State Summary

New Mexico’s audit (“voting system check”) is conducted after each statewide election for all federal contests, the governor’s contest, contests in a “regular local election,” and for the statewide contest with the smallest unofficial margin. An audit is also conducted after an election to fill a vacant U.S. representative seat. The audit can escalate to a full recount. The sample size for federal and statewide contests is based on the smallest unofficial margin and, per statute, should provide at least a 90% chance of detecting tabulation errors that alter the outcome of an audited contest. N.M. Stat. Ann. § 1-14-13.2(B). However, the required sample sizes do not strictly provide this guarantee. (See “Addressing Discrepancies” for a discussion.) A minimum of one precinct per county must also be included in the audit sample. (The sample size for an audit of a regular local election is the largest number of precincts used for the random sample in the previous general election.) Detailed rules and procedures issued by the secretary of state are found in New Mexico Administrative Code, N.M. Code R. § 1.10.23.9.

Unless otherwise specified, statutory references are to N.M. Stat. Ann. § 1-14-13.2.

Voting Systems Used

New Mexico uses hand-marked paper ballots and optical scanners for all in-person voters, with ballot marking devices for accessibility. For the most up to date information please visit Verified Voting’s Verifier.

Visit the Voting Equipment Database for an explanation of the types of voting equipment used.

Audit Comprehensiveness

The intent of the law is to audit only machine-counted ballots. Early in-person and absentee mail ballots are included. However, according to N.M. Code R. § 1.10.22.10(A), provisional ballots may be either hand tallied or tabulated by a voting tabulator. If provisional ballots are counted by hand, according to our reading of the statute, they are therefore not included in the audit. See N.M. Stat. Ann. § 1-14-13.2(A) and (D). Note that for the Post-Election Audits map this translates to a broader classification of “Some, But Not All” ballots subject to audit, although New Mexico audits the overwhelming majority of its ballots.

Transparency

The audit statute specifies that designated county canvass observers may observe the hand recount. N.M. Stat. Ann. § 1-14-13.2(H). Additionally, the New Mexico Administrative Code specifies that the public be notified of the time and place of the audit. N.M. Code R. § 1.10.23.8(A). New Mexico Administrative Code also requires that the selection of the random sample for the audit be conducted publicly, and that the audit data be reported to the public. N.M. Code R. § 1.10.23.9(A)(1)(d) and (A)(4). Audit reports are available on the website of the secretary of state.

Audit Counting Method

The audit entails a manual count of all machine-counted ballots from each precinct in the sample. N.M. Stat. Ann. § 1-14-13.2(A) and (D).

Type of Audit Units

Each precinct is treated as an audit unit. N.M. Stat. Ann. § 1-14-13.2(B).

Contests and Issues Audited

The audit is conducted following statewide elections for all federal offices, the office of governor, and local contests (when part of a “regular local election”), as well as after an election to fill a vacant U.S. representative seat. 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. N.M. Stat. Ann. § 1-14-13.2(B). For local contests, county clerks must audit the three contests won by the closest margin. N.M. Stat. Ann. § 1-14-13.2(D)(2). Contests in which an automatic recount is conducted or where the margin is greater than 15% are exempt from the audit. N.M. Stat. Ann. § 1-14-13.2(A)–(B).

Addressing Discrepancies

The auditor calculates an error rate based on a comparison of the audit hand count with the initial vote count for the audit sample. 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. The New Mexico audit provision somewhat resembles a risk-limiting audit (RLA), but is not an RLA. The statute says: “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.” N.M. Stat. Ann. § 1-14-13.2(B). However, the required sample sizes rely on the assumption that tabulation errors affecting more than 15% of votes in any precinct would be detected by other means. Also, if a tabulation outcome is wrong, the audit may find a large error rate that nonetheless does not lead to additional auditing or a recount—meaning that detecting (some) faulty tabulators does not ensure that a wrong outcome will be corrected. Despite these and other limitations, New Mexico’s audit provides a credible prospect of correcting outcome-altering tabulation errors.

For recount laws, please visit our Recount Law Database.

Timeline

The random sample must be selected by the auditor no later than 12 days after the election. N.M. Stat. Ann. § 1-14-13.2(B). County clerks must report their results back to the auditor within 14 days of the notice to conduct the audit. If a recount “in any office” includes one or more precincts in the county, the county clerk instead reports the results of the audit within 14 days after the conclusion of the recount. N.M. Stat. Ann. § 1-14-13.2(E). Note that while the audit statute was amended in 2023 to allow a 14-day window for the audit, N.M. Code R. § 1.10.23.9(C)(1)(a) specifies a 10-day window for the clerk to report audit results.

Binding on Official Outcomes

Ordinarily, New Mexico audit results do not amend the election results. However, any audit that uncovers sufficiently large discrepancies will initiate a full hand recount (see N.M. Stat. Ann. § 1-14-13.2(F); “Addressing Discrepancies”), which does officially amend the election results. We therefore consider audits in New Mexico to be binding upon official outcomes.

Oversight and Conduct

The secretary of state is charged with hiring an independent auditor to oversee and work with the county clerks to conduct the audit, ensuring that oversight of the audit is independent from the conduct and oversight of the initial election. N.M. Stat. Ann. § 1-14-13.2(A). The secretary of state also issues rules establishing procedures for the audit. N.M. Stat. Ann. § 1-14-13.3.

Ballot Protection

The ballot box is secured by the election judge from a different party from that of the presiding judge. N.M. Stat. Ann. § 1-12-31. The ballot box must be returned to the county clerk within 24 hours after the polls are closed for the precinct to be canvassed, unless there is a court order that says the delay was due to forces beyond the control of the precinct board. Otherwise, the vote in the precinct shall not be canvassed or made a part of the final election results. N.M, Stat. Ann. § 1-12-32.

N.M. Code R. § 1.10.23.9(C)(1) details procedures clerks must follow to ensure the security of the ballots during the audit itself.

Additional Targeted Samples

The statute does not provide for additional targeted samples. This is noteworthy because the sampling method implicitly assumes that any tabulation error larger than 15% of votes cast in a precinct would be detected and corrected by other means. See N.M. Code R. § 1.10.23.9(A)(1).

Resources

N.M. Stat. Ann. § 1-14-13.2 and N.M. Code R. § 1.10.23.9: Audit provisions

N.M. Stat. Ann. § 1-12-31 and N.M. Code R. § 1.10.23.9(C)(1): Ballot protection

Last updated: October 10, 2024