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A tale of two Propositions A

May 8th, 2023
by Charles Kuffner.
1 comment

I usually write my own sentence or two to introduce the article I’m linking to and commenting on, but honestly I can’t do any better than the lede of this story.

Proposition A, the wide-ranging police reform measure also known as the Justice Charter, went down in flames Saturday night, with a wide margin of voters casting a ballot against the measure.

Opponents began celebrating just minutes after early vote totals posted.

“The defeat of Prop A is a victory for local families, for local businesses and our quality of life,” wrote San Antonio SAFE PAC Co-Chairs Eddie Aldrete and April Ancira in a statement. “San Antonio is one of America’s unique, great cities and today our citizens professed with a loud and unequivocally clear voice we want to keep it that way.”

Ananda Tomas, executive director of ACT 4 SA, which gathered more than 38,000 signatures to get the measure on the ballot, said Saturday night she thought it would be a tighter contest — early vote totals came in with more than 75% against Prop A.

With all 251 vote centers reporting, election day voters had reduced that lead to just under 72%.

But the “grassroots effort” was no match for the police union’s money and political reach, Tomas said. “It’s just big, monied interest and misinformation that’s out there.”

The Current adds on.

In addition to decriminalizing abortion and low-level pot possession, Prop A would have codified cite-and-release for Class C misdemeanors such as petty shoplifting and vandalism. Additionally, it would have codified SAPD’s current ban on police choke holds and no-knock warrants.

Prop A’s backers were outspent 10-to-one by opponents including the powerful San Antonio Police Officers Association and deep-pocketed business interests.

Indeed, Prop A’s fatal flaw may have come down to the difficulty explaining exactly what it would do amid a barrage of ads depicting it as a step toward rampant crime and violence in the streets.

“We still have to do a lot of public education. We’ve been doing it for several years and we’re going to continue,” Ananda Tomas, executive director of police reform group Act 4 SA, told reporters at the Prop A watch party. “We know when we’re at the doors and we break all of these things down, that folks are with us.

High-profile leaders including San Antonio Mayor Ron Nirenberg and most of city council also declined to back Prop A. Proponents accused the mayor of backpeddling on his prior support of cite-and-release.

“The challenge with Proposition A is that I think it mischaracterizes what cite-and-release was about,” Nirenberg previously told the Current. “Cite and release has always had officer discretion. Prop A effectively removes officer discretion, and again, theft and property damage are not victimless crimes.”

Tomas said she was disappointed with the the mayor’s decision to campaign against Prop A. However, she said that she and fellow progressives aren’t giving up in their fight for criminal justice reform.

I had mostly described San Antonio’s Prop A as being about marijuana decriminalization, but it was a lot more than that, I think to its detriment. I get the appeal of trying to address these things systematically, but this is one of the downsides of that approach (see also: Obamacare and Build Back Better), in which the more controversial and less popular aspects of the package are weaponized against it. It also may be the case that the electorally successful marijuana reform referenda from 2022 benefitted from being more under the radar, while this effort was regularly topline news. I don’t think most of the individual components of Prop A are any less popular on their own – marijuana decriminalization, not pursuing abortion-related prosecutions, banning choke holds, that sort of thing. It’s just that proponents of them will need to strategize further in advancing them. (How many of them will be to a city or county’s discretion following this legislative session is another matter.)

Meanwhile, it was a different story in Austin.

The May 6 election made it clear: Austin is ready to dramatically expand civilian oversight of police.

With about 78,000 voters turning out for the May 6 election on two police oversight propositions with the same name (Austin Police Oversight Act), the progressive Prop A got approval from a resounding 70% of voters, per unofficial voting numbers. Prop B, which copy-pasted language from Prop A and then edited it to reduce oversight powers, received support from only 20% of voters.

As we observed from early voting numbers, turnout overall was not spectacular. In 2021, when a GOP-aligned PAC Save Austin Now was able to get a measure on the ballot to increase police staffing, roughly twice as many people cast a vote (and the police association-backed measure lost). A little more than 10% of Austin voters showed up this election, which is not atypical for a May election without high profile offices on the ballot.

Still, the passage of Prop A – which seeks to grant the Office of Police Oversight a whole lot of freedoms, including greater access to Austin Police Department’s internal affairs investigations – marks a huge stride for the city, and possibly the beginning of litigation over the legality of some of the measure’s language. If a court does eventually throw certain elements of the measure out, the undisputed parts of the ordinance will still stand.

I was vaguely aware of Austin’s referenda, but saw much less news of them than I did the props in San Antonio, for whatever that’s worth. I’m not saying this is the only way forward – indeed, as I have said before, what we really need is a better state government, because even this path forward is increasingly narrow and hostile – but what was tried in San Antonio didn’t work, and seem unlikely to be viable elsewhere. Let’s learn what we can from what happened and make the best of it going forward.

SCOTx denies pre-election challenge to San Antonio marijuana reform referendum

Mar 18th, 2023
by Charles Kuffner.
4 comments

First the voters will vote, then as needed the lawsuits will happen.

The Texas Supreme Court ruled Friday that any legal challenges to a proposed charter amendment on policing reforms must wait until after voters weigh in on the measure in the May municipal election.

While the court did not expressly deny the idea that the charter amendment could violate a state law prohibiting multi-subject charter amendments, Justice Jane Bland wrote that “voters injured by an election irregularity have remedies to address their injury after the election.”

The proposal brought forth by Act 4 SA and other progressive groups seeks to decriminalize marijuana and abortion, ban police chokeholds and no-knock warrants, expand the city’s cite-and-release program for nonviolent, low-level offenders, and create a city justice director to oversee the implementation of those changes.

The measure will be on the May 6 ballot as Proposition A.

Bland also suggested that an effort by three Northside councilmen to skip the City Council vote approving the measure for the ballot could have an impact on its future. Manny Pelaez (D8), John Courage (D9) and Clayton Perry (D10) left the dais shortly before the pro forma vote in February, viewing the measure as unenforceable.

“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,” Bland wrote.

[…]

Council approved the ballot 7-0 in the absence of the three council members.

That move triggered a second challenge from TAL’s lawyers, which petitioned the court to remove the charter amendment from the May ballot on the grounds that the San Antonio City Charter prescribes a 10-day delay for ordinances that pass with fewer than eight votes to go into effect. That deadline was Feb. 17, a day after the council vote.

“Our role is to facilitate elections, not to stymie them, and to review the consequences of those elections as the Legislature prescribes,” Bland wrote. “We can readily do so in this instance through a post-election challenge.”

A dissenting opinion from Justice Evan Young pointed to the decision of the three councilmen who were absent from the vote as a pivotal move.

“None of the Court’s stated reasons apply here because they all depend on the same mistaken premise: the existence of a lawfully ordered special election,” Young wrote.

Young noted that in order to hold a special election, a city council must order it at least 78 days beforehand.

“The city council clearly failed to follow that binding legal requirement here,” wrote Young, who was joined by Justices John Devine and Jimmy Blacklock.

In a written response to TAL’s petition, outside lawyers for the San Antonio City Council argued that the city’s 10-day delay doesn’t apply to putting the Justice Charter on the ballot because Texas Election Code supersedes the city’s authority on the matter. The election code doesn’t stipulate the margin by which measures setting an election must be approved, the lawyers wrote.

See here and here for the background. I believe this was the correct ruling, and I agree with Justice Bland’s reasoning. I also think this proposition will face some significant legal headwinds if it does pass, but that’s a fight for another day. Until then, we’ll see how it goes in May. The Current has more.

AG argues for separating that San Antonio criminal justice reform proposition into multiple questions

Feb 17th, 2023
by Charles Kuffner.
1 comment

Not a surprise, but an aggressive position to take.

Attorney General Ken Paxton’s office is urging the Texas Supreme Court to side with opponents of a proposed charter amendment that seeks to decriminalize marijuana and abortion, as well as enact a host of other police reforms.

Solicitor General Judd Stone submitted a letter to the court Wednesday calling the proposal a “grab-bag of provisions” that “flagrantly violates” a state law prohibiting multi-subject charter amendments.

Stone urged the court to grant a petition filed by the anti-abortion group Texas Alliance for Life Inc. (TAL) requesting that the city reject the proposed ballot language, and instead require a vote on each provision individually.

“While the substance of this proposed charter amendment conflicts with multiple substantive provisions of state law, this mandamus proceeding concerns a procedural problem: the charter amendment plainly violates Texas law’s longstanding prohibition on municipal charter amendments that ‘contain more than one subject,’” Stone wrote.

[…]

City Attorney Andy Segovia told reporters last week he believed most of the charter amendments’ provisions were at odds with state law and therefore unenforceable by the city even if they’re approved by voters.

Stone’s letter agreed with that assessment and accused San Antonio officials of “abuse[ing] their discretion by certifying and including this charter amendment on the ballot.”

In a written response to TAL’s petition Tuesday, Segovia defended his decision to place the amendment on the ballot as written because city officials “plausibly read the proposed charter amendment language to encompass only ‘one subject’ as required by statute.”

Segovia added that opponents should challenge the validity of the amendment after the election, not before.

Stone’s letter disagreed, and asked the Texas Supreme Court to take swift action against the proposal in its entirety. He suggesting the court has long favored stopping such charter amendments before they’re voted on, something that’s still possible if it can prevent San Antonio from including it on the ballot this week.

“When there is an opportunity to correct a ballot before the election, waiting to address the issue through a post-election contest and, potentially another election, is not an adequate remedy,” Stone wrote. “Because respondents can correct the ballot now, [TAL’s] mandamus is appropriate.”

See here for the background. I still think, based on past history, that SCOTx would prefer to not get involved at this time, but I’m somewhat less confident of that now. Both sides of this argument are defensible, so it really is a question of whether SCOTx wants to step in now or just wait for the inevitable lawsuit later. For sure, if this passes it will be a quick matter before they have to rule on a temporary restraining order one way or the other about enforcement. Breaking it up into its components means there will be multiple lawsuits instead of one. I don’t know what they’ll do, but as I said before, we’ll surely find out quickly. San Antonio City Council approved it for the ballot as is, which was also as expected. Now we wait to see what if anything SCOTx does. The Current has more.

San Antonio marijuana decriminalization referendum already facing a legal challenge

Feb 14th, 2023
by Charles Kuffner.
1 comment

Don’t think this one will work, but after that who knows.

Opponents of the so-called Justice Charter have filed an emergency petition asking the Texas Supreme Court to require separate votes for each of its provisions, including decriminalizing marijuana and abortion and banning police chokeholds and no-knock warrants.

Progressive groups last month submitted roughly 38,000 petition signatures to get the proposed charter amendment included on the May municipal election ballot, a move San Antonio City Attorney Andy Segovia signed off on last week.

On Friday the anti-abortion group Texas Alliance for Life Inc. (TAL) filed a petition requesting that the city reject the proposed ballot language, which it says violates a state law prohibiting multi-subject charter amendments, and require each issue to be listed and voted on separately.

“Respondents have no discretion to force voters to approve or reject, all or nothing, charter provisions dealing with issues as varied as theft, graffiti, or prohibiting cooperation with state agencies regulating abortion providers,” wrote attorney Eric Opiela, a former executive director of the Republican Party of Texas.

City Council is expected to order that the ballot proposition appear on the May 6 ballot Thursday, a formality they don’t get to exercise judgment over. The deadline for setting the May ballot is Friday.

“Once Friday’s deadline passes, it is impossible for Respondent, San Antonio City Council to add additional measures to the May 6, 2023, ballot, preventing the separation of the proposed charter amendments into their separate subjects as required by law,” Opiela wrote.

“The tens of thousands of residents who signed this petition understood that each of these police reforms are part of a comprehensive approach to public safety, and we expect to vote on them in the same way they were presented — as one unified package,” Act 4 SA Executive Director Ananda Tomas said in a statement Sunday night.

Segovia said the city would defer to the amendment’s authors.

“We have until noon on Tuesday to respond to the Texas Supreme Court. Our position remains that the Council will put the petition on the ballot as one Justice Policy proposal because that was the way it was presented to those who signed the petition,” Segovia said in an email Sunday.

See here for the previous entry. I Am Not A Lawyer, but I don’t know offhand of any successful recent efforts to split up a ballot proposition like this. These are all criminal justice reform measures, and if the law is usually interpreted broadly then I don’t think there’s a leg to stand on. I also think that SCOTx would prefer to wait until the voters have their say, as then they have a chance to duck the question. If they’re going to act I’d expect it to happen before SA City Council votes to put the measure on the ballot on Thursday. So we’ll know soon enough. TPR has more.

Marijuana decriminalization and other police reform proposals get closer to the ballot in San Antonio

Feb 12th, 2023
by Charles Kuffner.
1 comment

This will be the most interesting election on the May ballot.

A proposed City Charter amendment that seeks to ban police from using no-knock warrants and chokeholds, as well as expand the city’s cite-and-release policy for low-level, nonviolent crimes, has enough certified signatures supporting it to appear on the ballot in San Antonio’s May municipal election.

However, City Attorney Andy Segovia told reporters Wednesday the most of the provisions are inconsistent with state law and could not be enforced if even if they’re approved by voters.

Segovia said that if the amendment is approved, the city would not be able to make any other changes to its charter until the November 2025 election, thanks to a state law restricting the frequency of charter amendments. Mayor Ron Nirenberg had been assembling a charter review committee to explore other potential changes in the coming year.

As written the proposal, called the Justice Charter by its proponents, would ostensibly eliminate police enforcement of certain levels of marijuana possession, eliminate police enforcement of abortion-related crimes. It would also ostensibly ban the use of chokeholds by police, ban the use of no-knock warrants, create additional requirements to obtain a search warrant, and remove the officers’ discretion in whether to issue a citation or arrest for some low-level crimes.

With the exception of one provision calling for the creation of a city justice director, Segovia said the proposal’s elements “are all inconsistent with state law.”

“Therefore, even if the public does adopt the charter amendments, the charter amendments as written will not be enforceable,” he said.

See here and here for some background. The Current has a rebuttal to the “unenforceable” argument.

Mike Siegel — co-founder of progressive group Ground Game Texas, which backed the proposal — told the Express-News that the Texas Constitution grants municipalities the right to so-called “home-rule” authority.

Ground Game Texas championed a similar proposal approved by Austin voters last May that decriminalized weed in that city. Months later, Texas Attorney General Ken Paxton has yet to sue to stop it.

“We know that Ken Paxton loves to sue Austin, loves to make an example of Austin elected officials and has not done so,” Siegel told the daily. “And to me, that’s the strongest indication that the state attorney general himself has determined that cities do have this discretion, that it is firmly grounded in the home-rule authority that’s guaranteed by the Texas Constitution, and this is something that cities can decide for themselves.”

Well, sure, but the Republicans in the Lege, as well as the state courts, have not been shy about limiting cities’ authority in various matters, so I don’t know how confident I’d be in that position. For sure, if this passes, it will be litigated, and there is the possibility of a pre-emptive bill being passed against this even before then. Again, I want to stress, the goals that Act4SA and Ground Game Texas are advocating are good and laudable and I support them. I just don’t think this is going to work, and I have zero reason to believe that the Republicans will just let this slide if it passes. Restraint and tolerance for any kind of dissent are not in their playbook. I hope I’m wrong, and I’m confident we’ll find out if this does pass. SA’s City Council has to vote on it next week, and from there it’s off to the campaigns. If you’re in San Antonio, I’d love to hear from you about this, so please send an email or leave a comment.

San Antonio will vote on marijuana decriminalization

Jan 13th, 2023
by Charles Kuffner.
Comments are off for this post

We’ll see how it goes.

Progressive groups celebrated on the steps of City Hall Tuesday afternoon before delivering the boxes of signed petitions needed to get a measure in front of voters that would decriminalize both cannabis possession and abortion.

Ananda Tomas, executive director of police reform group ACT 4 SA, told reporters that her group and its allies collected 38,200 signatures in favor of the San Antonio Justice Charter. That’s well above the roughly 20,000 required to put it on the ballot for May’s citywide election.

If passed, the charter also would codify the ban the San Antonio Police Department’s current leadership has placed on police chokeholds and no-knock warrants.

“I’ve been frustrated working within the system and working in City Hall to try to get things like this done,” District 2 City Councilman Jalen McKee-Rodriguez told charter supporters. “I think this is a demonstration that when the people will it, it will happen.”

Although the petition garnered support from McKee-Rodriguez and an array of progressive groups from around the state, it’s likely to face stiff resistance from others. Danny Diaz, head of San Antonio’s powerful police union, said his organization will work to defeat the measure, which he said ties officers’ hands.

See here for some background and here for an earlier version of the story. The San Antonio Report adds some details.

The City Clerk’s office has 20 business days, until Feb. 8, to verify the signatures.

“We’re ready,” City Clerk Debbie Racca-Sittre said inside City Hall as she and a colleague sealed and time stamped four boxes filled with more than 5,000 pages of petition signatures.

City Council will call for the election, which will include council district seats and other local elections, during its Feb. 16 meeting.

Voters will likely see just one item on the May 6 ballot to make the batch of changes to the City’s Charter — but city officials could split them up into separate votes, Tomas said. “The intent is for it to be one single proposition. I think that that’s still going to be a conversation with City Council.”

[…]

The charter changes would essentially direct the police department not to spend resources pursuing most abortion and low-level marijuana possession cases.

A provision in the Texas Constitution states that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

Whether the charter rules, if approved, violate that provision may ultimately be left up to legal challenges — but “this is entirely legal,” Mike Siegel, political director and co-founder of Ground Game Texas, told the San Antonio Report.

“Every day, police departments decide what they’re going to enforce and what they’re not going to enforce, and this represents the people of San Antonio saying: these are not our priorities for our scarce public dollars,” Siegel said. “The roots of the Texas Constitution are in local self control [and] self determination. So that’s why we have charter cities that have this authority to adopt their own charters and decide their own laws.”

It will be up to opponents of the charter changes to decide whether they want to challenge it, he said.

I would expect this to pass, as similar referenda has done in other cities. Whether it will get a similarly chilly reception from City Council or Commissioners Court remains to be seen. Unlike some other counties, the Bexar County District Attorney is on board with the idea, as noted in this Texas Public Radio story, so they have that going for them. On the other hand, the Lege is out there as well, with a giant hammer to wield against cities and counties that do things the Republicans don’t like. Sometimes I don’t necessarily mind Houston being a bit behind the activism curve. If six months or a year from now this ordinance is in place and being complied with, I’ll be delighted and looking to our city to follow suit. If not, I’ll be disappointed but not surprised. Stay tuned.

Trying again in Harker Heights

Jan 2nd, 2023
by Charles Kuffner.
1 comment

I admire the determination.

Cannabis reform advocates are pushing back against the city council of the Central Texas city of Harker Heights, which recently rejected a voter-approved ballot measure decriminalizing low levels of pot possession there.

Harker Heights was one of five Texas municipalities in which voters during the November midterms approved decriminalization initiatives. While at least two other of those votes received blowback from local officials, Harker Heights is so far the first to reject voters’ approval outright.

Voter mobilization group Ground Game Texas, which championed Harker Heights’ original ballot initiative, said it’s launched a new petition drive to override the council ordinance, which passed Nov. 22. Some 64% of voters in the city of 34,000 people approved the decriminalization initiative.

“By voting to repeal Prop A, the Harker Heights City Council sent a clear message to their constituents that they don’t respect the will of the voters or the democracy they participate in,” Ground Game Texas Executive Director Julie Oliver said in a news release. “These antidemocratic politicians are trying to throw away the votes of more than 5,000 Harker Heights residents — but we won’t let them. With this new referendum, Ground Game Texas will ensure the will of voters isn’t trampled on by their local elected officials.”

See here and here for the background. I consider what Harker Heights City Council did to be defensible, but I would not feel the same way if this effort succeeds and they override it again. At this point, the opponents of this proposal on City Council can make their case directly to the voters, so there’s no question about conflicting mandates. Whatever happens, this should be the last word, until and unless the state gets involved.

On a related note:

Organizers have gathered more than 26,000 signatures so far for a petition that would give San Antonio voters in May the opportunity to decriminalize marijuana possession, end enforcement of abortion laws, establish a city “justice director” position, ban police from using no-knock warrants and chokeholds and expand the city’s cite-and-release policy for low-level, nonviolent crimes.

The local police reform advocacy group ACT 4 SA aims to collect 35,000 signatures — anticipating that some won’t be verified — to submit to the City Clerk before the early January deadline.

But even if they miss that goal, voters can expect to see the slate of proposed changes, collectively known as the “Justice Charter,” to the city charter on the November 2023 ballot because the signatures collected are valid for six months.

“Two-thirds of the people I talked to sign [the petition],” said Ananda Tomas, executive director of ACT 4 SA, which launched the petition effort in October. “They’re either for the initiatives or they just want to put it up to a vote because they think that this is something we should vote on.”

San Antonio’s police union has criticized the Justice Charter as an overreach into police policies as well as violations of state and federal law. Union President Danny Diaz has pointed out that chokeholds and no-knock warrants already are prohibited, while enforcement policies for marijuana and abortion are determined at the state level.

San Antonio had previously passed an ordinance that “recommends that no local funds be used to investigate criminal charges related to abortions”. I assume this would go further than that, but it’s not clear to me exactly how the referendum differs from the existing ordinance. It’s clear that opinions differ about the legality and enforceability of the marijuana-related measures, and I’d say the same would be true for the abortion one. I strongly suspect we’ll be hearing from the Legislature on the latter, and quite possibly on the former as well. Be that as it may, I will be very interested to see how this turns out, and whether something similar happens in Houston.