Alibi V.23 No.38 • Sept 18-24, 2014 

Editorial

Gateway Legislation

How our elected representatives protect us from ourselves

From our modern vantage point, it's hard to imagine the Prohibition era. Our burg circa 2014 boasts many businesses selling alcohol. In present-day Albuquerque and all over the US, imbibing beer, wine or spirits is the status-quo social norm. However, medicinal and recreational consumption of another intoxicant, cannabis aka marijuana, continues to spark national debate and generate both Prohibition-style and increasingly progressive legislation. Original US drug czar Harry J. Anslinger manipulated public opinion on marijuana from 1930 to 1962 with sensationalism, half-truths and propaganda—feeding racist rhetoric and “gore files” to the press and stonewalling valid research. They called him the “father of the war on drugs,” and demonizing “the devil weed” was his passion project.

An advisory initiative on decriminalizing marijuana ... was vetoed by the Mayor, reinstated by the County Commission, deemed unconstitutional by the Secretary of State, submitted by the County Commission as an emergency petition to the State Supreme Court and accepted by the court for review.

Fast-forward 52 years ... Dateline: Albuquerque, N.M. On Aug. 29, 2014, Mayor Richard J. Berry vetoed a ballot initiative bill, R-14-91. His veto hinged on two nonbinding ballot initiatives, one of which involved polling the public on marijuana decriminalization. If something more than Anslinger's and Berry's middle initials connects them, it's their steadfast adherence to moralistic paternalism in considering—or to be more accurate, failing to consider—the impact of drug policy.

If, as some have argued, the inclusion of polling or advisory initiatives accomplishes nothing, why are the Mayor and the Secretary of State so adamantly opposed to taking the citizens' temperature on this issue?

A week and a half earlier, the Albuquerque City Council had voted along party lines to include an advisory (read: nonbinding) “polling” initiative on the general election ballot regarding decriminalizing the possession of marijuana in amounts of one ounce or less. On Aug. 29 Berry made history, becoming the first mayor in Albuquerque history to veto an election initiative. He conveyed this unprecedented veto to his constituents via YouTube, just before a long holiday weekend. In the video Berry never once utters the word “marijuana,” choosing instead to refer to it as “an illegal drug,” and citing federal and state drug laws as his sole justification. We can thank Anslinger for the problematic inclusion of cannabis alongside “hard” drugs—like heroin, methamphetamine and cocaine—in the federal law to which Berry has blindly sworn uncritical allegiance.

Following Berry's veto, the Bernalillo County Commission called for citizen input. The feedback they received was sufficient to convene a special meeting on Monday, Sept. 8. In a heated session, the Commission voted 3-2 to override Berry's veto by placing the decriminalization and tax polling initiatives on the county ballot. Two days later, on Wednesday, Sept. 10, New Mexico Secretary of State Dianna Duran released a memo denying the county's right to include these initiatives on the ballot. The three-page memo cites the inclusion of advisory or “polling” questions as “unconstitutional and incompatible with state law.” Duran does not cite specific statutes or even name the counsel that provided this opinion. This writer's state constitution and election code research and off-the-record consultations with several lawyers have not revealed any statute-based support for Duran's reasoning. The New Mexico Attorney General's Office concurs with my layman's analysis. R. David Pederson, who serves as general counsel to Attorney General Gary King, said, "We believe that there is nothing in the state constitution or under the statutes that prevents these matters from getting on the ballot."

The only means of redress available to the County Commission was litigation. On Monday, Sept. 15, the Commission petitioned the State Supreme Court. The court ordered a stay on mailing out general election ballots until this issue gets decided. The Supreme Court will hear oral arguments on Tuesday, Sept. 23, at 1:30pm. If, as some have argued, the inclusion of polling or advisory initiatives accomplishes nothing, why are the Mayor and the Secretary of State so adamantly opposed to taking the citizens' temperature on this issue? We exist in a representative democracy. When representative democracy fails to address critical policy issues, we adopt direct democracy tactics, such as petitions and polling initiatives.

An advisory initiative on decriminalizing marijuana—that was fraught with inadequate communication from government officials on the number of required signatures—was vetoed by the Mayor, reinstated by the County Commission, deemed unconstitutional by the Secretary of State, submitted by the County Commission as an emergency petition to the State Supreme Court and accepted by the court for review. Is this a case of much ado about nothing? Is it a case of Albuquerque residents growing tired of precious tax dollars going toward prosecuting and imprisoning people who are committing an essentially victimless crime? There are better things to spend money on than locking folks up for toking up. Even if you don't agree with the preceding statements, surely you agree that our elected officials are obligated to hear our voices. So why are they taking such pains to prevent this dialogue? As our duly elected representatives, it is their sacrosanct duty not only to hear our collective and individual voices, but to listen to them.