In the Balance

A day-long hearing to decide whether the city of Santa Fe will use ranked-choice voting in its next election ended with the city's own attorney arguing that the system, which has been in the city charter since 2008, is unconstitutional.

City voters overwhelmingly approved the system nearly a decade ago, but the charter amendment contained language that allowed Santa Fe leaders to avoid using ranked-choice voting until it was available and affordable. Advocates say that day has arrived. The city says it has not.

Wednesday morning, state District Court Judge David Thomson will decide whether the system is constitutional and, if so, whether the city must use it for the March 2018 election in which Santa Feans will select their first full-time mayor and four city councilors.

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 choices of the eliminated candidate's voters. That process continues until one candidate tops 50 percent.

After the City Council voted in June to once more delay implementation of ranked-choice voting, Assistant City Attorney Zach Shandler said he planned to wait until the next election cycle to bring up the issue of whether voters had approved—and the city had been sitting on—an unconstitutional system of voting.

"I do feel compelled today to pull back the curtain once again and talk about the constitutionality," Shandler told Judge Thomson. He said the state Legislature had bandied the issue about in 2003, and by 2004, voters statewide had approved a constitutional amendment  that allowed for either a most-votes-wins scenario or a runoff election. He argued the Legislature did not consider ranked-choice voting as a substitute for a runoff.

Teresa Leger de Fernandez, the attorney for a group of citizens who sued the city to force the use of the new voting system, painted Shandler's argument as a stunning last-ditch attempt to put off using the system voters had ordered the city to use in 2008. She argued that the first time the city had publicly raised the issue of constitutionality was at a motion hearing in front of Thomson last week.

"Until last Tuesday, every city councilor in public hearings had expressed their support for ranked-choice voting. They just wanted to delay it. We never heard any attack on its constitutionality or whether it was appropriately voted in by the voters [in 2008]," she said.

"It was only when faced with a court decision on whether the city had a mandatory duty [to use ranked-choice voting] that the city challenged its own charter and an amendment that was placed there by the Council and passed by 65 percent of the voters."

While the first hurdle Thomson will decide will likely be constitutionality, the majority of the day was devoted to testimony about whether the city had been putting forth a good-faith effort to implement the system and whether the technology—or at the very least, the promise of it—was reliably available by the time the City Council needed to make a decision.

Three witnesses, including Secretary of State Maggie Toulouse Oliver and a representative from Dominion Voting Systems, testified that the state was in the process of moving to certify ranked-choice voting software by July, when councilors were considering whether to use it in the next election.

But Shandler said the state was arbitrarily defining its own deadlines in a light most favorable to using the new system, and painted the clash as the state and advocates trying to force the use of ranked-choice voting on Santa Fe when it wasn't yet ready. When Toulouse Oliver told an attorney that the state was just this week installing software onto the voting machines that would be used, Shandler seized upon it as further proof that saying ranked-choice voting was "available" as the charter amendment required was a mighty stretch—and one that would change the rules of the election some three months into the process that started when candidates picked up nomination packets in September.

Toulouse Oliver countered that the city's March election wouldn't be the first to use the new software. Every machine in the state would have the newly certified and standardized software on it, she testified, and Santa Fe need only switch on the ranked-choice voting function to use it. Constructing a ranked-choice ballot wouldn't take weeks, she said, but more likely a single day.

The city hasn't committed to an appeal if it loses, so it's unclear if Thomson's decision Wednesday will be the final word on the matter.