IAL 051608.

• Case Date: May 16, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. IAL 051608. May 16, 2008IAL 051608The Honorable Mary Herrera Secretary of State 325 Don Gaspar, Suite 300 Santa Fe, NM 87503 The Honorable Jeff SteinbornNew Mexico State RepresentativeP.O. Box 562 Las Cruces, NM 88004 Re: Opinion Request - Definition of "Vote"Dear Secretary of State Herrera and Representative Steinborn: You have requested our advice regarding whether the definition of "vote" in Section 1-9-4.2 of the Election Code, NMSA 1978, Ch. 1, comports with the requirements of the federal Help America Vote Act, 42 U.S.C.A. §§ 15301 - 15545 ("HAVA"). As discussed below, we conclude that, to the extent it uses an "intent of the voter" standard, the Election Code's definition of "vote" is inconsistent with HAVA and vulnerable to challenge on constitutional equal protection grounds. In pertinent part, HAVA provides:

Each voting system used in an election for Federal office shall meet the following requirements:

. . .

(6) Uniform definition of what constitutes a vote

Each State shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State.

42 U.S.C.A. § 15481(a)(6). States were required to comply with Section 15481 on or after January 1, 2006. Id.§ 15481(d). Section 1-9-4.2 of the Election Code, which applies to state and federal elections in New Mexico, was apparently intended to implement HAVA's requirement for a uniform definition of vote. It provides that when paper ballots are hand-tallied,

a vote shall be counted if:

(1) the ballot is marked in accordance with the instructions for that ballot type;

(2) the preferred candidate's name or answer to a ballot question is circled;

(3) there is a cross or check within the voting response area for the preferred candidate or answer to the ballot question; or

(4) the presiding judge and election judges for the precinct unanimously agree that the voter's intent is clearly discernable.

NMSA 1978, § 1-9-4.2(B) (2007). The fourth item in Section 1-9-4.2(B), which allows a vote to be counted if the voter's intent is clearly discernable, is problematic under HAVA. HAVA's requirement that each state adopt "uniform and nondiscriminatory standards" to define a vote appears to stem from the United...