Ballot Battle

March Madness, April Fools

Countless office pool brackets cheerfully cratered as the NCAA's March Madness dribbled into April, and now Cinderella George Mason University's stab at championship glory remains the triumph of the tourney, demonstrating "courage, perseverance, and sacrifice." Those are the words inscribed on the Travis County Courthouse, where last week, a similar Cinderella story unfolded in Judge Stephen Yelenosky's courtroom.

Thursday, March 30, citizen plaintiffs brought a case against the city to Yelenosky's 345th Judicial District court, where attorney Buck Wood described "inaccuracies and mischaracterizations" in City Council's draft of the charter amendment propositions supported by Save Our Springs Alliance, the ACLU, and other organizations. In an apparent upset, Yelenosky agreed, giving City Council until 5pm Monday to rewrite the ballot language covering the "open government online" and "clean water" amendments. Unlike George Mason's run, the battle over ballot semantics won't be remembered fondly, by council or SOS – or if the players keep fouling out, by Austin voters.

Wood dulled the city's double-pronged defense, laid out by attorney Robert C. Heath: That any delay incurred by court-directed changes to the ballot language constituted a delay of the election, impermissible under law; and even if changes didn't produce delay, the city "strongly disagrees that the propositions are incorrect or misleading." The first argument was undone by Travis Co. Clerk Dana DeBeauvoir, who testified she needed 12 days to "lock down" the ballot – meaning if she received new language early this week, she'd be "not great, but OK." The city's second argument was largely undermined by the testimony of Peter Collins, the city's Chief Information Officer, who testified that his cost estimate for the open-government proposition ($36 million to initiate and $12 million to maintain annually) which was in the city's ballot language, was comprised of "soft numbers," and a worst-case scenario at that (expensive, licensed software on every conceivable city employee's computer). A more streamlined process was then postulated by expert witness Richard Klugman, who created a comparatively cost-effective open-records system for the Florida Department of Transportation.

Yelenosky ruled that the council's wording must "present a fair measure of the proposed measures [and] chief features. The ballot language does not do that," he continued, citing unrepresentative examples, inaccurate terms, and unconfirmed predictions. First on the chopping block was a Big Brotherish list of municipal agencies (police, the library department, etc.), inserted in the open government prop as a scare tactic, and a list of environmental programs (solar energy rebates and SMART Housing incentives) the city believes the aquifer prop would kill. On the open government amendment, the judge cited the city's failure to identify public information as its chief component, terms "all" and "any" in the phrase "all private citizens' e-mails to any public official" and the $36 million price tag as being "not sufficiently certain" nor necessarily compelling a tax increase.

"Justice prevails!" exclaimed SOS Executive Director Bill Bunch after the verdict. Yelenosky was "able to see this was an extreme case. … We hope we can work with the city."

Judging from the tone in council chambers Monday, Bunch may have meant work over the city. After convening its special session, council went into executive session for a legal update – but not before getting an earful from eager amendment supporters reminding members to mind their business. That evoked a testy response from Mayor Will Wynn, who rejected the implication that illegal policy discussions take place in private. When council returned, the bloodletting continued at length, culminating with the ACLU's Ann del Llano, who angrily took Brewster McCracken to task for his role in tailoring the ballot language. "If you follow the same leader it will lead you to the same shameful place in Texas history," she said, claiming council was the first to be so judicially reprimanded.

Council followed the letter of Yelenosky's law, if not certainly the spirit, in making enough changes to comply with his order: ditching the examples, the open government amendment's cost, and the aforementioned "any" and "all." McCracken led the offense, feeling "very cautious about inserting other language, other than what the court's order was," and deflecting a proposal from Jennifer Kim to add a qualifying phrase "consistent with state and federal privacy protection laws" to the open government prop. McCracken, describing federal privacy laws' narrow procreation and contraception-related limitation, drily remarked, "Good, that's wonderful," but returned to his familiar list of information – library books, financial records – he believes ripe for release under the amendment. Describing the e-mail clause, he virtually blew raspberries at the audience. "That was litigated and you all lost. ... [T]his language has been upheld as being accurate," he said, generating chamber-rattling boos and catcalls of "Liar!" and "Shame!"

The most peculiar development on the dais this campaign season – Mayor Pro Tem Danny Thomas' newfound support for both propositions (following an absence during the aquifer language vote, and an affirmative on the original open government language) – surfaced in passing, when Thomas asked Bunch if the newish language met Yelenosky's mandate to fairly portray the amendments' chief features. Bunch's unsurprising response: No, no, and no.

The angry tone of the special session served largely to confirm the shortcomings of the petition-driven initiative and referendum process. SOS and company were shocked – appalled! – that the council would find any fault with its proposed amendments, despite the likelihood that they bear unintended consequences now impossible to adjust. Meanwhile, in its overzealousness to counterattack, council bought itself a lawsuit and a judicial reprimand in the bargain, giving SOS a PR advantage heading into the campaign. The result for voters is a ballot bracket as helpful as last week's basketball picks – but with much less anticipation of a public victory, no matter who wins.

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