The Santa Fe City Council is not obligated or prepared to implement ranked-choice voting for the 2018 municipal elections, the city attorney wrote Friday in response to a lawsuit filed in the state Supreme Court.

With its reply, the city’s legal department disputed people who sued on the claim that ranked-choice software is functional, available and must be used in the upcoming election to ensure candidates who are elected in March reflect the will of a majority of voters.

The city attorney’s legal brief counters that the needed software for ranked-choice voting missed deadlines for an upgrade this year and would upset an election campaign that’s already underway, with candidates expecting the existing system to prevail. The city argues conditions in the city charter regarding the ranked-choice implementation have not been met.

A majority of city councilors earlier this year voted against implementation of ranked-choice voting for 2018, saying it would be impractical to try to enact a different voting system so near an election when they said uncertainty about the system remained. Absentee voting starts in January.

In 2008, city voters, by an almost 2-1 margin, approved a charter amendment to use the ranked-choice mechanism in city elections. The amendment stipulated that the ranked-choice or instant-runoff formula would be implemented in either the 2010 election or as soon as possible thereafter when the software and equipment “for tabulation of votes and the ability to correct incorrectly marked, in-person ballots” was available at a reasonable price.

A group filed suit in the state Supreme Court in late August saying these conditions had been met. They are seeking a ruling from the high court compelling the City Council to implement ranked-choice voting for the 2018 elections.

City Attorney Kelley Brennan and Assistant City Attorney Zachary Shandler wrote that the software is indeed now available at a reasonable price but that the pre-condition of the city charter ensuring “functionality” of the ranked-choice system and the ability to correct ballots marked incorrectly has not been met.

Petitioners say it was met May 4, when the Secretary of State’s Office agreed to use the latest software upgrade from Dominion, the state’s voting system and programming software provider. It includes a ranked-choice voting component that Secretary of State Maggie Toulouse Oliver has said “is consistent with” the city’s ranked-choice charter requirement.

The city, though, says the charter conditions regarding the “functionality” of the ranked-choice software would require a timely application with the state, the system having passed federal tests and the state certifying the system for upcoming New Mexico elections.

A meeting of the state certification committee will be held Sept. 27, after which the certification question will be decided, Joey Keefe, a spokesman for the Secretary of State’s Office, said Friday. It will be certified on or before Sept. 30, he said.

Toulouse Oliver, in an affidavit filed with the ranked-choice petition, said she believes that certification of the software by Sept. 30 “allows plenty of time to have the software and machines tested by the municipal clerk in preparation for” the city election.

But the city claims this is well past the point at which many candidates for city offices had announced themselves and begun to prepare.

One example the city attorney’s office provides is Councilor Ron Trujillo, who declared his mayoral candidacy to the city clerk in February. Announced candidates have been “operating under the rules of this election cycle,” Brennan and Shandler wrote.

“It is the city’s expectation that campaign budgets/campaign strategies are written and key [family] supporters are recruited very early on in this process,” their brief reads.

City Clerk Yolanda Vigil said earlier this summer she believed a sufficient voter-education campaign about ranked-choice voting would take six months to a year.

Candidates for city offices are now elected by a plurality. For instance, in the last election for mayor, a three-way race, Javier Gonzales won with about 43 percent of the vote. Under ranked-choice voting, the bottom candidate would have been eliminated and second-place votes distributed until one candidate broke the 50 percent mark.

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Toulouse Oliver, in her affidavit, said she believes “a good education campaign can be done on [ranked-choice] before the March 6, 2018, municipal election” and that if the city uses ranked-choice voting, her office will “assist the city through that process.”

But another concern expressed by City Clerk Vigil, cited in the city attorneys’ brief, was the need for resolution on certain important questions about how problems with ranked-choice ballots would be addressed.

How incorrectly marked ballots or ballots that only name one candidate would be incorporated into the rankings would have to be worked out once the city could review the software for itself, she said. Vigil added, she believed the city would have to adopt an ordinance instructing election workers about how to handle ranking mistakes or ballots that might list only one candidate instead of ranking them.

Toulouse Oliver’s affidavit says the ranked-choice module in the Dominion software upgrade “contains an algorithm that tabulates the votes and re-tallies the votes as described in the charter if no candidate receives a majority of the highest-ranked votes.”

She also said the system may be programmed to allow screen prompts that could help voters identify incorrectly marked ballots. The module, Toulouse Oliver wrote, can rank up to 10 candidates.

A divided City Council twice this year voted against the use of ranked-choice in the 2018 elections, saying variously that there were too many unknowns with the software and that there was too much at stake. Councilor Mike Harris said making the change so late in the year would be “a leap of faith.”

But Mayor Gonzales’ recent announcement that he would not seek re-election is all the more reason for an urgent implementation of ranked-choice voting, advocates of the format say.

There are three mayoral candidates so far, and more could enter the race with the incumbent out. And there are already at least nine announced candidates for four City Council seats, two of them open.

“Despite the city’s best efforts to muddy the waters, the Santa Fe charter and the overwhelming wishes of the people are clear,” said Maria Perez, director of FairVote New Mexico and one of the petitioners.

Teresa Leger de Fernandez, counsel for the Supreme Court petitioners, said the city’s response was an attempt to confuse the issue by “quibbling” over the timing of Secretary of State’s certification. “The city did not present any legal rebuttal of the fact that the software will be on the machines all New Mexico voters will use in 2018 and the city will have access to that software for free,” she said.

More mayoral candidates could announce their intentions before the Oct. 31 deadline for nominating petition signatures. Entrepreneur Alan Webber said this week he was “still chewing on” whether to run, and Councilor Joseph Maestas said he was weighing his options as well.

Several local groups, some of which said they would help provide voter education on ranked-choice, filed a brief this week in support of the Supreme Court petition.

Because the city will use the Dominion system, the brief reads, “the only question is whether Santa Fe’s officials will choose to use the system’s [ranked-choice voting] module or keep it turned off in spite of the clear mandate” in the city charter.

The petitioners have filed a motion requesting oral arguments. The Supreme Court has not scheduled a hearing yet.

Contact Tripp Stelnicki at 505-428-7626 or

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