New Mexico Register / Volume XXXII, Issue 16 /August 24, 2021
TITLE
1 GENERAL GOVERNMENT
ADMINISTRATION
CHAPTER
10 ELECTIONS AND ELECTED OFFICIALS
PART
19 SECURED CONTAINERS
1.10.19.1 ISSUING AGENCY:
Office of the Secretary of State
[1.10.19.1 NMAC – N, 8/24/2021]
1.10.19.2 SCOPE:
This rule applies to any election covered under the Election Code,
Section 1-1-19 NMSA 1978.
[1.10.19.2 NMAC - N, 8/24/2021]
1.10.19.3 STATUTORY AUTHORITY:
This rule is authorized by Section 1-2-1 NMSA 1978.
[1.10.19.3 NMAC - N, 8/24/2021]
1.10.19.4 DURATION:
Permanent.
[1.10.19.4 NMAC - N, 8/24/2021]
1.10.19.5 EFFECTIVE DATE:
August 24, 2021, unless a later date is cited at the end of a section.
[1.10.19.5 NMAC - N, 8/24/2021]
1.10.19.6 OBJECTIVE:
The objective of this rule is to provide clear guidance and uniform
standards in the application, operation, and interpretation of the law related
to secured containers and mailed ballot delivery as prescribed by Section 1-6-9
NMSA 1978.
[1.10.19.6 NMAC - N, 8/24/2021]
1.10.19.7 DEFINITIONS:
A. “Permanent ballot drop box” means the same thing as “secured
container,” and the terms may be used synonymously.
B. “Secured
container” means a permanent and secure receptacle, that meets the
requirements of Subsection E of Section 1-6-9 NMSA 1978, and is established by
the county clerk whereby voters and those authorized to deliver a voted mailed
ballot pursuant to Section 1-6-10.1 NMSA 1978 may return an official mailing
envelope to the election official from whom it was obtained.
C. “Temporary ballot drop box” means a secure receptacle supervised
by election workers or county employees located inside the office of the county
clerk, an alternate voting location, a mobile voting location, or election day
voting location to collect official mailing envelopes dropped off pursuant to
Subsection D of Section 1-6-9 NMSA 1978.
[1.10.19.7 NMAC – N, 8/24/2021]
1.10.19.8 CAPACITY REQUIREMENTS:
A. To
meet the requirement of Subsection E of Section 1-6-9 NMSA 1978, which provides
that all voters have the option to use a secured container to return official
mailing envelopes, county clerks shall provide one ballot box per 25,000
registered voters in the county with a minimum of two secured containers
required per county. County clerks may request
a waiver from the secretary of state to the minimum requirement set by the
formula with consideration given for special geographic or security
constraints.
B. Secured
containers shall be located in a manner that provides the greatest convenience
and accessibility to voters. County
clerks may consider providing secured containers at main county or city office
buildings. Other locations to consider include college campuses, libraries,
community centers, and other public buildings with adequate accessibility,
lighting, and the ability to install the required video surveillance system.
C. When
possible, secured containers should be placed in such a way to be accessible to
voters with disabilities. For example,
the secured container should be placed along an accessible path near an
Americans with Disabilities (ADA) parking space. If there is no accessible pathway from the
parking lot, there should be signs directing the voter to the nearest
accessible secured container.
D. In
accordance with Paragraph (1) of Subsection E of Section 1-6-9 NMSA 1978, the
county clerk shall set the days and times the secured containers are
available. To maximize the convenience
to the voters, the county clerk shall, whenever possible, make secured
containers available for use by a voter 24 hours a day starting 28 days before
an election and on election day.
E. A
temporary ballot drop box shall be made available to drop off official mailing
envelopes inside all in-person voting locations pursuant to Subsection D of
Section 1-6-9 NMSA 1978. This is to ensure that a dedicated receptacle is
available to secure and isolate voted mailed ballots being returned to a voting
location.
F. Only
ballots secured in the absentee official mailing envelope placed inside of a
permanent and temporary ballot drop box shall be counted. Under no circumstance
should provisional ballots, hand tally sheets, or ballots voted in person be
intermingled with voted mailed ballots collected in the drop boxes.
[1.10.19.8 NMAC – N, 8/24/2021]
1.10.19.9 SECURED CONTAINER SECURITY
REQUIREMENTS:
A. A
secured container shall be permanently bolted to the ground in accordance with
the instructions provided by the container manufacturer. A secured container shall be constructed of
weather-resistant metal and capable of securely receiving and holding voted
mailed ballots. A county clerk shall
request approval from the secretary of state prior to installation of a secured
container to ensure it meets minimum security requirements.
B. A
secured container shall be secured and locked at all times. Only the county clerk or deputy county clerk
shall have access to the keys or combination of the lock. In addition to locks, all secured containers
shall be sealed with one or more tamper-evident seals while in use.
C. Secured
containers shall be installed in a lighted area and monitored by a centralized
video surveillance camera system provided by the secretary of state. The video surveillance system shall otherwise
be monitored and controlled by the county clerk. The county clerk shall, at a minimum, review
and monitor video surveillance footage upon receiving a report of an irregular
or illegal incident or upon receipt of a system alert.
D. When
secured containers are not in use and immediately after 7:00 P.M. on election
day as is practical, the county clerk shall install the slot closer on the
secured container to prevent access.
Covers may also be placed over the secured container to protect the
container when not in use.
[1.10.19.9 NMAC – N, 8/24/2021]
1.10.19.10 VIDEO SURVEILLANCE RECORD
RETENTION:
A. Video
recordings shall operate during the start of absentee voting through election
day for all elections conducted under the election code.
B. Video
recordings shall be maintained as a record related to voting pursuant to the
provisions of Section 1-12-69 NMSA 1978, except that recordings shall be
retained beyond the normal retention period pending the resolution of any
reported incident.
C. The
relevant county clerk is responsible for maintaining all camera recordings, is
the proper custodian of these recordings, and is responsible for fulfilling
public record requests associated with these video recordings.
[1.10.19.10 NMAC – N, 8/24/2021]
1.10.19.11 SECURED CONTAINER ELECTION
PREPARATIONS: Prior to every election, county
clerks shall conduct the following preparations to ensure secured containers
are available:
A. Provide
notice to voters pursuant to Paragraph (1) of Subsection E of Section 1-6-9
NMSA 1978;
B. Recruit,
hire, and train additional staff members to monitor, maintain, and collect
ballots;
C. Plan
daily driving routes for ballot collection;
D. Ensure
video surveillance system is working properly;
E. Ensure
adequate supplies are available including security seals, keys, chain of
custody logs, and ballot transport containers; and
F. Inspect,
clean, and otherwise ensure the secured container is in proper working order to
receive ballots as soon as ballots are mailed.
[1.10.19.11 NMAC – N, 8/24/2021]
1.10.19.12 TEMPORARY BALLOT DROP BOX
REQUIREMENTS:
A. A
temporary ballot drop box shall be under the direct supervision of county clerk
staff or election board member.
B. When
not in use, a temporary ballot drop box shall be placed in an area that is
inaccessible to the public and otherwise secured and safeguarded.
C. A
temporary ballot drop box shall be secured and locked at all times. Only an election official, messenger, or
someone designated to retrieve ballots shall have access to the keys or
combination of the lock. In addition to
locks, all temporary ballot drop boxes shall be sealed with one or more
tamper-evident seals.
D. All
temporary ballot drop boxes shall be emptied by the end of each day in
accordance with a defined chain of custody process in Subsection D of Section 1.10.19.13
NMAC. Only personnel designated to
retrieve the ballots may transport the retrieved ballots.
[1.10.19.12 NMAC – N, 8/24/2021]
1.10.19.13 BALLOT RETRIEVAL PROCEDURES:
A. Paragraph
(5) of Subsection E of Section 1-6-9 NMSA 1978, the county clerk or a full-time
deputy county clerk shall collect the ballots from a secured container. One or more full-time deputy county clerks
may be hired by the county clerk on a temporary basis to fulfill this requirement
for the time period in which a secured container is available for use. Only personnel designated to retrieve the
ballots may transport the retrieved ballots.
B. The
county clerk shall provide the approximate time the ballots will be collected
from a secured container. Ballots shall be
collected at least once a day every day beginning 28 days prior to election day
through 7:00 P.M. on election day.
C. Ballots
shall be transported in a secure ballot transport container.
D. A
chain of custody form shall be completed by the person collecting the ballots
every time ballots are collected. A
separate chain of custody form is required for each permanent or temporary drop
box. The chain of custody form shall be
prescribed by the secretary of state and shall include:
(1) the
location of the drop box;
(2) date
and time of arrival;
(3) number
of ballots retrieved;
(4) security
seal number when box is opened;
(5) security
seal number when box is locked and sealed again;
(6) full
name of the person retrieving the ballots; and
(7) any
other observations of note to include any appearance of tampering or damage to
the drop box.
E. The
person collecting the ballots from the permanent or temporary drop box shall
also record the date, time, drop box location, and identity of the person collecting
the boxes on each of the official mailing envelopes collected.
F. Upon
the arrival of the collected ballots at the office of the county clerk or other
designated ballot intake or central count location, the county clerk or
designee shall receive the ballots and complete the bottom of the chain of
custody form to include:
(1) date
and time of receipt;
(2) number
of ballots received (which should match the number in the upper section of the
form provided by the person collecting the ballots);
(3) a
verified comparison to the previous days seal number, if applicable; and
(4) full
name and signature of the receiving staff member.
G. Any
ballots retrieved from a permanent or temporary ballot drop box shall be
processed and secured in the same manner as those absentee ballots otherwise
delivered to the office of the county clerk, such as by the United States
Postal Service.
H. All
temporary ballot drop boxes and ballot transport containers shall be numbered
and kept in a log to ensure all are returned at the end of a voting day and on
election night.
[1.10.19.13 NMAC – N, 8/24/2021]
1.10.19.14 REIMBURSEMENT BY THE SECRETARY OF
STATE:
A. County
clerks may request reimbursement from the secretary of state for the costs of
hiring additional staff necessary for:
(1) monitoring
secured container video surveillance,
(2) installing
and maintaining secured containers, and
(3) collecting
ballots from permanent and temporary ballot drop boxes.
B. County
clerks may request reimbursement from the secretary of state for purchasing
approved containers and supplies related to maintaining permanent and temporary
ballot drop boxes.
C. Requests
for reimbursement made to the secretary of state are required to be submitted
in a manner prescribed by the secretary of state no later than 45 days after
election day.
D. The secretary of state shall
reimburse county clerks for all expenses deemed by the secretary of state to be
in compliance with this section.
[1.10.19.14 NMAC – N, 8/24/2021]
History
of 1.10.19 NMAC: [RESERVED]