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In court, city ranks RCV unconstitutional

SANTA FE, N.M. — In choosing to appeal to the state Supreme Court a district court judge’s decision ordering ranked-choice voting to be used in Santa Fe come March, city government has taken the unusual step of challenging the validity of its own past actions.

It was the City Council which, nearly a decade ago, put an amendment before voters to switch to a ranked-choice election system. The measure was approved by a wide margin in 2008.

Now, though, the city – as represented by a slim 5-4 majority among today’s city councilors and mayor – has argued in court that ranked-choice voting, or RCV, is unconstitutional.

“If the legislature wanted to propose a constitutional amendment authorizing RCV, the legislature could have done so, but they chose not to do it,” the city says in a filing.

The city attorney’s office notes that the New Mexico Constitution uses the term “runoff election” but provides no definition for it.

So the city turns to Black’s Law Dictionary, where a runoff is defined this way: “An election held after a general election, in which the two candidates who received the most votes – neither of whom received a majority – run against each other so that a winner can be determined.”

In addition, the city says federal election code addresses “runoff elections” by referring to elections “held after” primary or general elections.

“This process (RCV) is clearly different from a runoff election and can produce different results,” the city maintains.

Ranked-choice voting is intended to provide a winner who gets support from a majority of voters, but with an “instant runoff” instead of a separate runoff election.

RCV comes into play in races with more than two candidates. Voters rank the candidates – a first choice, a second choice, a third choice and so on. That part, a voter’s job at the polls, is relatively easy to explain.

RCV vote counting can be harder to understand. If no candidate gets a majority of first-choice votes in an initial count, the last-place candidate is eliminated. The second-choice votes on ballots for the last-place candidate are then counted toward the first-place totals of the remaining candidates. The process is repeated until someone gets enough votes to win, theoretically a majority.

One problem that could provide grounds for a legal challenge is that RCV doesn’t always assure that the winner gets support from a majority of all voters who cast ballots. That can happen when, for instance, some voters just pick a first choice and don’t rank other candidates.

But RCV supporters can argue that, similarly, winners of standard runoff elections rarely get enough votes to equal a majority of those who voted in the first election, as turnout drops off.

City’s RCV history

Even back when the city was first considering adopting RCV, there were differing legal opinions about its constitutionality.

Prior to 2001, it wasn’t an issue. The law in New Mexico used to be that an election was won by a plurality of votes – whoever gets the most votes wins, with no requirement for a majority.

That year, the state Legislature considered a resolution to define RCV, which ultimately failed, a point the city now argues was a rejection of RCV as a “runoff election” method, even though RCV is often referred to as “instant runoff.”

Two years later, the Legislature introduced an amendment allowing municipalities to hold runoff elections and voters statewide approved the change to the constitution in 2004.

Santa Fe, a home rule city with its own charter, contemplated RCV during this era. A 2001 email from then-city attorney Bruce Thompson in response to a councilor’s inquiry questioned whether RCV really was a runoff election.

He warned that including provisions for instant runoffs in the charter could result in litigation “which could create incredible confusion over who actually won the election.”

But the city’s position changed when Frank Katz became city attorney in 2006. He said the state Constitution “makes no restrictions on the type of runoff election.”

“There is no basis to conclude that a runoff that is achieved through expressing one’s second, (or third) choice at the time of the initial election would be treated differently from allowing that second (or third) choice to be made some weeks later at a separate election,” he wrote.

With that in mind, the city decided to put a question on the ballot in 2008 asking voters if RCV should be adopted, with the proviso that RCV would be used whenever appropriate vote-counting software was available at reasonable cost. Sixty-five percent of voters said “yes.”

Judge Thomson last month agreed with RCV supporters that since appropriate software was certified in September by the Secretary of State’s Office, it’s now “available” under terms of the 2008 charter amendment and should be used in the March city elections. Santa Fe would be the first jurisdiction in New Mexico to use RCV.

Unless the Supreme Court rules it unconstitutional, that is.

Thomson briefly addressed the city’s arguments in his written order dated Nov. 30. “The New Mexico Constitution grants home rule municipalities the right to amend their charter to allow for runoff election,” he wrote, adding that the city failed to cite any provision in statute or the Constitution “that limits, restricts or prohibits conducting runoff elections using instant runoff, also known as ranked choice.”

The judge wrote that it’s apparent that the city’s charter review commission, in recommending that the ranked-choice question be placed on the ballot for the 2008 municipal election, considered the benefits of RCV over having two separate elections.

Proponents says RCV prevents underdog “spoilers” from tilting a race, allows voters to choose their real favorites instead of “the lesser of two evils” and discourages negative campaigning, as candidates must angle for potential second- or even third-place votes from among opponents’ supporters that could help win a majority after the initial round of vote-counting.

To the high court, again

Now it’s up to the Supreme Court, if it decides to hear the case.

The Supreme Court has dealt with this matter once already under a separate filing. The group of Santa Fe voters who brought the lawsuit that Thomson acted on previously filed an emergency petition before the high court. In August, they sought an order mandating the use of ranked-choice voting in 2018, arguing that the city had a nondiscretionary duty to implement RCV under the 2008 charter change. That petition was denied.

But within a week, the software capable of handling a ranked-choice election was certified by the Secretary of State’s office, prompting the RCV supporters to file a new petition in district court, which came before Judge Thomson.

One argument for taking the case back to the Supreme Court is to get a guarantee that the legality of RCV election results won’t be challenged.

City Councilor Ron Trujillo – one of three councilors running for mayor – said he wanted the city to appeal Thompson’s decision so the city can have clarity.

“I voted for it, so we’d have a definitive answer,” he said after the council decided in executive session to pursue an appeal. “We need to do this election right and make sure everything is covered. This is too important of an election. We have to get it right.”

The other councilors running for mayor are Peter Ives, who also favored an appeal, and Joseph Maestas, who voted against it. They will be on the March ballot with school board member Kate Noble and entrepreneur Alan Webber.

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