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Judge strikes sick leave alternative from ballot

Copyright © 2017 Albuquerque Journal

State District Judge Alan Malott

State District Judge Alan Malott has ordered Albuquerque to remove its proposed sick leave advisory question from the Oct. 3 ballot, saying that it would likely confuse voters who will be considering a separate citizen-initiated sick leave ordinance.

“The question employs semantically ‘loaded’ terms and clearly implies that the proposed (Healthy Workforce Ordinance) is not transparent, fair, wise or workable,” Malott wrote in a five-page order issued Thursday afternoon. “It is likely to mislead, confuse, or misdirect the voters.”

If approved, the remaining Healthy Workforce Ordinance would require any business with a physical presence in Albuquerque to provide paid sick time off for full-time, part-time and temporary workers.

By contrast, the rejected advisory question, had it gone to voters and been approved, would have merely signaled councilors that their constituents wanted them to come up with a sick leave ordinance.

Malott called the advisory question “an inappropriate attempt to inject political advocacy onto the ballot and into the election process.”

But it was only a partial victory for proponents of the Healthy Workforce Ordinance, who had also sought to force the city to include a summary of their ordinance on the ballot in a larger type than what is planned.

Malott denied that request, saying that it was a decision for the city’s governing body, and he wouldn’t interfere.

As it currently stands, the entire seven-page ordinance will appear on the ballot without a summary, although next week a different judge is scheduled to consider whether the proposed ordinance itself is legal.

Opponents of the ordinance argue that it would hurt businesses because of higher costs and onerous record-keeping requirements and that it would prevent the council from amending it should unintended consequences arise. Supporters argue that it would ensure that workers don’t have to choose between their paychecks and caring for themselves or a loved one.

The advisory question that Malott struck down was proposed by Councilor Brad Winter, who said he wanted to give voters an alternative to the Healthy Workforce Ordinance.

“I’m really troubled by his ruling,” Winter told the Journal. “We’re going to meet and decide whether we need to take it to another level.”

The rejected advisory question would have asked voters whether the city’s governing body should get to work drafting an alternative “wise and workable sick leave policy” that would be adopted and effective no later than Jan. 1, 2019.

Thursday’s hearing was held to address an emergency motion filed by the New Mexico Center on Law and Poverty, which is representing proponents of the ordinance, including OLÉ New Mexico.

Elizabeth Wagoner, the attorney representing proponents of the sick leave ordinance, argued that the city’s “only interest is in defeating the Healthy Workforce Ordinance.”

Proponents argued that the city’s proposed sick leave advisory question would be misleading to voters, because voters might mistake the advisory question for their Healthy Workforce Ordinance.

In arguing for inclusion of a summary of the proposed ordinance on the ballot, the center argued that the full ordinance is written in legal language that might be confusing to voters.

Wagoner added that voters would have difficulty reading the ballot because the full ordinance would have to be printed in small type to fit on the page. Specifically, it would be in a 7-point font, which is a bit smaller than the 9-point type used in this story.

City Clerk Natalie Howard testified that other questions presented to voters in past city elections have appeared in the same 7-point size the city is planning to use for the Healthy Workforce Ordinance. And, she said, other questions presented to voters on the Oct. 3 ballot will also appear in that same point size.

The names of candidates running for mayor and council positions will appear in larger type.

Howard said magnifying sheets and other special devices would be made available at each voting site to help those who have trouble reading the ballot.

However, University of New Mexico political science professor Gabriel Sanchez testified that if voters have trouble reading a ballot measure because the print is too small, they are likely to vote no on that item or to skip it.

Albuquerque attorney Pat Rogers argued that the summary proponents want printed on the ballot is misleading because it leaves out critical information.

In his order, Judge Malott directed the city to provide copies of the Healthy Workforce Ordinance in large type to any voter who requests one, and to make those copies available at polling sites. And he ordered the city to have at least one magnifier device for every three voting booths.

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