Local NewsAustin City Council Must Slightly Revise Homeless Camping Ban Ballot Language, Supreme Court Rules

In only two short months, Austin voters will get their say on whether to reinstate the city's previous homeless camping ban.
March 2, 2021
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The Austin City Council must alter slightly its proposed ballot language for the city’s camping and laying policy proposition after an order by the Supreme Court of Texas (SCOTX) sided partially with petitioners.

In January, a community group named Save Austin Now submitted over 26,000 signatures to place a reinstatement of the city’s camping and laying ban on the May ballot. City council, as is its responsibility, drafted and approved its own ballot language to appear before voters.

In full, the language read, “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?”

The council was accused of approving “biased” ballot language and petitioners asked the court to force it to mirror the petition language.

Justice Jimmy Blacklock, in writing the court’s opinion, did not rule in favor of that contention. But the opinion did require the council to strip the two instances of “anyone” from the language.

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“The ordinance itself, however, does not apply to anyone who engages in the listed activities. To the contrary, the ordinance contains several exceptions covering a variety of common uses of the sidewalk that the ordinance does not criminalize. Thus, only a subset of those who engage in the covered behavior — not just anyone — can be penalized under the ordinance,” the opinion states.

The issue this raises, the court ruled, is that “[i]ncluding it on the ballot as directed by the Council would suggest to voters that the ordinance criminalizes and penalizes a much wider swath of conduct than it actually does.”

Inclusion of this implication may “mislead the voters” by “misrepresent[ing] the measure’s character and purpose or its chief features.”

The petitioners’ counsel, Austin attorney Bill Aleshire, told The Texan in a statement, “We won. The Council must change the wording of the Prop B ballot. It also appears from the Opinion [and] Dissenting Opinion, that if the Council does not use the petitioned-ordinances’ caption on the ballot, then the election results could be challenged.”

“All of the Supreme Court Justices held that the City Council’s ballot language was not lawful.  The majority held that Council’s language saying the ordinance would make a criminal offense for ‘anyone’ to camp or sit/lie down on the sidewalk would mislead voters. And 3 Justices held that the City Council was required to use the neutral wording of the caption in the proposed ordinance as the ballot language because the City Charter requires it.”

“The Opinion and Dissenting Opinion can both be read, as a strong warning to the Council: If the Council does not adopt the ballot language as required by the City Charter and Prop B fails, then an election challenge is likely to be successful,” he concluded.

The city argued in its brief that affirming the mirroring requirement would leave the council “captive of petition circulators, no matter how misleading or pernicious the language of the caption of their petition” down the road.

In dissent, Justice Jeffrey Boyd declared he’d have granted the petitioners’ full request that the ballot language mirror that of the petition.

He further disputes the city’s contention, adding that the city was not alleging this particular petition language to be “misleading or pernicious.”

The city’s original camping and laying ban policy was rescinded back in July 2019 and has come under the national spotlight since.

Its recission created an incentive for homeless individuals to leave shelters and live on the streets. The city has struggled with its repercussions ever since.

Save Austin Now’s first petition effort failed with some controversy last fall, but as it became clear their second would succeed, Mayor Steve Adler walked back his support for the city’s policy, saying it “is not working.”

Voters will now see the question before them, sans the two instances of “anyone,” on their May ballots.

The referendum many have been waiting for on Austin’s camping policy is only two months away.

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Brad Johnson

Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.

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