Resisting citizen referenda is part of a long tradition in Austin

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austin city council changing ballot language

Twice in the same week, the Texas Supreme Court has been asked to act quickly to block important Nov. 6 ballot issues crafted and approved by the Austin City Council.

In both cases the petitioner, attorney Bill Aleshire, contends a council majority and Mayor Steve Adler approved ballot questions with language intended to lead voters to reject the propositions. Such language violates the city charter, Aleshire alleges.

Aleshire is under pressure to get answers from the court before the city’s Sept. 7 legal deadline for approving the language for all measures on the general election ballot.

While two suits in a week is unusual, Austin elected officials have a well-earned reputation for resisting citizen attempts to put issues to a public vote — from refusing to put such referenda on the ballot to interfering with the petition process and confounding voters with impenetrable ballot language, formulated by council in closed sessions.

“Austin has a long history of trying to impede the process,” said Fred Lewis, an attorney who has been involved in several of the most celebrated cases. “Here’s the problem in a nutshell: It’s a democratic process and when people play games with it, it creates terrible distrust with the public.”

Lewis said public distrust of the council is baked into the issue of voters demanding a direct say on large questions involving the direction of the city or the expenditure of huge taxpayer sums.

City officials “are usually hostile to ballot initiatives because they’re being brought by people who want the city to do something the council hasn’t done,” Lewis said. “It looks like the city isn’t doing its job. And in most cases, it isn’t.”

Lack of trust in the council is at the heart of Aleshire’s first appeal to the Supreme Court, on behalf of a group seeking to force the city to conduct an independent audit of all city departments.

The group, called Citizens for an Accountable Austin, began gathering signatures in May on a petition asking that the city council either approve such an audit or allow voters to decide on Nov. 6. The city clerk certified the petition earlier this month.

The council declined to take its own vote on the audit, despite polls showing that more than 80 percent of the public in Austin support it.  

And rather than putting before voters a ballot question that read, “Shall a city ordinance be adopted requiring a comprehensive, independent, third-party audit of all city operations and budget,” a council majority approved this language:

“Without using the existing internal city auditor or existing independent external auditor, shall the city code be amended to require an efficiency study of the city’s operational and fiscal performance performed by a third-party audit consultant, at an estimated cost of $1-$5 million.”

In his appeal to the court to order the council to reconsider the wording of the question, Aleshire says the council’s choice “violates the Austin city charter and, regardless, is prejudicial and misleading political commentary on the proposed ordinance, not language that merely identifies the measure’s chief features, character, and purpose.

The language Aleshire contends is misleading was added at the council’s insistence, overruling the advice of the city’s attorneys to keep the ballot language straightforward.

In a videotaped interview with The Texas Monitor, council member Ellen Troxclair said the council insisted the question include references to the city and external auditors to suggest an independent audit was unneeded or redundant. Adding a broad cost figure arrived at without any formal estimating would suggest to some voters an unnecessary audit was also an expensive one, she said.

Not only did Troxclair object to the language that emerged from the private session, but Adler folded the vote on the ballot language into a multi-part vote on all of the Nov. 6 ballot questions against her wishes, she said.

Adler and the council were aware before that meeting that if they passed anything other than a simple and direct ballot question, Aleshire was prepared to sue on behalf of Ed English, a supporter of the audit.

“There were certainly concerns expressed that this language wouldn’t pass muster,” Troxclair said. “I don’t feel there is any legitimate argument against this [ballot initiative]. It’s a citizen-led petition calling for more transparency and more information. The fact that the council is so clearly opposing it makes me wonder what they’re scared of finding.”

On the same night it was ornamenting the audit language, the council also voted to stop work on CodeNext, a failed six-year effort to create a new land development code. Several council members before voting said CodeNext was a victim of public distrust.

Lewis filed suit on behalf of CodeNext opponents who presented a certified petition asking that the council either approve or reject the proposed new code directly or give voters the opportunity to approve it. The council did neither.

The court ruled in favor of CodeNext opponents on July 16, forcing the council to reconsider. At the same meeting at which it killed CodeNext, the council also resolved the ballot question by removing the word CodeNext from it, prompting this latest appeal to the Supreme Court.

“First, the council refused to respect the voters’ right to have their [CodeNext] proposition placed on the ballot at all,” Aleshire told The Texas Monitor when he filed his latest suit on Friday. “A court ordered them to follow the charter. We’ve now asked the Supreme Court to order the council to follow the charter and fix the unlawful ballot language the council adopted.”

Council member Ora Houston, who voted in the minority with Troxclair against both the audit and CodeNext ballot language, said this council is failing to provide clear and unbiased direction to voters on its ballot questions.

“First of all, ballot language needs to be clear and objective enough for a lay person to understand and have the ability to determine if they are for or against the proposition,” Houston said in an email to The Texas Monitor. “Additionally, even though we have great lawyers working for the city, we have not been on the winning end at the courthouse.”

City officials are letting their attorneys speak for them in the Supreme Court appeals. Very late on Friday, City Attorney Anne Morgan and outside counsel Renea Hicks filed a response to English’s audit plea, defending the language added to the basic question.

“None of the wording of the proposition is deceptive, prejudicial, or without factual foundation,” the city’s attorneys told the Supreme Court. “The real complaint is that the proposition language for the measure gives more information about it than Mr. English wants voters to have.”

“The city has not found any authority for striking down ballot language providing additional information to the voters, and Mr. English has not identified any such authority,” the reply said.

The city has yet to file its response on the CodeNext appeal.

Troxclair said the current council majority set the pattern of manipulating ballot language in 2016 with Proposition 1, a question of what to do with ridesharing companies like Uber and Lyft operating in the city.

By the time voters went to the polls in May 2016, the language of Proposition 1 had become almost an afterthought in the struggle between the city council, which was insisting ridesharing drivers be fingerprinted, and companies that had spent more than $8 million on an advertising blitz to avoid city regulatory control.

How much of a role confusion in the voter booth played in the rout that drove Uber and Lyft out of Austin is unclear. But even the Austin American-Statesman’s transportation expert, Ben Wear, couldn’t figure out what Proposition 1 meant.

“The voter is asked whether he or she wants to amend something, to repeal something, and replace something with something that would repeal something and prohibit fingerprinting,” the reporter wrote at the time. “Then there are a couple of other repeals thrown in there, and then a requiring of something.”

“Don’t blame Uber and Lyft for this literary abomination, by the way. The Austin City Council, by a 9-2 vote, crafted and approved the ballot language,” he added.

“It was so clear that it was incredibly confusing,” Troxclair said, with unintentional irony. “Unfortunately, they weren’t really challenged on it. I think it set a precedent that they could get away with it. Now, here we are with another ballot initiative they do not want to pass, started by a citizen’s petition. I think that they think, ‘Well, we got away with it the first time. Why don’t we do it again?’ ”

Two of the foundational rulings by the Texas Supreme Court in favor of ballot initiatives by citizens — Glass v. Smith in 1951 and Quick v. City of Austin in 1998 — came at the expense of the Austin City Council.

In the Quick case, a 1995-vintage city council tried to race a $10 million minor league baseball stadium through the approval process — a tactic echoed in the pressure brought to bear in the recent deal for a Major League Soccer franchise between the city and Precourt Sports Ventures.

When longtime local activist Linda Curtis formed a group called Priorities First! To challenge the baseball expenditures, the council put the stadium spending in the form of a bond question. But rather than put the stadium bond question on the regular November ballot, the council called for a special election for the single item a month earlier, hoping for a lower voter turnout.

Opponents pummeled the stadium, rejecting the bond proposal with 63 percent of the vote.

Two years later, Curtis was back, pressing for campaign donation limits under the name Austinites for a Little Less Corruption (ALLC). The group filed a petition with 29,000 signatures to put the issue to a citywide vote.

The city clerk invalidated 15,000 of the signatures, nullifying the petition and so angering the American Civil Liberties Union that it hired Austin attorney Hugh Lowe to sue.

“They asked me to represent the principle of free access to the ballot without political foolishness and shenanigans,” Lowe, now retired, told The Texas Monitor. “What they were trying to do was so blatant, I felt sorry for the city clerk.”

District Judge Sam Sparks (now a senior U.S. district court judge) ruled in favor of Curtis’ group. “The [voter registration] number requirement appears to be nothing more than a harassment tool because the primary effect of the requirement is to make it harder, if not impossible, for citizens to conduct petition drives,” Sparks wrote in his opinion.

Sparks also took the unusual step of awarding $65,000 in legal fees to Lowe, who donated all of it to the ACLU. “I think I was their biggest single donor that year,” Lowe said.

In the most recent cases and those that came before, city councils have been “disrespectful of the rights of the voters,” Lewis said. Fortunately, he said, the law and the city charter place on the city “a very, very heavy burden for keeping an issue off the ballot.”

Which, as history has shown, is no reason to believe the current and future councils will be troubled by the burden, Lewis said.

“Oh, you can expect that this is going to happen again,” he said. “That’s what these people do.”

Mark Lisheron can be reached at [email protected].

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