian nation, tribe or pueblo.
D. On behalf of each county clerk, the secretary of state shall automatically deliver to each mailable voter in the district a notice informing the voter of the date of the election, an internet web address where a voter may request a mailed ballot, a telephone number where a voter may call to request a paper mailed ballot application and a list of the days and times and addresses where voters may vote in person. The notice shall be mailed beginning on the fiftieth day before the election. As used in this subsection, a "mailable voter" is a voter in the district other than a voter:
(1) to whom a notice was sent pursuant to Subsection C of Section 1-4-28 NMSA 1978 in 2018 or 2020, and subsequent to the sending of the most recent notice:
(a) did not return the prepaid and pre-addressed return card provided pursuant to that section;
(b) has not filed a new or amended certificate of registration with a new address at which election-related mail is to be sent; and
(c) has not since voted;
(2) who registered to vote on or before December 31, 2016, has not submitted a new certificate of registration at any time since January 1, 2017 and has not voted in any election since January 1, 2017; or
(3) whose ballot is delivered pursuant to the provisions of the Uniform Military and Overseas Voters Act or the Intimate Partner Violence Survivor Suffrage Act.
E. Each mailed ballot sent to a voter in the election shall contain the following notice: "This ballot may be returned to the office of the county clerk or any open polling location in the county where you are registered to vote at any time up to and including the day of the election. If this ballot is returned by mail, to ensure timely postal delivery to the county clerk, the ballot should be mailed no later than __________.". The date used in the notice shall be seven days prior to the election.
F. An application for a mailed ballot from a voter who is not a federal qualified elector is timely if received by the county clerk no later than fourteen days prior to the election. An application for a mailed ballot from a voter who is not a federal qualified elector that is received by the county clerk after the fourteenth day prior to the election shall be rejected, and if the application was received by the county clerk by the fourth day prior to the election, the county clerk shall within twenty-four hours of receipt of the application send a rejection notice to the voter that shall include a list of the early and election day polling locations in the county. The county clerk shall only accept applications for a mailed ballot submitted through the official web portal operated by the secretary of state or submitted on the official paper form sent to a voter by the county clerk, and shall process only the first request submitted by the voter. A request for a replacement ballot is not subject to the deadlines in this subsection.
G. If the application for a mailed ballot from a voter who is not a federal qualified elector indicates that the mailed ballot is to be delivered to an address other than an address listed on the voter's certificate of registration, the county clerk shall prepare a notice of requested mailed ballot. The notice of requested mailed ballot shall inform the voter of the address to which the ballot was mailed along with the phone number of the county clerk's office and the internet address of the voter web portal provided by the secretary of state. The notice of requested mailed ballot shall be delivered to the address provided on the voter's certificate of registration on the same day the county clerk delivers the mailed ballot to the address requested by the voter.
H. An application for a mailed ballot from a voter who is a federal qualified elector is timely if received by the county clerk no later than seven days prior to the election; provided that the voter provides information permitting secured electronic delivery of the ballot to the voter. An application for a mailed ballot from a voter who is a federal qualified elector who does not provide information permitting secured electronic delivery of the ballot is timely if received by the county clerk no later than fourteen days prior to the election.
I. To return a mailed ballot, each voter shall provide in the space provided for that purpose under the privacy flap of the official mailing envelope the voter's signature on a line located under the required attestation and the last four digits of the voter's social security number, which shall constitute the required voter identification. The attestation shall include the pre-printed name of the voter to whom the mailed ballot was sent. No additional information shall be required of a voter to return a mailed ballot.
J. Upon receipt of a mailed ballot, the county clerk shall remove the privacy flap to verify that the voter signed the official mailing envelope and confirm that the last four digits of the social security number provided by the voter matches the information available to the county clerk. If the 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 ballot was accepted and shall transfer the ballot to the special deputy for mailed ballots for delivery to the absent voter election board. If either the voter's signature is missing or the last four digits of the voter's social security number are not provided or do not match, the county clerk shall reject the mailed ballot and make the appropriate notation in the absentee ballot register and shall transfer the ballot to the special deputy for mailed ballots for delivery to the absent voter election board. If the mailed ballot is rejected, the county clerk shall within one day send the voter a notice of rejection, along with information regarding how the voter may cure the reason for the rejection. When an application for a mailed ballot is rejected pursuant to this section, the county clerk shall send a notice of rejection to the mailing address on the voter's certificate of registration and, if different, also to the address listed on the voter's application for a mailed ballot. The determination of the county clerk to accept or reject a mailed ballot is subject to a later interposition of a challenge before the absent voter election board. In addition to existing procedures in the Election Code for qualifying a previously rejected absentee ballot after election day, a previously rejected absentee ballot may be qualified by the presiding judge and election judges of the absent voter election board before the day of the election if the ballot was rejected for the lack of a signature or missing required voter identification if the voter provides such information pursuant to procedures established by the secretary of state.
K. A political party with a candidate on the ballot may appoint a challenger to observe the determination made by the county clerk to accept or reject a mailed ballot. The challenger shall not interpose a challenge to the county clerk, but may make notes to interpose a challenge to the absent voter election board; provided that a challenger shall not copy, record or transcribe any portion of a voter's social security number. Challengers are subject to the same public health requirements as county clerk staff and election board members.
L. 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 8:00 p.m. on each subsequent day until the board has completed its work.
M. 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 a sheriff's deputy is unavailable, the county clerk shall notify the secretary of state who shall request state police to assign a patrolman to secure the room or facility where uncounted ballots are locked overnight. The county clerk shall provide as much notice as is practicable in order to secure law enforcement personnel to secure the uncounted ballots overnight. A sheriff's deputy or state police patrolman 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 neither a sheriff's deputy nor a state police patrolman is available, the county clerk or chief deputy shall remain on site until the return of the absent voter election board and shall allow any challenger or observer to remain present, as well.
N. When preparing the county canvass report, each county clerk shall appoint an election board to conduct a machine tabulation or hand tally if the county clerk has received and logged any:
(1) paper ballots not previously tabulated;
(2) mailed ballots delivered to an election board not previously tabulated;
(3) provisional paper ballots that have been qualified and contain votes that are to be counted; or
(4) ballots with write-in votes not previously counted.
O. Certificates of registration and cancellations of existing voter registrations not processed until after the election pursuant to existing law may be processed by the county clerk beginning the first Monday following the election; provided that such certificates of registration and cancellations of existing voter registrations shall be processed beginning the first business day following approval of the report of the county canvass by the county canvassing board.
P. No later than fifty days before the election and in consultation with the department of health, the secretary of state shall procure sufficient personal protective equipment and sanitizing supplies for distribution to each county clerk and for each early, mobile and election day polling location.
Q. Nothing in this section shall alter or modify the time lines or procedures provided in the Uniform Military and Overseas Voters Act except for the deadlines provided in this section for the request of a military-overseas ballot by a voter who is a federal qualified elector. Nothing in this section shall alter or modify the time lines or procedures provided in the Intimate Partner Violence Survivor Suffrage Act.
R. The secretary of state shall deposit sufficient funds in the business reply mail account for each county clerk to ensure delivery of all mailed ballot applications and returned mailed ballots.
S. Notwithstanding any limitations to the contrary, the state board of finance shall authorize sufficient funds to be timely distributed to the secretary of state and the department of health for necessary and reasonable expenses incurred pursuant to this section.
T. The compiler shall not compile this section, but shall reference it in a compiler's note.
The 2019 amendment, effective April 3, 2019, revised the procedures for filling a vacancy in the office of United States representative; in Subsection A, added "Within", after "United States representative, the", deleted "governor" and added "secretary of state", after "call", deleted "a special" and added "an", after "not less than", deleted "eighty-four" and added "seventy-seven", after "Subsections", deleted "E" and added "H", and after the next occurrence of "and", deleted "F" and added "I"; added new Subsections B and C and redesignated former Subsections B and C as Subsections D and E, respectively; added a new Subsection F and redesignated former Subsections D through F as Subsections G through I, respectively; in Subsection G, deleted "Special", after "Election Code", added "for general elections", and after "shall control", added the remainder of the subsection; in Subsection H, after "United States representative", deleted "after the date of the primary election and before the date of the general election of that same year, the vacancy shall be filled at that general election of the same year" and added "beginning one hundred sixty days and no less than sixty-three days before a statewide election, the vacancy shall be filled a the next statewide election; provided that when filling a vacancy", in Paragraph H(1), added "at a general election", and added Paragraph H(2); in Subsection I, in the introductory clause, after "United States representative", added "in extraordinary circumstances", after "scheduled election", deleted "or previously scheduled special election", and added "pursuant to 2 U.S.C. Section 8(b)", in Paragraph I(1), added "immediately issue a writ of election, upon which the secretary of state shall", after "call", deleted "a special" and added "an", and after "announced", added "and file the proclamation along with the writ in the office of the secretary of state", added a new Paragraph I(2) and redesignated former Paragraphs (2) and (3) as Paragraphs I(3) and I(4), in Paragraph I(4), after "on the", deleted "twentieth" and added "tenth business", and added Paragraph I(5); and added Subsection J.
The 2008 amendment, effective February 29, 2008, added Subsection F.