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Supreme Court puts pot questions back on ballot

Rob Doughty, representing the Secretary of State's Office, uses a sample ballot during his argument Friday before the New Mexico Supreme Court in Santa Fe

Rob Doughty, representing the Secretary of State’s Office, uses a sample ballot during his argument Friday before the New Mexico Supreme Court in Santa Fe. Behind him is Chief Justice Barbara Vigil. (Eddie Moore/Albuquerque Journal)

Copyright © 2014 Albuquerque Journal

Marijuana is back on the ballot.

The New Mexico Supreme Court ruled unanimously on Friday that Secretary of State Dianna Duran overstepped her authority when she refused to allow Bernalillo and Santa Fe counties to put advisory questions on the Nov. 4 ballot.

Each county wants to ask general-election voters whether they support decriminalizing possession of small amounts of marijuana.

The election results won’t carry the force of law. It would be up to the counties or other governments to pursue legislation aimed at changing marijuana penalties, if they so choose.

Duran had refused to add advisory questions to the Nov. 4 ballot. State law and the state constitution, she said, don’t permit governments to “poll” voters during an election.

The counties, in turn, argued that Duran had no authority to reject county-approved ballot questions.

In a written statement, Duran said she was disappointed in the ruling

“We of course will comply with this order,” she said, “but what it means is that Bernalillo County voters will be using a ballot printed in tiny 7-point font, just so people can be presented with a meaningless public opinion poll.”

Emily Kaltenbach of the Drug Policy Alliance, an advocacy group working on the decriminalization campaign, said the court made the right decision. “For drug-policy reform,” she said, “it’s really important to show the will of the voters so elected officials will follow.”

In addition to reduced marijuana penalties, Bernalillo County commissioners also approved an advisory question asking voters whether they support an increase in the gross-receipts tax to pay for mental-health programs. Friday’s ruling applies to that question, too.

Attorney Maureen Sanders, who spoke on behalf of Bernalillo and Santa Fe counties at the hearing, said it was improper for Duran to “adjudicate” on her own what questions are constitutional.

It’s “not her purview to make the decision,” Sanders told the court. “That’s a judicial decision.”

Rob Doughty, a private attorney representing the secretary of state, argued that Duran had properly exercised her discretion as New Mexico’s top election officer. There are legitimate public policy reasons for keeping advisory questions off the ballot, he said, such as avoiding voter confusion and fatigue caused by exceedingly long ballots.

Bernalillo and Santa Fe counties, Doughty said, “are trying to do something that’s never been done in New Mexico – to put a poll question on a statewide ballot.”

The city of Albuquerque asked voters a nonbinding question in 2011 about red-light cameras, though that was a municipal election held under the city’s own election code. Voters opposed the cameras, and later the City Council put a stop to them.

Supreme Court Justice Barbara Vigil, who announced the high court decision, said Duran had refused to perform her mandatory duty to put county-approved questions on the ballot.

The court directed her to do so.

Justices didn’t address whether advisory questions are permitted on the ballot under New Mexico law. They suggested that wasn’t the issue before them Friday – that what they were asked to decide was simply whether the secretary of state has a mandatory duty to add questions to the ballot once they’ve been approved by counties.

Duran could have sought a court ruling on that issue, the justices suggested as they questioned the attorneys for both sides. But she didn’t. Instead, Duran simply informed the counties that she wouldn’t add the questions.

The advisory questions have been the subject of intense partisan debate. Republicans have accused Democratic county commissioners of adding the marijuana question in a transparent attempt to lure young, left-leaning voters to the polls.

From left, Debbie O'Malley, chairwoman of the Bernalillo County Commission, Santa Fe County Commissioner Liz Stefanics and Santa Fe County Clerk Geraldine Salazar leave the New Mexico Supreme Court building after Friday's hearing

From left, Debbie O’Malley, chairwoman of the Bernalillo County Commission, Santa Fe County Commissioner Liz Stefanics and Santa Fe County Clerk Geraldine Salazar leave the New Mexico Supreme Court building after Friday’s hearing. (Eddie Moore/Albuquerque Journal)

Debbie O’Malley, chairwoman of the Bernalillo County Commission, said Friday that political considerations weren’t a factor in her decision to support the question. The issue, she said, has appeal far beyond the stereotypical stoner.

“Those aren’t the people I’m hearing from,” she said outside the court. “We’re talking about regular people.”

Duran, a Republican, said “decisions like this have ramifications that will last forever. Good luck putting the public opinion poll genie back in the bottle.”

Bernalillo County Clerk Maggie Toulouse Oliver, a Democrat, said the ruling made clear Duran “far overstepped her authority and manufactured a crisis for our state when none existed.” Toulouse Oliver and Duran are running against each other this fall for secretary of state.

Chaves County, meanwhile, has called a special meeting for Monday to consider whether to add its own advisory questions – on “right to work” legislation, voter identification laws, wolves, minimum-wage regulations and concealed-carry permits for handguns.

But it looks like it’s too late to add those questions. Election officials in Bernalillo and Santa Fe counties say they faced a deadline 10 days ago to submit to the state all local questions for the ballot.

They also said that the first ballots are supposed to be mailed out by today – for absentee voters outside the state, such as military personnel stationed overseas – though New Mexico can seek an exception because of the litigation.

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