A. Whenever any candidate believes that any error or fraud has been committed by any precinct board [election 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. In the case of any office for which the state canvassing board issues a certificate of nomination or election, application for recount or recheck shall be filed with the secretary of state.
C. In the case of any office for which the county canvassing board or secretary of state issues a certificate of nomination or election, application for recount or recheck shall be filed with the district judge for the county in which the applicant resides.
History: 1953 Comp., § 3-14-18, enacted by Laws 1969, ch. 240, § 343; 1977, ch. 222, § 82; 2009, ch. 150, § 32; 2018, ch. 79, § 14.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to "precinct board", shall be deemed to be references to "election board", as that term is defined in Section 1-1-13 NMSA 1978.
Cross references. — For definition of recheck and recount, see 1-1-6 NMSA 1978.
For notice when recount required, see 1-13-7 NMSA 1978.
For recount upon notification of county canvassing board, see 1-13-7 NMSA 1978.
The 2018 amendment, effective July 1, 2018, expanded the applicability of the section; in Subsection A, after "Whenever any candidate", deleted "for any office for which the state canvassing board or county canvassing board issues a certificate of nomination or election"; and in Subsection C, after "canvassing board", added "or secretary of state".
The 2009 amendment, effective June 19, 2009, in Subsection A, after "tallying the", deleted "emergency paper ballots or absentee"; and in Subsection B, after "recount of the", deleted "emergency paper ballots or absentee".
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.
Examination of write-in scrolls constitutes a "recheck", and is covered by this section. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
Failure to request recount bars examination of write-ins. — The trial court correctly refuses to examine write-in scrolls in an election contest where the contestant failed to apply for a recount. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
Rights to election contest or recount are purely statutory and do not apply to local option elections. State ex rel. Denton v. Vinyard, 1951-NMSC-030, 55 N.M. 205, 230 P.2d 238.
Provisions not applicable to local option elections. — 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 contests 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.
Provisions not applicable to land grant board of trustees election. — 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.
Application alleged in statute language sufficient. — Application for recount alleging in language of statute that applicant had reason to believe that error or fraud had been committed by election officers in counting ballots or certifying results was sufficiently specific. Sandoval v. Madrid, 1930-NMSC-118, 35 N.M. 252, 294 P. 631, aff'd, 1932-NMSC-052, 36 N.M. 274, 13 P.2d 877.
When sixth day after completion of canvass fell on Sunday, application for recount filed on Monday following was seasonable. Sandoval v. Madrid, 1930-NMSC-118, 35 N.M. 252, 294 P. 631, aff'd, 1932-NMSC-052, 36 N.M. 274, 36 N.M. 274, 13 P.2d 877.
County to handle recount of officials elected by one county. — The intent of the legislature was that counties should handle all matters relating to officials who were elected by the electors of one county alone. The fact that a candidate is nominated by the electors of only one county determines the place where he is to file his declaration of candidacy, who is to issue his certificate of nomination and who is to fill a vacancy in case the nominated candidate dies or withdraws. It does not seem logical to assume that the legislature intended that a different standard was to prevail in the case of recount. 1956 Op. Att'y Gen. No. 56-6478.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections § 389 et seq.
Determination of facts regarding custody of ballots since original count, as condition of recount, 71 A.L.R. 435.
29 C.J.S. Elections § 291.