Two Ballot Lawsuits Before State Supremes

As expected, petitioners have sued the city of Austin over the language drafted by City Council on the “efficiency audit” and the “waiting period” and public vote for any comprehensive land-use code provision (e.g., CodeNEXT). Due to short deadlines, the case was taken directly to the Supreme Court.

Council Member Ann Kitchen drafted the land use code proposition adopted by City Council (Photo by Jana Birchum)

At its Aug. 9 meeting, Council adopted ballot language for both the “independent efficiency audit” requested by petition, and the anti-CodeNEXT petition that would mandate both a waiting period and a citywide public referendum before any “comprehensive” revision of the land use code. Supporters for both petitions (somewhat overlapping) objected to the language drafted by Council, and said they would likely file suit to ask the Court to direct Council to revise the language.

Petitioners quickly followed through on that threat, represented in both cases by attorney (and former Travis County Judge) Bill Aleshire. Representing “Relator” Ed English, Aleshire filed a brief arguing that the efficiency audit proposition, as drafted, includes “extraneous language” noting that the proposed audit would not use the city’s own City Auditor (or standard external auditor) and also includes a potential cost estimate for the audit ($1 million to $5 million). The brief calls that language “prejudicial and misleading political commentary.”

Aleshire has requested a “writ of mandamus” from the Court, directing Council to rewrite the proposition to eliminate the extraneous language.

For the CodeNEXT proposition, Aleshire’s separate brief (on behalf of Relator Allan McMurtry) argues that Council’s proposition language should directly track the language of the petition itself, which explicitly mentions CodeNEXT and a “waiting period and voter approval” before comprehensive code revisions become effective. The Council’s version of the proposition does not expressly mention CodeNEXT, and describes both a waiting period and a “subsequent voter approval period, a total of up to three years.” (Aleshire has requested a similar writ of mandamus from the Court.)

In its response to the audit brief, city attorneys argue that the ballot language is not prejudicial; rather, the city’s brief argues, “The real complaint is that the proposition language for the measure gives more information about it than Mr. English wants voters to have.” As of Monday afternoon, the city had not yet responded to the CodeNEXT filing, although during the Aug. 9 meeting, Council members defended their drafted language as more accurate and precise than that of the petitioners.

Election-related deadlines control finalization of the ballot, so the suits were filed directly with the Supreme Court, in order to allow time for a potential direction to Council and consequent meetings to affirm any new language. The City’s response on the second lawsuit is expected by Thursday, Aug. 23, and the Court’s rulings expected in the next few days.*

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