ALBUQUERQUE, N.M. — A federal judge bounced the ballot issue that has pitted two New Mexico counties against the secretary of state back to state court Thursday, setting the stage for a hearing this afternoon at the New Mexico Supreme Court.
Chief U.S. Magistrate Karen B. Molzen ruled that she had no jurisdiction to decide the issue that had landed in her lap little more than 24 hours earlier. She remanded the consolidated cases from Bernalillo and Santa Fe counties to state court.
The two counties had submitted advisory questions to Secretary of State Dianna Duran to place on ballots, the first of which must be sent to overseas absentee voters in a weekend mailing. But Duran refused to include the questions on the ballot, citing advice from legal counsel, so the counties turned to the state Supreme Court.
In separate actions, the counties asked the high court to order Duran to put the questions on the ballot. They contend she does not have discretion to reject ballot items properly certified by local governments.
Duran, in turn, removed the case to federal court, and Molzen quickly set a hearing.
The counties said the matter involved state players and questions of state law, and asked Molzen to send the matter back.
Bernalillo County’s advisory ballot questions center on marijuana decriminalization and an eighth-cent increase in the gross-receipts tax to pay for mental-health programs. Santa Fe County’s one question asks whether county commissioners should support city and statewide efforts to decriminalize small amounts of marijuana.
An opinion by an assistant attorney general said advisory questions could be placed on the general election ballot, but Duran’s legal advisers thought otherwise and took the case to federal court on Tuesday.
After hearing legal argument from the parties, Molzen cited federal law limiting federal jurisdiction. A case may be removed by the defendant only if it could have been filed in federal court in the first place, she said.
Responding to Duran’s argument that federal constitutional law was invoked by counties in their filings, Molzen said the federal cases were cited primarily “in the context of persuading the New Mexico Supreme Court” to make the ultimate resolution.
Molzen did agree to keep jurisdiction on the matter of attorney fees.
“I am disappointed the federal court did not see this as the federal issue it is – to protect our servicemen and women,” Duran said in an email Thursday night.
The Supreme Court on Monday ordered election workers to postpone mailing of ballots until the matter is resolved. Bernalillo County’s emergency petition asked justices to intervene and authorize the addition of two advisory questions.
The Supreme Court agreed to hear oral arguments next Tuesday, but Bernalillo County’s petition may be consolidated with the one by Santa Fe County to be heard today.
Election results for the two ballot questions wouldn’t be binding.