Supremes Reject Ballot Lawsuits
Court denies requests that Council rewrite proposition language
By Michael King,
2:00PM, Tue. Aug. 28, 2018
Late Monday, the Texas Supreme Court rejected lawsuits – literally, requests for “writs of mandamus” – that would have required City Council to rewrite ballot language for one proposition directing an “efficiency audit” and another requiring a referendum for any comprehensive land-use code revision.
The rulings were issued without explanation, but did note that in the case of the efficiency audit proposition, three Justices – Eva Guzman, Jeff Brown, and Jimmy Blacklock – would have “conditionally” granted mandamus relief.
The relevant pleadings had been filed over the last two weeks. The City of Austin filed its final submission – a response on the land-use code proposition – Aug. 23, and both sides had requested quick rulings. The lawsuits, filed by “relators” (persons who had signed the referendum petitions), went directly to the Supreme Court because of short deadlines governing the ballot preparation by the City Clerk and Travis County. In its brief, the city had requested that the Court rule by Friday, Aug. 24 – “if the language is to be invalidated.”
Had the Court approved mandamus in either case, it would have required that Council rewrite its drafted proposition under whatever directions provided by the Court. Council would need to post a meeting for that revision (with 72 hours notice), and possibly subject to additional legal review. According to the city’s pleading in the audit case, “The ballot language needs to be locked in place by no later than September 4th for the Travis County Clerk to be able to have the full ballot ready in time to go to the printer on September 7th.”
Although arguments in the separate lawsuits (represented in both cases by attorney Bill Aleshire) differed to a degree, the relators (Ed English and Allan McMurtry) argued that the Council’s drafted propositions do not accurately or adequately represent the intent of the referendum petitions that initiated them. For the “efficiency audit” proposition, the English brief argued that Council added “extraneous” language (concerning the audit process and potential cost) that would be misleading for voters. For the land-use code proposition, the McMurtry brief argued that in omitting the term “CodeNEXT” (and other aspects), the Council’s draft did not accurately track the language of the original petition. (“Two Ballot Lawsuits Before State Supremes,” Aug. 20)
The city’s Aug. 17 response to the English brief argued that the explanatory information is necessary to clarify for voters the effects of the proposition. In their Aug. 23 response to the McMurtry brief, attorneys for the city (Anne Morgan and Renea Hicks) argued that Council’s language more accurately represents the substance of the petition, and that there is no legal bar to “clarifying language” in a formal proposition.
Both sides were making, in effect, political arguments – the relators/petitioners claimed the Council crafted language intending to undermine the propositions, and the city’s responses insist Council was trying only to clarify the ballot props. In part, the arguments turned on the technical distinctions between “captions” and “headings,” and “petition” and “ordinance” — all terms disputed in the briefings. The Court’s ruling provided no guidance on its decision, but the city had argued that its authority under the City Charter gives Council “broad discretion” in drafting propositions, and that granting mandamus would be an “extraordinary” remedy to override that authority.
In less technical language, the petitioners wanted the audit proposition to be as simple as possible – e.g., “an independent efficiency audit of all city departments,” while Council wanted voters to be aware of the city’s existing audit processes and the potential cost of an external audit. The land-use code petitioners insisted on naming “CodeNEXT” as a politically negative term, and disputed the Council’s description of a potential three-year delay in any comprehensive code revisions; the city responded that “CodeNEXT” – the revision process recently abandoned by Council – no longer exists as a potential ordinance, and again preferred more detail in the proposition.
The audit case was also notable in that Council Member Ellen Troxclair filed an amicus letter supporting the English brief and attacking Council's practices concerning referendum ballots. The Texas Public Policy Foundation also weighed in against the city – indirectly confirming earlier suspicions that TPPF sources were behind the entire petition campaign. ("Ballot Lawsuits Simmer at Supreme Court," Aug. 24)
In a statement, the city responded to the Court’s ruling, “With this denial, the Texas Supreme Court has confirmed that our ballot language conforms to the legal requirements and represents the key features of both citizen initiated petitions.”
The Court’s rulings end the litigation process over the ballot language, but the political process – to be engaged not only in the proposition campaigns but the mayoral and Council campaigns – has only just begun.