Referendum push revives direct democracy debate in New Mexico
In 107 years of statehood, New Mexicans have only once used a referendum to repeal a law passed by the Legislature.
Could next year be the second time?
Republicans in the state House of Representatives are proposing a referendum on a gun control law enacted this month that would expand required background checks for gun purchases. But the difficulty they will face in getting the issue on the ballot in November 2020 reflects just how rare it is for New Mexicans to ever vote directly on laws their legislators create. And that is very much by design.
It is the legacy of a debate from over a century ago, when reformers across the country sought to wrest power from party bosses and robber barons by giving voters the referendum, in which the public can petition for a vote to repeal an existing law, and the initiative, in which the public can petition to put a proposed law on the ballot.
Critics countered that those mechanisms would lead to instability and socialism.
What emerged from a debate on the issue in New Mexico was a state constitution that includes one of the most restrictive referendum processes of any state and no process at all for citizen initiatives.
It is a stark contrast to neighboring states like Colorado and Oklahoma.
As a result, issues that other states have addressed through the ballot box, such as taxes or the legalization of recreational cannabis, are left to lawmakers in New Mexico.
If critics of Senate Bill 8 succeed in putting its repeal in front of voters, it will be a rare experiment in statewide direct democracy, offering a sort of case study into how New Mexico politics might have been different if the public had more power at the polls.
But there’s a big catch.
The New Mexico Constitution has one exception when it comes to referendums on laws passed by the Legislature: They cannot be used to repeal laws “providing for the preservation of the public peace, health or safety.”
Secretary of State Maggie Toulouse Oliver cited that provision in declining to certify petitions for a referendum on SB 8, which requires background checks for virtually all gun sales.
Consider, too, the requirement of gathering signatures from 10 percent of the number of people who voted in the last election (that would be around 70,000 after 2018), and it is no surprise New Mexico has held only three referendums in the state’s history, according to data compiled by Ballotpedia, which tracks elections around the country.
That is fewer than almost any of the 26 states that allow referendums.
“It’s meant to be used very, very rarely,” said Josh Altic, ballot measures project director at Ballotpedia, of New Mexico’s referendum process.
Wyoming has had one referendum since 1906, and Nevada has had two. On the other end of the spectrum, North Dakota has had 75 and there have been 68 in Oregon.
The only successful referendum here scrapped a 2-cent tax on cigarettes in 1930.
The other two referendums, in 1950 and 1964, sought to change the state’s primary election process.
It might not have always been this way.
Democrats and some Republicans fought for years to get broader referendum and initiative processes in the constitution during the run-up to statehood in 1912.
“Conservative Republicans fought their inclusion on the ground that they would produce political chaos and socialism, and the (specious) argument that they could actually be used to prevent, deny, or overthrow the civil rights of Nuevomexicanos,” wrote Phillip Gonzales, professor emeritus in the sociology department at the University of New Mexico and author of Política: Nuevomexicanos and American Political Incorporation, 1821-1910, in an email.
The territory was undergoing a big demographic shift at the time, with Americans from out east pouring into New Mexico and changing the political dynamic.
Many were eyeing the state’s natural resources.
John David Rausch, a professor of political science at West Texas A&M University, pointed to the contrast between Oklahoma and New Mexico. Both became states around the same time — New Mexico in 1912, Oklahoma in 1907 — but the debate over referendums and initiatives played out very differently in each state.
Oklahoma embraced both. Farmers and laborers there were a political force, Rausch said.
In New Mexico, however, mining and railroad companies wielded political influence, he said. “The corporations were able to hold power without giving too much.”
The clash played out at the state’s constitutional convention.
Arguing for the referendum and initiative, delegate Harvey Fergusson railed against “the prostitution of the great office of legislators” and warned of “the influence and power of illimitable wealth.”
“The people should have the only supreme power, the public officers are only the servants of the people,” he said.
But another delegate, Albert Fall, called the referendum “subversive of the form of government under which the United States has prospered.”
The state ended up with a process that allows referendums under very limited circumstances, with no process for recalling state-level elected officials.
When it became clear that the initiative wouldn’t be included in the state’s constitution, The New Mexican ran a headline blaring: “Today are buried fond hopes of socialists to rule New Mexico.”
A century later, with the proposal of a referendum on SB 8, Republicans are the underdogs of New Mexico politics, stirring a discussion about direct democracy yet again.
Republican legislators have proposed constitutional amendments a few times in the past 20 years to create an initiative process, too. The idea has never gone far under Democratic majorities at the Roundhouse.
The limited ballot processes raise the question of how different New Mexico politics might be if key issues that have gotten stuck in the Legislature could be decided by voters.
Taxes have been the most common issue for voters to decide through veto referendums nationwide.
Of 521 referendums around the country since 1906, 84 have involved taxation, according to Ballotpedia.
Meanwhile, most states that have legalized the recreational use of cannabis and medical aid in dying have done so through initiatives, rather than through legislatures.