A New Mexico Supreme Court panel ruled unanimously Friday that the secretary of state must include advisory questions on general election ballots, clearing the way for Santa Fe County voters to give their opinion in November on whether possession of small amounts of marijuana should be decriminalized.
The ruling also puts two advisory questions on the Bernalillo County ballot — one about reducing penalties for marijuana and one that asks if the county should levy a tax to provide more mental health care.
Officials from Santa Fe and Bernalillo counties said they were happy with the high court’s ruling. “I feel really good about the decision because I feel we followed the proper procedure,” Santa Fe County Clerk Geraldine Salazar said.
“Now we can just get on with preparing the ballots,” Salazar said, as she stood in the hall of the state Supreme Court shortly after the decision, directing her staff via smartphone to send the ballot question, once again, to the Secretary of State’s Office. Under federal election law, overseas ballots have to be mailed by Saturday, Sept. 20. Salazar said the county is mailing 48 ballots to people who live out of the country.
Secretary of State Dianna Duran didn’t back down from her stance and called the three-member court panel that ruled on the emergency petition “makeshift.”
The Supreme Court panel included Justices Petra Jimenez Maes and Barbara J. Vigil and Court of Appeals Judge Michael Bustamante. The court has a total of five justices.
“I am disappointed in this order,” Duran said in a statement. “We of course will comply with this order, 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.”
Pat Davis of ProgressNow New Mexico said his group is mounting a campaign in support of the marijuana proposals.
“The time for playing politics with our ballot is over. Now we can start having a conversation about the issue and move forward,” Davis said in a statement.
A new Albuquerque Journal poll of 500 voters statewide found that 50 percent opposed Colorado-style legalization of pot, while 44 percent supported it.
County commissions from Santa Fe and Bernalillo voted in early September to put the nonbinding questions on the ballot. The county clerks certified their portions of the ballot as correct and sent them on to Duran.
Duran told the county clerks that she wouldn’t include advisory questions on the ballot because state law doesn’t allow questions that merely poll voters and have no force of law.
Debbie O’Malley, chairwoman of the Bernalillo County Commission, said the commissioners were surprised when Duran chose to keep the questions off the ballot. “We had never had these kinds of polling questions before, but we certainly asked our legal counsel what our authority was and did our homework, and we thought we were good to go.”
The two counties asked the Supreme Court to intervene quickly so the matter could be settled before the deadline for mailing the ballots.
Duran sought to have a federal judge decide the matter, but her request was rejected Thursday.
The high court panel ruled that state law gives county clerks the authority to approve the portion of ballots that have only countywide impacts. The three nonbinding questions only impacted the counties where they were approved by commissioners.
The 3-0 ruling could be seen as a political victory for Democrats. Republicans have accused the party of wanting the nonbinding pot questions included on the ballots in order to coax more Democrats, especially young ones, to the polls.
In Bernalillo County, the commission vote to place the marijuana and tax questions on the ballot passed along party lines, with Republican commissioners in opposition.
In addition, Duran, a Republican, is running for re-election against Bernalillo County Clerk Maggie Toulouse Oliver, a Democrat.
Santa Fe County Commissioner Liz Stefanics said she thought the pot question is an important one for voters to have a voice in. She asked her fellow commissioners to add the nonbinding question to the ballot after the Santa Fe City Council voted 5-4 to decriminalize small amounts of pot. Santa Fe Mayor Javier Gonzales said at the time that while he was in favor of legalizing pot, he thought reducing penalties for possession of small amounts of the drug is an issue voters should weigh in on.
“My issue was so many people in the city and the county had signed a petition that they wanted this question on the ballot regardless of how the answers are,” Stefanics said. The all-Democrat commission voted 5-0 to add the question to the ballot.
Stefanics said the state Legislature has been dealing with the marijuana issue for a long time. “The results of the advisory vote gives us as the County Commission something to take to our legislators and say, ‘here is what your voters think,’ ” she said.
Duran said she’s worried now that politicians will use the ballot to “play with voters.”
“It had been my prayer that the court would follow the law and not yield to partisan pressure,” she said in a statement. “The reason I take a comprehensive, very detailed view of the election code on these kinds of questions is that decisions like this have ramifications that will last forever. Good luck putting the public opinion poll genie back in the bottle.”
Bernalillo County Clerk Toulouse Oliver said in a statement, “Our statutes are clear and Dianna Duran violated those statutes. Election officials cannot say what goes on the ballot and what doesn’t. And the secretary of state may not interfere in the legal process for creating and printing ballots as she did in this case.”
Contact Staci Matlock at 986-3055 or firstname.lastname@example.org. Follow her on Twitter @stacimatlock.