Contests and Recounts

NMSA 1978 ch. 1, art. 14

in effect

NMSA 1978, § 1-14-1 Contest of elections; who may contest

1-14-1. Contest of elections; who may contest Any unsuccessful candidate for nomination or election to any public office may contest the election of the candidate to whom a certificate of nomination or a certificate of election has been issued. 1953 Comp., § 3-14-1, enacted by Laws 1969, ch. 240, § 326.

NMSA 1978, § 1-14-2 Contest of elections; status of person holding certificate

1-14-2. Contest of elections; status of person holding certificate In case of a contest of an election, the person holding the certificate of election shall take possession and discharge the duties of the office until the contest is decided. 1953 Comp., § 3-14-2, enacted by Laws 1969, ch. 240, § 327.

NMSA 1978, § 1-14-3 Contest of election; filing of complaint

1-14-3. Contest of election; filing of complaint Any action to contest an election shall be commenced by filing a verified complaint of contest in the district court of the county where either of the parties resides. Such complaint shall be filed no later than thirty days from issuance of the certificate of nomination or issuance of the certificate of election to the successful candidate. The party instituting the action shall be known as the contestant, and the party against whom the action is instituted shall be known as the contestee. The Rules of Civil Procedure apply to all actions commenced under the provisions of this section. 1953 Comp., § 3-14-3, enacted by Laws 1969, ch. 240, § 328; 1971, ch. 210, § 1.

NMSA 1978, § 1-14-4 Contest of election; judgment; effect; costs

1-14-4. Contest of election; judgment; effect; costs Judgment shall be rendered in favor of the party for whom a majority of the legal votes shall be proven to have been cast, and shall be to the effect that he is entitled to the office in controversy with all the privileges, powers and emoluments belonging thereto and for his costs. If the contestant prevails he shall have judgment placing him in possession of the contested office and for the emoluments thereof from the beginning of the term for which he was elected and for his costs. 1953 Comp., § 3-14-12, enacted by Laws 1969, ch. 240, § 337.

NMSA 1978, § 1-14-5 Contest of election; appeal

1-14-5. Contest of election; appeal An appeal shall lie from any judgment or decree entered in the contest proceeding to the supreme court of New Mexico within the time and in the manner provided by law for civil appeals from the district court. 1953 Comp., § 3-14-13, enacted by Laws 1969, ch. 240, § 338.

NMSA 1978, § 1-14-6 Contest of election; preservation of ballots

1-14-6. Contest of election; preservation of ballots Either the contestant or contestee, within the time provided by the Election Code for the preservation of ballots, may give written notice with delivery confirmation to the county clerk of those counties wherein the contestant or contestee wishes the ballots preserved that a contest is pending in a designated court, and thereupon it is the duty of the county clerk to preserve the ballots of all precincts named in the notice of contest and answer until the contest has been finally determined. 1953 Comp., § 3-14-14, enacted by Laws 1969, ch. 240, § 339; 2015, ch. 145, § 72.

NMSA 1978, § 1-14-7 Contest of election; disqualification of trial judge

1-14-7. Contest of election; disqualification of trial judge Any election contest shall be an action or proceeding within the meaning of Section 38-3-9 NMSA 1978. Any affidavit of disqualification shall be filed on or before the date when the answer is required to be filed to the notice of contest. 1953 Comp., § 3-14-15, enacted by Laws 1969, ch. 240, § 340.

NMSA 1978, § 1-14-8 Impounding ballots; ballots defined

1-14-8. Impounding ballots; ballots defined As used in Sections 1-14-9 through 1-14-12 NMSA 1978, "ballots" includes tally sheets, registration certificates, paper ballots, absentee ballots, statements of canvass, absentee ballot applications and absentee ballot registers, but does not include voting machines. 1953 Comp., § 3-14-16, enacted by Laws 1971, ch. 249, § 1; 1987, ch. 249, § 44; 1987, ch. 327, § 17; 1991, ch. 105, § 39; 1993, ch. 314, § 57; 1993, ch. 316, § 57.

NMSA 1978, § 1-14-9 Impounding ballots; application for court order; deposit required

1-14-9. Impounding ballots; application for court order; deposit required A. Upon an order of the district court, ballots may be impounded during the period of time between the completion of the county canvass and the last day to file a candidate contest in that election. B. Any candidate in an election may petition the district court for an order impounding ballots in one or more precincts or polling places within which the candidate's name appeared on the ballot. The action shall be brought in the district court for the county in which the precincts or polling places are located. The petition shall state what specific items of ballots are requested to be impounded. Upon receipt of the petition, along with a sufficient cash deposit or a sufficient surety bond to cover the costs of each precinct or polling place for which impoundment is demanded, the court shall issue an order of impoundment. C. Ballots shall be impounded in the county courthouse or secured in the county clerk's office. When impounded ballots are being handled, a county clerk or the clerk's agent shall be present to ensure that all documents are properly catalogued and returned in proper order. D. The state canvassing board shall determine the estimated actual cost of impoundment per polling place and for mailed ballots no later than March 15 of even-numbered years. The secretary of state shall post the impoundment cost determinations on the secretary of state's website when the state canvassing board issues its cost determinations. 1953 Comp., § 3-14-16.1, enacted by Laws 1971, ch. 249, § 2; 2023, ch. 39, § 71.

NMSA 1978, § 1-14-10 Order of impoundment; contents

1-14-10. Order of impoundment; contents The court order of impoundment shall specify the items of ballots to be impounded and shall direct the state police to: A. take immediate physical custody of any items ordered impounded and not in use in the precinct in the conduct of the election; B. take legal custody of items ordered impounded and being used in the conduct of the election by assigning an officer to be physically present in the precinct polling place until the polling place is closed and the results in the precinct have been tallied and certified as required by the Election Code [Chapter 1 NMSA 1978]; C. take physical custody of items ordered impounded and being used in the conduct of the election as soon as the polling place is closed and the results in the precinct have been tallied and certified as required by the Election Code; and D. deliver all items ordered impounded and taken into physical custody to the district court clerk of the court entering the order for safekeeping subject to further orders of the court. 1953 Comp., § 3-14-16.2, enacted by Laws 1971, ch. 249, § 3.

NMSA 1978, § 1-14-11 Impoundment; subsequent orders; access; termination of order

1-14-11. Impoundment; subsequent orders; access; termination of order A. The party petitioning the court for the original order of impoundment may by motion to the court request an order allowing the party or his attorney access to and inspection of any items impounded. The court shall enter its order allowing access and inspection under conditions set by the court that will assure adequate safeguarding of the impounded items. The order shall, if requested by the petitioner, allow for the copying or reproduction of any items by and at the expense of the petitioner. B. Ten days from the date of the original order of impoundment or, if an order granting access and inspection has been entered, ten days after that order, the order of impoundment shall automatically terminate unless the court extends the time for good cause shown. The court shall in all cases order the impoundment of ballots terminated no later than thirty days after the entry of the original order of impoundment. C. Upon the termination of an impoundment of ballots the items impounded shall be delivered by the district court clerk to the person that would have been entitled to the possession of the items under the Election Code [Chapter 1 NMSA 1978] if there had been no impoundment. 1953 Comp., § 3-14-16.3, enacted by Laws 1971, ch. 249, § 4.

NMSA 1978, § 1-14-12 Disposition of deposit in impoundment proceedings

1-14-12. Disposition of deposit in impoundment proceedings If the petitioner shall successfully prosecute an election content [contest] or recount proceeding that results in a change in his favor the court shall refund to him the deposit required under Section 1-14-9 NMSA 1978 less any amount expended for guarding and preserving the impounded ballots. In all other cases there shall be no refund. Any amounts not refunded shall be transmitted to the state treasurer for credit to the state general fund. 1953 Comp., § 3-14-16.4, enacted by Laws 1971, ch. 249, § 5.

NMSA 1978, § 1-14-13 Post-election duties; proof that no corruption occurred; rejection of ballots

1-14-13. Post-election duties; proof that no corruption occurred; rejection of ballots A. In any election contest a prima facie showing that the precinct board [election board] of any precinct has failed to substantially comply with the provisions of the Election Code [Chapter 1 NMSA 1978] that protect the secrecy and sanctity of the ballot and prescribe duties of the precinct board [election board] during the conduct of election, shall cast upon the candidates of the political party having majority representation on the precinct board [election board] the burden of proving that no fraud, intimidation, coercion or undue influence was exerted by such members of the precinct board [election board], and that the secrecy and purity of the ballot was safeguarded and no intentional evasion of the substantial requirements of the law was made. B. Upon failure to make such a showing upon which the court shall so find, the votes of that entire precinct shall be rejected; provided, that no such rejection shall be made where it appears to the court that the members of the precinct board [election board] ignored the requirements of the Election Code with the probable interest of procuring the rejection of the entire vote in the precinct. 1953 Comp., § 3-14-17, enacted by Laws 1969, ch. 240, § 342.

NMSA 1978, § 1-14-13.2 Post-election duties; voting system check

1-14-13.2. Post-election duties; voting system check A. At least ninety days prior to each statewide election or as soon as practicable prior to an election to fill a vacancy in the office of United States representative, the secretary of state shall contract with an auditor qualified by the state auditor to audit state agencies to oversee a check on the accuracy of precinct electronic vote tabulators, alternate voting location electronic vote tabulators and absent voter precinct electronic vote tabulators. The voting system check shall be conducted for all federal offices, for governor, for contests in the regular local election and for the statewide elective office, other than the office of the governor, for which the winning candidate won by the smallest percentage margin of all candidates for statewide office in New Mexico. The voting system check is waived for any office for which an automatic recount is conducted. B. For each selected office, the auditor shall publicly select a random sample of precincts from a pool of all precincts in the state no later than twelve days after the election. The random sample shall be chosen in a process that will ensure, with at least ninety percent probability for the selected offices, that faulty tabulators would be detected if they would change the outcome of the election for a selected office. The auditor shall select precincts starting with the statewide office with the largest winning margin and ending with the precincts for the statewide office with the smallest winning margin and then, in the same manner, select precincts from each congressional district. The size of the random sample for each office shall be determined as provided in Table 1 of this subsection. When a precinct is selected for one office, it shall be used in lieu of selecting a different precinct when selecting precincts for another office in the same congressional district, or for any statewide office. If the winning margin in none of the offices for which a voting system check is required is less than fifteen percent, a voting system check for that general election shall not be required. Table 1 Winning margin between top Number of precincts in the two candidates for the state to be tested for that office according to the office county canvasses Percent greater than 15 no precincts for that office greater than 14 but less than or equal to 15 4 greater than 13 but less than or equal to 14 4 greater than 12 but less than or equal to 13 5 greater than 11 but less than or equal to 12 5 greater than 10 but less than or equal to 11 6 greater than 9.0 but less than or equal to 10 6 greater than 8.0 but less than or equal to 9.0 7 greater than 7.0 but less than or equal to 8.0 9 greater than 6.0 but less than or equal to 7.0 10 greater than 5.5 but less than or equal to 6.0 11 greater than 5.0 but less than or equal to 5.5 13 greater than 4.5 but less than or equal to 5.0 14 greater than 4.0 but less than or equal to 4.5 16 greater than 3.5 but less than or equal to 4.0 18 greater than 3.0 but less than or equal to 3.5 22 greater than 2.5 but less than or equal to 3.0 26 greater than 2.0 but less than or equal to 2.5 32 greater than 1.8 but less than or equal to 2.0 37 greater than 1.6 but less than or equal to 1.8 42 greater than 1.4 but less than or equal to 1.6 47 greater than 1.2 but less than or equal to 1.4 54 greater than 1.1 but less than or equal to 1.2 59 greater than 1.0 but less than or equal to 1.1 65 greater than 0.9 but less than or equal to 1.0 73 greater than 0.8 but less than or equal to 0.9 82 greater than 0.7 but less than or equal to 0.8 93 greater than 0.6 but less than or equal to 0.7 109 greater than 0.5 but less than or equal to 0.6 130 0.5 or less 165. Table 1 Winning margin between top Number of precincts in the two candidates for the state to be tested for that office according to the office county canvasses Percent greater than 15 no precincts for that office greater than 14 but less than or equal to 15 4 greater than 13 but less than or equal to 14 4 greater than 12 but less than or equal to 13 5 greater than 11 but less than or equal to 12 5 greater than 10 but less than or equal to 11 6 greater than 9.0 but less than or equal to 10 6 greater than 8.0 but less than or equal to 9.0 7 greater than 7.0 but less than or equal to 8.0 9 greater than 6.0 but less than or equal to 7.0 10 greater than 5.5 but less than or equal to 6.0 11 greater than 5.0 but less than or equal to 5.5 13 greater than 4.5 but less than or equal to 5.0 14 greater than 4.0 but less than or equal to 4.5 16 greater than 3.5 but less than or equal to 4.0 18 greater than 3.0 but less than or equal to 3.5 22 greater than 2.5 but less than or equal to 3.0 26 greater than 2.0 but less than or equal to 2.5 32 greater than 1.8 but less than or equal to 2.0 37 greater than 1.6 but less than or equal to 1.8 42 greater than 1.4 but less than or equal to 1.6 47 greater than 1.2 but less than or equal to 1.4 54 greater than 1.1 but less than or equal to 1.2 59 greater than 1.0 but less than or equal to 1.1 65 greater than 0.9 but less than or equal to 1.0 73 greater than 0.8 but less than or equal to 0.9 82 greater than 0.7 but less than or equal to 0.8 93 greater than 0.6 but less than or equal to 0.7 109 greater than 0.5 but less than or equal to 0.6 130 0.5 or less 165. C. After selecting the random sample of precincts pursuant to Subsection B of this section or as required for a regular local election, the auditor shall also randomly select one precinct from each county where a precinct was not selected in the random sample. D. The auditor shall notify the appropriate county clerks of the precincts that are to be included in the voting system check upon their selection. The auditor shall direct the appropriate county clerks to open the locked ballot boxes and remove ballots from the selected precincts and: (1) in a primary or general election, the auditor shall direct the appropriate county clerks to compare the original machine count precinct vote totals for candidates for offices subject to the voting system check from the selected precincts for each office with the respective vote totals of a hand recount of the paper ballots from those precincts; (2) in a regular local election, the size of the random sample shall be the largest number of precincts that were used for the random sample in the previous general election. The auditor shall direct the appropriate county clerks to compare the original machine count precinct vote totals for the three contests with the closest margin between the two candidates receiving the greatest number of votes affecting the final outcome for an office from each of the selected precincts with the respective vote totals of a hand recount of the paper ballots from those precincts; provided that if there are fewer than three contested contests in a precinct, the auditor shall randomly select one or more contests so that three contests are included in the sample from that precinct; and (3) in an election called to fill a vacancy in United States representative, the auditor shall direct the appropriate county clerks to compare the original machine count precinct vote totals for candidates for United States representative from the selected precincts with the respective vote totals of a hand recount of the paper ballots from those precincts. E. The county clerks shall report their results to the auditor within fourteen days of the notice to conduct the voting system check unless a county clerk is aware of a recount in any office that includes one or more precincts in the county, in which case the county clerk shall report the results of the post-election audit to the auditor within fourteen days following the conclusion of the recount. F. Based on the results of the voting system check and any other auditing results, the auditor shall determine the error rate in the sample for each office. If the winning margin decreases and the error rate based on the difference between the vote totals of hand recounts of the paper ballots and the original precinct vote totals exceeds ninety percent of the winning margin for an office, another sample equal in size to the original sample shall be selected and the original precinct vote totals compared to the vote totals of hand recounts. The error rate based on the first and second sample shall be reported, and if it exceeds ninety percent of the winning margin for the office, the state canvassing board shall order that a full hand recount of the ballots for that office be conducted. G. The auditor shall report the results of the voting system check to the secretary of state upon completion of the voting system check and release the results to the public. H. Persons designated as county canvass observers may observe the hand recount described in Subsection D of this section. Observers shall comply with the procedures governing county canvass observers as provided in Section 1-2-31 NMSA 1978. I. If a recount for an office selected for a voting system check is conducted pursuant to the provisions of Chapter 1, Article 14 NMSA 1978, the vote totals from the hand count of ballots for that office in precincts selected for the voting system check may be used in lieu of recounting the same ballots for the recount. J. All costs of a voting system check or required hand recount shall be paid in the same manner as automatic recounts. K. The secretary of state may issue rules to implement voting system checks. Laws 2009, ch. 233, § 1; 2015, ch. 145, § 73; 2023, ch. 39, § 72.

NMSA 1978, § 1-14-13.3 General election audit

1-14-13.3. General election audit The secretary of state shall issue rules for the conduct and procedures of the post-election voting system check, set minimum qualifications for auditors eligible for selection to conduct post-election evaluations of the accuracy of voting systems and approve the contract terms for auditors. The state auditor shall review the rules, qualification standards and contract terms to ensure they meet audit standards. Laws 2009, ch. 233, § 2.

NMSA 1978, § 1-14-14 Recounts; rechecks; application

1-14-14. Recounts; rechecks; application A. Whenever any candidate believes that any error or fraud has been committed by any precinct board in counting or tallying the ballots, in the verification of the votes cast on the voting machines or in the certifying of the results of any election whereby the results of the election in the precinct have not been correctly determined, declared or certified, the candidate, within six days after completion of the canvass by the proper canvassing board, may have a recount of the ballots, or a recheck of the votes shown on the voting machines, that were cast in the precinct. B. All applications for recount or recheck shall be filed with the secretary of state. 1953 Comp., § 3-14-18, enacted by Laws 1969, ch. 240, § 343; 1977, ch. 222, § 82; 2009, ch. 150, § 32; 2018, ch. 79, § 14; 2023, ch. 39, § 73.

NMSA 1978, § 1-14-15 Recounts; rechecks; cost of proceedings

1-14-15. Recounts; rechecks; cost of proceedings A. An applicant for a recount shall deposit with the proper canvassing board or, in the case of an office for which the state canvassing board issues a certificate of nomination or election, with the secretary of state sufficient cash, or a sufficient surety bond, to cover the cost of a recount for each precinct for which a recount is demanded. An applicant for a recheck shall deposit with the proper canvassing board or, in the case of an office for which the state canvassing board issues a certificate of nomination or election, with the secretary of state sufficient cash, or a sufficient surety bond, to cover the cost of the recheck for each voting machine to be rechecked. The state canvassing board shall determine the estimated actual cost of a recount per polling place and for mailed ballots and a recheck per voting machine no later than March 15 of even-numbered years. The secretary of state shall post the recount and recheck cost determinations on the secretary of state's website when the state canvassing board issues its cost determinations. B. The deposit or surety bond shall be security for the payment of the costs and expenses of the recount or recheck in case the results of the recount or recheck are not sufficient to change the results of the election. C. If it appears that error or fraud sufficient to change the winner of the election has been committed, the costs and expenses of the recount or recheck shall be paid by the state upon warrant issued by the secretary of finance and administration supported by a voucher of the secretary of state, or shall be paid by the county upon warrant of the county clerk from the general fund of the county, as the case may be. D. If no error or fraud appears to be sufficient to change the winner, the costs and expenses for the recount or recheck shall be paid by the applicant. Costs shall consist of any docket fees, mileage of the sheriff in serving summons and fees and mileage of election board members, at the same rates allowed witnesses in civil actions. If error or fraud has been committed by an election board, the board members shall not be entitled to such mileage or fees. 1953 Comp., § 3-14-19, enacted by Laws 1978, ch. 48, § 1; 2001, ch. 109, § 1; 2005, ch. 270, § 77; 2007, ch. 336, § 18; 2023, ch. 39, § 74.

NMSA 1978, § 1-14-16 Recount or recheck proceedings

1-14-16. Recount or recheck proceedings A. Immediately after filing of the application for recount or recheck, or notice of an automatic recount, the appropriate canvassing board shall issue an order to the county clerk of each county where a precinct specified in the application or notice is located commanding the county clerk to convene a recount precinct board [election board] at the county seat on a day specified in the order, which date shall not be more than ten days after the filing of the application for a recount or recheck or notice of an automatic recount. B. Upon receipt of the order, the county clerk shall appoint a recount precinct board [election board] pursuant to the provisions of Section 1-2-12 NMSA 1978 and shall send notices of the names of the recount precinct board [election board] members and the date fixed for the recount or recheck to the district judge for the county and the county chair of each of the political parties that participated in the election for the office in question. The county clerk shall keep a log of how each person was notified and confirmation that the notice was received. Presiding judges and election judges on the recount precinct board [election board] shall be appointed from among those persons who served as precinct board [election board] members in the most recent election. C. The recount precinct board [election board], district judge and county clerk shall meet on the date fixed for the recount or recheck, and the ballot boxes and ballot containers or voting machines of the precincts involved in the recount or recheck shall be opened. The recount precinct board [election board] shall recount and retally the ballots, or recheck the votes cast on the voting machines, as the case may be, for the office in question in the presence of the county clerk, district judge and any other person who may desire to be present. D. After completion of the recount or recheck, the recount precinct board [election board] shall replace the ballots in the ballot boxes and ballot containers and lock them, or the voting machines shall be locked and resealed, and the precinct board [election board] shall certify to the proper canvassing board the results of the recount or recheck. The district judge and the county clerk shall also certify that the recount or recheck was made in their presence. 1953 Comp., § 3-14-20, enacted by Laws 1969, ch. 240, § 345; 1977, ch. 222, § 84; 1978 Comp., § 1-14-16, repealed and reenacted by Laws 2008, ch. 41, § 3; 2015, ch. 145, § 74.

NMSA 1978, § 1-14-18 Recount; recheck; recanvass by canvassing boards

1-14-18. Recount; recheck; recanvass by canvassing boards A. Immediately upon receipt of the certificate of recount or recheck from all the recount precinct boards [election boards] making a recount or recheck, the proper canvassing board shall meet and recanvass the returns for the office in question. B. In making the recanvass, the proper canvassing board shall be bound by the certificates of recount or recheck from the recount precinct boards [election boards] instead of the original returns from the precinct boards [election boards]. C. After the recanvass, if it appears that fraud or error has been committed sufficient to change the winner of the election, then the proper canvassing board shall revoke the certificate of nomination or election already issued to any person for that office and shall issue a certificate of nomination or election in favor of the person receiving a plurality of the votes cast at the election as shown by the recount or recheck, and such certificate shall supersede all others and entitle the holder to the same rights and privileges as if such certificate had been originally issued by the canvassing board. 1953 Comp., § 3-14-22, enacted by Laws 1969, ch. 240, § 347; 1977, ch. 222, § 86; 2008, ch. 41, § 4; 2015, ch. 145, § 75.

NMSA 1978, § 1-14-19 Recount; recheck; candidate for district judge

1-14-19. Recount; recheck; candidate for district judge If a recount or recheck is demanded on the election of a district judge and the judge of the district was a candidate for partisan office at the election, the chief justice of the supreme court shall designate a district judge who shall act in such proceedings. 1953 Comp., § 3-14-23, enacted by Laws 1969, ch. 240, § 348; 1977, ch. 222, § 87; 2015, ch. 145, § 76.

NMSA 1978, § 1-14-20 Recounts; rechecks; appointment of a special master

1-14-20. Recounts; rechecks; appointment of a special master If the judge of the district court for the county, or any judge designated in his place, cannot be present at any recount or recheck on the day set, he shall appoint a member of the bar to act for him. 1953 Comp., § 3-14-24, enacted by Laws 1969, ch. 240, § 349; 1977, ch. 222, § 88.

NMSA 1978, § 1-14-21 Recounts; rechecks; mandamus

1-14-21. Recounts; rechecks; mandamus If the state canvassing board, the county canvassing board, secretary of state, county clerk or any member of a precinct board [election board] fails or refuses to do or perform any of the acts required of them pertaining to recounts or rechecks, the applicant for recount or recheck may apply to any district court, the court of appeals or the supreme court of New Mexico for writ of mandamus to compel the performance of the required act and such court shall entertain such application. 1953 Comp., § 3-14-25, enacted by Laws 1969, ch. 240, § 350; 1977, ch. 222, § 89.

NMSA 1978, § 1-14-22 Contests and recounts; provisional, absentee and other paper ballots; use of ballot images

1-14-22. Contests and recounts; provisional, absentee and other paper ballots; use of ballot images A. The secretary of state shall issue rules governing and allowing procedures for reviewing the qualification of provisional ballot envelopes, absentee and other paper ballots in the case of a contest or recount of election results. All rejected provisional paper ballot envelopes shall be included in any contest or recount of election results, and a review of the qualification of provisional ballot envelopes shall occur in a recount. B. Upon petition by the secretary of state or a county clerk, the district court may permit a review of ballot images in place of paper ballots whenever there are defective or missing returns in an election and when the voting system technology captures an image of each ballot in an election. Laws 2005, ch. 270, § 76; 2007, ch. 336, § 19; 2019, ch. 212, § 129.

NMSA 1978, § 1-14-23 Recount procedures

1-14-23. Recount procedures A. To ensure the accuracy of electronic vote tabulating systems, in a recount, the votes from a random selection of ballots shall be tallied by hand, and the votes from the same ballots shall be tabulated by the electronic vote tabulating systems to be used in the recount. For statewide and federal office, the number of ballots to be tallied and tabulated shall be equal to the greater of one hundred, or two percent, of the ballots cast in each county. For all other offices, the number of ballots to be tallied and tabulated shall be equal to the greater of one hundred, or five percent, of the ballots cast for the office, distributed by county where applicable. If more than one electronic vote tabulating system is to be used in a county, the ballots to be recounted shall be divided among the electronic vote tabulating systems to be used, and the above process shall be performed on each electronic vote tabulating system based on the number of votes to be recounted on each individual electronic vote tabulating system. B. If the results of the hand tally and the electronic vote tabulating system tabulation do not differ, the remaining ballots shall be recounted using that electronic vote tabulating system. If the results of the hand tally and the electronic vote tabulating system differ, the electronic vote tabulating system shall not be used in the recount and the remaining ballots shall be recounted by hand or on a different electronic vote tabulating system in which the results did not differ. C. When using an electronic vote tabulating system for a recount, a county clerk may permit a visual inspection of the ballots prior to tabulation by the optical scan tabulating system for the purpose of permitting a representative of a candidate to identify individual ballots to be selected for hand tally by the precinct board [election board]. Laws 2007, ch. 337, § 2; 2015, ch. 145, § 77.

NMSA 1978, § 1-14-24 Automatic recounts; procedures

1-14-24. Automatic recounts; procedures A. An automatic recount of the vote is required when the canvass of returns indicates that the margin between the two candidates receiving the greatest number of votes for an office, the margin between those supporting and those opposing a ballot question or the margin affecting the outcome of a nonpartisan judicial retention election is less than: (1) one-fourth percent of the total votes cast in that election: (a) for that office in the case of a federal or statewide office; (b) on a ballot question in the case of a state ballot question; or (c) on a nonpartisan judicial retention election in the case of the supreme court or the court of appeals; (2) one-half percent of the total votes cast in that election: (a) for that office in the case of a public education commissioner, district attorney or any office elected countywide in a county with more than one hundred fifty thousand registered voters; (b) on a ballot question in the case of a local ballot question; or (c) on a nonpartisan judicial retention election in the case of a district court or the metropolitan court; or (3) one percent of the total votes cast in that election or five or fewer votes between the two candidates receiving the greatest number of votes for that office in the case of any other office. B. For an office for which ballots were cast in more than one county, the secretary of state shall file notice with the state canvassing board upon the completion of the state canvass that an automatic recount is required, and the state canvassing board shall order a recount of the ballots for the specified office. For an office in which ballots were cast solely within one county, the secretary of state shall file notice with the state canvassing board within seven days after receiving notice from the county clerk following the completion of the county canvass that an automatic recount is required, and the state canvassing board shall order a recount of the ballots for the specified office. C. Automatic recounts shall be conducted pursuant to the recount procedures established in Sections 1-14-16 and 1-14-18 through 1-14-23 NMSA 1978. Laws 2008, ch. 41, § 1; 2015, ch. 145, § 78; 2019, ch. 212, § 130; 2020, ch. 9, § 9; 2023, ch. 39, § 75.

NMSA 1978, § 1-14-25 Automatic recounts; expenses

1-14-25. Automatic recounts; expenses The secretary of state shall reimburse the counties for the costs of conducting an automatic recount with money appropriated to the secretary. In the event that current year appropriations to the secretary of state do not cover the cost of an automatic recount, the secretary may apply to the state board of finance for an emergency grant to cover those costs pursuant to Section 6-1-2 NMSA 1978. Laws 2008, ch. 41, § 2.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18502/index.doFetched: 10/20/2026