150,000 Harris County Voters vs. County Judge Ed Emmett
By Fred Lewis
Democracy was thwarted in Harris County recently when County Judge Ed Emmett refused to placean early education initiative on the ballot this November even though 150,000 people had signed supportive petitions. A poll done by KUHF reveals today that the early education initiative was likely to win if presented to the voters, with 49% in favor, 35% opposed, and 15% undecided. Because the right to petition is an important part of our democracy, and early education is an important need in our community, I wanted to explain my perspective on how one person impeded the will of so many voters. A little background on the initiative. Prominent community, business, and academic leaders issued a well-researched report this March, explaining that high quality early childhood education was crucial for Harris County to have an educated labor force and be economically competitive. The task force proposed a locally funded plan because the state has been unwilling to fund early education, despite numerous reports demonstrating the many benefits to the economy and our children. To enact this local plan, the Early to Rise campaign proposed a petition that the Harris County Board of Education levy a 1 cent property tax exclusively for funding early education. The tax would raise around $35 million a year for high quality early education.
The Texas Education Code authorizes citizens to place tax initiatives by petition on the ballot related to the Harris County Department of Education, a countywide governmental body that supports local school districts. The Code requires a high threshold: petitioners must collect signatures from 10% of the voters in Harris County in the last gubernatorial election, which is 78,800 signatures. The early education initiative proved very popular with citizens. Despite the short period of time, and the heat of the summer, the campaign collected 150,000 signatures and turned them into the County in early August of this year. The County Clerk diligently reviewed the petitions and certified that the campaign had submitted the required number. Since the campaign had the required valid signatures, according to clear Texas case law going back many years, the early education initiative should have gone on the ballot for the voters' approval.
Vince Ryan, the County Attorney, apparently informed County Judge Emmett that he was required legally to place the matter on the ballot even if Emmett had legal or other reservations. Nonetheless, Emmett refused to place the matter on the ballot, claiming the tax and petition language were illegal. He first had sought legal justification from the Texas Attorney General's Office, but it lacked the time to issue an opinion. So to justify his position, Emmett sought and found another legal opinion from a private lawyer in Austin.
I find several things about Emmett's actions to be quite strange. First, although Emmett is not a lawyer or a judge, he ignored the legal advice of his statutory lawyer, the County Attorney. Second, he ignored Texas' clear case law, which holds that an elected official must place a petition with the required signatures on the ballot, regardless of whether he thinks it is illegal. This is because the Courts, not elected officials, decide whether laws are legal in our separation of powers system. In addition, Texas Courts have made clear that out of deference to the voters' right to petition, that until the voters approve a ballot proposition, there is no law for the courts to review. Emmett did what no court would do: he refused to allow the public to vote on a matter in which the prescribed petition requirements were met. Third, his refusal, in my opinion, was hardly objective and dispassionate, as he publicly opposed from the beginning the proposal and petition drive. No judge would be allowed to rule on a matter that they exhibited prior bias.
Emmett's legal arguments, in my opinion, are clearly wrong. He claims he had discretion to deny placing the matter on the ballot, even though the law mandated that he immediately place a petition with the required signatures on the ballot: "On receipt of a petition legally praying for the authority to issue an equalization tax and fulfilling the requirements of this section [the signature requirements], the county judge of any county that has adopted the county unit system, shall immediately order an election." Texas Education Code 18.07 (emphasis added). Emmett contends that the language "legally prays" provides him alone discretion to determine if the petition is legal and whether to place the matter on the ballot. "Legally prays" is old boilerplate that means nothing more than the petition should ask for a tax levy within the maximum allowed by the statute. Emmett is an executive official, not a judicial officer, and lacks the expertise to determine if an initiative is legal; that is a matter exclusively for the courts, which the law makes clear, do not determine if initiatives are invalid until they are placed before the voters and approved.
Emmett also argues the petition is invalid because it contains additional information beyond that listed in Section 18.09 of the Education Code. The statute provides "the form of the ballot shall be substantially as follows: For County Tax not exceeding___ cents on $100 valuation. Against County Tax not exceeding __cents on $100 valuation." Emmett contends that the Early to Rise petition is invalid because it refers to the Harris County Department of Education (the specific entity with the taxing authority) rather than Harris County, the levying of an additional tax (the additional one cent property tax increase), and specifies that the revenue will go exclusively for early education (the purpose of the initiative). Note that this information is undeniably true and simply provides voters more information to make their decision. The petition is substantially worded per the statute, telling voters clearly there is a tax increase and for what. I find Emmett's argument in a democracy very unpersuasive. Even if the extra, accurate petition language were a problem, his position is incorrect because Section 18.09 prescribes the ballot language, not the petition language. Emmett essentially controls the ballot language for the petition, and if he thought the petition provided too much information to voters, he could have placed on the ballot the language he preferred.
Emmett now tells the public that he was right on the law because the Court of Appeals refused without issuing an explanatory opinion to grant a writ of mandamus to place the petition on this year's ballot. Emmett does not understand the remedy of mandamus. Mandamus is an expedited, extraordinary remedy, with no evidentiary hearing, where a courts orders an official to perform a duty. Mandamus is rare and disfavored by courts. The law is clear that the fact that a mandamus has been denied does not mean the courts agree with Emmett's decision. It means simply that they were not willing to order an extraordinary remedy without a full evidentiary hearing. That is why I believe the Early to Rise campaign still can file suit in district court to have a full hearing on the merits.
County Judge Ed Emmett singlehandedly squelched the right to petition of 150,000 people and the voting rights of 2 million registered voters. He alone prevented the citizens of Harris County from voting on whether they wanted to pay for high quality early education. It is a strange democracy where a $217 million bond measure to renovate the Astrodome can get on the ballot because of a vote of five Commissioners, but 150,000 people's wishes to vote on whether their children get a good start in kindergarten are ignored.
Fred Lewis is a 27 year lawyer with election and administrative law expertise and the President of Texans Together Education Fund that collected petitions to place the Early to Rise initiative on the ballot. This piece's opinions are his personally.