A. Unless the ballot box, election returns and materials are delivered to the county clerk within twenty-four hours after the polls are closed, the vote in the precinct shall not be canvassed or made a part of the final election results except upon order of the district court after finding that the delay in the delivery of materials was due to forces beyond the control of the precinct board [election board].
B. In precincts not more than thirty-five miles distant from the county clerk’s office, the delivery of the ballot box and election returns and materials shall be made by the presiding judge in person.
C. In precincts more than thirty-five miles distant from the county clerk’s office, the delivery of the ballot box, election returns and materials may be made by special messenger selected by the presiding judge and the election judges.
History: 1953 Comp., § 3-12-56, enacted by Laws 1969, ch. 240, § 292; 1987, ch. 249, § 38.
ANNOTATIONS
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Laws 2019, ch. 212, § 283, effective April 3, 2019, provided that references in the Election Code to “precinct board”, shall be deemed to be references to “election board”, as that term is defined in Section 1-1-13 NMSA 1978.
Cross references. — For messengers, see 1-2-20 NMSA 1978.
Returns recognized when delay beyond control. — Delayed returns are entitled to recognition when forces beyond control of election officials are responsible; such forces need not be acts of God or physical forces. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Returns counted in absence of tampering. — Returns delayed beyond the statutory 24 hours due to faulty instructions were counted in absence of tampering with the ballots and pollbooks, the delay being considered beyond control of election officials. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Constitutional mandate and principle controlling. — While former provision that election returns be filed with county clerk within 24 hours was probably mandatory, the constitutional mandate that person receiving highest number of votes be elected and the principle that voters must not be denied their rightful voice in government, unless public interest would not be served by preserving validity of election, were controlling. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Court will not view challenge in absence of fraud, etc. — In absence of any bad faith, fraud or reasonable opportunity for fraud, supreme court will view unsympathetically any challenge to right of a large number of persons to participate in an election. Valdez v. Herrera, 1944-NMSC-013, 48 N.M. 45, 145 P.2d 864.
Court could compel board to recanvass where returns incomplete. — When canvassing board proceeded to canvass votes without waiting for returns from one precinct which were unavoidably 25 hours late, court was authorized to compel board to reconvene, and recanvass the votes, and cancel certificates of election issued, without making holders of certificates parties. Board of Cnty. Comm’rs v. Chavez, 1937-NMSC-022, 41 N.M. 300, 67 P.2d 1007.
Custodians so remiss to create doubt. — If custodian of ballots has been so remiss in their preservation as to suggest probability of tampering or to create doubt as to their integrity, then none of the ballots, nor a recount thereof, may be relied on to overcome the official returns. Madrid v. Sandoval, 1932-NMSC-052, 36 N.M. 274, 13 P.2d 877.
Mere irregularity does not destroy election validity. — In absence of statute, mere irregularities in manner of conducting election, or making returns thereof, will not destroy validity of such election. Gallegos v. Miera, 1923-NMSC-018, 28 N.M. 565, 215 P. 968.
Strict compliance not required for ballot preservation. — Departure from strict letter of statute as to preservation of ballots will not warrant their rejection, in absence of fraud or suspicion of fraud. Montoya v. Ortiz, 1918-NMSC-114, 24 N.M. 616, 175 P. 335).