2020 New Mexico Statutes
Chapter 1 - Elections
Article 1 - Definitions and General Provisions
Section 1-1-7 - Residence; rules for determining.

For the purpose of determining residence for voting, the place of residence is governed by the following rules:

A. the residence of a person is that place in which his habitation is fixed, and to which, whenever he is absent, he has the intention to return;

B. the place where a person's family resides is presumed to be his place of residence, but a person who takes up or continues his abode with the intention of remaining at a place other than where his family resides is a resident where he abides;

C. a change of residence is made only by the act of removal joined with the intent to remain in another place. There can be only one residence;

D. a person does not gain or lose residence solely by reason of his presence or absence while employed in the service of the United States or of this state, or while a student at an institution of learning, or while kept in an institution at public expense, or while confined in a public prison or while residing upon an Indian or military reservation;

E. no member of the armed forces of the United States, his spouse or his dependent is a resident of this state solely by reason of being stationed in this state;

F. a person does not lose his residence if he leaves his home and goes to another country, state or place within this state for temporary purposes only and with the intention of returning;

G. a person does not gain a residence in a place to which he comes for temporary purposes only;

H. a person loses his residence in this state if he votes in another state in an election requiring residence in that state, and has not upon his return regained his residence in this state under the provisions of the constitution of New Mexico;

I. "residence" is computed by not including the day on which the person's residence commences and by including the day of the election;

J. a person does not acquire or lose residence by marriage only.

History: 1953 Comp., § 3-1-6, enacted by Laws 1969, ch. 240, § 6; 1973, ch. 70, § 1.

Cross references. — For residence not acquired or lost by presence or absence in federal or state service or as student, see N.M. Const., art. VII, § 4.

Establishing physical presence. — Under Subsections C and H of this section, a person who does not have a sufficient physical presence in a place to qualify that place as an abode or a habitation (i.e., as a place where the person lives or resides, even if only part-time) must establish such a physical presence in the place - that is, he must "remove" to the place - before his voting residence can be changed to that place. Klumker v. Van Allred, 1991-NMSC-045, 112 N.M. 42, 811 P.2d 75.

Loss of residence status. — A person who physically leaves the county where he has resided and then votes or qualifies to vote outside that county loses his residence in that county for voting purposes. Klumker v. Van Allred, 1991-NMSC-045, 112 N.M. 42, 811 P.2d 75.

Multiple residences not precluded. — This section and 1-1-7.1 NMSA 1978 merely codify the supreme court's pronouncement in State ex rel. Magee v. Williams, 1953-NMSC-082, 57 N.M. 588, 261 P.2d 131, and do not preclude the possibility of multiple residences. Apodaca v. Chavez, 1990-NMSC-028, 109 N.M. 610, 788 P.2d 366.

Family home as permanent residence. — Political candidate's Santa Fe county family home remained his permanent residence, even though he maintained a home in Rio Arriba county where he resided with his wife and two children. Apodaca v. Chavez, 1990-NMSC-028, 109 N.M. 610, 788 P.2d 366.

Circumstantial evidence of intent to reside sufficient. — It is obviously difficult to prove an intent to reside by direct evidence. Circumstantial evidence of intent is sufficient if it can be said that it amounts to substantial evidence. State ex rel. Huning v. Los Chavez Zoning Comm'n., 1982-NMSC-024, 97 N.M. 472, 641 P.2d 503, rev'g 1979-NMSC-088, 93 N.M. 655, 604 P.2d 121.

Change of residence is accomplished only by the act of moving to another place coupled with the intent to remain in the other place. Kiehne v. Atwood, 1979-NMSC-098, 93 N.M. 657, 604 P.2d 123.

Residence for voting similar to residence for jury service. — There is a similarity between residence for the purpose of voting and residence for the purpose of serving as a juror. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Right of Indian to vote. — There is nothing in the constitution or the statutes which prohibits an Indian from voting in a proper election, provided he fulfills the statutory requirements required of any other voter. Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

Reservation deemed residence for voting purposes. — A reservation lying within geographic boundaries of the state is a part of the state, and residence for voting purposes, within the meaning of the constitution, follows. Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

Polling places may be placed on reservations. — Inasmuch as there is residence on a reservation for voting purposes, there is no prohibition to the location of polling places thereon. Montoya v. Bolack, 1962-NMSC-073, 70 N.M. 196, 372 P.2d 387.

Vote cast outside residence of voter is void; it must be cast in person in the precinct in which the voter has resided for the preceding 30 days. State ex rel. Bd. of Cnty. Comm'rs v. Board of Cnty. Comm'rs, 1954-NMSC-124, 59 N.M. 9, 277 P.2d 960; Arledge v. Mabry, 1948-NMSC-047, 52 N.M. 303, 197 P.2d 884.

Franchise cannot be conferred on nonresident. — Former statute purporting to make residents living on condemned lands residents of New Mexico in the constitutional sense did not aid person living on condemned lands at Los Alamos project, since legislature could not constitutionally confer the elective franchise on persons whose legal status was that of a nonresident. Arledge v. Mabry, 1948-NMSC-047, 52 N.M. 303, 197 P.2d 884.

Candidate to file in district where he resides. — In order for a candidate for county commission or state representative to qualify for those offices, he must file in the district where he resides. 1966 Op. Att'y Gen. No. 66-30.

Change of residence by candidate. — In order to run in a certain district, a candidate can change his residency at any time up to the filing date, so long as the legislative district is in the same county. 1966 Op. Att'y Gen. No. 66-30.

Those residing on former public domain land may exercise elective franchise in both state and federal elections, since the state retained jurisdiction over the area not inconsistent with federal use. 1964 Op. Att'y Gen. No. 64-123.

No residence on purchased without consent of state. — Those people residing on land obtained by the United States through the constitutional method may not establish their residency so as to become electors; those residing on lands obtained by purchase without obtaining the consent of the state are in a similar position. 1964 Op. Att'y Gen. No. 64-123.

Establishing residence. — "Residence" for voting and election purposes is established initially by actual residence and intent to make that place a home. After "residence" is thus established, the person may move elsewhere, and if he intends to return, his "residence" for voting and election purposes remains as established. 1956 Op. Att'y Gen. No. 56-6445.

For those residing upon lands within military installations which formerly were part of public domain, "residence" for voting purposes could be established thereon. The reasoning behind this conclusion is that the state of New Mexico, as to these lands, exercised concurrent jurisdiction with the federal government even though title was held by the federal government. 1956 Op. Att'y Gen. No. 56-6425.

Term "residence" has been defined as being synonymous with home or domicile denoting the permanent dwelling place to which a party, when absent, intends to return and also as "that place wherein he legally resides and has his domicile and from which, when temporarily absent, he intends to return." 1956 Op. Att'y Gen. No. 55-6208.

No residence for those on lands over which federal government has control. — On any lands over which the United States government has acquired exclusive control, except for the purpose of service of civil and criminal process, no residence can be acquired for the purpose of voting. 1953 Op. Att'y Gen. No. 53-5841.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Elections § 163 et seq.

Significance of place where one votes or registers to vote on question as to his domicile or residence for other purposes, 107 A.L.R. 448.

Residence or inhabitancy within district or other political unit for which he is elected or appointed as a necessary qualification of officer or candidate, in absence of express provision to the effect, 120 A.L.R. 672.

Military service, voting by persons in, 140 A.L.R. 1100, 147 A.L.R. 1443, 148 A.L.R. 1402, 149 A.L.R. 1466, 150 A.L.R. 1460, 151 A.L.R. 1464, 152 A.L.R. 1459, 153 A.L.R. 1434, 154 A.L.R. 1459, 155 A.L.R. 1459.

Domicile or residence of person in the armed forces, 149 A.L.R. 1471, 150 A.L.R. 1468, 151 A.L.R. 1468, 152 A.L.R. 1471, 153 A.L.R. 1442, 155 A.L.R. 1466, 156 A.L.R. 1465, 157 A.L.R. 1462, 158 A.L.R. 1474.

State voting rights of residents of federal military establishment, 34 A.L.R.2d 1193.

Absentee voters' laws: validity of, 97 A.L.R.2d 218.

Absentee voters' laws: construction and effect of, 97 A.L.R.2d 257.

Residence or domicile of student or teacher for purpose of voting, 98 A.L.R.2d 488, 44 A.L.R.3d 797.

29 C.J.S. Elections §§ 19 to 25.