Judge promises ruling today in ranked-choice voting case

Technology is ready to use, secretary of state testifies

It’s double overtime for the rankedchoice voting case that might turn the city of Santa Fe’s 2018 election on its head.

After a daylong hearing Tuesday, state District Court Judge David Thomson said he would rule Wednesday morning on a petition brought by a group of advocates who want to force the city to use the longdelayed ranking mechanism in March, when voters will choose a full-time mayor.

The state’s top election officials say the ranked-choice software module is ready. City attorneys, however, say it’s too late to change the rules — and dropped in the curveball argument Tuesday that a ranked-choice election might violate the state constitution.

Thomson said he needed to review testimony from Secretary of State Maggie

Toulouse Oliver, state Elections Director Kari Fresquez and Steven Bennett, a representative of New Mexico’s election software provider, before issuing his decision, which could transform the fiveway race for mayor and two City Council contests, which have three candidates apiece.

Toulouse Oliver, Fresquez and Bennett all said Tuesday that the ranked-choice module has been certified by the state and will be included in the voting software system to be used in all elections statewide next year.

“We know it tallies correctly,” said Bennett, of Denver-based Dominion Voting Systems. “We’re 100 percent confident the system’s ready to go.”

But the new Dominion software didn’t arrive until August and wasn’t certified by the state until late September, Bennett said.

That’s past the point of no return for the March election, argued city attorneys, who maintain candidates in the 2018 election cycle have been campaigning under a traditional most-voteswin election framework.

“This is not something you should do in the middle of an election,” said Assistant City Attorney Zachary Shandler. “We end up with a late-delivered, overpromised ranked-choice voting product. … In my view, that is not available.”

The city charter stipulates that ranked-choice voting will be implemented for municipal elections as soon as the equipment and software “for tabulation of votes and the ability to correct incorrectly marked, in-person ballots” are available at a reasonable price.

The ranked-choice supporters who initiated the legal action argue these conditions have been met and that the city is obligated to abide by the will of the voters who overwhelmingly approved the shift to a ranked-choice system in 2008.

“The technical capacity is on that machine,” said Teresa Leger de Fernandez, the petitioners’ attorney. “It’s available.”

The City Council, which earlier this year voted twice to delay implementation of a new election system, was reluctant to trust that Dominion’s software would be ready or certified in time for the March vote, and cited the city and county clerks’ concerns about limited time to prepare.

Toulouse Oliver on Tuesday said she believes there is still enough time to educate voters about the system and train poll workers.

“Is there sufficient time? Yes,” Toulouse Oliver said. “Would it always be better to have more time available? Yes.”

She also said the new style of ballots could be put together quickly. “I can’t imagine this process taking more than a day’s time,” said Toulouse Oliver, a former Bernalillo County clerk.

“The city can make a determination as to whether the technology is available,” she added. “We are telling you it’s available.”

The state’s voting systems do not have the ranked-choice capacity just yet, Toulouse Oliver said. Software upgrades that include the ranked-choice module are to be installed on voting machines and tested on-site beginning this week, she said.

Fresquez, meanwhile, said “configurable components” in the ranked-choice system would still require attention before the election.

These rules would need to be hashed out in a public hearing or hearings, further stretching the tight timeline, Shandler said.

Shandler also raised the prospect of constitutionality: While the state constitution permits runoff elections, ranked-choice voting, sometimes called “instant runoff ” by its supporters, may not qualify as one, he said.

A deadline in city code compels the city clerk to send ballots to the printer by Dec. 13, Shandler said.

But Leger de Fernandez said ballots can be made as late as mid-January.

Absentee voting is scheduled to begin in late January. Election day is March 6.