Copyright © 2014 Albuquerque Journal
It isn’t clear they’ll fit on the ballot or survive a court challenge.
But two non-bonding advisory questions – one asking voters their opinion on a tax increase for mental-health services, the other on reducing marijuana penalties – narrowly won County Commission approval Monday for addition to the Nov. 4 ballot.
It was a 3-2 vote along party lines, with Democrats in the majority.
The decision came in a packed meeting in Downtown Albuquerque after commissioners heard from a handful of women who shared their personal struggle with addiction and mental illness. Supporters of decriminalizing small amounts of marijuana also spoke.
The commission heard conflicting opinions about whether it’s permissible to add advisory questions to a general-election ballot. An attorney for New Mexico Secretary of State Dianna Duran, a Republican, said it isn’t legal. A representative of Attorney General Gary King, a Democrat, said it is.
County Clerk Maggie Toulouse Oliver, meanwhile, said it’s unclear whether the two questions can fit on the 19-inch ballot planned for the fall election.
An early mock-up of the ballot showed no extra space for the questions, she said, but that was before a court order eliminated two judicial retention races and the county shortened its bond language.
The Secretary of State’s Office has not yet sent back the latest version of the ballot showing how much space is available, Toulouse Oliver told commissioners.
Increasing the ballot to 20 inches is one option if necessary, she said. Although the election printers can’t handle ballots that size, workers might be able to modify the equipment to hold the bigger ballots, she said.
Moving to two pages of questions, Toulouse Oliver said, is also an option, but she’d like to avoid it because of a variety of “logistical problems.”
Toulouse Oliver, a Democrat running against Duran for secretary of state this year, didn’t express an opinion on the legality of the advisory questions. But she said her office doesn’t have authority to reject them if commissioners want them on the ballot.
Also on Monday, commissioners rejected three questions the city had wanted on the ballot: giving the City Council approval over the hiring of a police chief, issuing bonds for redevelopment projects and changing the process for petition initiatives.
Three attorneys offered conflicting opinions on adding advisory questions.
County Attorney Randy Autio said he believes the commission has authority to add advisory questions to the ballot, as long as they’re clearly marked so that voters aren’t misled into thinking they’re enacting a law or taking formal action.
The city of Albuquerque has put advisory questions on its ballot – the decision to abandon red-light cameras came after such a vote – and other states have allowed it, Autio said.
But “there is no case law in New Mexico on this point,” he said.
Attorney Rob Doughty, representing the Secretary of State’s Office, spoke against adding the questions. Asking general-election voters simply for their opinion “has never been done in New Mexico,” he said, and it would violate the state constitution and other legal requirements.
However, Assistant Attorney General Charles Kraft said in a letter that counties can propose questions even if they don’t “carry the force of law.” The state election code, he said, “does not expressly prohibit questions that merely seek the opinion of voters.”
In a series of 3-2 votes along party lines, the County Commission agreed to add the two advisory questions and reject the city’s three questions. In the majority were Democrats Debbie O’Malley, Art De La Cruz and Maggie Hart Stebbins. Republicans Wayne Johnson and Lonnie Talbert voted in dissent.
The tax question asks voters whether they favor imposing a one-eighth percent gross-receipts tax for mental-health and behavioral services. In Albuquerque, the tax rate would climb from 7 percent to 7.125 percent.
Supporters said the community desperately needs more programs to help people struggling with mental illness and addiction.
“I tried to stay clean on my own, but it didn’t work,” said Norma Escalante, who described herself as a client of Crossroads for Women, a private program that helps women trying to break the cycle of incarceration. “Jail – it doesn’t treat the problem.”
Opponents said commissioners were moving too quickly and that, if they really wanted such a tax, it could be approved without polling voters.
The pot question would ask voters whether they support actions to decriminalize possession of an ounce or less of marijuana. Supporters said there’s public interest in the issue and that the jail is overcrowded.
Johnson was bluntly critical of adding both questions. The county doesn’t have authority to decriminalize marijuana, he said, and the addition of advisory questions so late in the process isn’t legal.
“These questions have no basis in law,” he said.
The commission’s vote to reject the city-requested questions drew criticism from Mayor Richard Berry and others.
“The County Commission voted to put a taxpayer-funded pot poll on the general election ballot, rather than important questions before the voters that would reform APD, make the ballot initiative process more straightforward and fund redevelopment in areas that desperately need it,” City Councilor Dan Lewis, a Republican, said.
O’Malley, a Democrat, said the city has its own elections for seeking voter input. The community faces a mental-health crisis and it’s appropriate to ask the public for guidance on the tax, she said.
“Let the people speak,” she said.