Eddie Moore, Associated Press
Bernalillo County Commission Chair Debbie O'Malley, left, Santa Fe County Commissioner Liz Stefanics, center, and Santa Fe County Clerk Geraldine Salazar leave the New Mexico Supreme Court building after a hearing that decided a question about decriminalizing marijuana should be on the election ballot in November. The hearing was held, in Santa Fe, Friday, Sept. 19, 2014.

SANTA FE, N.M. — The state Supreme Court ruled Friday that two of New Mexico's most populous counties can poll their voters in the November general election about lowering penalties for marijuana possession.

The court ordered Secretary of State Dianna Duran to place the advisory questions on ballots in Bernalillo and Santa Fe counties.

The counties will survey their voters on whether they support decriminalizing the possession of small amounts of marijuana. Bernalillo County also will ask voters about a possible tax levy to pay for mental health services.

The counties, however, won't be obligated to follow whatever direction voters give on the issues.

Bernalillo County Commission chairwoman Debbie O'Malley called the court's ruling a "victory for voters and democracy really."

"The voters have a right to weigh in on these issues," she said outside the courthouse.

Pat Davis of ProgressNow New Mexico said his group "is moving full steam ahead" on a campaign in support of the marijuana proposals. "The time for playing politics with our ballot is over, now we can start having a conversation about the issue and move forward," Davis said in a statement.

The counties went to the court after Duran refused to place the measures on the ballot.

A lawyer for the counties, Maureen Sanders, told the court that the secretary of state can't override a county's decision on what to present to local voters. She said Duran only can determine the form of the ballot and what statewide questions, such as a constitutional amendment, will look like on the ballot.

Duran's lawyer, Rob Doughty, contended that the state constitution and statutes don't specifically authorize nonbinding ballot measures, which will lack the force of law and only seek to gauge public opinion.

He said there has never been an advisory ballot question in a statewide election in New Mexico. They are permitted in some other states, including Pennsylvania.

There has been a nonbinding question in a city election. Albuquerque voters in 2011 were asked whether the city should continue a program using cameras at street intersections to photograph vehicles for red-light traffic violations. Voters said no, and the city ended the program.

There's a strong political undercurrent to the ballot dispute.

Republicans view the marijuana proposals as effort by Democrats to encourage younger and liberal-leaning voters to cast ballots and potentially boost Democratic candidates.

Bernalillo County is the state's most populou0s county and includes the city of Albuquerque. Santa Fe County has the third-largest population. The counties account for about two-fifths of the state's registered voters.

Duran, a Republican, is locked in a competitive re-election contest against Democratic challenger Maggie Toulouse Oliver, the Bernalillo County clerk.

A federal court on Thursday rejected a request by Duran to handle the ballot dispute. That cleared the way for the Supreme Court to make a ruling.

The state court faced a tight deadline for deciding the case because local elections officials must send absentee ballots to overseas and military voters by Saturday under federal law. Friday's ruling will allow counties to meet that deadline, the court was told.

A panel of two Supreme Court justices — Barbara Vigil and Petra Jimenez Maes — and Court of Appeals Judge Michael Bustamante orally announced their ruling after deliberating for about 30 minutes after hearing from lawyers. There's no requirement for the court to issue a detailed written opinion explaining the legal reasoning for their decision.

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