Pubdate: Mon, 29 Sep 2014
Source: Albuquerque Journal (NM)
Copyright: 2014 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Thomas J. Cole
Page: A1

BALLOT FIGHT COMES DOWN TO 'OTHER QUESTIONS'

The state Supreme Court case that resulted in residents of Bernalillo 
and Santa Fe counties being allowed to vote on whether they would 
like to decriminalize possession of small amounts of marijuana turned 
on a definition and who has the authority to decide what the words in 
question mean. "Other questions" was the question. The questions to 
go before Bernalillo and Santa Fe counties are nonbinding advisory 
questions, meaning the passage or defeat means nothing in and of 
itself and county commissions aren't required to act based on 
outcomes of the voting. The commissions had voted to put the 
questions on the November ballot.

The state Election Code spells out the procedure for statewide votes 
on proposed constitutional amendments, as well as statewide and 
non-statewide votes on "other questions." The code, however, doesn't 
spell out what "other questions" can be put to voters.

Secretary of State Dianna Duran, in refusing to permit the county 
marijuana votes, had interpreted "other questions" as not including 
nonbinding advisory opinions.

At the Supreme Court hearing Sept. 19, Justice Petra Jimenez Maes 
asked Rob Doughty, an attorney for the Secretary of State's Office, 
what he thought the Legislature meant by "other questions" in 
enacting the code. Doughty's response:

"That is a very good question, justice, because I think that is a 
question. It is a vague question. My question is and I know what your 
question is: What does this mean? ... We just don't know."

Chief Justice Barbara Vigil said "other questions" appears to be 
"very broad language." Vigil added, "It would be very easy to say 
questions means questions."

That means, apparently, that we could get an advisory question on 
"red or green" if a county commission approved it for the ballot.

The interpretation

The Bernalillo County issue was laden with political overtones, with 
the three Democrats outvoting the two Republicans to put the advisory 
questions on the ballot. In doing so, three city of Albuquerque 
questions, including an APD reform question, were left off, at least 
in part because there wasn't room. The Santa Fe County commission is 
all Democratic.

Bernalillo and Santa Fe counties then asked the Democratic-majority 
Supreme Court to overrule Duran, a Republican, because of her 
interpretation of "other questions."

Maureen Sanders, an attorney for the counties, said the secretary of 
state's job is to administer the Election Code and that the code 
doesn't give her the authority to interpret it.

"That's not her purview," Sanders told the justices. "That is this 
court's purview or the legislative purview."

Doughty initially argued that Duran has the authority to interpret 
the Election Code, but Vigil told him he had quoted the law incorrectly.

"I see what you're saying," Doughty told Vigil.

The ruling

Doughty said he interpreted "other questions" to mean other ballot 
questions specifically permitted by law, such as questions on 
governments issuing bonds to finance public works projects but not 
nonbinding advisory questions. He said nonbinding advisory questions 
are unprecedented.

But the Supreme Court wasn't formally asked to interpret whether or 
not "other questions" includes nonbinding advisory opinions.

"I'm not sure that's the court's bailiwick," said Appeals Judge 
Michael Bustamante, who joined Maes and Vigil in hearing the case. 
"I'm not sure we should be imposing on the legislative arena."

Bustamante sat in on the case because two of the five Supreme Court 
justices were out of the country and a third was recovering from 
surgery, according to the court.

The Supreme Court ruled that Duran didn't have the authority to 
refuse to put the questions on the ballot for Bernalillo and Santa Fe 
counties and ordered her to do so.

In announcing the court's 3-0 decision, Vigil said, "The secretary of 
state refused to perform her nondiscretionary ministerial duty to 
include those questions on the ballot."

What now?

Doughty argued that a Supreme Court ruling allowing the votes in 
Bernalillo and Santa Fe counties would be "opening the floodgates" to 
what could be on the ballot. He warned of long ballots with small print.

"That shouldn't be the basis for which we makes these types of 
decisions, should it?" Vigil asked.

Vigil and Maes said the Legislature could pass a law to define "other 
questions" if it wished to do so.

Sanders, the attorney for the counties, dismissed the prediction of a 
"parade of horribles" with county commissions overloading ballots 
with nonbinding advisory opinions.

She said the secretary of state was "really showing a distrust, if 
you will, of the county commissions around the state and their 
ability to act in an appropriate and responsible manner."

Sanders said voters, in electing county commissioners, could show 
whether they are disgruntled by nonbinding advisory questions.

Chaves County commissioners last week approved five nonbinding 
advisory questions for the ballot, including measures dealing with 
voter ID, guns, wolves and unions.

Duran declined to put those questions on the ballot, saying the 
Supreme Court order appeared to deal with only the questions in 
Bernalillo and Santa Fe counties and again arguing that state law 
doesn't permit such questions.

In addition to being polled on reduced marijuana penalties, 
Bernalillo County voters will also be asked in the general election 
whether they support an increase in the gross receipts tax to pay for 
mental health programs.
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MAP posted-by: Jay Bergstrom