By a 6-3 decision, the Texas Supreme Court has declined to intervene in a May 6 election on city charter amendments in San Antonio. The decision has an abortion angle, which may in part explain the vociferous dissenting opinion.
In re Maria Teresa Ramirez Morris, and Texas Alliance for Life, Inc. (No. 23-0111; March 17, 2023) arose from a January 2023 voter petition to place proposed amendments to the city charter on the next uniform election date, May 6. The proposed amendments included a variety of matters relating to policing and included language barring police from certain investigations and arrests relating to abortion and calling on the city to protect healthcare providers and patients against state investigations. Texas Alliance for Life sought mandamus to enjoin the election even before the San Antonio City Council voted to put the matter before the voters, which occurred on February 16. Because only seven councilmembers voted (three others were absent), the election order did not take effect until February 26. Texas Alliance for Life amended its briefing, arguing that the since the effective date of the order (February 26) fell within a statutory requirement that the order be issued at least 78 days before the election, and that the election was thus unlawfully ordered. In the alternative, the Relators sought relief from SCOTX, requesting the Court to move the vote from May to November, to compel the city clerk to separate the proposed amendments into single-subject parts (they are consolidated in the ballot language submitted with the petition), or to order alterations to the ballot language.
In an opinion by Justice Bland, the Court declined to get involved in an election that had been initiated by a voter petition and, although technically “ordered” past the 78-day period, had been amply noticed well in advance of 78 days prior to the election. The majority opinion rests primarily on a determination that the voter who challenged the petition has plenty of post-election remedies. “Adhering to our longstanding commitment to avoid undue interference with elections,” Justice Bland wrote, “we deny relief. Sufficient post-election remedies exist that permit the voter to challenge any infirmity in the proposed amendment and its placement on the ballot—after the voters have had their say.”
Justice Young, joined by Justices Blacklock and Devine, wrote a blistering dissent taking the majority to task for overriding the statutory 78-day requirement. Justice Young reasoned that the statutory violation invalidated the election altogether and that the majority’s reliance on post-election remedies to address possible problems with the legality of the election or the ballot proposition was misplaced.
We find this case interesting not so much because of the internal dispute over whether an election on a citizen initiative should be held now, in November, or not at all, but because of the subject matter of the election the Court declined to halt. The upcoming San Antonio city election is a referendum on some of the biggest bones of contention in the so-called culture wars: enforcement of abortion restrictions, legalization of marihuana, and the nature of policing. In that sense, this case also appears to be an extension of the trend we’re seeing in the legislature, that is the effort in some quarters to achieve social policy objectives through the courts rather than the democratic process. We think the majority very wisely took the position that the ballot box has first call and that courts interfere with elections not only at their own peril, but at the peril of the process itself. We also see this attempt to shut down a local election as part of the ongoing struggle between the state and local governments over “local control” and of the partisan warfare between some in the GOP and the leadership of “blue” cities and counties, such as San Antonio, Houston, Dallas, and Austin. We can all agree that the politics swirling around the issues that will come before San Antonio voters in May have no business in our courts, but that won’t stop folks from trying to make them the business of our courts.
