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![handle is hein.sag/sagnm0002 and id is 1 raw text is: February 3, 2004
OPINION
OF
PATRICIA A. MADRID
Opinion No. 04-01
By: Jon Adams
Assistant Attorney General
To: The Honorable Joseph J. Carraro
State Capitol Bldg., Room 110
Santa Fe, NM 87503
QUESTION:
What grounds exist in New Mexico to undertake a recount in a constitutional amendment
election?
CONCLUSION:
There are currently no lawful grounds for a recount in New Mexico of a constitutional
amendment election.
FACTS:
An election was conducted on September 23, 2003 regarding two proposed amendments
to the Constitution of New Mexico. One proposal created a Department of Education, and it
passed. The second proposal, Amendment 2, increased the yearly allotment from the
Permanent School Fund to provide for additional services related to education. However, the
Amendment 2 election was very close, and its fate was mired in uncertainty for a number of days
after the election. During this time, provisional and absentee ballots were counted. The counting
of these ballots and the checking of results prior to final certification caused the total number of
votes in favor of and against Amendment 2 to change over time. Senator Carraro requested an
Attorney General opinion on whether there were any grounds in New Mexico for a recount of the
election.
ANALYSIS:
The request here references a recount. A recount is defined in the Election Code as
pertain[ing] to emergency paper ballots and absentee ballots and means a re-tabulation and re-
tallying on individual ballots. NMSA 1978, Section 1-1-6(B) (1977). In contrast, recheck
pertains to voting machines and means a verification procedure where ... the results of the
balloting as shown on the counters of the machine are compared with the results shown on the
official returns. NMSA 1978, § 1-1-6(A) (1977).
The Election Code provides the exclusive procedures for contesting an election.
Currently there are no procedures provided in the Election Code to authorize a challenge,
whether by means of a recount or recheck, of constitutional amendment elections.
It is, of course, true that a lawsuit can always be brought. While the ultimate decision thereon
would be made by a court, under existing law the general recount and recheck statutes do not](ViewImageLocal?handle=hein.sag/sagnm0002&div=1&collection=&method=preview&ext=.png&size=3)