Elections 2022Local NewsLocal Election Timing, Fundraising Rules at Stake in Two Austin Lawsuits

One case concerns council elections and whether all 10 districts will appear on this November ballot, or whether only half will come before voters. This is the first election after redistricting redrew the boundaries, and so some voters find themselves in new districts. Districts 2, 4, 6, 7, and 10 — represented by Vanessa Fuentes, Chito Vela, Mackenzie Kelly, Leslie Pool, and Alison Alter, respectively — are currently not up for election despite the lines changing.

Only districts on the ballot in 2018 are currently set for this year’s ballot, correlated with the four-year terms.

The Texas Senate has staggered elections, with half the body up for election every two years, but this year in the election after redistricting every position is up for grabs.

Represented by Austin attorney and former Travis County Judge Bill Aleshire, 12 plaintiffs filed a suit aimed at requiring all districts to be on the November ballot. Each plaintiff is a voter whose council district changed with the redistricting plan. Overall, the suit says nearly 24,000 voters shifted districts — meaning, they won’t have a say in who represents them on the council until the next election two years from now.

The suit posits, “[S]ince when, in a democratic republic, does the government tell the voters who their elected representative will be, as opposed to voters exercising their right to vote on who represents them?”

“[W]hat is being done in Austin, to Austin voters, by the Austin City Council, is far worse — the outright denial of their right to vote at all.” 

During the last time the U.S. Census occurred, which triggers redistricting, a decade ago, Austin had an at-large council. This means council members were elected across the whole city and not to represent single districts. There is no historical precedent at which to point in a scenario like this.

The suit also makes the cost-practicality argument, saying that adding those districts to the ballot will come at negligible additional cost because the mayor’s race is also on the ballot — a city-wide affair.

The city has not yet filed its response brief in the case, which is before the 201st District Court in Travis County.

The other case is nearly a year old and concerns the fundraising blackout period in elections for city offices. Jennifer Virden, a 2020 council candidate and current mayoral candidate, sued the city over the prohibition days after she announced her current campaign in March of last year. The prohibition meant that for the first eight months of her campaign, she was barred from raising money.

“Because the statute has the present effect of deterring the exercise of Virden’s First Amendment speech and associational rights, her rights are chilled,” her suit reads.

A “chilling effect” is a consequence of government policy or action that indirectly subdues the exercise of any kind of First Amendment-protected speech. In the landmark Supreme Court case Citizens United v. FEC, the court ruled that financial donations are protected political speech.

Virden’s case argues that the city’s moratorium causes a chilling effect against this kind of protected political speech.

Because the November start date has come and gone, the case is null and void in a practical sense as it pertains to that eight-month window in which Virden hoped to fundraise. But it now will affect the law going forward and such future instances of candidates hoping to fundraise more than a year from the date of their election.

The restriction was put in place to prevent corruption — or a candidate raising money for a race they don’t intend to run — and was passed in 2017.

“Without immediate relief, Plaintiff loses irreplaceable time for soliciting funds to (i) fund desired immediate speech regarding current issues and (ii) begin amassing as much as possible for her 2022 campaign, and all those who would contribute to her campaign are denied the right of political association,” Virden’s suit asserts.

The city’s response alleges Virden’s challenge is delayed, saying, “[It was] filed nearly three and a half years after the provision she now challenges was adopted and after she had already unsuccessfully run in 2020 for an Austin city council seat.”

“Virden’s multi-year delay followed by her request for a rushed judicial ruling to help her raise money to influence an election in which she is not even a candidate epitomizes the very lack of diligence that the unanimous Supreme Court in Benisek held dooms a request for preliminary relief such as hers,” it adds.

Virden had announced before the case was filed, but election law does not permit candidates to file officially for respective races until a year out from the election. She filed for the race on March 8, 2021, exactly a year before this year’s election.

The city is alleging that despite the public announcement of her mayoral candidacy, she wasn’t actually a candidate until the date of official filing. They also assert that at the time of filing, Virden lacked standing because she hadn’t yet appointed a treasurer for her race — an official with the city told The Texan a campaign treasurer appointment may be filed at any time and is not tied to the 365-day timeline.

Virden’s case is in front of the federal U.S. District Court for the Western District of Texas and Judge Robert Pitman denied her motion for preliminary injunction back in July.

In executive session, the council will speak with their attorneys about the cases, discussions the public is not privileged to hear as they’re ongoing litigation. Both contain significant corollaries for elections in Austin, one in the short term and one in the long term.