Constitutional amendment challenged by TURF, other groups gets oral arguments

Several conservative grassroots groups — including Texans Uniting for Reform and Freedom (TURF), Grassroots America, We the People, and True Texas Project (TTP) — sued the Texas Secretary of State to have the 2021 approval of Proposition 2 declared void by Gov. Greg Abbott.

They brought the challenge under Texas Election Code §233.014, which sets out the procedure for contesting a constitutional amendment election, claiming the language for Proposition 2 on the ballot was misleading and missing key information.

The 2021 proposal simply stated, “The constitutional amendment authorizing a county to finance the development or redevelopment of transportation or infrastructure in unproductive, underdeveloped, or blighted areas in the county.”

By contrast, the Texas Legislature sought voter approval of a similar measure in 2011, according to the brief filed by the grassroots groups, but that measure included language informing voters about the use of increased ad valorem taxes to pay bonds or notes issued by the county in the TRZ district. It failed by a margin of 20 percent.

According to attorney Tony McDonald, counsel for the groups challenging the proposition, leaving out the language about the taxes was misleading to voters and thus the election should be declared void.

Beth Klusmann, an attorney from the Office of the Attorney General (OAG) representing current Secretary of State Jane Nelson, argued that the courts lack the jurisdiction or power to review the language chosen by the Legislature for ballot propositions.

The Texas Legislature is responsible for crafting the language for a ballot proposition, and it would be a violation of the principle of separation of powers for the courts to interfere, Klusmann asserted.

The OAG also argued that the grassroots groups did not assert a legitimate election contest because the language chosen by the Legislature was “reasonable.” Therefore, the OAG argued that the claim is barred by sovereign immunity, a legal principle protecting the actions of government officials from lawsuits.

“The Legislature was not required to spell out the details of tax-increment financing on the ballot at the risk of having a court declare the election void,” the OAG’s court documents state.

The justices asked McDonald about the separation of powers issue and how far a court can go in ordering the Legislature to adopt certain language in its ballot propositions.

McDonald responded that the election code gives a very narrow role to the judiciary to determine if the election was valid, because the ballot language met the established standard of “touching on the chief features” of the amendment and not “actively misleading” voters.

If the court determines that the proposition fails those standards, it can only declare the election void and order the governor to declare it as such. It can not rewrite the proposition, McDonald told the court.

Justice Lawrence Doss asked the OAG about the purpose of Texas Election Code §233.014, which states, “Any question relating to the validity or outcome of a constitutional amendment election may be raised in an election contest. A contest is the exclusive method for adjudicating such questions.”

If the code doesn’t allow courts to review the language of a constitutional amendment in an election, then “what would be the point” of it, Doss inquired.

Klusmann responded that the statute is for addressing other election contests, such as fraud at the ballot box.

“If it’s misrepresentation, is that not fraud at the ballot box?” Justice Judy Parker asked.

The justices also asked whether voters, through investigation and reading of the explanatory statement accompanying the proposition, could have discovered the information about the ad valorem taxation that was not included in the proposition language.

If the court determines that there is jurisdiction in this case, it will return to the trial court in Travis County to proceed.