2023 New Mexico Statutes › Chapter 1 - Elections › Article 13 - Post-Election Duties › Section 1-13-4 - Post-election duties; county canvass; method.

The county clerk shall:
A. appoint an election board to conduct a machine-tabulation or hand-tally if the county clerk has received and logged any:
(1) paper ballots not previously tabulated;
(2) absentee ballots delivered to an election board not previously tabulated;
(3) provisional paper ballots that have been qualified and contain votes that are to be counted; or
(4) ballots with write-in votes not previously counted;
B. prepare the report of the canvass of the election returns by carefully examining the returns of each precinct to ascertain if they contain the properly executed certificates required by the Election Code and to ascertain whether any discrepancy, omission or error appears on the face of the election returns;
C. present the report of the canvass to the county canvassing board for the board's consideration and approval; and
D. provide the county canvassing board a summary report of the ballots tallied by the election board pursuant to Subsection A of this section and deliver directly to the secretary of state a cumulative report to be used in the event of a recount.
History:
1953 Comp., § 3-13-4, enacted by Laws 1969, ch. 240, § 306; 1977, ch. 222, § 74; 2019, ch. 212, § 121; 2023, ch. 39, § 68.
ANNOTATIONS
Cross references.
— For ballots cast by unregistered or otherwise unqualified electors not to be canvassed,
see
1-4-1 NMSA 1978.
For election return certificates,
see
1-12-34 NMSA 1978.
The 2023 amendment,
effective June 16, 2023, revised the county clerk's post-election duties, and required that all ballots be tabulated by an election board; added a new Subsection A and redesignated former Subsections A and B as Subsections B and C, respectively; and added Subsection D.
The 2019 amendment,
effective April 3, 2019, provided additional post-election duties for the county clerk; in the introductory clause, after "county", deleted "canvassing board" and added "clerk"; in Subsection A, added "prepare the report of the"; and added Subsection B.
Board may not examine actual ballots.
— The county canvassing board is limited to examining only the "election returns." This does not include the actual ballots.
Weldon v. Sanders
, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
Board may not correct errors.
— The duty of the county canvassing board is limited to finding errors, not correcting them. If an error is found, the precinct board and the secretary of state must be notified.
Weldon v. Sanders
, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
"May"
is not infrequently used interchangeably with "must," and where 1941 Comp. § 56-349(6) provided that original affidavits of registration, constituting the official registration list and record in the office of the county clerk may be considered a part of the official election returns, and where the law required the board to canvass all of the returns of an election, the board had an absolute obligation to consider the certified list of registered electors.
Reese v. Dempsey
, 1944-NMSC-039, 48 N.M. 417, 152 P.2d 157.
Court not bound by board's certificate excluding unregistered votes.
— Since it appeared affirmatively that the total number of unregistered votes cast was insufficient to alter result of the race, the district court was not bound by county canvassing board's certificate of election upon finding, correctly, that certificate improperly excluded returns from a precinct in which unregistered votes were allegedly cast.
Miera v. Martinez
, 1944-NMSC-005, 48 N.M. 30, 145 P.2d 487.
Effect of irregularity in registration.
— Strong case is presented for holding that irregularity in registration does not affect status of voters as being duly registered where trial court finds on substantial evidence that person voting and person registered are one and the same.
Miera v. Martinez
, 1944-NMSC-005, 48 N.M. 30, 145 P.2d 487.
Mere irregularity does not void election.
— Honest mistake or mere omission on part of election officers, or nonfraudulent irregularities, even though gross, will not void election unless they affect result, or render it uncertain.
Orchard v. Board of Comm'rs
, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41.
Order requiring board to cancel certificates proper where returns incomplete.
— In proceeding to compel county canvassing board to canvass votes delivered late, order requiring board to cancel certificates of election previously issued was proper, although holders of previous certificates were not made parties to the proceeding.
Board of Cnty. Comm'rs v. Chavez
, 1937-NMSC-022, 41 N.M. 300, 67 P.2d 1007.
Canvassing officers not to determine legality of votes.
— Section 2035 of Code 1915, providing that probate judge, with a justice of peace (now magistrate), should publicly examine vote polled for each candidate did not confer on canvassing officers the power to determine illegality of votes and reject them on that ground, because that was covered by § 55 of the same act, Code 1915, § 2069 (repealed by Laws 1927, ch. 41, § 722).
Bull v. Southwick
, 1882-NMSC-015, 2 N.M. 321.
Officials not entitled to compensation.
— Since an omission to tally the results of a primary election was made by the election officials, the officials were not entitled to compensation as the provisions of the statute are mandatory. 1952 Op. Att'y Gen. No. 52-5563.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 29 C.J.S. Elections § 237(2).