FGGAM news received this news release from New Mexico Secretary of State Dianna Duran Thursday afternoon:
Secretary of State cannot place Chaves County Questions on Ballot
“Chaves County is relying, in good faith, on a Supreme Court Directive
…but the court’s order contradicts both Federal and State Law…”
New Mexico Secretary of State Dianna Duran today acknowledged that the Chaves County Commission’s resolution placing five advisory “poll” questions on their general election ballot was a logical outgrowth of a hurried decision by the Supreme Court last week, writing:
“…the argumentation…used by Chaves County…is sound in that it is grounded firmly in a careful reading of the
Court decision. Based on the Court’s order, and the lack of an actual opinion containing guidance…the court believes:
1) Chaves County does have the discretion to submit advisory questions…; and
2) Chaves County’s resolution falls within the permissible timeframe
However, based on a thorough review by legal counsel, Duran advised the commission that the court decision, because it inexplicably cites an obsolete provision of the law (NMSA 1978, § 1-16-8 (1977)), cannot be used to justify adding advisory poll questions—neither based on timeliness, nor on the permissibility of the questions.
Duran acknowledged Chaves County’s assertion that the “Supreme Court opened the door to advisory ‘poll’ questions being submitted up to October 4,” but simultaneously stated that the Supreme Court’s ordercontradicts both federal and state law, therefore cannot be used as road map… “The order appears to have been issued only to say that that three poll questions could go on the ballot,” said Duran, “but legal analysis concludes that the order just doesn’t work for any other purpose and cannot be used for guidance going forward.”
Duran wrote to the Chaves County Manager and County Clerk:
“…Chaves County is relying…on a Supreme Court directive that ordered non-binding, advisory “poll” questions be
placed on the general election ballot. The dilemma for the county and for the SOS is that the sole basis for the
order is a statute that…[violates] federal law as well as the voting rights of service members.
“…the Supreme Court’s order…would allow you to submit the resolution we received Tuesday, [but] the plain
reading of both federal and state law says otherwise. The actual deadline for submission of ballot question
resolutions is not—as the Supreme Court’s citation states—30 days prior to an election. The deadline is 56
days in advance of the election, or September 9, not the Supreme Court deadline of October 4.
“unfortunately Bernalillo and Santa Fe County attorneys pressed an obsolete statute into service…a service the
statute cannot provide because…it would have to be viewed as…superior to federal law…The Supreme Court
inexplicably followed this reasoning, but as a constitutional officer, sworn to uphold both the United States
Constitution and its laws, and the New Mexico Constitution and its laws, I cannot. Faced with an irreconcilable
conflict between statutory mandates and a decision made by a court that…violates those mandates, a
constitutional officer is duty-bound to follow the law and adhere to the statute.”
Legal counsel advises that the SOS has a Constitutional duty to maintain uniformity in the…interpretation of the Election Code. “My duty is not restricted by, nor should it be tailored to, erroneous arguments made by the Bernalillo and Santa Fe Counties’ attorney to the Supreme Court,” said Duran, “Until such time as either the legislature or the Supreme Court acts to resolve the conflict created by the Supreme Court’s decision, I am duty-bound to uphold federal and state law.”
Duran concluded, “In the absence of any clear and binding legal ruling to the contrary, I am advised by counsel that it remains my statutory duty and constitutional obligation, to determine that advisory “poll” questions that do not conform to the types of questions authorized by the legislature, are not to be included on a general election ballot. In this instance the proposed advisory questions meet neither the substantive criteria established by the legislature nor the timeframe for submission established by both federal and state law.”
