SANTA FE—Secretary of State Dianna Duran today informed the county commissions of Bernalillo County and Santa Fe County that her legal counsel advises her that local ballot questions that merely “poll” voters and are not questions that serve to adopt or reject public policy, are both unconstitutional and incompatible with state law.
The legal counsel for the Secretary of State stated:
“Throughout New Mexico statutes, consistent with the Constitution, the legislature has authorized specific types of questions that can be placed before the voters on general election ballots. In each case the statutory language calls for a decision to be made by the electorate, i.e. the enactment of public policy, including the adoption of fiscal measures regarding debt, taxation and the like. In each instance the law is explicit with regard to the fact that the electorate is making law.
No reference can be found in New Mexico law in which a question may be put to the voters that is not for a decision to be made by those same voters, that is for the purpose of adopting or rejecting a constitutional amendment, a bond issue, or a local question involving the contracting of debt or taxation.
The constitutional framers and subsequent legislatures apparently viewed the role of public bodies as either:
1) making a decision themselves on questions of these types, or 2) submitting the questions to the voters for the electorate to make the decisions.
They did not contemplate, and have not written, provisions for actions that do neither. Nor have they provided for an elected body to take a poll of the constituency to determine what they should do.
Duran wrote to the Bernalillo and Santa Fe County Commissions:
“The Secretary of State, as a constitutional officer must bear in mind the long-term effect of the adoption of the extra-legal measures proposed by the Boards of County Commissioners of a county. If any county is permitted to co-opt the franchise—which belongs to New Mexico voters, and is their sacred right and responsibility—for the purpose of placing unprecedented and unauthorized questions on the ballot, specifically those that merely poll the public, there can be little question that this procedure will be taken up all around the state. Commissions, councils and boards will all soon be using scarce public resources, the tax dollars that fund the already substantial costs of elections, to take polls—an activity currently restricted to partisan political campaigns which are generally funded by private contributions.
“Along the way, it is highly likely that questions involving significant and weighty matters of public policy will be squeezed out of the electoral process due to ballot length or cost, or both.
“As Secretary of State, if I were to place such extra-legal issues on the ballot then I would be taking an active role in accepting this kind of use of the ballot as lawful and appropriate, both statutorily and constitutionally. Such an action would then permanently place this constitutional office squarely in league with the adoption of ballot questions that our counsel advises is not permissible under the New Mexico Constitution or its statutes. I cannot in good conscience, and with a clear understanding of my oath of office and my constitutional duties, acquiesce to such a course of action I believe to be contrary to the laws and the constitution of the State of New Mexico.
“Based on the advice of counsel, questions that serve merely as poll questions or “advisory” questions are not authorized either by the constitution or by statute.”
Information from NM Secretary of State's office