PART 18               ADMINISTRATIVE COMPLAINT PROCEDURE               ISSUING AGENCY:  Office of the Secretary of State

[ NMAC - N, 03-15-2004]               SCOPE:  This rule applies to any statewide special election, general election, primary election, county-wide election or election to fill vacancies in the office of United States representative and regular or special school district elections as modified by the School Election Law (Sections 1-22-1 to 1-22-19 NMSA 1978).

[ NMAC - N, 03-15-2004]               STATUTORY AUTHORITY:  Election Code, Section 1-2-1 NMSA 1978, Section 1-2-2.1 NMSA 1978, Public Law 107-252, The Help America Vote Act of 2002.  The issuing authority shall adopt rules for an administrative procedure for hearing complaints on violations of Title III of the Help America Vote Act of 2002, including provisions relating to voting system standards, provisional voting procedures, voter registration procedures and operational standards of the statewide voter registration system.

[ NMAC - N 03-15-2004]               DURATION:  Permanent

[ NMAC - N, 03-15-2004]               EFFECTIVE DATE:  March 15, 2004 unless a later date is cited at the end of a section.

[ NMAC - N, 03-15-2004]               OBJECTIVE:  The Election Code (Section 1-1-1 through 1-24-4 NMSA 1978) was amended by Chapter 356, Laws 2003.  The purpose of the amendment is compliance with the provisions of PL 107-252, effective October 29, 2002, which requires New Mexico to establish a state-based administrative complaint procedure to remedy grievances under Title III of the Help America Vote Act.

[ NMAC - N, 03-15-2004]               DEFINITIONS:  Unless otherwise defined below, the terms used in these procedures share the same definitions and meanings as the HAVA Act.

                A.            “Administrative procedures” means the procedures stated in this rule.  These procedures will be available in alternative languages and formats.

                B.            “Bureau” means the New Mexico secretary of state’s bureau of elections.

                C.            “Complaint form” means a template form created by the bureau that will be available in hard copy in county clerk’s offices.  A copy will also be made available by mail and available on the office of the secretary of state’s website.

                D.            “HAVA” means the Help America Vote Act of 2002 (Public Law 107-252).

                E.             “HAVA Title III” means the section of Public Law 107-252 titled “Uniform and Nondiscriminatory Election Technology and Administration Requirements”.

                F.             “HAVA Title III violation” means an act contrary to a party’s statutory rights regarding voting systems standards, provisional voting procedures, voter registration procedures, and operational standards of the statewide voter registration system as found in NMSA 1978, Section 1-2-2.1 and HAVA Title III.  It does not mean non-Title III election law matters, such as a candidate’s ballot access or campaign reporting requirements.

[ NMAC - N, 03-15-2004]               INITIATING A COMPLAINT:

                A.            Any person who believes a HAVA Title III violation has occurred, is occurring, or is about to occur may file a written complaint, on the bureau’s complaint form, that states the name of the alleged violator and a specific description of the alleged HAVA Title III violation.

                B.            The complaint must be signed and sworn or affirmed by the complainant and it must be notarized.

                C.            The complainant may check a box on the complaint requesting an on-the-record hearing or no hearing.

                D.            If the bureau determines that the complaint is incomplete, the bureau shall promptly notify the complainant who may be permitted to amend the complaint, in the sole discretion of the bureau.

                E.             If the bureau receives duplicative or repetitive complaints, the bureau may consolidate these for assessment, investigation and resolution purposes.

[ NMAC - N, 03-15-2004]               INVESTIGATION OF A COMPLAINT:

                A.            The bureau shall aspire to complete an initial investigation within thirty (30) days of the bureau’s receipt of the complaint.  If the complaint is made against the bureau, a representative of the district attorney shall aspire to complete an initial investigation within the same time period.

                B.            The investigation may include the following steps as deemed appropriate under the circumstances:  sending an acknowledgement letter to the complainant; seeking a response from the election official against whom a complaint is made; providing the complainant with a copy of any response received from the election official against whom a complaint is made and give the complainant an opportunity to reply; engaging in informal resolution with the parties through a meeting, teleconference, or other means; or dismissing the complaint based on its clear failure to allege a Title III violation.

                C.            All written documents that are part of these administrative procedures, including the investigation, are public documents unless otherwise provided by law.

[ NMAC - N, 03-15-2004]             HEARING ON A COMPLAINT:

                A.            If the complainant requests a hearing and the bureau does not dismiss the complaint, the bureau will appoint a hearing officer to conduct a hearing on-the-record.

                B.            If the complainant did not request a hearing and the bureau does not dismiss the complaint, the bureau shall make a final determination in accordance with the remedies provision of these administrative procedures.

                C.            If the complaint is made against the bureau, the office of the secretary of state shall provide a neutral hearing officer who has no working or personal relationship with the office of the secretary of state.

                D.            For all other complaints, the office of the secretary of state shall provide a hearing officer.  It may be, but is not limited to, an employee of the office of the secretary of state.

                E.             The bureau shall provide a time, date and location for the hearing and shall send written notice to complainant and alleged violator at least fifteen (15) days prior to the hearing.  If there is an expedited hearing, the hearing officer shall provide telephonic and facsimile notice.

                F.             Upon written request to another party, any party may ask to obtain the names and addresses of witnesses who will or may be called by the other party to testify at the hearing and inspect and copy any documents that the other party will or may introduce in evidence at the hearing.  The party to whom such a request is made should comply with it within ten (10) days after the receipt of the request.  The hearing officer, however, has no statutory power to force the parties to comply with these requests.

                G.            If there is a hearing on the record, the record will include, at a minimum:  the written complaint; written responses to the complaint; documentation provided in support of or in defense of the complaint; and written or audio record or any hearing or pre-hearing proceedings conducted by the hearing officer with regard to the complaint.

                H.            The hearing officer has the discretion to grant continuances, to take testimony or to examine witnesses.  The hearing officer may also hold conferences before or during the hearing for the settlement or simplification of the issues.

                I.              The hearing officer may admit any evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent people in the conduct of serious affairs.  The hearing officer may, in his discretion, exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

                J.             The bureau shall provide a tape recording of any on-the-record hearing.  If a party wants a court reporter, that party must pay the cost.

                K.            If a person who has requested a hearing does not appear, and no continuance has been granted, the hearing officer may hear the evidence of such witnesses as may have appeared, and the hearing officer may proceed to consider the matter and dispose of it on the basis of the evidence before it.  Where, because of accident, sickness or other cause, a person fails to appear for a hearing that he has requested, the person may, within ten (10) days, apply in writing to the hearing officer to reopen the proceeding, and the hearing officer upon finding sufficient cause shall immediately fix a time and place for a hearing and give the person notice as required above.

[ NMAC - N,  03-15-2004]             REMEDIES:

                A.            The hearing officer shall make a final determination regarding the complaint within ninety (90) days after the complaint has been filed with the bureau unless the complainant agrees in writing to extend the deadline.

                B.            If a party, agency or hearing officer would like to extend the deadline, it must receive written approval from the complainant.  If the complainant does not give approval, the complainant will automatically proceed to alternative dispute resolution as found in the New Mexico Governmental Dispute Act, NMSA 1978, Sections 12-8A-1 through 12-8A-5.  The office of the secretary of state, if not a party, must adopt the agreement reached by the parties to the alternative dispute resolution procedure within sixty (60) days after the complaint is referred to resolution.

                C.            The final determination shall be in writing and shall be sent by return receipt requested mail to the complainant and alleged violator.

                D.            The final determination may dismiss the case or provide a remedy appropriate to the violation.  In no event shall the remedy involve either the payment of money to the complainant or a finding that an election official is subject to civil penalties.  An appropriate remedy may include, but is not limited to any or all of the following:  written finding that Title III has been violated; a plan for rectifying the particular violation, an assurance that additional training will be provided to election officials so as to ensure compliance with HAVA Title III and the New Mexico Election Code; and a commitment to better inform voters of their rights.

                E.             By posting a notice on its website and by distributing news releases as it deems appropriate, the office of the secretary of state shall publicize the results of its assessment and investigation of the complaint that results in a finding that a Title III violation has or has not occurred.

[ NMAC - N, 03-15-2004]             RIGHT OF APPEAL:  These procedures do not grant a statutory right of review.

[ NMAC - N, 03-15-2004]


HISTORY of 1.10.18 NMAC: [Reserved]