This information was updated in March, 2014.
New Mexico is one of only a few states for which the audit may escalate to a full recount and makes use of a unique sampling method which assures that the probability of detecting errors or fraud, that would change the outcome of the election, is at least ninety percent for any reported margin of victory. The law for this audit became effective in 2009 and replaced an earlier law signed in 2005 requiring 2% of the voting machines to be audited. The audit is conducted for specific offices (all federal offices, the governor, and the statewide office unofficially won by the smallest margin) and can lead to a full recount.
No statutory requirement that audits be conducted publicly
Statutes require that audit results and data be made public
No statutory guidance allowing observers to verify ballot marks
The New Mexico Administrative Code specifies that the public be notified of the time and place of the audit. However, it allows for the public to observe only during rechecks and recounts, not during audits. See Rule 18.104.22.168, “Public Notice and Observation of Audits, Voting System Checks, Rechecks, and Recounts”: http://www.nmcpr.state.nm.us/nmac/parts/title01/01.010.0023.htm.
However, the Code does state that the selection of the random sample for the audit be conducted publicly, and that the audit data be reported to the public. See Rule 22.214.171.124, “Voting System Check Procedures,” Subsections (A)(1)(d) and (A)(4): http://www.nmcpr.state.nm.us/nmac/parts/title01/01.010.0023.htm.
The New Mexico Statutes also allow for “persons designated as county canvass observers” to observe the audit. Section 1-2-31(F) , which details the role of observers, states that “An observer is strictly limited to observing and documenting the canvassing process.” While Rule 126.96.36.199, Subsection (B), outlines further guidelines for observers, it does not state that observers may verify marks on the ballots.
Paper ballot (optical scanners)
For more details, visit Verified Voting.
Audit results binding upon official results
While not all audits in New Mexico will officially amend the election results, any audit uncovering discrepancies of a sufficient amount may initiate a recount (see Addressing Discrepancies, below), which does officially amend the election results. As the final outcome of the audit process may alter the results of the election, we consider audits in New Mexico to be binding upon the results.
Statutes specify criteria to expand the audit (up to full recount)
Based on a comparison of the hand count with the initial vote count for the audit sample, the auditor shall establish an error rate. If the hand count decreases the margin of victory, and if the error rate is more than 90% of that margin, an additional sample of ballots is audited. If, after this second-round audit, the error rate is still more than 90% of the margin of victory, a full recount of all ballots for that office must be conducted. See Section 1-14-13.2, Subsection D found here: http://law.justia.com/codes/new-mexico/2009/chapter-1/article-14/section-1-14-13-2/
Early voted ballots included in audit
Absentee ballots included in audit
No statutory guidance for ballots counted by hand on election day to be included in audit
The intent of the law is to audit only machine counted ballots. Provisional ballots are counted by hand and are therefore not included in the audit.
No statutory guidance for additional targeted samples
Predetermined election contests or ballot issues are audited
Statewide election contests audited
Federal election contests audited
The audit is conducted for all federal offices and for the office of governor. Additionally, the statewide elective office for which the apparent winning candidate has won by the smallest margin of all the statewide candidates is also audited. See Section 1-14-13.2, Subsection (A).
New Mexico audits a random sample of precincts, “to be chosen from a pool of all precincts, and the sample shall be chosen in such a manner as to ensure with 90% probability that faulty tabulators would be detected if they would change the outcome of the election for a selected office.” The number of precincts to be audited for each election contest is tied to the size of the margin of victory for that contest. See Section 1-14-13.2, Subsection (B).
Hand count only
See Section 1-14-13.2, Subsection (C).
Oversight and Conduct of Audit:
The Secretary of State is charged with hiring an independent auditor to oversee and work with the respective county clerks to conduct the audit, ensuring that oversight of the audit is independent from the conduct and oversight of the initial election. See Section 1-14-13.2, “Post-election duties; voting system check,” Subsection (A): http://law.justia.com/codes/new-mexico/2009/chapter-1/article-14/section-1-14-13-2/.
The statute directs the secretary of state to post notice on its web site of the time, date, and location of the random sampling.
Timeline for Audit:
The random sample must be selected by the auditor no later than twelve days after the election, and the county clerks must report their results back to the auditor within ten days of notice to conduct the audit. See Section 1-14-13.2, Subsections (B) and (C).