2023 New Mexico Statutes › Chapter 1 - Elections › Article 14 - Contests and Recounts › Section 1-14-15 - Recounts; rechecks; cost of proceedings.

A. An applicant for a recount shall deposit with the proper canvassing board or, in the case of an office for which the state canvassing board issues a certificate of nomination or election, with the secretary of state sufficient cash, or a sufficient surety bond, to cover the cost of a recount for each precinct for which a recount is demanded. An applicant for a recheck shall deposit with the proper canvassing board or, in the case of an office for which the state canvassing board issues a certificate of nomination or election, with the secretary of state sufficient cash, or a sufficient surety bond, to cover the cost of the recheck for each voting machine to be rechecked. The state canvassing board shall determine the estimated actual cost of a recount per polling place and for mailed ballots and a recheck per voting machine no later than March 15 of even-numbered years. The secretary of state shall post the recount and recheck cost determinations on the secretary of state's website when the state canvassing board issues its cost determinations.
B. The deposit or surety bond shall be security for the payment of the costs and expenses of the recount or recheck in case the results of the recount or recheck are not sufficient to change the results of the election.
C. If it appears that error or fraud sufficient to change the winner of the election has been committed, the costs and expenses of the recount or recheck shall be paid by the state upon warrant issued by the secretary of finance and administration supported by a voucher of the secretary of state, or shall be paid by the county upon warrant of the county clerk from the general fund of the county, as the case may be.
D. If no error or fraud appears to be sufficient to change the winner, the costs and expenses for the recount or recheck shall be paid by the applicant. Costs shall consist of any docket fees, mileage of the sheriff in serving summons and fees and mileage of election board members, at the same rates allowed witnesses in civil actions. If error or fraud has been committed by an election board, the board members shall not be entitled to such mileage or fees.
History:
1953 Comp., § 3-14-19, enacted by Laws 1978, ch. 48, § 1; 2001, ch. 109, § 1; 2005, ch. 270, § 77; 2007, ch. 336, § 18; 2023, ch. 39, § 74.
ANNOTATIONS
Repeals and reenactments.
— Laws 1978, ch. 48, § 1, repealed 3-14-19, 1953 Comp. (former 1-14-15 NMSA 1978), relating to recounts, rechecks and cost of proceedings, and enacted a new section.
Cross references.
— For costs of election contests,
see
1-14-4 NMSA 1978.
For sheriff's fees in serving summons, etc.,
see
4-41-16 NMSA 1978.
For per diem expenses of sheriffs, etc.,
see
4-44-18 NMSA 1978.
For per diem and mileage for witnesses,
see
38-6-4 NMSA 1978.
The 2023 amendment,
effective June 16, 2023, revised the provision related to the determination of the cost of a recount or recheck; in Subsection A, after "actual cost of a recount per", deleted "precinct" and added "polling place and for mailed ballots"; and in Subsection D, after "mileage of", deleted "precinct" and added "election", and after "committed by", deleted "a precinct" and added "an election"
The 2007 amendment,
effective April 2, 2007, in Subsection A, required a deposit of sufficient cash to cover the cost of a recount or recheck and provided that the canvassing board shall determine the estimated actual cost of a recount per precinct and a recheck per voting machine no later than March 15 of even-numbered years.
The 2005 amendment,
effective July 1, 2005, in Subsection B, provided that the state canvassing board may condition the issuance of the summons on receipt of a part or all of the estimated costs of the recount or recheck.
Compiler's note.
—
Cobb v. State Canvassing Board
, 2006-NMSC-034, 140 N.M. 77, 140 P.3d 498, held the 2005 amendment to 1-14-15 NMSA 1978 unconstitutional and that Laws 2001, ch. 109, § 1 was still effective.
The 2001 amendment,
effective June 15, 2001, in Subsection A, added the requirements that deposits for certain recounts or rechecks are to be deposited with the secretary of state; and substituted "secretary of state" for "state canvassing board" in Subsection C.
Unconstitutional delegation.
— The 2005 amendment to 1-14-15 NMSA 1978, which gave the state canvassing board discretionary authority, without adequate standards to guide its discretion, to condition any voting recount and recheck on advance payment of the full estimated costs of the procedures is an unconstitutional delegation of legislative authority, with the result that the 2001 version of the statute is in effect.
Cobb v. State Canvassing Board
, 2006-NMSC-034, 140 N.M. 77, 140 P.3d 498.
Under the 2001 version of 1-14-15 NMSA 1978, the state canvassing board has no authority to require advance payment of the full estimated costs of a voting recount and recheck before starting the procedures.
Cobb v. State Canvassing Board
, 2006-NMSC-034, 140 N.M. 77, 140 P.3d 498.
Constitutionality of recount and bond provisions.
— Where plaintiffs, the libertarian party of New Mexico, the chair of the libertarian party of New Mexico, and Stephen Curtis, a libertarian party of New Mexico candidate for a position on the New Mexico court of appeals during the 2020 New Mexico primary election, filed an action alleging that the discretionary recount and bond provisions set forth in § 1-14-15 NMSA 1978, violate the first amendment, the equal protection clause, and the due process clause of the United States constitution, and where the plaintiffs demonstrated by a preponderance of the evidence, through discrepancies between county canvass reports and state canvass reports, that fundamental unfairness in how New Mexico tabulates write-in ballots changed the election outcome for Mr. Curtis, and where the secretary of state could not proffer an explanation for the discrepancies, the court found that, although plaintiffs had a valid right-to-vote claim under the due process clause because they showed that a significant number of votes in the libertarian party primary election in Bernalillo county had not been counted, the discretionary recount provision does not violate the first amendment because the discretionary recount provision is a privilege and not a federal constitutional right and the bond requirement does not substantially burden voters rights to make free choices and to associate politically through the vote, that the discretionary recount provision does not violate the equal protection clause because the provision does not interfere with a fundamental right or discriminate against a suspect class and the bond requirement was rationally related to a legitimate governmental purpose of ensuring election fairness and accuracy, and that the discretionary recount provision and bond requirement do not render New Mexico's election process fundamentally unfair.
Curtis v. Oliver
, 479 F. Supp. 3d 1039 (D. N.M. 2020).
Bond in election contest proceeding was designed and intended
by legislature to afford security for the payment of costs which might be adjudged against the obligor in the bond. The bond was designed as a protection to the opposite party to secure him in the collection of any judgment for costs which he might recover.
Montoya v. McManus
, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
Purpose was to require more in way of bond than written promise to pay.
Montoya v. McManus
, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
Term "bond"
is commonly used in judicial procedure in connection with the giving of security for a stay of proceedings upon appeal or otherwise.
Montoya v. McManus
, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
Corporate surety bond not required.
— A bond with personal sureties complied with this section, requiring "a sufficient surety bond," as a condition of a recount. The expression "of commercial surety type" means substantially the same as "corporate surety type" and to require such a bond is going beyond the legislative fiat.
Montoya v. McManus
, 1961-NMSC-060, 68 N.M. 381, 362 P.2d 771.
State could not maintain action on bond to recover fees
and mileage due to sheriff and election officials after recount, because state did not own the right sought to be enforced and judgment in its favor would not bar action by sheriff or election officials.
State v. Barker
, 1947-NMSC-010, 51 N.M. 51, 178 P.2d 401.
Individuals may qualify as sureties
on the required bond.
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.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Costs or reimbursement for expenses incidental to election contest or recount, 106 A.L.R. 928.