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City of Austin Makes the Case for State Oversight of Ballot Proposition Language, Again.

Anyone who spent regular time in the City of Austin before June 2019 will tell you how different the city has been over the last 18 months since Mayor Steve Adler and the Austin City Council decided that a key component of ending homelessness in Austin would be to allow people to camp anywhere they see fit (except, of course, outside of City Hall). As someone who has worked in Downtown Austin for nearly ten years, I could tell you about seeing kids get off of the bus on a field trip to the Paramount Theater and having to step over sleeping homeless people to get inside, or about being screamed at and approached aggressively on a regular basis for no particular reason, but let's just say the change has been profound.

Homelessness in Austin is a problem, and it is one that we should approach with compassion, understanding, and open minds, but the lift on the camping ban has been demonstrably bad public policy. It has harmed businesses, it has made downtown an unpleasant place to visit, it has facilitated unnecessary violence and crime, and it has encouraged homeless encampments under every overpass in the city. It has not been good for the City of Austin.

That is why more than 27,000 people signed a petition in favor of holding a vote on the camping issue. Despite the City's unsuccessful efforts to disqualify enough signatures to keep vote from happening, the camping ordinance issue will be on the May 1, 2021 election ballot.

Which leads us to the logical next step: The City of Austin's deliberately confusing ballot language. Give it a read and pretend you're an average voter:

"Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in and near the Downtown area and the area around the University of Texas campus; create a criminal offense and penalty for solicitation, defined as requesting money or another thing of value, at specific hours and locations or for solicitation in a public area that is deemed aggressive in manner; create a criminal offense and penalty for anyone camping in any public area not designated by the Parks and Recreation Department?"

Got all that? It's a lot to digest. A criminal offense for sitting in public? I don't know a single person who supports that, but it's part of the package, and it's the first thing you'll read in the masterfully obfuscated mess of words. Criminal offense for asking for spare change? Sure, it would be nice to not have people asking for change all the time, but really? Criminalizing a form of communication? And you have to get through all of that morass before you even get to the part people want addressed. Camping in public places where people are obviously not meant to be camping.

This is just like every other ordinance the City of Austin has been forced to put on the ballot. Other cities do this too, as explained in a 2016 New York Times piece titled "Why Are Many Ballot Measures So Confusingly Worded?":

There is a whole industry devoted to writing misleading ballot measures and using misleading ads, comprised of think tanks, legislators, lobbyists and the public relations firms they hire. Money and political advantage drives much of what makes it onto the ballots.

The piece continues:

It’s not easy for voters to deal with this situation. They have to be constantly vigilant about getting informed on the hidden details of ballot initiatives. There are nonprofit institutions monitoring the situation and using social media to get the word out about the reality of some measures, but political leaders also need to support the truth.

Austin, alone, provides a wealth of examples in this regard. In one example, Austin’s ballot language for a 2018 proposition on a city audit was accused of being “obviously political, obviously prejudiced, and misleading by the addition of language that is either unsupported by facts and irrelevant material.” One critical attorney involved in a lawsuit against the city called it “bogus and illegal,” and stated that “they are using the ballot language to argue against the audit.” The Texas Monitor Reported:

Rather than a question that reflected the language of [a] petition that got more than 33,000 signatures, “Shall a city ordinance be adopted requiring a comprehensive, independent, third-party audit of all city operations and budget,” the council, at [Mayor] Adler’s insistence, approved this:
“Without using the existing internal city auditor or existing independent external auditor, shall the city code be amended to require an efficiency study of the city’s operational and fiscal performance performed by a third-party audit consultant, at an estimated cost of $1-$5 million."

A 2016 ballot proposition over repealing ridesharing regulations presents another example. In an article titled “Don’t mess up your vote: Here’s what Uber, Lyft ballot question means,” reporters for the Austin American-Statesman explained that voters are “befuddled by the wording they see posted on the Travis County clerk’s sample ballot. One of them, who told me her intention was to oppose Uber and Lyft, said she would have inadvertently voted the other way based on what she had read in the ballot language.” It is worth posting what voters encountered on the ballot:

Shall the City Code be amended to repeal City Ordinance No. 20151217-075 relating to Transportation Network Companies; and replace with an ordinance that would repeal and prohibit required fingerprinting, repeal the requirement to identify the vehicle with a distinctive emblem, repeal the prohibition against loading and unloading passengers in a travel lane, and require other regulations for Transportation Network Companies?
o For the Ordinance o Against the Ordinance

As the Statesman reports, the obvious question asked immediately by most voters is “which ordinance exactly are you asking me about???"

Other examples in Austin abound. In a ballot proposition asking a question directly relating to revision of the city’s land development code, the city removed a reference to CodeNext from the ballot language, which is the term that voters had associated with the proposition and campaigned against (and for). Instead, the language was as follows:

Shall a city ordinance be adopted to require both a waiting period and subsequent voter approval period, a total of up to three years, before future comprehensive revisions of the city’s land development code become effective?

This level of condescension from City leaders should not be tolerated. State Representative Valoree Swanson has filed House Bill 782, which would require that ballot propositions “submit the question with such definiteness and certainty that the voters are not misled.” The bill would allow voters to submit ballot language to the Secretary of State for review under that standard. If the language fails to meet that standard, the political subdivision that drafted the language will have up to two additional attempts to revise the language and meet the standard. If it fails to do so, the Secretary of State would be required to draft language for the ballot proposition.

TCCRI recommended this policy proposal in the Final Report of its Government Reform Task Force, which met throughout the 2020. Our recommendation was based on House Bill 3376 (86R, Klick) and Senate Bill 323 (86R, Huffman), both of which were filed in the 86th Legislative Session, and proposed a similar response to that of House Bill 782.

Representative Swanson's proposal in House Bill 782 is a long overdue change in public policy. Voters deserve to have language presented to them in a way that is clear and intelligible, and certainly not deliberately misleading.


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