February 2, 2023

Bill prohibiting firearms at polling places advances

"Vote Here" signs in front of the Otero County Administration Building on New York Avenue in Alamogordo.

"Vote Here" signs in front of the Otero County Administration Building on New York Avenue in Alamogordo.

A bill to ban firearms at all polling places was approved in the Senate Rules Committee on a 6 to 3 vote. Polling places that are located inside schools already have this provision in place, but SB 44 would expand it to all polling locations.

Sen. Peter Wirth, D-Santa Fe, sponsored SB 44.

The bill states that, “Unlawful carrying of a firearm at a polling place consists of carrying a loaded or unloaded firearm within one hundred feet of a polling place on election day or while early voting is in progress.”

The bill allows law enforcement or other authorized security personnel to carry their firearms.

The bill’s Fiscal Impact Report notes that this would constitute a new petty misdemeanor causing those charged under SB 44 to spend up to six months incarcerated which could cost counties funding to house more inmates.

“Based on the marginal cost of each additional inmate in New Mexico’s jail system, each offender sentenced to jail for this crime could result in estimated increased costs up to $9,614 to counties,” the Fiscal Impact Report states.”It is difficult to estimate how many individuals will be charged, convicted, or get time in prison or jail based on the creation of a new crime.” 

The Administrative Office of the District Attorneys state in the report that the bill would survive a Second Amendment challenge.

“The U.S. Supreme Court repeated its assurances that certain prohibitions and regulatory measures do not offend the Second Amendment, including prohibitions on carrying firearms in sensitive places such as schools and government buildings,” the AODA states in the report. “A polling place would be such a sensitive location, susceptible to the violence that has increased around elections and politics. In addition, the state has a compelling interest in ensuring that elections are fairly and safely conducted and that its citizens are not intimidated when exercising their fundamental right to vote.”

However, the New Mexico Public Defenders Department worries about the bill’s lack of an intent element.

“Analyst recommends a requirement that the person ‘intentionally carry a firearm at a polling place’ as an element of the proposed crime,” The PDD states in the report. “Presuming that the purpose of this new law is to prevent and punish purposeful voter intimidation, the bill should not criminalize the inadvertent act of carrying a firearm to or near a polling station by someone who might have a conceal and carry permit and simply forgotten that the firearm was still on his or her person.” 

Senate Minority Leader Gregory Baca, R-Belen, Sen. Mark Moores, R-Albuquerque, and Sen. Cliff Pirtle, R-Roswell, voted against the bill.