The pot poll question

Pot in Albuquerque

ALBUQUERQUE (KRQE) – National momentum to change marijuana laws continues, but certain roadblocks to reform remain in New Mexico. While the issue will factor into elections in two of New Mexico’s largest counties and the results will get some attention, it’s unclear what practical effect the vote itself will have.

How Did We Get Here?
The U.S. Picture
Marijuana has been illegal for personal consumption in the United States since the 1930’s when the Marijuana Tax Act was passed by Congress. It’s currently a Schedule 1 controlled substance, treated under federal law the same as seriously as heroin, ecstasy, morphine and LSD are.

At the state level though, there has been increasing acceptance for both recreational and medical marijuana. 23 states and Washington D.C. have approved cannabis for medical use in some form or fashion. Both Colorado and Washington legalized the recreational sale of pot in the 2012 election. During the 2014 election, Alaska, Oregon and Washington D.C. are expected to vote on similar recreational pot measures. More states are expected to follow.

While federal law still preempts those varied state laws, the Obama administration has prioritized stopping “the most significant threats” marijuana poses. A 2013 directive to U.S. Attorneys across the country spells out that policy pretty clearly.

New Mexico

The most high profile supporter of marijuana in New Mexico was former Gov. Gary Johnson, R-NM. His support for legalization, especially during his second term, may have been ahead of his time and was certainly ahead of other state leaders at the time.

In April 2007, Governor Bill Richardson signed SB 523, which set up the medical marijuana program in New Mexico.

In recent years though, there’s been an increased push for New Mexico to join its neighbor Colorado, and legalize recreational use or, at the very least, decriminalize possession of the drug.

Marijuana decriminalization itself hasn’t made it out of the Legislature. During the 2013 session, freshman state Rep. Emily Kane, D-Bernalillo, introduced HB 465. That effort cleared the House on a 37-33 vote, but died, as many criminal law changes do, in the Senate Judiciary Committee.

The 2014 session brought a similar level of success. Sen. Jerry Ortiz y Pino, D-Bernalillo, introduced SJR 10, a constitutional amendment that would’ve legalized the recreational use of marijuana in New Mexico for those over the age of 21. The proposal never made it out of a single committee. However, Rep. Bill McCamley, D-Dona Ana, was able to pass a memorial calling for a study of the effects of marijuana legalization. That itself does not have any legal effect, but because it’s the Legislative Finance Committee being tapped to conduct the study there’s a better chance that study will actually be done.


But the biggest obstacle in New Mexico to those Democrat-led efforts is Gov. Susana Martinez, R-NM. On marijuana, Martinez may as well be the opposite of Johnson. The former prosecutor has called decriminalization efforts a bad idea, pointing to the drug’s status under federal law. A marijuana constitutional amendment was seen by Democrats as a way to get around her opposition, but the votes simply weren’t there. Another benefit of a constitutional amendment from a Democrat perspective is a perception that it would draw out more left-leaning voters to an election they would normally be less likely to show up for.

The stymied statewide efforts led advocacy groups to push decriminalization at more of a local level.

Petition Drive – Albuquerque, Santa Fe

The process they turned to is built into the Albuquerque and Santa Fe city charters. Although the specifics are different between the two cities, the essentials of that law are similar. If an interested group can get enough petition signatures from registered voters in that city supporting a policy proposal, it goes to a citywide ballot for a vote.

In Albuquerque, the process has been used to increase the minimum wage and require candidates in municipal elections to get at least 50 percent of the vote in order to win. There was also a failed effort in 2013 to ban abortions after 20 weeks.

So a coalition of groups banded together to get enough support for marijuana decriminalization in the city limits of both cities. The proposal would decriminalize possession of small amounts of marijuana.

Collecting signatures in Santa Fe proved to be a successful endeavor, but the idea never made it to the ballot. That’s because Santa Fe’s city council approved the proposal without putting the issue to a vote.

Albuquerque proved much trickier. The groups were unable to get enough signatures to put the issue before the Albuquerque City Council. However, the 5-4 Democratic majority on Council decided to send the question to voters anyway.

Or at least that’s what they tried to do. It turns out Mayor R.J. Berry, R-Albuquerque, shares the same perspective as Gov. Martinez. He vetoed sending the marijuana question to the November ballot, holding four other ballot initiatives back at the same time. Council Democrats backed off, approving only three of those questions, which Berry signed through. The expectation was that the Bernalillo County Commission would simply send those questions to the November ballot too, as they’d usually done.

That’s where the story takes a twist.

The Counties Step In – Bernalillo, Santa Fe

In a surprise move, Bernalillo County commissioners in the Democrat majority effectively decided to ignore the pseudo-deal that Mayor Berry and their colleagues on the city council struck.

They decided to try something never really done before in a statewide election. Because Bernalillo County doesn’t have the same power Albuquerque does to impose its own laws, it didn’t have the same option Albuquerque did. Commissioners turned to the idea of an “advisory” or poll question instead.

Effectively, Bernalillo County decided to ask voters what they thought about decriminalizing possession of less than an ounce of marijuana. However, unlike most questions that appear on a ballot, the answer has absolutely no legal effect at all.

Santa Fe’s County commission followed suit.

Republican Secretary of State Dianna Duran balked at the notion, saying the counties were not allowed to ask questions that had no legal effect and that the timing made getting ballots out in accordance with federal law nearly impossible. She moved to block the counties’ efforts.

Commissioners didn’t give up and sued Duran, arguing state law absolutely allowed them to ask advisory questions and that Duran overstepped her bounds by serving as a judge of what’s constitutional and what isn’t. Following a failed bid to tangle up the issue in federal courts, the New Mexico Supreme Court took up the case.

Justices paved the way, agreeing that Duran went too far and that the advisory questions were allowed. That decision cleared the path for marijuana reform supporters to get their voices heard.

What Could Happen

So how is this poll likely to play out? A pair of polls conducted by the same firm, Research and Polling, but for two different groups gives some clues.

In 2013, the Drug Policy Alliance commissioned a survey of New Mexicans that found 57 percent supported marijuana decriminalization.

This September, the Albuquerque Journal released a poll on marijuana legalization that found 50 percent of people surveyed opposed the idea while 44 percent supported it. Support was significantly higher among younger voters.

Younger voters aren’t expected to turn out in as high of numbers for this midterm election and it’s unclear if a vote without any legal effect will change that. However, if supporters in Bernalillo County win out, it could send a pretty significant message to state and local leaders.

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