Three times in the past two years the Texas Supreme Court has found that the mayor and City Council of the city of Houston misled, or attempted to mislead, city voters regarding a ballot proposition before them: once with the city’s Rain Tax proposition, and twice in connection with the HERO, or equal rights, referendum. The current case over the ballot initiative in the most recent municipal election extending term limits will likely make four.
Specific policy opinions aside, Texas law provides for direct democracy under certain circumstances in home-rule cities. That law should be honored by the cities. Sadly, that has not been case.
Two principal problems have arisen in these cases. First has been the ballot language. Texas law currently makes city councils the final arbiter of what language will appear on the ballot to describe propositions on which their citizens will cast ballots.
The problem is that city councils are not neutral in these matters. Far too often they put their thumbs on the scales by jiggering the ballot language.
There are two ways that a ballot initiative gets on the ballot. The first is that a city council may order an election on a particular proposition. In such cases, the majority of the council normally wants the proposition passed or it would not have put it before the voters in the first place. Houston’s “Rebuild Houston” and the recent extension of term limits are two good examples.
In both cases the language approved by City Council omits critical elements of the proposition. In the case of “Rebuild Houston,” Council conveniently failed to mention that the program would be financed with the largest tax increase in the city’s history. Supreme Court Justice Eva Guzman described the omission as “egregious.”
In many ways, the language of the term limits modification was worse. First, Council described the proposition as limiting terms to “four years for both,” suggesting a person could serve four years total. The City Charter amendment language, however, extended the terms to four years for each term, double the time in the ballot language. To make matters worse, a special provision by which about two-thirds of the current Council would be able to serve up to 10 years was omitted from the ballot language.
When Rice University’s Bob Stein polled the language as it appeared on the ballot versus the actual effect of the amendment, it changed the election result by more than 20 points, far more than the actual election margin.
The second problem is the length of time it takes to adjudicate. Rebuild Houston has been in the courts for more than six years. In the election contest case, it is now 10 months after the election, and we are apparently still months away from a final ruling.
The Legislature should adopt measures to protect citizens’ rights to direct democracy and assure a prompt adjudication of any election disputes.
First, some neutral party should sign off on ballot language. Because we generally entrust the integrity of elections to the Secretary of State, that office seems an obvious choice.
Second, the provision in the Election Code that provides for election contests to receive expedited treatment in court should be strengthened and enforced. The courts, especially the Houston-based state Court of Appeals, have completely ignored this provision.
The current term limit case is a perfect example. The city spuriously alleged that the state district court had no jurisdiction to hear the case and received an automatic appeal before the case could be heard on the merits. The Court of Appeals took 10 months to rule against the city. The Legislature should amend the applicable laws to penalize delaying tactics and bypass the foot-dragging Court of Appeals with an automatic appeal to the Texas Supreme Court.
There may be other tweaks that need to be made, but direct democracy elections should be treated with the same respect and guaranties of integrity that we would any other election.
This article first appeared in the Houston Chronicle, January 16, 2017.