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.
History: 1953 Comp., § 3-14-1, enacted by Laws 1969, ch. 240, § 326.
ANNOTATIONSCross references. — For quo warranto proceedings not affecting election contest statutes, see 44-3-15 NMSA 1978.
For contest of nomination, see Rule 1-087 NMRA.
I. APPLICABILITY.
Election Code applies to public improvement district formation elections. — The formation election provisions of the Public Improvement District Act incorporate the election contest procedures of the Election Code. Glaser v. LeBus, 2012-NMCA-028, 274 P.3d 114.
Residency challenge of candidate is proper election contest. Thompson v. Robinson, 1984-NMSC-096, 101 N.M. 703, 688 P.2d 21.
Applicability of rules of procedure. — Prior to the adoption of the New Mexico Rules of Civil Procedure for the district courts, none of the rules of procedure applicable in civil actions were applicable to an election contest. Montoya v. McManus, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
Court jurisdiction to entertain municipal election contest. — District court had jurisdiction to entertain election contest for various municipal offices irrespective of the act under which they might be operating. Ostic v. Stephens, 1951-NMSC-063, 55 N.M. 497, 236 P.2d 727.
Action brought in name of state. — Under Laws 1919, ch. 28, § 4 (44-3-4 NMSA 1978), action in name of state could be brought on complaint of private person claiming election as acequia commissioner, the district attorney having refused to act. State ex rel. Besse v. District Court of Fourth Judicial Dist., 1925-NMSC-025, 31 N.M. 82, 239 P. 452.
Justices of peace (now magistrates) and constables may institute election contest proceedings. Carabajal v. Lucero, 1916-NMSC-045, 22 N.M. 30, 158 P. 1088.
II. EXCLUSIVITY.
Election contest and recount are not mutually exclusive. Although an election contest is a completely separate remedy from a recount, the election contest is a much broader remedy. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
Election contest is special proceeding unknown to common law. — A contestant has a right to contest only in the manner and to the extent provided in the election contest statutes. Montoya v. McManus, 1961-NMSC-060, 1944-NMSC-013, 68 N.M. 381, 362 P.2d 771.
Right to challenge not precluded by prior adverse mandamus. — Contestant's right to challenge election of contestee in statutory election contest was not precluded by prior adverse judgment in mandamus proceeding instituted on relation of contestant. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Special statutory contest proceedings bar quo warranto. — The election contest being a special statutory proceeding, the right is not to be inferred from doubtful provisions, since granting of contest bars contestants from right to statutory quo warranto. Montoya v. Gurule, 1934-NMSC-092, 39 N.M. 42, 38 P.2d 1118.
Exclusive remedy for election contest. — Former article provided exclusive remedy for contest of elections and superseded remedy by quo warranto. State ex rel. Abercrombie v. District Court of Fourth Judicial Dist., 1933-NMSC-057, 37 N.M. 407, 24 P.2d 265.
III. GROUNDS.
Elements of election contest. — An election contest is a challenge to the result of an election, as well as a challenge to the inherent validity of an election when the challenge would necessarily require overturning the results or effects of an election. An election contest can derive from a violation of a provision of the Election Code, from a violation of another statute governing the particular election at issue, or from the New Mexico Constitution. Glaser v. LeBus, 2012-NMCA-028, 274 P.3d 114.
Plaintiff's complaint presented an election contest under the Public Improvement District Act. — Where plaintiff alleged that the petition and ballot to form a public improvement district were invalid because they did not meet statutory requirements; that the information provided to the municipality and the voters prior to the formation election was false, fraudulent, or misleading; and that the ballot did not present a question that specifically addressed the authority to tax, the challenges to the underlying validity of the election based on a failure to comply with statutory requirements was an election contest governed by the Election Code's election contest procedures. Glaser v. LeBus, 2012-NMCA-028, 274 P.3d 114.
Sufficiency of complaint. — A complaint alleging that a candidate received a majority of the votes cast, and that the improper conduct of the election officials in refusing to count certain votes deprived him of victory, is sufficient to support an election contest. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
Right to hold office is not property right nor is it vested one. Montoya v. McManus, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
Claimed majority as constitutional grounds. — A candidate's claimed majority, adversely affected by conduct of election officials, afforded sufficient grounds for an election contest under N.M. Const., art. VII, § 5. Seele v. Smith, 1947-NMSC-068, 51 N.M. 484, 188 P.2d 337.
Challenge to rights of voters should show bad faith, etc. — In absence of any showing of bad faith, fraud or reasonable opportunity for fraud, court will rather unsympathetically and most carefully examine any challenge to rights of a large number of voters in an election. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Allegation that unsuccessful candidate elected constitutes contest grounds. — Any allegations showing that the unsuccessful candidate was legally elected will constitute ground for election contest; allegation that contestant received majority of votes, but that ballots were fraudulently altered after return stated ground for contest. Rogers v. Scott, 1931-NMSC-027, 35 N.M. 446, 300 P. 441.
Election not set aside for mere irregularity. — If no fraud or illegal voting is shown, elections conducted fairly and honestly, will not be set aside for mere irregularity in the manner of the appointment of the election officers, or in the conduct of the election. Carabajal v. Lucero, 1916-NMSC-045, 22 N.M. 30, 158 P. 1088.
Court to reject illegal votes. — Code 1915, § 2069 (now repealed) provided "to reject any illegal votes that may be polled at any election . . . it shall not be necessary to contest or question them at the polls, but they may be rejected by the authorities qualified by law to determine the validity of said elections, by being proved, after due notice is given by the party contesting said election to the opposing party . . .." It was then the only mode by which illegal votes received and returned by the judges of election could be determined and rejected, and it was not to be done by the canvassing officers at the time the returns from several precincts were canvassed by them. The only lawful tribunal having jurisdiction to determine questions of this kind was the district court. Bull v. Southwick, 1882-NMSC-015, 2 N.M. 321.
IV. NONAPPLICABILITY.
Local option election not contestable. — Provision in local option election statute that those elections should be conducted in manner provided by law for general elections did not provide for election contest or recounts therein since general laws did not grant rights of contest or recount. State ex rel. Denton v. Vinyard, 1951-NMSC-030, 55 N.M. 205, 230 P.2d 238.
Remedy not lost due to knowledge of prior events. — A candidate is not deprived of his remedy by contest because of anything which happened prior to the contest where he did not participate, though it transpired with his knowledge or consent. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Contests not applicable to changing county seat. — Former contest provisions had no application to contest of election for changing county seat. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41.
Municipal school board election not contestable. — An election for members of board of education of a municipal school district was not contestable. Auge v. Owen, 1935-NMSC-074, 39 N.M. 470, 49 P.2d 1134.
Contests not applicable to land grant board of trustees. — Contest and recount provisions are applicable only to general elections for state, district and county offices, and not to election of board of trustees of land grant. Montoya v. Gurule, 1934-NMSC-092, 39 N.M. 42, 38 P.2d 1118.
District attorney may not entertain contest. — Code 1915, §§ 2060 to 2080 did not authorize district courts to entertain contest proceeding for office of district attorney. Crist v. Abbott, 1917-NMSC-009, 22 N.M. 417, 163 P. 1085.
Constitutional amendment election. — There are no lawful grounds for a recount in New Mexico of a constitutional amendment election. 2004 Op. Att'y Gen. No. 04-01
Law reviews. — For note, "Why Gunaji v. Macias Matters to Candidates and Voters: Its Impact on New Mexico Election Law", see 33 N.M.L. Rev. 431 (2003).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections §§ 427, 429.
Jurisdiction of courts to determine election or qualifications of member of legislative body, and conclusiveness of its decision, as affected by constitutional or statutory provision making legislative body the judge of election and qualification of its own members, 107 A.L.R. 205.
State court jurisdiction over contest involving primary election for member of congress, 68 A.L.R.2d 1320.
Construction and effect of absentee voters' laws, 97 A.L.R.2d 257.
29 C.J.S. Elections §§ 261 to 266.