A. For a paper ballot that is machine-tabulated on a vote tabulation system certified for use in this state, a vote shall be counted if the:

(1) voter's selection of a candidate or answer to a ballot question is indicated in the voting response area of the paper ballot; and

(2) ballot is marked in accordance with the instructions for that ballot type.

B. For a paper ballot that is hand-tallied, a vote shall be counted if:

(1) the ballot is marked in accordance with the instructions for that ballot type;

(2) the preferred candidate's name or answer to a ballot question is circled;

(3) there is a distinct marking, such as a cross or check, within the voting response area for the preferred candidate or answer to a ballot question; or

(4) the presiding judge and election judges hand-tallying the ballot unanimously agree that the voter's intent is clearly discernable.

C. For a paper ballot that is machine-tabulated or hand-tallied and that contains a write-in vote, the write-in vote shall be counted if the name is:

(1) the name of a declared write-in candidate for that office and position and is on the proper line provided for a write-in vote for that office and position; and

(2) written as first and last name; first name, middle name or initial and last name; one or two initials and last name; or last name alone if there is no other declared write-in candidate for the office or position that is the same or so similar as to tend to confuse the candidates' identities; provided that:

(a) when the presiding judge and election judges reviewing the write-in vote unanimously agree that the voter's intent is clearly discernable, an abbreviation, misspelling or other minor variation in the form of the name of a declared write-in candidate shall be accepted as a valid vote; and

(b) as used in this subsection, "write-in" and "written" do not include the imprinting of any name by stamp or similar method or device or the use of a stencil or a preprinted sticker or label.

History: Laws 2003, ch. 356, § 9; 2005, ch. 270, § 58; 2007, ch. 337, § 11; § 1-9-4.2 NMSA 1978, recompiled as § 1-1-5.2 NMSA 1978 by Laws 2010, ch. 28, § 21; 2019, ch. 212, § 4.

Recompilations. — Laws 2010, ch. 28, § 21 recompiled former 1-9-4.2 NMSA 1978 as 1-1-5.2 NMSA 1978, effective March 3, 2010.

The 2019 amendment, effective April 3, 2019, revised the definition of a vote; in the section heading, deleted "counting of", and added "machine-tabulated", and deleted "ballots" and added "write-in"; in Subsection A, deleted "A vote for" and added "For", deleted "used on an electronic vote tabulating system, optical scan vote tabulating system or high-speed central count vote tabulator consists of a" and added "that is machine-tabulated on a vote tabulation system certified for use in this state, a vote shall be counted if the", added paragraph designations "(1)" and "(2)", and in Paragraph A(2), added "ballot is"; in Subsection B, Paragraph B(3), after "there is a", added "distinct marking, such as a", and in Paragraph B(4), after "judges", deleted "for the precinct" and added "hand-tallying the ballot"; and added Subsection C.

Hand-tallied ballots. — This section, as implemented by the regulations of the secretary of state which lay out detailed guidelines for determining what kinds of ballot marks should and should not constitute a legal vote along with graphical examples of ballots with unconventional markings, accompanied by rules about how to interpret such marks, is constitutional on its face. State of N.M. ex rel. League of Women Voters v. Herrera, 2009-NMSC-003, 145 N.M. 563, 203 P.3d 94.