Court Rejects City’s Delaying Tactics on Ranked Choice Voting But City May Appeal. Time to Make Calls

Teresa Leger de Fernandez, attorney for the plaintiffs, was magnificent. The Asst. City Attorney tried every dissembling maneuver possible. And he still lost. While the Judge gave the City one more chance to explain why it should not implement RCV, the judge really narrowed what is left to appeal. Info on how to call the City Attorney, the Mayor and your Councilors to stop the nonsense.

On Wednesday, Nov 15 Judge Shaffer ordered the City to implement RCV in March, but the City recused the Judge. On the 16th, Judge Thomson was assigned the case and he immediately acted, again ordering the City to implement RCV in March. Yesterday, Judge Thomson reaffirmed his decision, before a standing room only court room packed with Retake supporters (kudos to you). The Judge denied the City’s appeal and ordered both parties to prepare for an “Evidentiary Hearing” on Tuesday Nov. 28 at 9am at District Court, 225 Montezuma in Santa Fe. The Judge limited evidence to proving whether or not the RCV software is ready and whether or not RCV is constitutional in New Mexico.

There is no way that the City Attorney can prove the software is not ready, as the Secretary of State has certified it as being ready. That leaves the City with unenviable position of only being able to delay implementation of RCV by suddenly arguing that RCV is unconstitutional. You’d think that perhaps this might have occurred to the City somewhere earlier along its 10 years of dragging its feet. I wouldn’t be able to imagine the City would use this argument, except that I listened to every word of their specious argument on Tuesday.  What’s more, I have been informed byTeresa Leger de Fernandez, our attorney, that the challenge to constitutionality of RCV would be a challenge to the City’s entire ‘home rule.’  According to Teresa:  “The Constitution granted Home Rule cities the right to elect their officials in runoff elections in 2004 if the City includes that in their charter.  Art VII sec. 5(C).  And the Constitutional says that home rule is intended to allow municipalities “maximum local self-government.  A liberal construction shall be given to the powers of municipalities.  Art. 10 Section 6E.” Should the City appeal the constitutionality of RCV it could set up precedent for others to challenge the City’s Home Rule in relation to other issues, a dangerous step. The question I have is: How much is the City willing to give up to ensure it doesn’t have to implement the voters’ will? The Mayor needs to convene an emergency City Council meeting for Wednesday, Nov. 29 to direct the Clerk to begin preparing for RCV and to order the City Attorney not to appeal the verdict on Nov. 28. The next scheduled meeting of the Council is not til Dec 13.

What does it take for the City to stop bellyaching and get to work to adopt RCV?  Teresa Leger de Fernandez described in her opening statement that North Carolina implemented RCV statewide for millions of voters in only 84 days. We still have 105 days and about 2% of the number of voters as North Carolina. The only thing keeping Santa Fe from implementing RCV is political will. Period..

The software has been tested and certified by the NM Secretary of State. Whether or not Santa Fe adopts RCV this software will be used in March, so there is no reason not to proceed and lots of reasons not to delay further. Without RCV, four progressive candidates could split the progressive vote, with none achieving 20% of the total and a conservative candidate could receive 25% of the vote and become Mayor.

It will be more difficult getting RCV done now, having wasted more than two months, but whose fault is this?  The City could have ordered the Clerk to get started on this months ago. But it chose to delay. The Mayor could and should now put his foot down and  direct the City Attorney to stop the legal nonsense and direct the City Clerk to get busy preparing for RCV. It is time for this City’s leadership to prove its mettle, and demonstrate that it cares more about the future of the City than the Clerk having to work some overtime because she failed to prepare for this moment months and months ago 

How confusing is it to rank from 1-5 your choices for Mayor? I have heard Councilors bemoan that they’d have to decide how the software should function if someone only ranks one or two candidates but doesn’t rank all five. But if someone just ranks their first and second choice, that means they do not want any of the other candidates. The software can easily program these scenarios. That is what it is designed to do. And you, City Council and Mayor, were elected to implement the voters will, not waste tax payer money on frivolous law suits. Just get moving and implement RCV.

The truth is:

  • In one or two meetings the City Council could prepare the protocol guiding how the software will manage the process and there are protocols in place from other cities to use as a guide;
  • Voter education materials that should have been created by the Clerk months ago, could be created quickly using models from other cities and disseminated throughout the City;
  • Sample RCV ballots are also available from other cities, I even found several just by googling; and
  • The League of Women Voters and other non-partisan civic organizations could provide educational sessions.

It is time to stop delaying and begin acting on the voters behalf. We face the prospect of a very conservative Mayor being elected in a very progressive city because our City Council and Mayor failed to implement the will of the voters. No more excuses.

Santa Feans TAKE ACTION:

  • Please call and email the City Attorney, your city council representative and Mayor Gonzales to let them know that this is not acceptable (phone numbers and email addresses are provided below)! Let them know that they have enough time to implement RCV if they stop wasting time with legal appeals. Three court orders have been issued; community sentiment is overwhelming and there is time. We do not want a Mayor elected by 25% of the voters.
  • Please also make sure to write to the Mayor and ask that he exercise leadership; he is our Mayor and he can
    • Direct the City Attorney to stop the legal actions;
    • Direct the Clerk to begin work in preparation for RCV; and
    • Convene the City Council to meet on Nov 29 to determine the protocols that would govern RCV—this is critical. The City needs to start working toward implementation instead of working toward resisting.
  • Please submit a letter to the editor or My View to the Santa Fe New Mexican, expressing your thoughts about the critical need for Ranked Choice Voting, click here for information on how to do this.
  • Please show up on Nov. 28 at 9am at District Court, at 225 Montezuma Ave, Santa Fe.
  • Please share this with your personal and social media networks and encourage people to take action!

In solidarity,

Paul & Roxanne

Below is contact information on all the City Council members, the City Attorney, and our Mayor.

MAYOR JAVIER GONZALES (505) 955-6590, jmgonzales@santafenm.gov

Kelley Brennan, City Attorney: (505) 955-6511.   kabrennan@santafenm.gov  Tell her that the legal battle should stop, she is wasting City $$ and blocking the voters will. The number rolls over to another attorney, but they will get the message. Fill the voice mail box. 

District 1.

District 2.

District 3

District 4

7 thoughts on “Court Rejects City’s Delaying Tactics on Ranked Choice Voting But City May Appeal. Time to Make Calls

    • Sure wish I could figure it out. Cowardice. If the software fails, they look bad. But if you venture anything there is the risk of failure. I’d have never ridden a bike if I heeded my fear of falling.

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    • They have said that they are afraid of a “botched” election. Fear of something new and untried here.

      But, I also wonder if it doesn’t have to do with so many City Counselors who are running not wanting to campaign harder in order to get 50+% of the vote, instead of winning with just 20-something % of the vote.

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  1. One ‘sort of’ valid issue that I heard, was that absentee ballots must be ready considerably before the election (and possibly mailed to military personnel stationed overseas in a timely fashion). If that is true, then the time left to get election materials together would be a lot shorter than 101 days. Another is that no procedures have been established for the case where no one ends up with more than 50% of the vote in the end. This can happen in cases where people do not completely fill out the ballot (for example, if a lot of voters only mark their ballot for a single candidate).

    Finally, without a sign off from the NM Supreme Court, it is possible that a candidate who would have won with a plurality, but ends up losing in the ‘instant runoff’ could contest the election, leaving city government in limbo for however long the case takes to be completed.

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    • Good points all:
      1) North Carolina has military personnel and other absentees and they got it done in 84 days;
      2) The procedures about how to govern all the “what ifs” have been considered and addressed in multiple cities using RCV and could be adopted and/or revised in a single meeting;
      3) If this goes to the NM Supreme Court (and it could) it would be decided well before the election and the hearing on the 28th sort of anticipates any NM SC ruling by asking for evidence of the constitutionality of RCV—something you’d think the City would have thought about ….oh maybe 10 years ago.

      It certainly is interesting and your points are well taken.

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      • The procedures to deal with 2) should be fairly straight forward, but the fact that the ordinance is based on a referendum may complicate this somewhat. if an explicit mechanism wasn’t described in the original ballot measure there might be an issue modifying the language by council resolution.

        It is certainly absurd that all of this hasn’t been cleared up in the ten years since the ballot resolution passed.

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