The Texas Supreme Court recently requested full briefing in Andrade v. Venable, No. 11-0008, in which a voter challenges how straight-ticket voting is conducted in Texas.
Voter standing: Hey, didn’t the Court just hear a case about this?
Well, yes it did. On July 1st, the Texas Supreme Court decided Andrade v. NAACP of Austin, No. 09-0420, a challenge to Travis County’s procedures for handling a recount using electronic voting machines. Over the objections of the Secretary of State, the Court concluded that the voters who brought an equal-protection claim against those procedures did have sufficient standing. (I wrote it up here.) (( The voters ultimately lost that claim on substantive grounds. The Court concluded that the government’s decision fell within the bounds of reasonableness and, thus, did not violate equal protection. ))
With that opinion issued, the Court moves forward in this case
On the same day it announced NAACP of Austin, the Court referred the Venable case to the State Bar’s pro bono committee to see if an appellate counsel could be found for Mr. Venable (who has been representing himself). (( The Court often issues briefing requests or similar orders on the same day it decides a related case. The briefs can then focus on the questions raised, or left open, by the Court’s new opinion. )) On July 13th, the Court requested full briefing on the merits.
The standing question here
Venable challenges the use of straight-ticket ballots in Dallas County, claiming that it violates various provisions of the Texas Election Code. He claims “taxpayer standing” to bring this challenge — alleging that public funds were used to collect information about each candidate’s party affiliation and to print straight-ticket ballots, in contravention of state law.
The defendants (a Dallas County election official and the Secretary of State) challenged whether Venable had standing. They filed a plea to the jurisdiction to challenge standing, on which the trial court held a hearing. Venable came forward with some evidence showing the Dallas County budgets. The defendants did not offer their own evidence, but rather claimed that Venable had not introduced enough evidence to carry his burden to establish standing. The trial court agreed with the defendants, granted the plea, and dismissed.
Venable took his own appeal to the Dallas Court of Appeals, which agreed with him. The Dallas Court focused on the standards for a plea to the jurisdiction, concluding that once Venable had introduced evidence to support his view, the defendants then had the burden to present contrary evidence.
Like NAACP of Austin, might this also turn into a case about immunity rather than standing?
The real fight in this case might turn out to be about a subtle procedural point rather than taxpayer standing.
That’s because Dallas County took an interesting gambit. It apparently refused to put on evidence about its own expenditures. Instead, it waited for Venable to offer what evidence he had been able to gather about the County’s expenditures — and then claimed that he had failed to meet his burden of proof:
[The Dallas County defendant] Sherbet did not attach any evidence to his plea to the jurisdiction or offer any evidence during the hearing. Instead, he merely provided argument. During the hearing, Sherbet argued, without offering evidence, that there is “no expenditure involved” because the majority of voting in Dallas County occurs on electronic voting systems, and in the event that there are printing costs, the cost of the ballot is not affected by the inclusion of a straight-party voting option or the identification of the candidates’ political party affiliation. The trial court specifically asked Sherbet’s counsel if there was any evidence to support these arguments. She responded that there is no evidence of an expenditure and it is Venable’s burden to prove that he is a taxpayer and the funds are expended on the alleged illegal activity.
The court of appeals was not impressed. It disagreed with Dallas County’s (and the trial court’s) legal conclusions about how to evaluate the burden of proof here. In particular, it distinguished Williams v. Lara, 52 S.W.3d 171 (Tex. 2001), a which also involved taxpayer standing, because this was a plea to the jurisdiction.
That distinction is the procedural question that might ultimately decide this case. How much evidence must a plaintiff put forward to survive a plea to the jurisdiction on taxpayer standing? Is what the defendants filed here the jurisdiction world’s equivalent of a “no evidence” summary-judgment motion, where offering at least some evidence lets a plaintiff survive?
Stay tuned to see how these arguments develop.