Naked City

Linda Curtis protests in front of the Hancock Center HEB, demanding the right to petition on the grocery chain's property. (Photo By John Anderson)

The drive to bring Instant Runoff Voting (IRV) to Austin hit a bump in the road last month when Texas Secretary of State Henry Cuellar informed the city's law department that, in his opinion, such a practice would be illegal under state law.

Under IRV, voters rank candidates in order of preference. If no candidate garners a majority of first-choice votes, then the candidate receiving the lowest number of first-choice votes is eliminated, and ballots picking that candidate are examined for second-choice votes, which are then reassigned to the remaining candidates. This process is repeated until one contestant has a majority. Proponents argue that the system would save money by avoiding costly runoff elections, while still ensuring that the winner is truly the choice of the majority.

In a June 23 letter to the city, Cuellar said that state law "provides that cities over 200,000 in population must elect by 'majority.'"

The opinion, which is not legally binding, hinges on the definition of "majority."

"It is our opinion," wrote Cuellar, "that the meaning of the word 'majority,' as the Texas Legislature used it in the [Election] Code and as it has been interpreted by the courts, is majority in the 'classic' or 'traditional' sense, i.e. a majority vote consists of more than half of the original votes, as cast and not re-assigned by the voter's secondary or tertiary intent, and if no candidate receives more than half the votes, a runoff election is required." Of course, IRV is a runoff election, but Cuellar added that the law provides for runoffs in the traditional sense, and further noted that Austin Rep. Glen Maxey tried to pass a bill authorizing IRV in 1999 but failed.

David Cobb, a consultant for the Center for Voting and Democracy's IRV campaign, responded to the decision by saying, "First and foremost, it's wrong. It applies the wrong standard. Austin is a home-rule city, which means it's allowed to do anything with its own affairs as long as it is not expressly forbidden by the U.S. or state constitutions or the Legislature. The Legislature has clearly not expressly forbidden IRV. Unfortunately, this is a political decision that will have to be overcome.

"Clearly, IRV is the future. The question now is, do we simply put it on the ballot and force the secretary of state to recant his opinion, or do we file a lawsuit? This issue is not going away. It will get resolved. And if we have to, we'll go to the Legislature."

Sean Hale of the Travis County Green Party said his group would also continue to push for IRV.

To switch Austin to IRV would require an amendment to the city charter, accomplished by vote of the citizenry. Cobb said that any petitions to put IRV on the ballot are on hold until Clean Campaigns for Austin finishes its petition drive to reform the city's campaign finance laws, which his group also supports.

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Keeping it Clean at HEB

And speaking of that petition drive, the HEB grocery store chain lost its bid last week to have a temporary restraining order placed on Clean Campaigns to prevent their members from petitioning on HEB property (see "Austin Stories," June 29). HEB spokeswoman Kate Brown said her company still intends to enforce its policy against petitioning on store property. Of Judge Suzanne Covington's decision, she said, "It's not for me to say whether she was wrong or right. It's unfortunate that this is they way things have proceeded."

Brown emphasized that "this is not a commentary on what they [Clean Campaigns] are trying to accomplish," but that this policy "is in place to protect our customers. … It applies to everybody, all individuals and organizations."

Clean Campaigns is currently suing HEB, demanding the right to gather signatures on HEB property. The suit has not yet been scheduled for a court date. Clean Campaigns attorney Fred Lewis said, "I think it is very important that the people of Austin have a right to petition, a right to free speech in publicly accessible shopping centers and malls, and I hope the court will indicate that."