Rule 1-087.Contest of nomination or election

Rule 1-087 was drafted to provide procedures consistent with Article 14. The rule, as initially promulgated, proved to be unsatisfactory for several reasons. First, by its terms it only applied to nomination contests, even though Article 14 applies to both nomination and election contests. Second, Rule 1-087 contained procedures for the appeal of nomination contests, a subject matter that should be covered by the Rules of Appellate Procedure, rather than by Rules of Civil Procedure for the District Courts.

In 2002, Rule 1-087 was redrafted to make it applicable to both election contests and nomination contests, to eliminate procedural rules governing appeals of judgments in election and nomination contests and to assure that procedures provided in the special statutory proceedings are incorporated into the rule in order to avoid conflict between the rules and procedures set forth in Article 14, Procedural Provisions Unique to Election and Nomination Contests.

Article 14 contains some procedural provisions that vary from the Rules of Civil Procedure for the District Courts. Because those statutory procedures apply to election and nomination contests, Rule 1-001 NMRA, the statutory procedures are incorporated into Rule 1-087, and control over general provisions of the rules that are inconsistent with Rule 1-087. Rule 1-087(B) explicitly so provides. Apart from the different procedures contained in Rule 1-087, the Rules of Civil Procedure for the District Courts apply to election and nomination contests brought pursuant to Article 14. See Rule 1-001 (Rules of Civil Procedure apply to extent not inconsistent with procedures established in special statutory proceedings); Section 1-14-3 NMRA 1978. ("The Rules of Civil Procedure apply to all actions commenced under the provisions of this section".)

Paragraphs C to F of Rule 1-087 incorporate procedural requirements contained in Article 14 into the Rules of Civil Procedure for District Courts, in order to prevent any conflict between Article 14 and the rules. Paragraph B of the rule provides that these sections apply to election and nomination contests rather than otherwise-applicable general provisions in the Rules of Civil Procedure for the District Courts. See Eturriaga v. Valdez, 109 N.M. 205, 784 P.2d 24 (1989) (thirty day requirement for filing an election contest contained in Article 14 cannot be modified by rule of court).

Rule 1-087(A) incorporates the statutory provision that provides to unsuccessful candidates the right to contest a nomination or election.

Not included in Rule 1-087 are the provisions of Section 1-14-13 NMSA 1978 which establish the burden of proof and provide certain remedies in election and nomination contests. These provisions, though applicable to election or nomination contests, are substantive in nature and thus do not belong in a rule of civil procedure. See Gunaji v. Macias, 130 N.M. 734, 741, 31 P.3d 1008, 1015 (2001) ("it is the procedure in an election contest which is exclusive, not the grounds and the remedy.")

Rule 1-087(G) incorporates a provision in Article 14 that allows a contestant in a pending election or nomination contest to preserve ballots by a procedure set forth in Section 1-14-6 NMSA 1978.

Rule 1-087(H) incorporates provisions in Article 14 that allows a contestant to petition the district court to impound ballots by a procedure set forth in Sections 1-16-8 to 1-14-12 NMSA 1978.

Rule 1-087(I) incorporates provisions in Article 14 that allow a candidate to apply for a recount or recheck of the votes that were cast. Sections 1-14-14 to 1-14-18 NMSA 1978. These provisions do not require that an election or nomination contest be pending in order to obtain relief and are incorporated in the rule simply to reflect that a contestant may seek this relief in conjunction with an election or nomination contest.

[Effective, November 1, 2002.]