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Ballot fight comes down to ‘other questions’

ALBUQUERQUE, N.M. — The state Supreme Court case that resulted in residents of Bernalillo and Santa Fe counties being allowed to vote on whether they would like to decriminalize possession of small amounts of marijuana turned on a definition and who has the authority to decide what the words in question mean.

“Other questions” was the question.

The questions to go before Bernalillo and Santa Fe counties are nonbinding advisory questions, meaning the passage or defeat means nothing in and of itself and county commissions aren’t required to act based on outcomes of the voting. The commissions had voted to put the questions on the November ballot.

The state Election Code spells out the procedure for statewide votes on proposed constitutional amendments, as well as statewide and non-statewide votes on “other questions.” The code, however, doesn’t spell out what “other questions” can be put to voters.

Supreme Court Justice Petra Jimenez Maes

Supreme Court Justice Petra Jimenez Maes

Secretary of State Dianna Duran, in refusing to permit the county marijuana votes, had interpreted “other questions” as not including nonbinding advisory opinions.

At the Supreme Court hearing Sept. 19, Justice Petra Jimenez Maes asked Rob Doughty, an attorney for the Secretary of State’s Office, what he thought the Legislature meant by “other questions” in enacting the code. Doughty’s response:

“That is a very good question, justice, because I think that is a question. It is a vague question. My question is and I know what your question is: What does this mean? … We just don’t know.”

Chief Justice Barbara Vigil said “other questions” appears to be “very broad language.” Vigil added, “It would be very easy to say questions means questions.”

That means, apparently, that we could get an advisory question on “red or green” if a county commission approved it for the ballot.

The interpretation

The Bernalillo County issue was laden with political overtones, with the three Democrats outvoting the two Republicans to put the advisory questions on the ballot. In doing so, three city of Albuquerque questions, including an APD reform question, were left off, at least in part because there wasn’t room. The Santa Fe County commission is all Democratic.

New Mexico Supreme Court Chief Justice Barbara Vigil

New Mexico Supreme Court Chief Justice Barbara Vigil

Bernalillo and Santa Fe counties then asked the Democratic-majority Supreme Court to overrule Duran, a Republican, because of her interpretation of “other questions.”

Maureen Sanders, an attorney for the counties, said the secretary of state’s job is to administer the Election Code and that the code doesn’t give her the authority to interpret it.

“That’s not her purview,” Sanders told the justices. “That is this court’s purview or the legislative purview.”

Doughty initially argued that Duran has the authority to interpret the Election Code, but Vigil told him he had quoted the law incorrectly.

“I see what you’re saying,” Doughty told Vigil.

The ruling

Doughty said he interpreted “other questions” to mean other ballot questions specifically permitted by law, such as questions on governments issuing bonds to finance public works projects but not nonbinding advisory questions. He said nonbinding advisory questions are unprecedented.

But the Supreme Court wasn’t formally asked to interpret whether or not “other questions” includes nonbinding advisory opinions.

Appeals Judge Michael Bustamante

Appeals Judge Michael Bustamante

“I’m not sure that’s the court’s bailiwick,” said Appeals Judge Michael Bustamante, who joined Maes and Vigil in hearing the case. “I’m not sure we should be imposing on the legislative arena.”

Bustamante sat in on the case because two of the five Supreme Court justices were out of the country and a third was recovering from surgery, according to the court.

The Supreme Court ruled that Duran didn’t have the authority to refuse to put the questions on the ballot for Bernalillo and Santa Fe counties and ordered her to do so.

In announcing the court’s 3-0 decision, Vigil said, “The secretary of state refused to perform her nondiscretionary ministerial duty to include those questions on the ballot.”

What now?

Doughty argued that a Supreme Court ruling allowing the votes in Bernalillo and Santa Fe counties would be “opening the floodgates” to what could be on the ballot. He warned of long ballots with small print.

“That shouldn’t be the basis for which we makes these types of decisions, should it?” Vigil asked.

Vigil and Maes said the Legislature could pass a law to define “other questions” if it wished to do so.

Sanders, the attorney for the counties, dismissed the prediction of a “parade of horribles” with county commissions overloading ballots with nonbinding advisory opinions.

She said the secretary of state was “really showing a distrust, if you will, of the county commissions around the state and their ability to act in an appropriate and responsible manner.”

Sanders said voters, in electing county commissioners, could show whether they are disgruntled by nonbinding advisory questions.

Chaves County commissioners last week approved five nonbinding advisory questions for the ballot, including measures dealing with voter ID, guns, wolves and unions.

Duran declined to put those questions on the ballot, saying the Supreme Court order appeared to deal with only the questions in Bernalillo and Santa Fe counties and again arguing that state law doesn’t permit such questions.

In addition to being polled on reduced marijuana penalties, Bernalillo County voters will also be asked in the general election whether they support an increase in the gross receipts tax to pay for mental health programs.

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at or 505-992-6280 in Santa Fe. Go to to submit a letter to the editor.