Pubdate: Sat, 20 Sep 2014
Source: Albuquerque Journal (NM)
Copyright: 2014 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Dan McKay
Page: A1

COURT PUTS POT QUESTIONS BACK ON BALLOT

NM Supreme Court Overrules Action by Secretary of State

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 redlight 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.

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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MAP posted-by: Jay Bergstrom