Move to recuse judge clouds ranked-choice voting case
Newly sworn-in jurist sets hearing next week for city to defend decision to delay implementation of ballot system
A state district judge this week issued an order commanding the city of Santa Fe to use ranked-choice voting in the March municipal election but allowing the city at least one more chance to argue why it isn’t ready to switch to a system approved by voters nearly a decade ago.
It’s unclear, however, how the writ issued by Judge Greg Shaffer, sworn in just last week to his seat on the First Judicial District Court bench, will proceed, and whether a hearing he scheduled on the matter for next week will occur.
According to online court records, Assistant City Attorney Zach Shandler filed a motion Monday, a day before the writ was filed, requesting that Shaffer be recused from the case. No reason was provided.
“We feel we filed that recusal timely and under court rules,” Shandler said. “It should go to another judge.”
The legal wrangling is the latest twist in the drama surrounding a last-ditch effort by five city residents seeking to compel the city to use the ranked-choice method, sometimes called instant runoff by its proponents, in March
when the mayor’s office and four of eight City Council seats will be filled.
City voters approved a shift to ranked-choice voting as a charter amendment in 2008. The charter language stipulated the format should be implemented in either the 2010 municipal election or as soon thereafter as the equipment and software “for tabulation of votes and the ability to correct incorrectly marked, in-person ballots” is available at a reasonable price.
Petitioners say those conditions have been met and argue the city must use ranked-choice in March.
A majority of the city’s governing body, however, voted twice this year to hold off on implementing ranked-choice for the 2018 elections, saying too many unknowns remain about the software’s readiness.
Tuesday’s order by Shaffer, a former Santa Fe County attorney and a Democrat, was one of his first actions as a state judge. Republican Gov. Susana Martinez appointed him to the position to fill a vacancy left by the retirement of Judge Sarah Singleton. He was sworn in Nov. 2.
He was assigned the case after Singleton and Judge Raymond Ortiz previously recused themselves.
Shaffer, in the writ, “commanded” Mayor Javier Gonzales and city councilors to “comply with your mandatory non-discretionary duty to authorize and implement [ranked-choice voting]” for March as well as pay the court costs of the petitioners who sought the writ.
Shaffer scheduled a hearing for Nov. 17, when city attorneys will have a chance to argue why the city should not have to obey the order.
If the city’s motion to dismiss the petition is not successful there, the court will allow the city to file an answer in response to the writ, and another hearing could follow.
Teresa Leger de Fernandez, the petitioners’ attorney, called the city’s move to recuse Shaffer “disappointing,” whether it occurred before the writ was issued or not.
“It has taken a long time for a hearing to be held,” Leger de Fernandez said. “It is an election matter that deserves a quick response.”
City attorneys, in response to petitioners’ previous filings, have argued the availability of voting-machine software that could accommodate ranked-choice voting missed key statutory deadlines.
Shandler said the city maintains the state Supreme Court already ruled on the merits of the case when it denied the petitioners’ emergency petition without explanation in September.
“If we don’t win on that motion, then we’ll submit papers to the District Court, and one of our arguments is going to be about timing,” Shandler said. The City Council already has approved an election resolution, and the date the city clerk will finalize the ballots is roughly a month out, he added.
“We’re already past key deadlines, and we’re approaching deadlines that can’t be changed,” Shandler said. “That’s part of the equation.”
Leger de Fernandez said even if a new judge is assigned to the case she hopes the scheduled hearing will be held next week.
“We have a very strong argument,” she said. “We hope the court acts on it soon, because the sooner the court acts, the sooner everyone can begin to prepare for [ranked-choice voting].”
Under the ranked-choice formula, voters rank candidates in order of preference. If no candidate receives a majority of the first-place votes, the candidate with the fewest first-place votes is eliminated. Then, the votes of those who ranked that last-place candidate first are counted toward their next choice, and the rounds continue in this way until one candidate collects a majority, if possible.