Texas supreme court rules city must rewrite HERO ballot language

From the Houston Chronicle:

A second Supreme Court decision in less than one month overruling Mayor Annise Parker’s administration in connection with her embattled nondiscrimination ordinance found that the mayor and City Council erred in choosing the language that will appear on the November ballot, a key decision that will shape messaging for both campaigns this fall.

Rather than asking residents to support a repeal of the law as the measure was originally worded, the Texas court said in a ruling Wednesday that voters should be asked whether or not they support the ordinance.

Conservative critics of the law strongly objected to Parker’s proposed ballot language, saying it was intended to confuse voters opposed to the ordinance who were likely to vote “no” on any item pertaining to the law – a vote that would have instead affirmed the law. City Council approved the original ballot language Aug. 5 despite concerns from some council members.

The justices, however, writing in “yet another mandamus proceeding concerning the city of Houston’s equal rights ordinance,” said the city charter is clear in requiring that voters be asked to vote for or against the ordinance.

“Though the ordinance is controversial, the law governing the City Council’s duties is clear. Our decision rests not on our views on the ordinance – a political issue the citizens of Houston must decide – but on the clear dictates of the city charter,” the justices wrote. “The City Council must comply with its own laws regarding the handling of a referendum petition and any resulting election.”

The ruling marked the second time the justices have stepped in and ruled against the city in legal matters pertaining to the equal rights ordinance. In late July, the state Supreme Court ordered the city to either repeal the non-discrimination law or vote to affirm it and place it before voters. City Council opted for the latter with a 12-5 vote.

‘Deceptive ballot language’

Plaintiff Jared Woodfill said he was pleased with the decision but frustrated that the court had to step in at all. Sen. Paul Bettencourt, R-Houston, also released a statement Wednesday calling for the Senate Intergovernmental Affairs Committee to look into the city’s “use of deceptive ballot language and continual erring on election procedure.”

“It’s sad we’ve had to go to the Supreme Court twice,” Woodfill said. “It shows how vested the mayor is in this issue that she has broken the law twice.”

Parker fired back Wednesday, saying in a written statement that “it is clear that politics is driving the law in this case.”

“We will rewrite the ballot language, but I strongly disagree with the decision and find it to be contrary to the court’s established law regarding previous ballot initiatives.”

The decision, however, helps crystallize messaging for the two campaigns that have been quickly gearing up for an expensive battle since City Council placed the measure on the ballot in early August.

Opponents, for instance, had hesitated to run any ads before a ruling came down. Woodfill said the decision “green lighted” messaging for the campaign, which will now run “vote no” alongside their “no men in women’s restrooms” tagline. Shortly after the decision Wednesday morning, supporters also released a statement encouraging residents to vote for the law.

“We’re eager for the majority of Houstonians to vote ‘FOR’ keeping the city’s valuable Equal Rights Ordinance,” said Richard Carlbom, the campaign manager. “Discrimination based on race, disability, military status, gender identity, sexual orientation, or age is not a Houston value and has no place in this city.”

The ruling rejected an argument from the ordinance’s foes that the ballot should not contain the words “Houston Equal Rights Ordinance,” which they said was politically charged.

Bans several types of bias

The ordinance bans discrimination based not just on sexual orientation and gender identity – the flash points for opponents – but also, as federal laws do, sex, race, color, ethnicity, national origin, age, religion, disability, pregnancy and genetic information, as well as family, marital or military status.

The law applies to businesses that serve the public, private employers, housing, city employment and city contracting. Religious institutions are exempt. Violators could be fined up to $5,000.

Foes of the measure submitted a petition seeking to place the law on the ballot for repeal last summer following City Council’s 11-6 approval of the ordinance. City Secretary Anna Russell initially counted enough valid signatures to qualify the petition for the ballot, but Parker and former City Attorney David Feldman threw out many of those because they appeared on pages of the petition they said had not been properly collected or notarized.

Foes sued, leading to a state district judge’s ruling earlier this year that the petition did not have enough valid signatures and the subsequent Texas Supreme Court rulings this summer. Now, City Council will vote at its Aug. 26 meeting to place the new ballot language on the ballot.

At-large councilmen C.O. Bradford, an attorney, said Wednesday that council should have heeded his warning two weeks ago not to use repeal language on the ballot.

“I tried my damndest to save the mayor and City Council members from this utter embarrassment,” Bradford said. “It’s sad that council continues to embarrass itself.”