HOUSTON (BP) — Houston’s City Council voted Aug. 5 to put the controversial equal rights ordinance (known as HERO) on the Nov. 3 ballot after a vote to repeal the law failed but not before debate arose over the ballot language.
Council members opposed to the ballot language cautioned Mayor Annise Parker the city could find itself again on the losing end of a legal battle over how the city chooses to parse its words for the voters.
The vote marked a “dubious” anniversary for HERO opponents. It was one year ago — Aug. 4, 2014 — that Parker and then-City Attorney David Feldman called a press conference to declare “invalid” a referendum to repeal the equal rights ordinance, which gives protected class status to lesbian, gay, bisexual, and transgender (LGBT) individuals. On Aug. 5, 2014 petitioners filed a lawsuit claiming Parker, Feldman, City Secretary Anna Russell and the City of Houston overstepped their authority in dismissing the referendum.
And on Aug. 5, 2015, Houston City Council, at the direction of the Texas Supreme Court, was forced to accept the referendum petition and vote to repeal the ordinance.
Dave Welch, executive director of the Houston Area Pastors Council (HAPC), which spearheaded opposition to the ordinance, called the day “a dubious anniversary remembering the abuse of power while celebrating the fruits of the diligent pursuit of justice.”
Repeal of HERO failed, 12-5, with council members and the mayor voting as they had in May 2014, with one exception — Councilman Dwight Boykin voted against the ordinance the first time but changed his vote, at the behest of his constituents, so they could vote on the law. With council refusing to repeal the ordinance, city charter mandated council put the ordinance to a city-wide vote.
Although the coalition of pastors fought for the past year to gain the right to vote on the measure, the city council’s 13-4 vote to accept potentially problematic ballot language could land the city and pastors back in court.
Still stinging from a recent Texas Supreme Court ruling that overturned a 2010 ballot initiative due to improper wording, four council members argued due diligence should be taken to ensure the November ballot language is accurate. But what Parker and the remaining council members dismissed as splitting hairs, attorney Andy Taylor warned is the letter of the law.
“Legally, this will be dead on arrival if you do it the way the mayor just explained,” Taylor told council members Aug. 4 during the public comment portion of the weekly Houston City Council meeting.
His comments were met with criticism by Parker.
“Our belief is he is incorrect — as he is in many things,” Parker said.
In addition to being the attorney for the No UnEqual Rights Coalition, which sued the city last year, Taylor also represents a group of pastors from the coalition who filed a civil rights lawsuit against Parker Aug. 3. The lawsuit accuses the mayor of voter suppression and intimidation.
Parker is the only named defendant but as-yet-to-be named “co-conspirators” may be added to the suit during the discovery process.
In defense of the ballot language, Parker said the text is perfectly clear and in keeping with the city charter. The ballot language approved by the city council Aug. 5 states: “Shall the City of Houston repeal the Houston Equal Rights Ordinance, Ord. No. 2014-530, which prohibits discrimination in city employment and city services, city contracts, public accommodations, private employment, and housing based on an individual’s sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy?”
But Taylor and council members C.O. Bradford, Dave Martin, Michael Kubosh and Brenda Stardig maintained the November election is not about repealing HERO. Because the ordinance was suspended by the Supreme Court, Taylor argued, there is nothing to repeal. Instead, the ordinance, like other national, state and local laws, will or will not be enacted by a popular vote in the affirmative.
“The voters in November cannot vote to repeal anything,” said Bradford, an attorney and outspoken critic of the ballot language. “If the ballot language says anything about the voters repealing something, it’s wrong!”
Bradford voted for the ordinance last year but opposed the ballot language because he wanted “the ballot to be right.” He offered substitute language that was rejected by a 12-5 vote.
“Mayor, we want the language right. We don’t want to come back two years from now and have the Supreme Court say we were egregiously misleading the language,” said Kubosh referring to the June Texas Supreme Court ruling stating the city used improper ballot language in a hotly contested “Drainage Fee” amendment that won by a narrow margin of votes.
But Parker insisted the language on the ballot was consistent with the petition calling for the repeal of HERO. Welch said it may make sense to make that connection, but it was not consistent with the Supreme Court directive or the city charter, both of which call for a popular vote on the ordinance.
Martin said, “The [city] charter dictates what we need to do.”
Reading from it, he said, “… such ordinance or resolution shall not take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.”
The charter, not the petition, Martin said, dictates the ballot language, which in its current form is a “purposeful attempt to mislead voters.”
Welch said the coalition would announce Friday whether they would press the issue or let the ballot wording stand. The Texas Supreme Court gave Houston City Council until Aug. 24 to comply with their directive to repeal or put the ordinance to a popular vote.