For Those About to Rank …

Judge orders Santa Fe to use ranked-choice voting in March 2018 election

In the end, Santa Fe had no choice about ranked-choice.

State District Court Judge David Thomson ordered the city on Wednesday morning to use the voting system in the next election—March 2018.

The decision means city officials will have to hustle to adopt the system mandated by voters through a 2008 amendment to the city charter. That amendment let the city put off using ranked-choice voting until the technology  was both affordable and available.

"That is the only condition that voters voted on for implementation of this charter [amendment]," Thomson told a quiet courtroom as he read his ruling. He said the City Council had expressed reasonable concerns about how to roll out the new system, but "the governing body cannot delay ranked-choice voting for reasons unrelated to the availability of software at reasonable price."

"The best way I can put it," Thomson later added, "is that it does not make room for anxiety."

"Ranked-choice voting's time has come," Mayor Javier Gonzales tweeted as Thomson was still reading his ruling. "… I remain eager to pursue an election that reflects the will of the people."

The mayor said he plans to ask the City Council to next hold a special meeting to set aside $300,000 for a voter-education effort as well as for implementing the election. The city estimates it will cost roughly $35,000 for the initial training by Dominion Voting Systems.

Wednesday evening, the city announced the meeting would take place Dec. 3 starting with a closed-door executive session at 3:30 pm. It's expected at that meeting that city attorneys will discuss the option of appeal with the mayor and City Council.

Assistant City Attorney Zach Shandler said that the city's argument against implementing the system was that it had passed the "point of no return" last summer. According to state law, he said, any approval of voting software after June 1 was ineligible to be used. The court disagreed.

City Clerk Yolanda Vigil will be in charge of shepherding staff, voters and volunteers through the new process. She was unavailable to comment Wednesday afternoon. The city plans to use the same voting machines in the upcoming election, but Santa Fe County—which owns them—began the process this week of upgrading the software to a version that allows ranked-choice voting. County Clerk Geraldine Salazar said the new software and new way of voting will need serious training and voter education.

Attorney Teresa Leger de Fernandez said the court's decision hinged on a determination that the software to hold a ranked-choice election is not only currently available, but was available—at the latest—on Sept. 27. Given that, she said, "The city does not have the ability to not do it."

In a full day of testimony Tuesday, the court heard from three witnesses, including Secretary of State Maggie Toulouse Oliver and a representative from Dominion Voting Systems.

"I told the city before that we were ready to go. They had six months from the time we were certified to prepare," Steven Bennett, a regional sales manager for Dominion, told the court. "I offered them support, services—I haven't heard anything."

Bennett, who was testifying over the phone, continued, "To give you perspective on what I'm talking about, I'm sitting in the parking lot of a county with 1 million registered voters, that we are going to implement a new voting system for June of 2018."

The task of rolling out ranked-choice voting for the roughly 53,000 voters in city of Santa Fe to use in the March 2018 is eminently doable, Bennett implied. The New Mexico Secretary of State's office certification of the latest software package in September, he said, meant it would have been reasonable for the City Council to assume it would be certified a month before that.

But on cross examination, Shandler hammered away at Dominion's characterization as so much salesmanship. Time and again, Shandler posited, the voting systems manufacturer had missed deadlines that would have enabled the city to be more confident that it could finally implement the voting method adopted by voters in 2008.

Shandler asked Bennett why Dominion hadn't gotten ranked-choice voting software certified for use after winning a contract with the state in 2013, 2014 and 2015. In 2016, Shandler pointed to an email exchange with City Clerk Yolanda Vigil in which Bennett told the city that the next version of Dominion's software—"Democracy 5.0″—would be ranked-choice capable and be done in 2016.

"Did you live up to the promise?" Shandler asked.

"I don't know that that's a promise," Bennett answered. He pointed out that the city hadn't tried to license software or otherwise enter into some sort of agreement that would bind Dominion to Santa Fe as a client. "It did not happen. And it was not something that was a concern of the city at the time."

In fact, Thomson said at the end of his ruling that had voters tried to force the city to use the system any earlier than 2017, he likely would have ruled against it because Dominion didn't have a ranked-choice-ready software package until this year.

Still, Toulouse Oliver said of the city on Tuesday that "they have plenty of time" to start using the new method. She said there's no bad time to start educating voters about how to cast a different kind of ballot; "But with that being said, multiple studies of voting behavior indicate that for most registered voters … [it's] really the last couple of months leading up to the election."

Shandler scolded the secretary of state on cross examination for giving the City Council confusing information last summer, but Toulouse Oliver brushed aside the premise.

"To my knowledge, other than during this hearing, this issue has never been raised," she told the court. "It wasn't raised during the public comment process when we went through the certification process. It wasn't raised privately to me."

"I understand that you're saying there was confusion," Toulouse Oliver continued, "but quite frankly, Mr. Shandler, this is the first time I've ever heard that."

The city said during closing arguments that the council had made its choice with the best available information. Day 92 of an ongoing election season is too late to change the rules, Shandler argued. The city would have to hold hearings, he said, on ballot design and procedures for dealing with tie votes or otherwise incorrectly marked ballots still have to be created.

What's more, he told the court, now councilors had a strategic interest in whether the city uses ranked-choice voting. "There's three city councilors running for mayor. It's not going to be an easy process to sort through all that."

All those worries may still hold true, but unless the city appeals, Santa Fe can no longer put off dealing with them.

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