Supreme Court of Texas Orders Dallas to Remove Three Council-Initiated Charter Propositions From November Ballot

The decision

On September 11, 2024, the Supreme Court of Texas conditionally granted mandamus relief in part and directed the City of Dallas to remove three City Council-initiated charter propositions, K, M and N, from the ballot for the city’s November 5, 2024 charter election. The court held that the ballot language for those propositions was misleading because it did not disclose that each conflicted with and proposed to nullify a citizen-initiated proposition on the same ballot. It concluded that “the propositions contradict each other, and the ballot language as a whole will confuse and mislead voters.”

The court denied relief on a separate request to change the agreed ballot language for the three citizen-initiated propositions, S, T and U, holding that the relators were estopped from challenging language they had agreed to.

Background

According to the opinion, Dallas HERO, a grassroots organization, led the collection of signatures for three petitions to amend the Dallas city charter. The court states that “HERO collected over 169,000 voter signatures on all three petitions combined.” The second relator, Cathy Cortina Arvizu, signed all three petitions.

On July 19, 2024, the city secretary certified that each petition qualified for the ballot. The City Council held several meetings in mid-August about a special charter election that would also include amendments recommended during the city’s decennial charter review. HERO negotiated with the City and agreed in writing to ballot language for its measures, which the council designated Propositions S, T and U. The council ordered the election by ordinance on August 14, 2024.

During those meetings, the opinion states, “several council members expressed their disapproval of the citizen-initiated propositions.” Three council members moved to add three more proposed charter amendments. The motion passed, and the additions became Propositions K, M and N. In all, the council submitted more than a dozen proposed amendments.

On August 21, the relators sought emergency mandamus relief against the City and several elected officials in both the Fifth Court of Appeals in Dallas and the Supreme Court of Texas. The court of appeals ruled on August 23. Its memorandum opinion dismissed the request for a writ of injunction for want of jurisdiction, holding that it lacked jurisdiction to grant any writ other than mandamus in an original proceeding under the Election Code, and denied the remainder of the petition, concluding that the relators had not complied with Texas Rule of Appellate Procedure 52 and, even on review of the petition and record, had not demonstrated entitlement to mandamus relief; it also denied a related emergency motion as moot. The Supreme Court decided the case without oral argument.

The petition raised four issues: whether Propositions K, M and N failed the ballot-language standard of Dacus v. Parker (Tex. 2015), violated the single-issue rule, or violated the home-rule provisions of the Texas Constitution, and whether the agreed ballot language for Propositions S, T and U should be amended.

The court’s reasoning

Governing law

The court noted that it has jurisdiction under Section 273.061 of the Texas Election Code to compel duties imposed by law in connection with an election, and that under Section 52.072(a) the authority ordering an election prescribes the wording of ballot propositions. The court wrote that “[c]ities thus have broad discretion in crafting the ballot language describing propositions.” That discretion has limits, including Section 52.072(b)’s rule that a proposition “may appear on the ballot only once” and the Dacus requirement that ballot language not mislead voters. Dacus recognized two ways ballot language can mislead: by affirmatively misrepresenting a measure, or by omitting chief features that reflect its character and purpose. The relators relied on the second.

Standing

The City argued that the relators lacked standing to challenge the council-initiated propositions. Relying on Blum v. Lanier (Tex. 1999) and In re Williams (Tex. 2015), the court held that Arvizu had standing because she signed the petitions. It did not decide whether HERO had standing, because Arvizu’s standing was enough to pursue all of the relief requested.

The court also rejected, “[u]nder the particular circumstances of this case,” the City’s argument that any standing extended only to the citizen-initiated propositions. It concluded that a petition signer has the same particularized interest “when there is a colorable basis for arguing that another proposition on the same ballot would have the effect of negating a proposition the voter signed.”

The ballot language

The court stated that “[w]hen various propositions on the ballot interact with each other, the ballot should be considered as a whole in applying this standard.” In a footnote, it said it had “no occasion to consider the validity or effect of any proposition if approved by the voters.” It then examined three pairs of propositions.

Propositions S and M. Proposition S would grant Dallas residents standing to sue the City to require compliance with the charter, city ordinances and state law, and would waive the City’s governmental immunity. Proposition M would add a section stating that nothing in the charter is intended to waive immunity or grant residents standing to sue. The court found that “a chief feature of Proposition M is that it conflicts entirely with Proposition S.” Proposition M’s charter text also contains a primacy provision: “If there is a conflict between this provision and another provision of this charter, this provision controls.” The court concluded that a purpose of Proposition M was to negate Proposition S and that the ballot language omitted that feature.

In footnotes, the court stated that it was not holding that every ballot description must flag any inconsistency, only a conflict with another proposition substantial enough to be a chief feature, and that it expressed “no view regarding how a court would reconcile the conflicting propositions.”

Propositions T and N. Proposition T would require an annual resident survey and tie the city manager’s compensation and removal to its results. The court found that Proposition N adds a primacy provision that “seeks to nullify any alternative means for determining compensation and removal,” including the survey. Because its ballot language did not state that feature, the court held it misleading.

Propositions U and K. Proposition U would require the council to appropriate at least half of year-over-year revenue growth to the Dallas Police and Fire Pension, starting pay for police officers and police staffing. The court said Proposition K, like Proposition N, seeks to protect the City from such requirements, “demoting them to mere recommendations the council may follow and giving it complete discretion over appropriations.” The court held Proposition K’s ballot language misleading for the same reason.

In sum, the court wrote, “[s]imultaneously holding an election on contradictory propositions with which the City cannot comply is confusing,” and ballot language that does not address the contradiction does not meet the Dacus standard.

The remedy

The relators sought removal; the City argued that before the election the court could only order corrected ballot descriptions. The court concluded that “removal of the duplicative propositions in their current form is the appropriate remedy,” because the propositions were the converse of others on the ballot.

The court acknowledged that it has “refrained from enjoining elections before they are held.” It stated, however, that it has granted pre-election relief against misleading propositions that does not delay or cancel an election, and it found that removal here would not delay the election. Because the purpose of each council proposition was to nullify a citizen proposition, the court reasoned, “only one question is really being asked of voters, so directing that it cannot be asked a second time in a different way is not canceling an election.”

Propositions S, T and U, and issues not reached

Citing Robinson v. Plano Board of Education (Tex. Civ. App.—Dallas 1974), the court held that the relators were estopped from challenging the ballot language for Propositions S, T and U that they had agreed the City would use. Because its ruling on the first issue supported the relief requested, it did not decide whether the council propositions violated the single-issue rule or the home-rule provisions of the Texas Constitution.

Separate opinions

None.

Status

The court conditionally granted relief and directed the City to remove Propositions K, M and N. It stated: “We are confident the City will comply, and the writ will issue only if it does not.” In a footnote, the court added that “nothing in this opinion prevents the City from rewording them in a manner that does not contradict the citizen-initiated propositions.”

According to the Dallas Morning News, the City Council voted the same day to remove the three propositions, and city officials declined to comment on the ruling. Texas Scorecard reported the same vote.