- Associated Press - Thursday, September 18, 2014

ALBUQUERQUE, N.M. (AP) - A federal judge refused Thursday to referee a legal fight over whether two New Mexico counties can put nonbinding questions about marijuana and taxes on the November general election ballot.

U.S. Magistrate Judge Karen Molzen said the court lacks the authority to jump into the dispute between Bernalillo and Santa Fe counties and Secretary of State Dianna Duran over whether the questions should go before voters. “I feel under these circumstances there is no federal jurisdiction,” Molzen said in her oral ruling.

Bernalillo County recently approved advisory ballot questions to ask voters whether they support decriminalizing marijuana and a tax for mental health services. Santa Fe County commissioners also approved a similar marijuana question.

But Duran has contended state law doesn’t allow ballot questions that poll voters and don’t have the force of law. The counties have asked the state Supreme Court to resolve the dispute, but Duran wanted the federal court to handle the case.

Robert Doughy, an attorney representing Duran’s office, said the case wasn’t about whether the secretary of state could take the issue off the ballot. “It’s about whether New Mexico voters have a constitutional right to vote on nonbinding advisory position,” he said.

Bernalillo Deputy County Peter Auh, however, said it was a matter for the state Supreme Court to decide.

The state Supreme Court has scheduled a hearing Friday on Santa Fe County’s legal challenge, and the justices could decide the case after listening to arguments from lawyers. A quick ruling by the court would allow local elections officials to meet a Saturday deadline for sending absentee ballots to overseas and military voters.

Both Bernalillo and Santa Fe counties want the Supreme Court to force Duran to add their advisory questions to the ballot.

One measure would poll the counties’ voters on whether they support lowering penalties for possessing small amounts of marijuana. Bernalillo County also wants to survey voters on their views on a possible tax levy for mental health services.

None of the measures, however, would have the force of law and Duran maintains that state law doesn’t allow nonbinding ballot questions.

The advisory questions on marijuana, according to Republican critics, are an attempt by Democrats to encourage greater turnout among Democratic-leaning younger and liberal voters.


Associated Press writer Barry Massey in Santa Fe, New Mexico, contributed to this report.


Follow Russell Contreras at https://twitter.com/russcontreras

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