SENATE RULES COMMITTEE SUBSTITUTE FOR

SENATE BILL 72

49th legislature - STATE OF NEW MEXICO - first session, 2009

AN ACT

RELATING TO ELECTIONS; REQUIRING A POST-ELECTION EVALUATION OF THE ACCURACY OF VOTING SYSTEMS; PROVIDING PROCEDURES; REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. A new section of the Election Code is enacted to read:

     "[NEW MATERIAL] POST-ELECTION DUTIES--VOTING SYSTEM

CHECK.--

          A. At least ninety days prior to each general election, 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 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.

          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 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                                automatic recount

                                           for that office.

The auditor may choose to test additional precincts and electronic vote tabulators if initial election results indicate that more auditing will be necessary to explain any anomalies in a county canvass or if preliminary results of the audit indicate the need for more testing.

          C. 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 compare the original machine count precinct vote totals, including early absentee and absentee by mail machine count 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. The county clerks shall report their results to the auditor within ten days of the notice to conduct the voting system check.

          D. 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.

          E. 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.

          F. Persons designated as county canvass observers may observe the hand recount described in Subsection C of this section. Observers shall comply with the procedures governing county canvass observers as provided in Section 1-2-31 NMSA 1978.

          G. 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.

          H. All costs of a voting system check or required hand recount shall be paid in the same manner as automatic recounts."

     Section 2. A new section of the Election Code is enacted to read:

     "[NEW MATERIAL] GENERAL ELECTION AUDIT.--The secretary of state shall issue rules for the conduct and procedures of the post-election voting system check, set minimum qualifications for auditors eligible for selection to conduct post-election evaluations of the accuracy of voting systems and approve the contract terms for auditors. The state auditor shall review the rules, qualification standards and contract terms to ensure they meet audit standards."

     Section 3. REPEAL.--Section 1-14-13.1 NMSA 1978 (being Laws 2005, Chapter 270, Section 75) is repealed.

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