Some people just can't let go of the false idea that filling a vacancy by appointment instead of special election is a violation of the Texas State Constitution. And that the city charter itself gives the city council the option of calling a special election. By some people, I mean specifically local gadfly Cheri Duncan-Hubert. She's been corrected before, including here, but in a (long) Facebook thread she demonstrates a remarkable persistence of willful ignorance. So here we go again.
Cheri Duncan-Hubert says the Texas Constitution trumps the city charter. Well, yes it does. No one argues otherwise. The argument is over what the Texas Constitution requires. Cheri misinterprets it. Here's the section on which she hangs her argument.
What this means: whenever there's an election, *all* voters can participate, not just whites, not just those who can read and write, not just property owners, not just men. *All* qualified voters who reside in the city. If there's an election. In other words, it specifies *who* can vote in elections, not that elections must be held.Texas Constitution, Article 6, Sec. 3. MUNICIPAL ELECTIONS; QUALIFICATIONS OF VOTERS. All qualified voters of the State, as herein described, who reside within the limits of any city or corporate town, shall have the right to vote for Mayor and all other elective officers.
Source: Texas Constitution.
What this does not say: that there *must* be an election to fill a vacancy (or for mayor, for that matter). There are other sections of the state election code that make this perfectly clear. Notice the wording for filling vacancies in the state legislature.
"only by a special election." Pretty clear. No appointments to fill vacancies in the legislature. But notice the different wording used for vacancies in local government.CHAPTER 203. VACANCY IN LEGISLATURE
Sec. 203.001. APPLICABILITY OF CHAPTER. This chapter applies to the offices of state senator and state representative.
Sec. 203.002. VACANCY FILLED AT SPECIAL ELECTION. An unexpired term in office may be filled only by a special election in accordance with this chapter.
Source: Texas Election Code.
"If a vacancy in office is to be filled by special election." That word "if" clearly specifies that under some conditions a special election does not happen. Otherwise, the wording used in the specific case of vacancies in the legislature ("only by special election") would have been used in the case of vacancies generally.TITLE 12. ELECTIONS TO FILL VACANCY IN OFFICE
CHAPTER 201. DETERMINATION OF AND ELECTION TO FILL VACANCY
SUBCHAPTER C. SPECIAL ELECTION TO FILL VACANCY GENERALLY
Sec. 201.051. TIME FOR ORDERING ELECTION. (a) If a vacancy in office is to be filled by special election, the election shall be ordered as soon as practicable after the vacancy occurs
Source: Texas Election Code.
So, if a special election in local government does not always happen, then who makes the decision in each city? Well, the voting public, when they adopt their city charter. And Richardson's voting public clearly decided not to use special elections to fill vacancies on the city council.
Section 3.07. - Councilmember vacancies.
Vacancies in the city council, where the same do not exceed two (2) at any one time, shall be filled by a majority vote of the remaining members of the council
Source: Richardson City Charter.
When all else fails, Cheri Duncan-Hubert falls back on a novel legal theory, that because all governments derive their powers from the consent of the governed, that governments are allowed to ignore the law provided they call a special election to get the voters' approval. There's not a single case in American history where this legal theory was applied and accepted. There's a reason for that. This novel legal theory has no basis in law. In Richardson's case, if the city council wanted to call a special election, they would first have to get the voters to change the city charter to authorize a special election. That hasn't happened (yet).
To repeat, the Texas Constitution and state election code do *not* require cities to hold special elections in case of a vacancy, but *if* they choose to do it that way, then Section 201 of state election code spells out the rules. Richardson voters chose not to do it that way. All perfectly permissible by state law. Richardson's city charter specifies how a vacancy is to be filled: by appointment. It's not optional. The council can't call a special election if they want to. Or if public opinion as expressed on Facebook wants them to. The voters have ultimate power, but even they have to follow the rules they agreed to. If the city council were to call a special election, it would be violating the law. Frankly, I'm shocked that Cheri Duncan-Hubert, who has in the past excoriated the city council for allegedly violating the law, would so cavalierly urge them to do so in this case.