Santa Fe appeals ruling to high court

City: System is unconstitutional; fight underscores confusing nature of preparations for March election

Ranked-choice voting is unconstitutional under New Mexico law, attorneys for the city of Santa Fe wrote in an emergency appeal to the state Supreme Court on Wednesday as the municipal government fights a judge’s order to change the process for choosing the next mayor and city councilors.

Voters approved ranked-choice voting nearly a decade ago when the city governing body put a charter amendment on the ballot, and a state District Court judge has ordered the city to finally implement the system.

But the City Council decided behind closed doors earlier this month to ask the state’s highest court for its opinion on whether the process is allowed under the New Mexico Constitution.

The appeal filed Tuesday, however, is not just a request for advice but a last-minute, unreserved push for the court to stop the process altogether.

The case underscores the confusing nature of preparations for a fast-approaching municipal election with the city’s own leadership making sharply divergent arguments on the pending changes while voters await rules about how they will cast ballots, how their choices will be tallied and how a winner will be chosen.

“I think the city at this point is really engaged in the sabotage of the next election,” said Maria Perez, director of FairVote New Mexico, which advocates for ranked-choice voting.

At the same time the city is pursuing this appeal, the council plans to vote next week on the details of running a ranked-choice election and will soon after launch an effort to educate voters about the new system ahead of the March 6 election, which starts with absentee voting at the end of January.

Under a ranked-choice process, voters rank their top candidates rather than choosing just one. If a voter’s first choice ends up in last place, his or her second choice gets a vote, and so on, until a candidate is a clear winner.

Proponents argue the system allows voters to fill out their ballot in line with their conscience rather than worry about spoiling a fractured race filled with multiple candidates.

But a majority of elected city leaders began pulling back from the idea this summer, arguing that the state’s election software provider

had not yet had a ranked-choice system certified and contending there might not be enough time to prepare voters for the new process.

A group of local residents sued the city, asking the state Supreme Court to require officials to implement rankedchoice voting in time for the 2018 election.

The high court declined to hear the case but did not explain why. Rankedchoice advocates then took the case to a lower court and won, with District Judge David Thomson ordering the city to implement the new process.

It remains unclear whether the state Supreme Court will be more inclined to take up the issue after rejecting the case over the summer.

The five-member court could deny the city’s appeal outright or ask for a response from proponents of rankedchoice voting and perhaps hold oral arguments at a later date.

The city’s attorneys base their case on the state constitution.

While the state constitution allows for runoffs in local elections if no candidate receives a majority of the vote, the city contends ranked-choice voting does not amount to a runoff — even though supporters sometimes refer to it as instantrunoff voting.

The fact that state law is silent on instant-runoff voting and ranked-choice voting, the city’s lawyers argue, does not mean it is allowed.

Moreover, they suggested the method of ranked-choice voting approved by Santa Fe residents is unworkable or at least nonsensical.

The city’s lawyers note that Santa Fe’s adopted policy would require a candidate to win a majority of the vote, which they say is not necessarily guaranteed through the ranked-choice process.

A newly proposed “contingency” ordinance could provide for the city to host a runoff election even after ranked-choice voting plays out.

“The notion that a ranked choice voting election will require a runoff is itself an absurd result,” the city’s lawyers wrote in the appeal.

Perez argued that this misunderstands the process of ranked-choice voting and that a winning candidate would have a majority.

Moreover, she said, the city seemed to believe ranked-choice voting was perfectly legal when it put the question on the ballot nearly a decade ago.

And she said the city’s draft policies for ranked-choice voting are encouraging, suggesting officials could implement it with little trouble.

Mayor Javier Gonzales introduced the runoff ordinance but said Wednesday he did not support it and believed the council could define the rules of a rankedchoice election to preclude a scenario where a runoff might be necessary after a ranked-choice election. Gonzales was the only vote against publishing a Jan. 10 hearing for the item and said the runoff proposal would introduce too much “process-ese” into the ranked-choice run-up.

“We need to refrain from overcomplicating this,” Gonzales said during Wednesday’s council meeting.

“Too late,” Councilor Carmichael Dominguez said with a laugh.