SOS Says No to Pot Ballot

Santa Fe County Commissioner says fight is not over

Seeking an opinion from voters on marijuana isn't permitted under state law, according to a letter New Mexico's Secretary of State Dianna Duran issued to officials in Bernalillo and Santa Fe County today.  But the county governments aren't going down without a fight.

Duran sent a representative to the meeting Monday where the Bernalillo County Commission decided to put an advisory question on the General Election ballot about whether voters favor decriminalization of marijuana. She argues that the board's ruling and the subsequent Santa Fe County decision Tuesday along the same lines are "unconstitutional and incompatible with state law."

The secretary of state is a Republican seeking re-election against Democrat challenger Maggie Toulouse Oliver, and some Republicans have said they oppose the ballot questions because they could lure liberal voters who otherwise wouldn't show up for the election.

Both commissions voted to put the non-binding question on their respective ballots at the behest of residents who circulated a petition asking for Santa Fe and Albuquerque city voters to weigh in on reducing the penalties for small-scale marijuana possession.  While Albuquerque's mayor vetoed a measure to change the law, Santa Fe's City Council voted to reduce the penalties without asking voters.

Santa Fe County Commissioner Liz Stefanics tells SFR she's disappointed with the news from Duran and says both county governments are considering a court appeal.

"I don't think it's over with yet. Our county attorney is working with the Bernalillo County attorney on a possible appeal," she says, noting that Bernalillo County already has a "litigation meeting" planned for Monday.

Now, the Santa Fe County Commission plans to amend the agenda for its meeting already planned for Tuesday to include an executive session and possible action on an appeal, she says.

"When we decided, our vote was 5-0 and our County Commission took very seriously the thousands of people who had signed the petition and who wanted to speak out about this," she says. "None of the commissioners took it lightly."

Emily Kaltenbach, director of the New Mexico Drug Policy Alliance, says her organization relies on an opinion from the state attorney general that the questions are permissible.

"I think the attorney general made it very clear that advisory questions are allowed onto the ballot and so at this point it's our understanding that the secretary of state should abide by the AG's opinion," she tells SFR.

And by the way, Democrat Attorney General Gary King is also running against Republican Governor Susana Martinez for the state's top job this November. The plot thickens.

Here's the full text of today's press release from the secretary of state:

Secretary of State Dianna Duran today informed the county commissions of Bernalillo County and Santa Fe County that her legal counsel advises her that local ballot questions that merely “poll” voters and are not questions that serve to adopt or reject public policy, are both unconstitutional and incompatible with state law.


The legal counsel for the Secretary of State stated:


“Throughout New Mexico statutes, consistent with the Constitution, the legislature has authorized specific  types of questions that can be placed before the voters on general election ballots. In each case the  statutory language calls for a decision to be made by the electorate, i.e. the enactment of public policy, including the adoption of fiscal measures regarding debt, taxation and the like. In each instance the law is explicit with regard to the fact that the electorate is making law.


No reference can be found in New Mexico law in which a question may be put to the voters that is not for a decision to be made by those same voters, that is for the purpose of adopting or rejecting a constitutional amendment, a bond issue, or a local question involving the contracting of debt or taxation. The constitutional framers and subsequent legislatures apparently viewed the role of public bodies as either:


1) making a decision themselves on questions of these types, or 2) submitting the questions to the voters for the electorate to make the decisions. They did not contemplate, and have not written, provisions for actions that do neither. Nor have they provided for an elected body to take a poll of the constituency to determine what they should do.


Duran wrote to the Bernalillo and Santa Fe County Commissions:


“The Secretary of State, as a constitutional officer must bear in mind the long-term effect of the adoption of the extra-legal measures proposed by the Boards of County Commissioners of a county. If any county is permitted to co-opt the franchise—which belongs to New Mexico voters, and is their sacred right and responsibility—for the purpose of placing unprecedented and unauthorized questions on the ballot, specifically those that merely poll the public, there can be little question that this procedure will be taken up all around the state. Commissions, councils and boards will all soon be using scarce public resources, the tax dollars that fund the already substantial costs of elections, to take polls—an activity currently restricted to partisan political campaigns which are generally funded by private contributions.


“Along the way, it is highly likely that questions involving significant and weighty matters of public policy will be squeezed out of the electoral process due to ballot length or cost, or both.


“As Secretary of State, if I were to place such extra-legal issues on the ballot then I would be taking an active role in accepting this kind of use of the ballot as lawful and appropriate, both statutorily and constitutionally. Such an action would then permanently place this constitutional office squarely in league with the adoption of ballot questions that our counsel advises is not permissible under the New Mexico Constitution or its statutes. I cannot in good conscience, and with a clear understanding of my oath of office and my constitutional duties, acquiesce to such a course of action I believe to be contrary to the laws and the constitution of the State of New Mexico.


“Based on the advice of counsel, questions that serve merely as poll questions or “advisory” questions are not authorized either by the constitution or by statute.”

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