2020 New Mexico Statutes
Chapter 1 - Elections
Article 13 - Post-Election Duties
Section 1-13-12 - Post-election duties; mandamus to compel canvass.

The district court, upon petition of any voter, may issue a writ of mandamus to the county canvassing board to compel it to approve the report of the county canvass and certify the election returns.

History: 1953 Comp., § 3-13-13, enacted by Laws 1969, ch. 240, § 315; 2019, ch. 212, § 122.

The 2019 amendment, effective April 3, 2019, removed a provision prohibiting the county canvassing board from adjourning until it has canvassed all the returns of the election; deleted Subsection A and Subsection designation "B."; and after "compel it to", added "approve the report of the county", and after "canvass", deleted "declare".

Cross references. — For mandamus to obtain recount, see 1-14-21 NMSA 1978.

Mandamus properly refused when necessary recount observers could not attend. — Since county clerk and district judge were necessary observers at recount, a writ of mandamus to compel recount was properly refused when neither district judge nor county clerk could attend. Chavez v. Baca, 1943-NMSC-052, 47 N.M. 471, 144 P.2d 175.

Board may cancel certificate in canvassing late votes. — As additional relief, the county canvassing board may order cancellation of certificates of election, in proceeding to compel canvass of votes delivered late. Board of Cnty. Comm'rs v. Chavez, 1937-NMSC-022, 41 N.M. 300, 67 P.2d 1007.

Mandamus proper remedy to enforce duty to count ballots. — When judges in a municipal election showed, in making their return under Comp. Laws 1897, §§ 1687 and 1689, that a certain number of ballots had been cast which they had failed to count for any candidate, mandamus, and not quo warranto, was the proper remedy to enforce compliance with the duty to count and make returns of such ballots. Territory of New Mexico ex rel. Lester v. Suddith, 1910-NMSC-068, 15 N.M. 728, 110 P. 1038.

Court presumes certificate authorized instrument. — In mandamus proceedings to compel county commissioners to canvass an election certificate, the appellate court will presume that trial court found a copy of certificate, which it admitted in evidence, to have been an instrument authorized by Comp. Laws 1884, § 1196, Sloan v. Territory ex rel. Read, 1891-NMSC-022, 6 N.M. 80, 27 P. 416.

Commissioners not to review legality of votes. — Under former statute which provided that commissioners should determine results of election from returns of precinct judges and declare the result, it was their ministerial duty to count all votes passed by the judges and declare result from such returns alone, without sitting as a court of review passing upon legality of individual votes. Bull v. Southwick, 1882-NMSC-015, 2 N.M. 321.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 26 Am. Jur. 2d Elections §§ 402, 403.

Failure to comply with statutory provisions relating to the form or manner in which election returns from voting districts or precincts are to be made, 106 A.L.R. 398.

Determination of canvassing boards or election officials as regards counting or exclusion of ballots as subject of review by mandamus, 107 A.L.R. 618.

Issue of mandamus in exercise of power of superintending control, 112 A.L.R. 1351.

Appellate court's discretion to refuse exercise of its original jurisdiction to issue writs of mandamus, 165 A.L.R. 1431.

29 C.J.S. Elections § 237(5).