Moving Forward

District Court judge puts ranked-choice voting one step closer to usage in March Santa Fe election

In an anticlimactic moment of 60 or so interested Santa Feans leaning forward to quietly parse Judge David Thomson's ruling, the state District Court arbiter Tuesday rejected two motions by the city of Santa Fe that would have stopped an effort to force the use of ranked-choice voting in the March 6, 2018 city election.

Thomson ruled that, a Supreme Court order from September notwithstanding, the District Court had the authority to review the plea by advocates of ranked-choice voting. He ordered an evidentiary hearing on the morning of Nov. 28 that seems set to decide—perhaps pending appeal—the issue of whether to force the city to use the voting system.

An amendment to the city charter authored 10 years ago and approved by voters in March 2008 contained language that let the city put off implementing the system until "the equipment and software for tabulating the votes and allowing the correction of incorrectly marked in-person ballots are available at a reasonable price."

Citing first cost, and now the time needed, to roll out and train workers and voters to use ranked-choice voting, the city has delayed using the system. Exasperated advocates filed suit this year after two City Council votes to again put off the system voters approved.

"It's not that hard to learn ranked-choice voting," attorney Teresa Leger de Fernandez argued to Thomson. "If you can count to 10, you can say this is my first choice, my second choice, my third choice."

Cost, Leger de Fernandez pleaded, is no longer an issue. The system would need training that the manufacturer says will run to $30,000.

"The city spent a whole lot more than that on the soda tax," she said, eliciting snickers from the packed courtroom.

"I'm disappointed the city is putting more resources into fighting the will of the people than it would take to implement the will of the people," Craig O'Hare, a 22-year city resident who is among those who filed suit, told SFR as Thomson was in recess to consider his ruling. Had the city stopped fighting the measure, O'Hare said, "It would be no big deal."

Assistant City Attorney Zach Shandler argued to Thomson that the matter had been decided for this election cycle when the Supreme Court refused to step in late this summer. "Two months ago, the Supreme Court ruled. But the petitioners still want to change the rules of the game," he said. "We're here saying the Supreme Court has ruled, and we're defending that ruling."

Thomson stepped in at times, poking at attorneys' arguments and asking them to clarify their interpretations of the Supreme Court's September order.

Advocates pointed out that since the superior court's decision, the secretary of state had certified a software update to all voting machines in the state that could reliably handle a ranked-choice ballot. Shandler argued that the certification hadn't changed the essence of either side's argument for or against using the system.

"We believe that the petitioners, having lost at the Supreme Court, can't appeal downwards to the district court," Shandler told Thomson. "This argument has put us crosswise with many of our usual partners."

Thomson added a bit of a wrinkle at the end of his announcement Tuesday, saying he wanted both sides to be prepared to argue the constitutionality of ranked-choice voting in the hearing next week. Some detractors say it goes against the principle of one person, one vote, since voters could essentially tally multiple votes as their second choices are counted to achieve a majority for one candidate.

The judge asked that state Bureau of Elections Director Kari Fresquez appear at the evidentiary hearing, as well as a representative from the software manufacturer, Dominion Voting Systems.

Shandler said he didn’t sense Thomson had his mind made up on the facts of the matter at hand. He anticipated the hearing next Tuesday would move the judge toward determining when was the most fair time to draw the line for setting the rules for the election.
“I think it will focus on when do you take the legal snapshot of whether all systems are in place and whether the law requires it earlier or later,” Shandler told SFR after the decision.
In his view, that snapshot would have been taken this summer as the City Council considered whether to use ranked-choice voting. “What was in place then, when they were making the call and establishing what the rules of the game would be.”
Shandler said it’s too early to say there’s not enough time to argue about the system and still pull off an election.
“I think right now, the rules of the game are that the person who has the most votes wins. Those rules have not been changed yet.”

The city clerk will draw names to determine ballot order on December 7. Shandler said the city will send the ballot to the printer in the week following.

The City Council last rejected using ranked-choice voting in July. At that meeting, Santa Fe County Clerk Geraldine Salazar didn't take a firm stance, but told councilors to "consider the timing and stress involved in getting this together." The county owns the voting machines that the city uses and assigns staff to assist with city elections, usually at no cost.

Mayoral candidates Peter Ives and Ron Trujillo both voted against using the system at that meeting. Joseph Maestas, also seeking the city's top job, voted for it.

Santa Fe voters will elect their next mayor and several new city councilors in March. There are currently five candidates for the mayor's job, which will become a full-time affair after the election and pay the city's leader $110,000 annually. Ranked-choice voting would ensure the winner has a majority of votes.

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.

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