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Secretary of state rejects petition seeking gun law repeal

March 22, 2019

New Mexico Secretary of State Maggie Toulouse Oliver has rejected a proposal by critics of a new gun control law who want the measure repealed in a public referendum.

Citing an arcane and rarely used provision of the state constitution, Republican leaders in the House of Representatives had called for a statewide referendum on Senate Bill 8. The measure, which the governor signed into law March 8, requires a gun buyer undergo a background check when purchasing a firearm from another person.

But in a letter to House Minority Leader Jim Townsend on Thursday, the secretary of state said this is not the sort of law that voters can repeal through a public vote.

The constitution states that “the people reserve the power to disapprove, suspend and annul any law enacted by the Legislature.” Toulouse Oliver, though, said this provision does not apply to “laws providing for the preservation of the public peace, health or safety.”

Townsend, R-Artesia, says voters ought to have a say on the law, and Republicans are considering a lawsuit to try and make that happen.

The bill does not use the words “public peace,” “health” or “safety,” he said, arguing the legislation is not exempt from a vote of the people.

“To say they don’t have the right to vote on this, to voice their opinion, is not how we’re supposed to operate,” Townsend said. “People want to be included in this.”

The secretary of state cited testimony about the bill by one of its sponsors, Sen. Richard Martinez, D-Española, who said the measure was “about saving lives and keeping guns out of the hands of criminals.”

Toulouse Oliver’s letter also cited Gov. Michelle Lujan Grisham’s comments about gun control in her State of the State address at the start of the legislative session and testimony on the bill from the heads of law enforcement agencies, advocacy groups and medical organizations.

“This legislative history and contemporaneous public statements definitely establish [the law] bears a valid relationship to the preservation of the public peace, health or safety, and it was clearly enacted by the Legislature for those purposes,” Toulouse Oliver wrote.

The secretary of state said she therefore would not approve or certify the draft referendum petition that House Republicans sent to her earlier this month.

That is unlikely to be the last word, though. Townsend said House Republicans would caucus on Friday, and a legal challenge to Toulouse Oliver’s decision is likely.

Getting the issue on the ballot was always going to be a long shot.

Critics of SB 8 would need to get 10 percent of the voters in three-fourths of New Mexico’s 33 counties to sign a petition calling for a referendum. And the total number of signatures would have to equal at least 10 percent of the number of people who voted in the last election.

About 701,000 voters participated in the 2018 election. So, proponents of a referendum would need about 70,000 valid signatures.

Only three referendums for repealing a law have gone to voters since New Mexico became a state in 1912, according to the Legislative Council Service.

The first, in 1930, failed to repeal a tobacco excise tax.

The other two, in 1950 and 1964, fell short of overturning election laws.

But House Republicans say they have momentum for a referendum.

More than two dozen of the state’s counties have adopted resolutions rejecting the new law on background checks. That kind of county-by-county opposition would likely be a big boost in gathering enough petition signatures to make the ballot.

The law was one of several gun control measures sponsored by Democratic lawmakers during the legislative session that ended March 16.

SB 8 extends background checks for gun purchases to sales between private individuals, with some exceptions, such as for immediate family members.

Retailers have long run background checks. Proponents of the new law say that left a loophole in sales outside of stores, such as between friends or acquaintances.

Twenty other states and the District of Columbia have adopted laws similar to the one New Mexico legislators approved.

But critics contend the law will only be a burden to gun owners and will do little if anything to prevent people who are prohibited from owning firearms from obtaining them.

Martinez said there is no chance for opponents of the bill to put it to a referendum.

“This is just another shot in the dark,” he said.