NMAGO 04-01.

• Case Date: February 03, 2004
• Court: New Mexico

New Mexico Attorney General Opinions 2004. NMAGO 04-01. February 3, 2004OPINION OF PATRICIA A. MADRID Opinion No. 04-01By: Jon Adams Assistant Attorney General To: The Honorable Joseph J. Carraro State Capitol Bldg., Room 110Santa 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 apply to a special election such as this one. Further, there is no procedure in the Election Code, and there is no right to contest this special election in the statutes or on constitutional grounds. Unless there were a misprinted ballot or a similar implication of the Free and Open Clause, infra, we believe it would be unprecedented for a court to take any action regarding a recount, recheck or election contest of a constitutional amendment election. I. Statutory Authority To Contest, Recount Or Recheck Our inquiry begins...