1. A. At least ninety days prior to each statewide election or as soon as practicable prior to an election to fill a vacancy in the office of United States representative, the secretary of state shall contract with an auditor qualified by the state auditor to audit state agencies to oversee a check on the accuracy of precinct electronic vote tabulators, alternate voting location electronic vote tabulators and absent voter precinct electronic vote tabulators. The voting system check shall be conducted for all federal offices, for governor, for contests in the regular local election and for the statewide elective office, other than the office of the governor, for which the winning candidate won by the smallest percentage margin of all candidates for statewide office in New Mexico. The voting system check is waived for any office for which an automatic recount is conducted.

2. B. For each selected office, the auditor shall publicly select a random sample of precincts from a pool of all precincts in the state no later than twelve days after the election. 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. The auditor shall select precincts starting with the statewide office with the largest winning margin and ending with the precincts for the statewide office with the smallest winning margin and then, in the same manner, select precincts from each congressional district. The size of the random sample for each office shall be determined as provided in Table 1 of this subsection. When a precinct is selected for one office, it shall be used in lieu of selecting a different precinct when selecting precincts for another office in the same congressional district, or for any statewide office. If the winning margin in none of the offices for which a voting system check is required is less than fifteen percent, a voting system check for that general election shall not be required.

   Table 1 Winning margin between top Number of precincts in the two candidates for the state to be tested for that office according to the office county canvasses Percent greater than 15 no precincts for that office greater than 14 but less than or equal to 15 4 greater than 13 but less than or equal to 14 4 greater than 12 but less than or equal to 13 5 greater than 11 but less than or equal to 12 5 greater than 10 but less than or equal to 11 6 greater than 9.0 but less than or equal to 10 6 greater than 8.0 but less than or equal to 9.0 7 greater than 7.0 but less than or equal to 8.0 9 greater than 6.0 but less than or equal to 7.0 10 greater than 5.5 but less than or equal to 6.0 11 greater than 5.0 but less than or equal to 5.5 13 greater than 4.5 but less than or equal to 5.0 14 greater than 4.0 but less than or equal to 4.5 16 greater than 3.5 but less than or equal to 4.0 18 greater than 3.0 but less than or equal to 3.5 22 greater than 2.5 but less than or equal to 3.0 26 greater than 2.0 but less than or equal to 2.5 32 greater than 1.8 but less than or equal to 2.0 37 greater than 1.6 but less than or equal to 1.8 42 greater than 1.4 but less than or equal to 1.6 47 greater than 1.2 but less than or equal to 1.4 54 greater than 1.1 but less than or equal to 1.2 59 greater than 1.0 but less than or equal to 1.1 65 greater than 0.9 but less than or equal to 1.0 73 greater than 0.8 but less than or equal to 0.9 82 greater than 0.7 but less than or equal to 0.8 93 greater than 0.6 but less than or equal to 0.7 109 greater than 0.5 but less than or equal to 0.6 130 0.5 or less 165.

   Table 1

   Winning margin between top

   Number of precincts in the

   two candidates for the

   state to be tested for that

   office according to the

   office

   county canvasses

   Percent

   greater than 15

   no precincts for that office

   greater than 14

   but less than or equal to 15

   4

   greater than 13

   but less than or equal to 14

   4

   greater than 12

   but less than or equal to 13

   5

   greater than 11

   but less than or equal to 12

   5

   greater than 10

   but less than or equal to 11

   6

   greater than 9.0

   but less than or equal to 10

   6

   greater than 8.0

   but less than or equal to 9.0

   7

   greater than 7.0

   but less than or equal to 8.0

   9

   greater than 6.0

   but less than or equal to 7.0

   10

   greater than 5.5

   but less than or equal to 6.0

   11

   greater than 5.0

   but less than or equal to 5.5

   13

   greater than 4.5

   but less than or equal to 5.0

   14

   greater than 4.0

   but less than or equal to 4.5

   16

   greater than 3.5

   but less than or equal to 4.0

   18

   greater than 3.0

   but less than or equal to 3.5

   22

   greater than 2.5

   but less than or equal to 3.0

   26

   greater than 2.0

   but less than or equal to 2.5

   32

   greater than 1.8

   but less than or equal to 2.0

   37

   greater than 1.6

   but less than or equal to 1.8

   42

   greater than 1.4

   but less than or equal to 1.6

   47

   greater than 1.2

   but less than or equal to 1.4

   54

   greater than 1.1

   but less than or equal to 1.2

   59

   greater than 1.0

   but less than or equal to 1.1

   65

   greater than 0.9

   but less than or equal to 1.0

   73

   greater than 0.8

   but less than or equal to 0.9

   82

   greater than 0.7

   but less than or equal to 0.8

   93

   greater than 0.6

   but less than or equal to 0.7

   109

   greater than 0.5

   but less than or equal to 0.6

   130

   0.5 or less

   165.

3. C. After selecting the random sample of precincts pursuant to Subsection B of this section or as required for a regular local election, the auditor shall also randomly select one precinct from each county where a precinct was not selected in the random sample.

4. D. The auditor shall notify the appropriate county clerks of the precincts that are to be included in the voting system check upon their selection. The auditor shall direct the appropriate county clerks to open the locked ballot boxes and remove ballots from the selected precincts and:

   1. (1) in a primary or general election, the auditor shall direct the appropriate county clerks to compare the original machine count precinct vote totals for candidates for offices subject to the voting system check from the selected precincts for each office with the respective vote totals of a hand recount of the paper ballots from those precincts;
   2. (2) in a regular local election, the size of the random sample shall be the largest number of precincts that were used for the random sample in the previous general election. The auditor shall direct the appropriate county clerks to compare the original machine count precinct vote totals for the three contests with the closest margin between the two candidates receiving the greatest number of votes affecting the final outcome for an office from each of the selected precincts with the respective vote totals of a hand recount of the paper ballots from those precincts; provided that if there are fewer than three contested contests in a precinct, the auditor shall randomly select one or more contests so that three contests are included in the sample from that precinct; and
   3. (3) in an election called to fill a vacancy in United States representative, the auditor shall direct the appropriate county clerks to compare the original machine count precinct vote totals for candidates for United States representative from the selected precincts with the respective vote totals of a hand recount of the paper ballots from those precincts.
5. E. The county clerks shall report their results to the auditor within fourteen days of the notice to conduct the voting system check unless a county clerk is aware of a recount in any office that includes one or more precincts in the county, in which case the county clerk shall report the results of the post-election audit to the auditor within fourteen days following the conclusion of the recount.
6. F. Based on the results of the voting system check and any other auditing results, the auditor shall determine the error rate in the sample for each office. If the winning margin decreases and the error rate based on the difference between the vote totals of hand recounts of the paper ballots and the original precinct vote totals exceeds ninety percent of the winning margin for an office, another sample equal in size to the original sample shall be selected and the original precinct vote totals compared to the vote totals of hand recounts. The error rate based on the first and second sample shall be reported, and if it exceeds ninety percent of the winning margin for the office, the state canvassing board shall order that a full hand recount of the ballots for that office be conducted.
7. G. The auditor shall report the results of the voting system check to the secretary of state upon completion of the voting system check and release the results to the public.
8. H. Persons designated as county canvass observers may observe the hand recount described in Subsection D of this section. Observers shall comply with the procedures governing county canvass observers as provided in Section 1-2-31 NMSA 1978.
9. I. If a recount for an office selected for a voting system check is conducted pursuant to the provisions of Chapter 1, Article 14 NMSA 1978, the vote totals from the hand count of ballots for that office in precincts selected for the voting system check may be used in lieu of recounting the same ballots for the recount.
10. J. All costs of a voting system check or required hand recount shall be paid in the same manner as automatic recounts.
11. K. The secretary of state may issue rules to implement voting system checks.

History: Laws 2009, ch. 233, § 1; 2015, ch. 145, § 73; 2023, ch. 39, § 72.

ANNOTATIONS

The 2023 amendment, effective June 16, 2023, amended requirements for voting system checks, revised post-election duties related to voting system audits, and authorized the secretary of state to issue rules to implement voting system checks; in Subsection A, after "prior to each", deleted "general" and added "statewide", after the next occurrence of "election", added "or as soon as practicable prior to an election to fill a vacancy in the office of the United States representative", after "for governor", added "for contests in the regular local election", and after "for any office for which", deleted "a" and added "an automatic"; added a new Subsection C and redesignated former Subsection C as Subsection D; in Subsection D, Paragraph D(1), added "in a primary or general election, the auditor shall direct the appropriate county clerks to", and after "precinct vote totals", deleted "including early absentee and absentee by mail machine count vote totals", and added Paragraphs D(2) and D(3); and redesignated former Subsections D through H as Subsections F through J, respectively; in Subsection E, after each occurrence of "auditor within", deleted "ten" and added "fourteen"; and added Subsection K.

The 2015 amendment, effective July 1, 2015, provided for a certain waiver for a voting system check; in Subsection A, after "New Mexico", added "The voting system check is waived for any office for which a recount is conducted."; in Table 1 of Subsection B, after "0.5 or less", deleted "automatic recount for that office" and added "165"; and in Subsection C, after "the appropriate county clerks to", added "open the locked ballot boxes, remove ballots from the selected precincts and", and after "voting system check", added the remainder of the subsection.