325 DON GASPAR, SUITE 300, SANTA FE, NEW MEXICO 87501 PHONE: (505) 827-3600 FAX: (505)

05) 827-8081
(800) 477-3632 www.sos.state.nm.us
STATE OF NEW MEXICO


DIANNA J. DURAN
SECRETARY OF STATE
September 23, 2014

Mr. Stanton L. Riggs Via email to sriggs@co.chaves.nm.us and U.S. Mail
County Manager
Chaves County
P. O. Box 1817
Roswell, NM 88202

Mr. Dave Kunko Via email to coclerk@co.chaves.nm.us and U.S. Mail
County Clerk
Chaves County
P. O. Box 580
Roswell, NM 88202

Dear Mr. Riggs and Mr. Kunko:

Thank you for your letter of September 22, certifying ballot advisory measures for submission
to Chaves County voters. You requested that five advisory questions be included on the Chaves
County general election ballot, and that one ballot sent to a UOCAVA voter be replaced with
one that includes the five certified advisory questions.

You state in your letter that our resolution is submitted based on the Supreme Courts order
last Friday. You make the point that the only statutory provision the Supreme Court cited as
the basis for its order was NMSA 1978, 1-16-8 (1977). In citing only that provision, as you
point out, the Supreme Court invoked a 30-day deadline [prior to Election Day] for submission
of ballot questions.
1
Your point appears to be that the Supreme Courts order therefore opens
the door to ballot questions to be submitted up to that date, which for this general election
cycle would be October 4. Accordingly, you indicate you have met the requirements contained
in the Supreme Courts ruling by furnishing a copy of the resolution proposing such
questionnot less than thirty days prior to the election, which is the courts only requirement
and only guidance provided. At this point you appear to be making the logical argument that I

1
1-16-8 The form for ballots on those questions not statewide in application to be submitted to the voters of the
county shall be furnished by the county clerk, and a copy of the resolution proposing such question shall be sent by
the county clerk to the secretary of state not less than thirty days prior to the election.


Page 2 of 6



have no choice but to perform what the Supreme Court wrote is [my] non-discretionary,
ministerial duty to include those questions on the ballot.
2

I submitted your letter to my legal counsel for review and research. It appears from the legal
research provided to my office that your county commission did in fact reach significant logical
conclusions arising from the Supreme Court order on September 19, 2014.
I have received legal counsel as follows:

a great deal of confusion is attributed to the Supreme Courtsdecision issued
Friday, September 19. In thatrush to a decision, the court missed the obvious fact
that the provision offered by the plaintiffs attorney has long since been superseded by
other provisions of both state and federal law, and does not, and cannot, be operative
as a basis for any decisions now or in the future concerning the questions being put
forward by county commissions. Chaves County [quite naturally] now seeks to [use] the
huge gap in legal reasoning resulting from the Supreme Courts hurried decision.
3


Based on the legal analysis I have reviewed, there can be little doubt that the argumentation
and logic used by Chaves County and contained in its resolution is sound in that it is grounded
firmly in a careful reading of the court decision. So the next conclusion must be that any
disconnect that may exist between the law and the court decision does not lie with Chaves
County.

I will provide a number of facts that illustrate the confusion that has resulted from the Supreme
Court order last Friday. They will address the two issues raised by the Chaves County request:
timeliness and permissibility.

Timeliness

1) As you are aware, 42 U.S.C. 1973 ff-1 (Uniformed and Overseas Citizen Absentee
Voting Act, UOCAVA) requires that ballots are transmitted to our soldiers serving overseas
and in the United States forty-five (45) days in advance of election day. UOCAVA was passed in
1986.

2) The State of New Mexico has operated under a series of consent decrees with the
United States Department of Justice (DOJ) because previous Secretaries of State have failed to
comply with the 45-day deadline.

3) The timeliness issues are not limited to considerations of Federal law. New Mexico
statutes also have numerous references to this forty-five day deadline, as it has been adopted
by the New Mexico Legislature. Relying upon the Supreme Courts speedily written order

2
Supreme Court of the State of New Mexico, September 19, 2014. No. 34,890 and 34,893; to perform her non-
discretionary, ministerial duty to include those questions on the ballots to be used in Bernalillo County and Santa Fe
County in the upcoming general election;
3
Legal research and conclusions provided to the Office of the Secretary of State
Page 3 of 6



would be an inexcusable error, simultaneously violating federal law and prejudicing our
servicemen and women.

4) NMSA 1978, 1-10-4 (2011) states that Not less than fifty-six days before each
general election, each proper filing officer shall prepare in writing the ballot containing...any
constitutional amendments, questions or other propositions that are to be voted on... This
parallels the requirements of 1-16-3 (1981), which also requires that statewide questions
must be submitted not less than fifty-six days before the election.

5) NMSA 1978, 1-10-5 (2011) and 1-6-5 (2011) dovetail with UOCAVA, which requires
overseas absentee ballots be transmitted not later than 45 days prior to the election.

Repeatedly therefore, state and federal law makes it abundantly clear that the actual deadline
for ballot preparation and mailing to UOCAVA voters is 45 days prior to an election. All these
provisions have been adopted (or amended to reinforce this requirement) years after the
provision cited last Friday was adopted in 1977, and therefore clearly supersede any obsolete
and contradictory references contained in 1-16-8.

Invoking 1-16-8 is inexplicable unless it was the only provision a plaintiffs attorney could find
that somehow is supposed to justify poll questions. (Though it must be pointed out that the
paragraph also makes no mention of poll or advisory questions either.)

Even more alarming, by using 1-16-8 as the only legal basis for issuing its ruling, the Supreme
Court has only required that a resolution proposing such a question be sent to the secretary
of state no less than thirty days prior to the election. We must emphasize this fact because of
the time it takes to turn resolutions into actual ballots, currently up to as many as 11 days.
4

Following the Supreme Courts legal reasoning, we could be faced with preparing ballots as late
as 19 days before an election, which this year would be October 15. With absentee voting for
all voters beginning on October 7 this is not manageable and illustrates the absurd position
New Mexico is placed in as a result of the courts reliance on 1-16-8 as the sole basis for
opening up the ballot to unlimited polling questions, ballot congestion, voter fatigue, and
misunderstanding on the part of the voters.

In the final analysis, unfortunately Bernalillo and Santa Fe County attorneys pressed an obsolete
statute into service. (It is important to note that Chaves County cannot be blamed for
attempting to do for its voters what other counties have successfully done.) Chaves County,
following the courts logic and therefore the provisions of that statute the court used, is doing
nothing more than attempting to join the other two counties on board what might be called
the 1-16-8 train. But this is a service that this obsolete statute cannot provide because to do
so it would have to be viewed as being superior to, and contradictory of, federal law, as well as
at least four other more recently adopted provisions of state law. The Supreme Court,

4
State law actually requires questions to be certified 56 days in advance of the election, but the first mailing is not
required until 45 days in advance, or 11 days later. Ballot design and preparation is completed during this time.
Page 4 of 6



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.
The authority and duties of the Office of the Secretary of State are fundamental and organic, as
set forth in the New Mexico Constitution, and enabling as derived from the statutes enacted by
the legislature. Faced with an irreconcilable conflict between statutory mandates and a
decision made by a court that ignores or violates those mandates, a constitutional officer is
duty-bound to follow the law and adhere to the statute. That officer has no choice in the
matter. His or her duty is to the people and their written laws.

Therefore, despite the Supreme Courts order which cites a provision that would allow you to
submit the resolution we received Tuesday, 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 Courts 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.
Therefore in order to follow the true time constraints contained in both state and federal law, I
cannot allow your questions to go on the ballot based on timeliness.


Permissibility of advisory, or poll questions:

In Bernalillo and Santa Fe Counties v. Duran, in reaching its determination that the Bernalillo
and Santa Fe County advisory poll questions must be placed on the ballot, the Supreme Court
again relied only on 1-16-8. Specifically, the only statement provided by the court was:

WHEREAS, NMSA 1978, 1-16-8 (1977), provides that the form for ballots on those
questions not statewide in application to be submitted to the voters of the county shall
be furnished by the county clerk, and a copy of the resolution proposing such question
shall be sent by the county clerk to the secretary of state
5


The Courts Writ of Mandamus also offered no guidance, merely stating:

WHEREAS, emergency petitions for writs of mandamus having been filed in this matter
and having been granted by this Court, and the Court being sufficiently informed and
good cause appearing for the issuance of a writ of mandamus;

NOW THEREFORE, IT IS ORDERED that the Secretary of State shall include on the ballot
for the 2014 general election the questions approved by the Bernalillo Board of County
Commissioners [sic] Resolution No. AR2014-52 and Board of County Commissioners [sic]
of Santa Fe County Resolution No.2014-87;


5
Supreme Court of the State of New Mexico, September 19, 2014. No. 34,890 and 34,893, page 2
Page 5 of 6



That is it. No other citation is offered, and no legal reasoning is provided. All that can be
determined from the order as guidance for the future is that the advisory questions are
approved because they were submitted.

In the above cited case, a number of points were argued concerning the constitutional and
statutory duties of the Office of the Secretary of State (SOS). These included the supervision of
all aspects of elections, and various references in statute that the SOS is to prescribe, give prior
approval, and maintain uniformity in the application, operation and interpretation of the
Election Code. However, on all those matters the Supreme Court was silent. Instead the court
simply asserted that the Secretary of State refused to perform her non-discretionary,
ministerial duty to place those questions on the ballots. At no point, and in no place, did the
court offer a statute, or cite any provision of the law that explains where that non-discretionary
or ministerial duty is to be found. All that can be discerned from the courts order is that the
advisory or poll questions must be placed on the ballot, which of course I respectfully obeyed.

From the wording of its resolution, no one can doubt that Chaves County is relying, in good
faith, on a Supreme Court directive that ordered the non-binding, advisory poll questions to
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 cannot be operativeotherwise the same statute ends
up violating federal law as well as the voting rights of service members.

While some members of the Court made passing comments which seemed to try to imply that
they were not necessarily ruling on the legality of the advisory questions, no statement of that
kind appears in the order. As is repeatedly the case with the recent history of the court, again
in this instance the court merely focused on picking which side it had decided should prevail
and offered no actual court opinion. As is the case each time this happens, this means there is
no guidance concerning any of the numerous statutes implicated in the case. Therefore Chaves
County has no road map along which to proceed. Neither does the SOS.

Based strictly on the Supreme Courts order, and the lack of an actual opinion containing
guidance on the law, one can only conclude that the court believes: 1) Chaves County does
have the discretion to submit advisory questions that are neither supported by the New Mexico
Constitution or by state statute (as this was the courts ruling last Friday); and 2) Chaves
Countys resolution falls within the permissible timeframe for submission to the Secretary of
State (otherwise the court would not have cited a specific sentence that allows such a
submission within 30 days of the election).

However, despite the apparent approval that would proceed from the Supreme Courts own
reasoning and statutory citations, I am admonished by legal counsel that I cannot rely on the
logic of the Supreme Court order of September 19. If I were to do so and thereby accept
Chaves Countys resolution, this officeand the State of New Mexicowould fall afoul of
federal law, specifically UOCAVA, as well as other state statutes. Again, with all due respect to
the court, the duties and responsibilities of the Secretary of State are organic and enabling.
They derive from the Constitution and the legislature, and are not, and cannot be, summarily
Page 6 of 6



awarded or withdrawn at random intervals by any particular ad hoc body, whether
administrative or judicial. On the contrary, to withdraw them a constitutional amendment or
legislative act would have to be passed.

My legal counsel advises that, simply put, my office carries with it a Constitutional duty to
maintain uniformity in theinterpretation of the Election Code. (NMSA 1978 1-2-1 (A) (1)).
While some may suggest this means I should place your advisory poll questions on the ballot, I
do not believe that two wrongs would make a right. (I hasten to add that the wrong in this
case is not of your making.) 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.
Furthermore, my Constitutional duty is not absolved by the Courts acquiescence to those
Counties erroneous argumentsespecially when that court does not issue an opinion, and
therefore neither interprets nor provides guidance in the law.

Until such time as either the legislature or the Supreme Court acts to resolve the conflict
created by the Supreme Courts decision, I am duty-bound to uphold federal and state law.
Based on the foregoing, and 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, never
addressed or denied by any court, to conclude that advisory poll questions not carrying the
force of law (as is required in all provisions of New Mexico law) and that do not conform to the
types of questions authorized by the legislature, are not to be included on a general election
ballot.

Best Regards,



Dianna J. Duran
Secretary of State