Travis Weber is Director of the Center for Religious Liberty at Family Research Council. This article appeared in Townhall.com on August 27, 2015.
Last week, the Texas Supreme Court again had to hold Houston Mayor Annise Parker and her City Council in check for attempting to interfere with their own residents’ ability to get a fair shake at the polls and vote on the city’s divisive “Equal Rights Ordinance.” Hopefully, this judicial intervention will be the last that is needed in this saga.
After Mayor Parker imposed her sweeping ordinance containing religious liberty concerns on the local population last year (and meddled in internal church affairs by issuing an overbroad subpoena for local pastors’ writings and communications), Houston area residents, led by a number of pastors, pushed back and rightly demanded a vote on the matter.
Yet the mayor wasn’t about to let that happen, and unlawfully declared many petition signatures invalid to keep the question off the ballot and prevent the people from having a vote.
Thankfully, the Texas Supreme Court last month vindicated Houston residents’ democratic right to be heard—which is all they ever asked for—when it issued an opinion ruling that Mayor Parker’s administration had violated the law and the City Council must either repeal the ordinance within the next 30 days or put it on the ballot this coming November.
As the Texas Supreme Court reminded us at that point, “[t]he power of referendum is the exercise by the people of a power reserved to them and this power should be protected.”
The Court explained a proper referendum goes through three steps: (1) after it is “signed and verified in the [required] manner and form” by the “required number of voters” and filed in a timely manner, (2) the “City Secretary must review the petition, certify the results of her review, and present such petition and certificate to the City Council,” and (3) “after receiving the petition and City Secretary’s certificate, the City Council must either repeal the ordinance or submit it to popular vote.”
In this case, the Court pointed out, the City Secretary had properly counted signatures until she reached the necessary number, then stopped, and certified that there were enough valid signatures.
However, the City Attorney tried to interject himself into the process at this juncture, deciding there were not enough signatures deciding that whole pages of the petition invalid and thus discounting the signatures on them which were found valid by the City Secretary.
Yet, as the Court noted, the City Secretary is the one who has to certify, not the City Attorney.
Therefore, once the City Secretary certified a sufficient number of valid signatures, the city council had the ministerial duty to act to reconsider the ordinance. The City Attorney had no business in the matter at this point; once the City Secretary certified, the council had to act, regardless of what the City Attorney said. According to the Court,
If the City Council cannot independently evaluate the petition as a predicate to its ministerial duty to act, then it may not decide for itself that the petition is invalid and force the petition organizers to sue. Faced with the City Secretary’s certification, the City Council had no discretion but to repeal the ordinance or proceed with the election process. If the City Council believed the City Secretary abused her discretion in certifying the petition or otherwise erred in her duties, it was nevertheless obligated to fulfill its duties under the Charter and thereafter seek any affirmative relief to which it might be entitled. But the City Council did not do so. Instead, it refused to fulfill its ministerial duty, forcing the petition organizers to file suit.
The City Council had no discretion in this matter. The Court’s opinion reminds us that the strict separation of the functions of public office, and adherence to one’s public role and the ability to make objective decisions on the job in the absence of political calculation and manipulation, is crucially important to the preservation of democracy and retention of power by the people. How can people expect to honestly have a say in their government when they feel disenfranchised by public office holders who inject every ministerial duty with partisan calculations?
As the Court concluded, “[t]he legislative power reserved to the people of Houston [had] not be[en] honored.” Therefore, the Court ordered,
The City Council is directed to comply with its duties, as specified in the City Charter that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance by August 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election.
Despite last month’s opinion from the Court, the City Council still resisted, attempting to confuse the voters by asking them to vote “yes” to repeal the ordinance—which is described quite sympathetically in the Council’s proposed language. The Texas Supreme Court rejected this language in its opinion last week, holding that the Houston City Charter clearly requires the ordinance be put to an up or down vote—a “yes” for the ordinance and “no” against it. This should be the culmination of this long and sad story, but Houston residents may not be able to relax yet.
It is noteworthy that the mayor deepened this controversy by injecting her own personal story (she is a lesbian, now married to her partner of 22 years) by saying, “The debate is about me. It's not academic. It is my life that is being discussed.” By personalizing the issue, Mayor Parker sought to eliminate principled opposition, constitutional concerns, and reasoned discussion from the debate. Thankfully, neither the people of Houston nor the Texas Supreme Court acceded to her strategy of manipulation.
The Texas Supreme Court’s recent opinions in this case should encourage us that some vestiges of representative government by the people still exist in America. With these decisions, the Court has reminded us of the importance of this foundational American principle.