New Mexico’s audit (“voting system check”) is conducted for all federal contests, the governor’s contest, and the statewide contest with the smallest unofficial margin. The audit can escalate to a full recount. The sample size 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. However, the required sample sizes do not strictly provide this guarantee. (See “Addressing Discrepancies” for a discussion.) Detailed rules and procedures issued by the secretary of state are found in the New Mexico Administrative Code (NMAC) Title 1 Chapter 10 Part 23.
Unless otherwise specified, statutory references are to NM Stat. §1-14-13.2.
Voting Systems Used
As of 2020, New Mexico primarily uses hand marked paper ballots and optical scanners in polling places statewide, 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.
The intent of the law is to audit only machine counted ballots. Early in-person and absentee mail ballots are included, but provisional ballots are counted by hand and are therefore not included in the audit.
Statute specifies that designated county canvass observers may observe the hand recount (1-14-13.2(F)). Additionally, the New Mexico Administrative Code specifies that the public be notified of the time and place of the audit. See NMAC 126.96.36.199, “Public Notice and Observation of Audits, Voting System Checks, Rechecks, and Recounts.” It 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. See NMAC 188.8.131.52, “Voting System Check Procedures,” Subsections (A)(1)(d) and (A)(4).
Audit Counting Method
The audit entails a manual count of all machine-counted ballots (including early and mail ballots) from each precinct in the sample.
Type of Audit Units
Each precinct, including its early and mail ballots, is treated as an audit unit.
Contests and Issues 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.
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 NM 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.” 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, see Citizens for Election Integrity Minnesota website.
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.
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 “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.
The ballot box must be returned to the county clerk within twenty-four (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. For more information see NM Stat. § 1-12-32.
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.