New Mexico Recount Laws

This information was updated 10/29/2020.

Voting System Used: 

Paper ballots (hand marked paper ballots, ballot marking devices for accessibility)

For more details, visit Verified Voting.

Counting Method : 

Required hand count of a sample of ballots in addition to other counting methods
Mix of hand count and retabulation

New Mexico uses only paper ballots that are tabulated by optical scanners. Prior to a recount, a random sample of ballots is recounted by hand and then retabulated by machine to determine the counting method. See the New Mexico Statutes Annontated (NMSA) § 1-14-23(A) regarding the size of the sample, which varies depending on the office.

According to NMSA § 1-14-23 (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.” 

“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.”  NMSA § 1-14-23(C).

In a bill that was passed in 2020, there was a revision regarding the use of ballot images rather than actual ballots. “Upon petition by the secretary of state or 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”  NMSA § 1-14-22 (B).

Candidates can initiate not only recounts but also alternatively “rechecks,” which are electronic reviews of tabulator counts without any use of the ballots.  See the “candidate-initiated options” below.

Initiating Mechanisms: 

Election official-initiated
Audit-initiated
Close vote margin
Candidate-initiated
Voter-initiated

Election Official-Initiated Recounts

“If it appears that defective returns cannot be corrected without a recount of the paper ballots, the county canvassing board shall immediately notify the district court…[which] shall fix a time and place… for a recount of the paper ballots from the precinct.”  NMSA § 1-12-68.

Timing: NMSA § 1-12-68.

Audit-Initiated Recounts:

A “voting system check” performed by an auditor is conducted for all federal offices, and for governor, as well as for that statewide office other than governor “for which the winning candidate won by the smallest percentage margin of all candidates for statewide office.” However, “The voting system check is waived for any office for which a recount is conducted.” NMSA § 1-14-13.2(A).  The audit process involves a hand recount for a given number of precincts for each office. Based on a comparison of this hand count with the initial vote count, 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 hand recount of all ballots for that office must be conducted. NMSA § 1-14-13.2(D).

Timing: NMSA § 1-14-13.2(B).

Close Vote Margin Options: 

Less than or equal to 0.25%
Less than or equal to 0.50%
Less than or equal to 1%
Initiated automatically

A close vote margin of one-fourth percent of the total votes cast in that election initiates an automatic, taxpayer-funded recount for a federal or statewide office, on a ballot question in the case of a state ballot question, or on a nonpartisan judicial retention election in the case of the supreme court or the court of appeals. NMSA § 1-14-24(A)(1).

A close vote margin of one-half percent of the total votes cast in that election initiates an automatic, taxayer-funded recount for “a public regulation commissioner, public education commissioner, district attorney, or any office elected countywide in a county with more than one hundred fifty thousand registered voters; on a local ballot question; or on a judicial retention election for district or metropolitan courts.” NMSA § 1-14-24(A)(2).

For all other offices, the close vote margin is one percent. NMSA § 1-14-24 (A)(3).

Timing: NMSA § 1-14-16.

Candidate-Initiated Options : 

Candidate determines how many/which precincts to be recounted

Any candidate who “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” may file for a recount or recheck. NMSA § 1-14-14.

Timing: Requests must be made within six days after completion of the canvass (NMSA § 1-14-14), and election officials must begin the recount not more than ten days after a request is made (NMSA § 1-14-16).

Voter-Initiated Options: 

Voters determine how many/which precincts to recount
Voters may request recounts for initiatives/questions 

The only voter-initiated option is in connection to the Liquor Control Act. For the specific case of an election to adopt the local option of the Liquor Control Act, “Applications for contests, recounts or rechecks may be filed by any person who voted in the election.” NMSA § 60-5A-1(C).

Timing: NMSA § 60-5A-1(C) & 1-14-14.

Cost for Candidate-Initiated Recounts: 

Initiator pays set or per jurisdiction fee
Initiator pays deposit or bond before recount 
Payer of costs depends on outcome of recount

The initiator pays a per-precinct or per-machine deposit before the recount or recheck. The deposit is refunded if the recount or recheck changes the outcome of the election. Otherwise, the initiator is responsible for the actual costs of the recount. NMSA § 1-14-15.

Cost for Voter-Initiated Recounts: 

Initiator pays set or per jurisdiction fee
Initiator pays deposit or bond before recount
Payer of costs depends on outcome of recount

See NMSA §§ 60-5A-1(D) & 1-14-15 for information on the costs of a recount or recheck in an election to adopt the local option of the Liquor Control Act.

Challengers and Observers : 

Statutes specify that recount must be public
Party/candidate or initiator has statutory authority to appoint observers
No statutory guidance for recount challengers

For recounts that are initiated via an audit, NMSA § 1-14-13.2(F) states that designated county canvass observers may observe the hand recounting initiated by the voting system check. Candidates, political parties, and “election-related organizations,” may each appoint observers. NMSA § 1-2-31.

For recounts initiated by a candidate or close vote margin, NMSA § 1-14-16(C) states that the recount shall be conducted “in the presence of the county clerk, district judge and any other person who may desire to be present.”

Section 1.10.23.8 of the New Mexico Administrative Code provides rules governing the observers.

Rules for Determining Voter Intent: 

Statutory guidance provided
Secretary of State or Election Board responsible for defining intent

Rules for determining voter intent can be found in NMSA § 1-1-5.2.

The Secretary of State is required to issue rules for reviewing “the qualification of provisional ballot envelopes, [and] absentee and other paper ballots” for recounts. NMSA § 1-14-22

State Has Audit Laws: 
Yes
Revision Notes: 

This information was updated 10/29/2020 using the New Mexico Statutes Annotated (current through the First Special Session of the Fifty-Fourth Legislature--2020), and using the New Mexico Administrative Rules (accessed 10/29/2020 here). 

In 2019 and 2020, a number of updates were made to New Mexico’s election laws, primarily through its “Election Laws 50-year Tune-up” which was signed into law on March 12, 2010 with additional changes made in April 2020. In terms of recounts, a key change is that the close-vote margin that automatically initiates a recount was revised.