Toulouse Oliver again shoots down gun law referendum petition

Andrew Oxford
The Santa Fe New Mexican
Maggie Toulouse Oliver

SANTA FE — New Mexico's top election official on Thursday rejected for the second time a proposed petition for a referendum asking voters to repeal a new gun law.

Republicans in the state House of Representatives have called for a referendum on scrapping Senate Bill 8, which requires background checks for virtually all firearm sales. If the petition were approved, opponents of the law would need to collect tens of thousands of signatures from registered voters to put the issue on the ballot.

But Secretary of State Maggie Toulouse Oliver has declined to approve the petition, pointing to a part of the New Mexico Constitution that says a referendum cannot be used to repeal laws "providing for the public peace, health and safety."

The decision sets up what could turn into a courtroom showdown not just over gun control but also the state's tight restrictions on referendums, the right of New Mexicans to vote directly on laws at the ballot box and who decides.

It also could carry a visceral issue from the 2019 legislative session into the 2020 general election.

SB 8 requires background checks for nearly all firearm sales, including between two individuals, such as neighbors or friends.

The law, which takes effect in July, includes exceptions for family members and for antique guns.

But critics, including Republican lawmakers and many sheriffs from around the state, have argued the policy would be unenforceable and only burden law-abiding gun owners while doing little to prevent the sort of mass shootings that have spurred calls for such measures in the first place.

House Republicans quickly called for a referendum on the measure, even before it was signed into law.

Toulouse Oliver first rejected a proposed petition in March, citing technical matters but also the section of the state constitution that prohibits repealing through referendum a law concerning public safety. She noted that proponents have argued the bill is intended to prevent firearms sales to people prohibited from owning guns.

Proponents argue the measure would close a loophole in current law that allows people to sell firearms to each other without going through the sort of background check that is standard at retailers.

In turn, gun control groups and backers like Gov. Michelle Lujan Grisham have argued the law is merely a matter of public safety.

In sending Toulouse Oliver a second proposal for a petition April 2, House Minority Leader Jim Townsend, R-Artesia, wrote that the secretary of state does not have the authority to unilaterally determine if a particular piece of legislation falls into the category of "providing for the public peace, health and safety."

In her response Thursday, however, Toulouse Oliver, a Democrat weighing a run for U.S. Senate, wrote that his argument was "simply incorrect" and declined to approve the petition again.

Proposed referendums have ended up in court before over the question of whether a law concerns public health and safety.

"In all of these cases, the question of whether a law was not subject to referendum ... only came before [a] court following the Secretary of State appropriately fulfilling a legally mandated duty to review the petition and make a determination based on the strict legal requirements for referendum petitions," Toulouse Oliver wrote.

The issue may end up in court again, though.

Townsend said Thursday he would consult with his caucus but added: "I doubt it's the last you'll hear of it."

Referendums are relatively rare in New Mexico.

The state's voters have only repealed one law through a referendum, with the state constitution establishing a fairly high bar to get on the ballot.

Not only is there a sweeping exception to the laws that qualify for repeal through a referendum, supporters of a referendum would also need to get 10 percent of qualified voters in three-fourths of New Mexico's 33 counties to sign a petition.

The total number of signatures would have to equal at least 10 percent of the number of people who voted in the last election. That comes to about 70,000 valid signatures.