Santa Fe won't have a new voting system for the March election if local government lawyers have their way.
But the "if" in that sentence is loud enough for a planned court hearing Tuesday to turn it around.
District Court Judge David K Thomson issued a ruling Nov. 9 that ordered the city to implement the system immediately or show cause at the hearing why it could not.
The city maintains that the state Supreme Court already ruled in the matter in September when it denied a petition to force ranked-choice voting in the next election. But Thomson's order sides with a lawsuit from people who want ranked-choice voting now. Deputy City Attorney Zach Shandler says the city is still hoping the court will toss the whole matter—as it argued in a motion to dismiss that's been pending since mid-October, after litigation was filed in District Court.
With five candidates in the March 6 municipal election for mayor, the test of the balloting system could have an effect on the winner. Ranked-choice voting allows for what amounts to an instant runoff for races that have more than two candidates. On the ballot, voters rank candidates in order of their preference. If no one wins a majority of votes, the last-place person is eliminated and results are recalculated using the second choice of the eliminated candidate's voters. That process continues until one candidate tops 50 percent.
It's been nine years since city voters made a charter change to begin using ranked-choice voting for Santa Fe elections as soon as a system was feasible. This summer, City Council voted in June and again in July to move forward with the status quo voting system in the 2018 election because the Secretary of State's office had not certified the ranked choice system. That happened in September, but by then the city was already digging in its heels.
"It's going to be my argument tomorrow that we are well into the election cycle already and that the rules should not be changed," Shandler tells SFR. "It will be up to the judge whether he thinks that's a good idea."
Three mayoral candidates have already gone on the record about ranked choice voting in that they cast votes as city councilors on whether to implement the system: Joseph Maestas asked fellow councilors to put it in place, while Councilors Peter Ives and Ron Trujillo came down on the other side, both voting against a measure to put it in place for the upcoming election.
Candidates Kate Noble and Alan Webber both say they'd like to see a judge force the system.
"I think we need ranked-choice voting," says Noble, a former city economic development employee who is now serving on the school board. "I think that it can still be implemented. Voters approved it a long time ago and it's especially important given that we are transitioning to a strong mayor system and that we have ranked-choice voting in place and thus the ability for a mayor to be elected with clear intention from the voting public."
Webber, an entrepreneur who is seeking the mayor post on the heels of running in the Democratic primary for governor in 2014, tells SFR he's ready to campaign for the citywide post no matter which way the court ruling goes.
"I think we are going to run the same race and I'll be the same candidate whether we have ranked-choice voting or we don't," says Webber, noting there's no way for him to know whether the system helps or hurts the chances of winning for particular candidates.
"As far as I am concerned, people voted for it and the secretary of state has given it a clean bill of health and we ought to do it," he says. "And that is not based on a political calculation, but it's based on looking at the facts and doing the right thing."
If Thomson rules against the city and forces the task of educating the electorate in a crash course, that job will fall to candidates, outside groups and the city itself.
FairVote New Mexico, whose executive director Maria Perez is one of the plaintiffs in the case, say other jurisdictions have implemented the system on tight time frames and that it's a proven method to improve elections.
Thomson's order, which came after several other judges have been removed or stepped aside from the case, says the City Council's duty to implement the system is "not discretionary" but rather required because of the city's own charter.
Shandler tells SFR that if Thomson upholds his order, the City Attorney Kelley Brennan would confer with the governing body on the next step. Putting the system in place now, he says, is “within the universe of possibilities.”
In July, City Clerk Yolanda Vigil said her preference would be to conduct six months to a year of education before changing the balloting system.