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The 7th Court of Appeals issued its opinion in favor of the contest, which could void the election.
- January 26, 2024
The 7th Court of Appeals in Amarillo ruled in favor of grassroots groups that challenged constitutional amendment ballot language from the November 2021 election.
The True Texas Project (TTP), Texans Uniting for Reform and Freedom (TURF), and Grassroots America – We the People sued the Texas Secretary of State to have the 2021 approval of Proposition 2 declared void by Gov. Greg Abbott, claiming the ballot language was “incomplete, inaccurate, and did not adequately describe what the electorate was actually voting on.”
Proposition 2 allowed counties to create transportation reinvestment zones (TRZs), a power they did not previously have. According to the Texas Department of Transportation, a TRZ is a kind of tax increment financing district where a “zone is created, a base year is established, and the incremental increase in property tax revenue collected inside the zone is used to finance a project in the zone.”
The proposition did not include language about the use of increased ad valorem taxes to pay bonds or notes issued by the county in the TRZ district. A similar measure in 2011 that included such language was voted down.
In writing the opinion for the court, Chief Justice Brian Quinn agreed with the grassroots groups on all the major issues, including the separation of powers, the nature of the political question, whether the plaintiffs asserted a legitimate election contest, and have standing to bring the contest. The Texas Office of the Attorney General (OAG) represented the Texas secretary of state in the case.
While acknowledging that the Texas Legislature is vested with the “discretion to select the words it cares to submit for consideration by the electorate,” the court found indications in several cases and statutory provisions that “[w]hen it comes to ballot language, there is interdependence between the judiciary and legislature.” Therefore, it determined there was not a separation of powers preventing the judiciary’s involvement in this election contest.
The court also rejected the OAG’s argument about the issue being a political question not properly resolved by the court. “We reject the argument that the political question doctrine bars the judiciary from testing the sufficiency of ballot language in referendums proposing to alter our Constitution.”
In analyzing the proposition language challenged by the activist groups, the court noted that the creation of the TRZs would financially impact taxpayers and should indicate that fact. Citing cultural examples from Johnny Cash and the Beatles, Quinn wrote of “the perennial interest of the citizenry in protecting the fruits of their labor from expropriation by the government.”
Because the ballot proposition language hid “from view … the ultimate responsibility for payment and its positioning over the voter’s head like the sword of Damocles,” the court sided with the plaintiffs in asserting a valid claim for the courts to resolve under the Texas Election Code.
Regarding the argument of whether the grassroots activist groups were the proper parties to bring the suit — a legal concept known as standing — the court pointed out that this was a new argument on appeal. The court stated that the plaintiffs ought to have the opportunity to amend their pleadings at the trial court level to include facts that establish they are the right parties to bring suit.
The appeal was based on the trial court’s denial of the OAG’s plea to jurisdiction. The 7th Court of Appeals upheld the lower court’s decision, so the case will now return to the trial court.
However, according to TURF founder and director Terri Hall, “Our hope is that the [OAG] and [Secretary of State] do the right thing by taxpayers and not pursue this case any further so the governor can void the election as we’ve been imploring them to do all along.”
TTP CEO Julie McCarty was pleased with the court’s decision. “This is good news for all taxpaying Texans,” she told The Texan, asserting that if the OAG and Secretary of State choose to appeal, the grassroots groups will still prevail.
JoAnn Fleming, executive director of Grassroots America - We the People, hopes the OAG and secretary of state will accept the decision of the 7th Court of Appeals, emphasizing that she believes “the most important take-away from this effort is the power of an educated, courageous, strategic grassroots movement.”
Hall added, “The court totally repudiated the legislature’s attempt to mislead the voters by intentionally omitting the language about property tax increases in the ballot measure. We couldn’t be more pleased the court agreed with every one of our arguments in this very consequential case.”