Ballot Scuffle

Counties say legal challenge could stop secretary of state from axing ballot question on marijuana

Politicians, lawyers and advocates disagree on the question of whether the secretary of state has the authority to stop a marijuana decriminalization advisory question from appearing on two countywide election ballots.

New Mexico Secretary of State Dianna Duran, who this week said her office won't be putting the marijuana question on either ballot, maintains that she's well within her limits to do so. She underlines that her decision was based on the legality of the issue, not the content of the advisory question.

"No forms or procedures shall be held in any election pursuant to the election code without prior approval of the secretary of state," was Duran's jargon-laden answer to this reporter's question when she briefly appeared on KUNM's Call-In Show Thursday morning.

Duran says that after hours of working with her legal counsel, they concluded that counties don't have the right to put non-binding advisory questions, or poll questions, on statewide general election ballots. This came after both the Santa Fe and Bernalillo County commissions voted to put a question asking voters whether the counties should support decriminalizing marijuana on the November ballot. Because they're advisory questions, they essentially work as recommendations to county officials and don't carry legal authority with them.

Duran says placing such questions on the ballot would push out more meaningful questions, such as bond issues or constitutional amendments.

"My decision is based on that legal advice—not on the issue itself—but that we cannot begin to allow polling questions on an official general election ballot," Duran says. "Not only is it unconstitutional according to my legal counsel, and I'm not an attorney, but it also does not conform with state law." 

This differs from state Attorney General Gary King's letter released last week that says counties have the authority to place such questions on general election ballots as long as they "not carry the force of law." Traditionally Duran, a Republican, as secretary of state would use a legal counsel from King's office. King, a Democrat, is running for governor this year.

Instead, Duran's office has been using Albuquerque attorney Rob Doughty. According to the state Sunshine Portal, Doughty's law firm has received $89,000 in public money from contracts with Duran's office since 2013.

But Santa Fe County Clerk Geraldine Salazar and Bernalillo County Clerk Maggie Toulouse Oliver, both Democrats, tell SFR that the secretary of state doesn't have the statutory authority to stop countywide ballot questions. Toulouse Oliver is running in a heated race against Duran for the secretary of state this fall.

Salazar brings up the fact that the paper ballot will have two sides: one dedicated to statewide races and one dedicated to countywide races. Her office is in charge of the county side of the ballot, she says.

But a technical issue may allow Duran to get her way. Until this year, the county used Automated Election Services to process its ballot before election. This year, Duran asked the counties to use a company contracted with her office instead in order to expedite the process. Salazar says since the new setup goes through Duran, it will give her a chance to remove the marijuana decriminalization question.

Salazar adds that the county is looking into its legal options to prevent Duran's office from doing so, which could include an appeal that reaches the state Supreme Court. "The technology has changed," Salazar says. "The law has not."

Such a challenge would have to be settled by next Friday, Sept. 19, so the counties can start getting absentee ballots out to New Mexico residents located out-of-state during the election. The Santa Fe County Commission could take up the issue during its special meeting next Tuesday at 1 pm. The Bernalillo County Commission may make similar actions during a closed meeting next Monday.

UPDATE: The Santa Fe County Commission has added closed-door discussions of a possible pending litigation regarding "a countywide advisory question for the 2014 general election concerning public support to decriminalize possession of one ounce or less of marijuana" to the agenda for its Tuesday meeting. An action item concerning a potential vote to authorize such a lawsuit follows.

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