July 26, 2019

NM group files suit against Sec. of State and AG over referendum process

Joe Gratz


A group of New Mexicans filed a lawsuit Thursday afternoon against two state officials who rejected numerous attempts to start the process to overturn laws passed in this year’s legislative session.   

The lawsuit, filed by former Libertarian attorney general candidate Blair Dunn on behalf of a group called the New Mexico Patriot Advocacy Coalition, asks a state district court judge in Curry County to deem actions taken by the two elected officials as unconstitutional.

The lawsuit claims New Mexico Secretary of State Maggie Toulouse Oliver, in consultation with state Attorney General Hector Balderas, violated the rights of New Mexicans by denying 10 attempts to overturn recently passed laws. The state constitution allows for a referendum process in which petition signatures are gathered to overturn laws, though the process is rarely used and has only been successful once in state history. 

Previous attempts by House Minority Leader Jim Townsend, R-Artesia, to overturn gun restriction laws were also rejected. Townsend’s three attempts were denied by Toulouse Oliver for what she called technical errors and on the grounds that the state’s process for referendums to reverse laws does not apply to laws “providing for the public peace, health and safety.” One of Townsend’s attempts to overturn a gun background check law is among the ten instances the coalition says Toulouse wrongfully denied. The other petition attempts, filed by the coalition, aimed to overturn laws ranging from the recent minimum wage increase, election changes and a law that shot down the ability for local governments to enact right-to-work laws.

Almost all of the denied petition attempts by the coalition were denied on the grounds that the laws the group tried to overturn were related to public peace, health and safety, an exemption outlined in the state constitution. 

All ten attempts—including those that were not deemed to provide public peace, health and safety—were also denied for technical errors in the petitions’ wording. One technical error cited in almost every attempt was an erroneous addition of the words “fourth degree” in the petitions’ disclaimers for signing a false name. Another common error cited by Toulouse Oliver’s denials was a missing hyphen between the words “post” and “office.”

The lawsuit claims that Toulouse Oliver’s and Balderas’ actions were “politically motivated” and “incorrectly and impermissibly deny New Mexico citizens their right under the New Mexico constitution ‘to disprove, suspend and annul any law enacted by the legislature.’”

Toulouse Oliver told NM Political Report said she had not been served with the lawsuit, but that she is sure she followed the law in her denials.  

“I am confident in my determination, made in consultation with the Office of the Attorney General, that none of the draft referendum petitions submitted to my office thus far have met the strict technical and legal requirements that are laid out in the New Mexico Constitution, state statute, and relevant case law,” Tolouse Oliver said in an emailed statement.

Matt Baca, a spokesman for Balderas, dismissed the suit as frivolous and took aim at Dunn. 

“Blair Dunn continues to tie up our courts with frivolous lawsuits, this time hiding behind a so-called political advocacy group purporting to defend the Constitution,” Baca said in an email. “The Office of the Attorney General looks forward to the swift dismissal of this lawsuit.”

Dunn ran as a Libertarian for attorney general against Balderas in 2018 and has filed five lawsuits against the AG over the years. 

Dunn said he expects the case to make it to the state Supreme Court since Toulouse Oliver’s denials based on public safety brings up a nuanced issue.

“Technically Maggie and Hector aren’t wrong,” Dunn said of the broad scope of public safety. 

But, he said, broadening that scope makes it nearly impossible for anyone to try and overturn laws through the referendum. 

“That means that portion of the Constitution means nothing,” Dunn said.

The lawsuit also offers an alternative to the court regarding passed gun laws—to simply deem them unconstitutional. 

The lawsuit does not name individual members of the coalition, but does say that some of them “reside in Curry County.”