On Monday the Bernalillo County Commission voted 3-2, along party lines, in favor of taking emergency legal action against Secretary of State Dianna Duran’s decision to deny two poll questions — one on decriminalizing small amounts of marijuana and another that would encourage a mental health services tax — from reaching voters in November.
Following the meeting, County Commission Chair Debbie O’Malley, a Democrat, said Bernalillo County attorneys would challenge Duran’s authority to deny content from appearing on a ballot.
“We have interference from the state level telling people what they can and cannot vote for,” O’Malley said. “We’re going to move forward to basically litigate or sue the Secretary of State about her authority to remove questions from the ballot.”
Last week, the Commission voted in favor of allowing the advisory measures to be presented to voters on the Nov. 4 ballot.
This action was seen by some as an attempt by the county to circumvent Albuquerque Mayor Richard Berry’s veto of a city council resolution to place the same items on the Albuquerque ballot, which would only have affected city laws.
Following the county commission’s decision last week, Duran, a Republican, issued her legal opinion stating that Bernalillo and Santa Fe counties could not put advisory questions on the ballot and vowed to have the questions removed.
“The questions that serve merely as poll questions or advisory questions are not authorized either by the constitution or by statute,” Duran said last week in an interview with KUNM. “We have never had on the statewide ballot any question of this nature.”
However, Bernalillo County Clerk Maggie Toulouse Oliver said in an interview that there is no statutory authority for Duran to prevent questions from appearing on the ballot.
“We have a custodial role that’s spelled out in the state statute,” Toulouse Oliver said. “When it comes to county questions, the state secretary has no role. It’s the county clerk that’s charged with submitting those questions to the ballot.”
The only method to remove questions from a ballot after being approved by the Commission would be a court order to have them removed, she said.
“As far as I am concerned, until a court issues an order to me to remove the questions, they are and should be on the ballot,” Toulouse Oliver said.
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Republican Commissioner Wayne Johnson, who voted against the petition, cited numerous precedents in California statutes against placing advisory questions on the ballot, and doubted the commission’s authority to do the same.
However, Commissioner Maggie Hart Stebbins pointed out that this is not California.
“The greatest concern here is that ballots are being abused,” Johnson said. “It’s abdicating our authority as policymakers.”
O’Malley said if the court approves the measure, there will be nothing stopping the questions from appearing on the Nov. 4 ballot.
While the county’s measure itself does not have the potential to change current marijuana laws, O’Malley said she continues to support placing the measure before voters, as she believes it is the right thing to do.
Pat Davis of ProgressNowNM, the organization that spearheaded the original petition in Albuquerque and Santa Fe, said the group is working closely with the UNM School of Law chapter of Students for Sensible Drug Policy to enact a petition of their own to send to the state.
Tomas Lujan is a freelance writer for the Daily Lobo. He can be reached at culture@dailylobo.com or on Twitter @TomasVLujan.
