Local Option Liquor Elections

Local Option Liquor Elections 29th ANNUAL ELECTION LAW SEMINAR for Cities, Schools and Other Political Subdivisions Presented by Tim Juro Texas Secretary of State Elections Division

History of Texas Liquor Laws Images from H.A. Ivy’s 1910 “Rum on the Run in Texas” Texas Secretary of State Elections Division

History of Texas Liquor Laws • First Local Option Elections—1843 • Republic of Texas at this time • Likely first of their kind in North America • Allowed for elections by neighborhoods to counties • Saloons banned—1845 • Not enforced • Repealed in 1856 Texas Secretary of State Elections Division

History of Texas Liquor Laws • Texas Constitution of 1876 • Current constitution • Required a local option law to be passed • Votes could be held every 2 years Texas Secretary of State Elections Division

History of Texas Liquor Laws • First Modern Local Option Election • Jasper County, December 18, 1876 • Three failed attempts at prohibition statewide until 1918 Texas Secretary of State Elections Division

History of Texas Liquor Laws • Prohibition (Amendment XVIII) adopted 1918 • Effective January 17, 1920 • Ratified by Texas March 4, 1918 • Texas Prohibition • Passes in May 1919 • Effective immediately • At the time of Prohibition in Texas: • 10 Wet Counties • 43 “Partly Wet” Counties • 201 Dry Counties Texas Secretary of State Elections Division

History of Texas Liquor Laws • Federal Prohibition Repealed—1933 • Amendment XXI • Texas Prohibition Repealed—1935 • State authorizes sale of “3.2” beer in 1933 • When prohibition is repealed, counties revert back to pre-1918 status Texas Secretary of State Elections Division

History of Texas Liquor Laws • Texas Liquor Control Act Created Texas Liquor Control Board, 1935 (name changed to Texas Alcoholic Beverage Commission 1970) • Texas Liquor Control Act recodified as Texas Alcoholic Beverage Code (see Chapter 251) • Texas Election Code Chapter 501 (added 2005) Texas Secretary of State Elections Division

Why is the History Important? So that Petitioners can determine if they even need to hold an election and, if so, exactly what issue they need to petition for. • Can go from totally dry to some form of wet (legalization election) • Can go from one form of wet to another/additional form of wet (legalization election) • Can go from wet to dry (prohibition election) Texas Secretary of State Elections Division

How Do Petitioners Determine Status? 1. TABCResources – www.tabc.state.tx.us/ • Historical Election Results (from 1935 onwards) • Maps of Wet/Dry areas 2. Historical County Election Records • For Information on Elections prior to Prohibition Texas Secretary of State Elections Division

In Which Political Subdivisions Local Option Liquor Elections Occur? • Counties • Justice of the Peace Precincts • Use new boundaries after redistricting • Municipalities (cities, towns, villages) • Section 501.109 of the Election Code provides that city conducts city-wide election, not county. • References in Chapter 501: • For “county,” read “city” • For “commissioners court,” read “governing body of the city” • For “county clerk/voter registrar, read “city secretary” • For “county judge,” read “mayor.” • Section 501.109(c) provides that the city pays the expense of the election. Texas Secretary of State Elections Division

Select Q&A from Outline (references are to the Texas Election Code) Texas Secretary of State Elections Division

How long must a city be in existence before it qualifies to exercise local option? [Sec. 501.022] A. 18 months. Must include “substantially all of the area of the city at the time of incorporation.” May include other area subsequently annexed. Texas Secretary of State Elections Division

If a city is in the process of annexing territory at the time an application for a local option petition is filed, is that territory included in the election? [Sec. 501.035] • Any territory that is annexed by a city subsequent to the issuance of the petition but prior to the local option liquor election is included in that election and affected by the election outcome. Note: the number of signatures needed on the petition is increased to reflect the additional population of the area pending annexation. Texas Secretary of State Elections Division

Is it necessary to apply for a petition? • Yes. Apply, then Petition. There is an Applicant, then a Petitioner. Terms are not interchangeable. Texas Secretary of State Elections Division

How is an Application for a Petition made? • Application (written, signed by 10 or more registered voters, with proper heading and issue) must be accompanied by proof of publication of Notice. • Proof can be established by submitting original or copy of newspaper with notice or affidavit of editor/publisher. • Recommended: County Clerk/City Secretary has 5 days to approve application. Texas Secretary of State Elections Division

Publication of Notice • Published once in newspaper of general circulation • Must include: • The individual or entity that is applying for the petition to gather signatures for a local option liquor election; • The type of local option liquor election; • The name of the territory (e.g., county, justice precinct, city) in which the petition will be circulated; and • The name of the person and office with whom the application will be filed. Texas Secretary of State Elections Division

Texas Secretary of State Elections Division

Petition Questions/Issues • After approval of application, county clerk/city secretary issues petition pages. • What must be on each page of the petition? A. Each page must contain: • The heading and statement [Sec. 501.027, 501.028]; • The type of liquor election [Sec. 501.035]; • The pages have to be serially numbered [Sec. 501.026]; • The actual seal of county clerk [Sec. 501.026]; and • The date the petition is issued to petitioners [Sec. 501.026]. Texas Secretary of State Elections Division

Heading and Statement(Secs. 501.027, 4501.028) Heading on Petition to Prohibit: "Petition for Local Option Election to Prohibit." Statement on Petition to Prohibit: Placed just ahead of the signatures of the petitioners: "It is the hope, purpose and intent of the petitioners whose signatures appear hereon to see prohibited the sale of alcoholic beverages referred to in the issue set out above." Heading on Petition to Legalize "Petition for Local Option Election to Legalize.“ Statement on Petition to Legalize: Placed just ahead of the signatures of the petitioners: "It is the hope, purpose and intent of the petitioners whose signatures appear hereon to see legalized the sale of alcoholic beverages referred to in the issue set out above.“ Texas Secretary of State Elections Division

Issues: “To Legalize” OR “To Prohibit” The legal sale of beer for off-premise consumption only." "La venta legal de cervezaparaconsumosolamentefuera del establecimiento." "The legal sale of beer." "La venta legal de cerveza." "The legal sale of beer and wine for off-premise consumption only." "La venta legal de cerveza y vino paraconsumosolamentefuera del establecimiento." "The legal sale of beer and wine." "La venta legal de cerveza y vino." "The legal sale of all alcoholic beverages for off-premise consumption only." "La venta legal de todasbebidasalcohólicasparaconsumosolamentefuera del establecimiento." "The legal sale of all alcoholic beverages except mixed beverages." "La venta legal de todasbebidasalcohólicas con exclusión de bebidasmixtas." "The legal sale of all alcoholic beverages including mixed beverages." La venta legal de todasbebidasalcohólicasincluyendobebidasmixtas." "The legal sale of mixed beverages." "La venta legal de bebidasmixtas." "The legal sale of mixed beverages in restaurants by food and beverage certificate holders only." "La venta legal de bebidasalcohólicasmezcladas (cocteles) en restaurantessólopor los poseedores de un certificado de comidas y bebidas." "The legal sale of wine on the premises of a holder of a winery permit." "La venta legal de vino en establecimientosquepertenecen a poseedores de un certificadode vinería." Texas Secretary of State Elections Division

Texas Secretary of State Elections Division

Petition Con’t • Form must be in English and Spanish • Maximum required pages = 1 for every 10 registered voters in political subdivision • Can Issue in Batches, all with original issuance date • Must use SOS Form, unless have received approval from SOS to use alternate form Texas Secretary of State Elections Division

Petition Signatures • How many signatures are required on a petition? • 25% of number of voters in the applicable territory who voted in most recent generalelection, for a petition on “the legal sale of wine on the premises of a holder of a winery permit” OR 35% of the number of voters who voted in the most recent gubernatorialelection for any other petition issue. Texas Secretary of State Elections Division

Who determines the number of signatures required? A. The filing authority (County Clerk or City Secretary). Texas Secretary of State Elections Division

What constitutes a valid petition signature? A. For a signature to be valid, it must be accompanied by: • the signer's printed name; • the signer's date of birth; • if the territory from which signatures must be obtained is situated in more than one county, the county of registration; • the signer's residence address; and • the date of signing. BUT see Case Law • Fjetland v. Weddington(VR#) • In re Kevin H. Bell (City) • Withers v. Commissioners Court of Bandera County (D.O.B.) Texas Secretary of State Elections Division

Q. Who is a registered voter for purposes of signing a petition? • A signer must have an effective voter registration on the date the petition is issued. See Sec. 501.031(a). Texas Secretary of State Elections Division

More on Residence Address • What Constitutes a valid residence address? A. Must use street address if available, but if no street address then rural route or PO box sufficient • What if voter had moved within the city? A. The voter’s address on the petition need not be identical to the registered address, but must still be within the City/JP/County. • Must address include state or zip code to be valid? A. No Texas Secretary of State Elections Division

Q. How long may a petition be circulated? [Sec. 501.032, 1.006]? A. A petition must be filed no later than 60 days after it is issued. If the 60th day after the petition is issued falls on a Saturday, Sunday, or legal holiday, the petition may be timely filed on the next regular business day. The day after the petition is issued should be considered as day 1. Texas Secretary of State Elections Division

Q. To whom is a completed petition to be submitted? [Sec. 501.032] • Petitions for county or justice precinct local option liquor elections are to be submitted to the county voter registrar. For counties that have an elections administrator, petitions are submitted to the administrator. Petitions for citywide local option liquor elections are filed with the city secretary. Texas Secretary of State Elections Division

Q. Who is responsible for verifying the signatures on the petition? [Sec. 501.031] A. The city secretary is responsible for verifying the signatures in all city local option liquor elections. The voter registrar is responsible in county-ordered elections. • Although the Code does not provide a definition of the current list of registered voters, our office recommends that the current list used for verifying signatures should be the official list that exists on the date that the petitions were issued to the petitioners. Texas Secretary of State Elections Division

Q. Can a statistical sampling method be used when verifying a local option liquor petition? [Sec. 501.031(a)] A. Yes. Texas Secretary of State Elections Division

Q. If the petition is not valid, does it still have to be presented to the city council?[Sec. 501.033] • Yes. Regardless of whether the petition contains the required number of signatures, it must be recorded in the minutes of the commissioner’s court or city council, as applicable. Texas Secretary of State Elections Division

Can a circulator of a petition copy the pages provided to the circulator by the county clerk or city secretary and fax (or scan and email) them to individuals registered in the jurisdiction covered by the election, so that the individuals can sign a page and send the petition page back to the circulator, by mail or other form of transmission? [Secs. 501.026 – 501.028, 501.035] A. No. each petition page must bear the actual seal of the county clerk or city secretary; the page cannot merely contain a facsimile of the seal. Circulator will not be able to mail out a petition page to each voter in the area covered by the election without violating state law. The county clerk/city secretary will not be able to provide a petition page for every registered voter, nor will the circulator be able to make facsimiles of the petition pages, as they will lack the actual seal of the issuing authority. Texas Secretary of State Elections Division

Conducting the Local Option Election Q. When must a local option liquor election be held? [Sec. 41.001(a)] • On a uniform election date, as specified in Section 41.001(a) of the Code. Q. Who pays for the election? A. The entity that orders and conducts it. Texas Secretary of State Elections Division

Q. When must a local option liquor election be ordered? [Secs. 3.005, 501.032] A. The 71stday before election day, for an election to be held on a uniform election date other than the date of the general election for state and county officers. Or the 78th day before election day if it is to be held on the date of the general election for state and county officers. **The first day the county or city must order an election is at its next regular session occurring 30 days on or after the petition was filed with the county clerk or city secretary, as applicable.** Texas Secretary of State Elections Division

Q. What must be in the election order? [Sec. 501.034] • Whether the election is for the purpose of legalizing or prohibiting the sale of beverages as set out in the petition. • The issue to be voted on (which must be the same as the issue on the petition). • The polling place for each election precinct. • For city liquor elections, only the city election precincts need to be stated in the order. • The early voting polling places and polling hours. • The early voting clerk’s mailing address to which ballot applications and ballots voted by mail may be sent. Texas Secretary of State Elections Division

What notice must be given for a local option liquor election? [Sec. 4.003] • The notice must be posted on the bulletin board used for open meetings postings on or before the 21st day before election day, and must be published at least once in a newspaper published in the territory covered by the election (or if there is no newspaper published in the territory, then in a newspaper of general circulation in the territory). Texas Secretary of State Elections Division

Contents of Notice The notice must include the following information: 1. the type and date of the election; 2. the location of each polling place; 3. the hours the polls will be open; 4. the location of the main early voting polling place; 5. the regular dates and hours for early voting by personal appearance; 6. the dates and hours of any Saturday or Sunday early voting, if any, and 7. the early voting clerk’s mailing address. 8. For Cities only, the notice must also identify (by number) which county voting precincts are contained in all or in part within the territory of the city. [Section 501.103(b)] Texas Secretary of State Elections Division

Results of Local Option Liquor Election • The preceding status in one jurisdiction that has had a SUCCESSFUL legalization or prohibitory election (i.e. where the issue passed) is not changed by a subsequent election in another jurisdiction • Example: A city situated wholly or partly inside a JP precinct has had a successful election on the legal sale of beer. A subsequent election in the JP to legalize the sale of mixed beverages does not allow mixed beverage sales in the city. • A city or JP precinct that has adopted no status of its own regarding the legalizing of alcoholic beverages takes on the status of its surrounding territory. • Annexation (area annexed after an election does not take on the status of the city) Texas Secretary of State Elections Division

Q. After the election is held, what actions must the governing body, county clerk or city secretary take? [501.151 - 501.154] A. On completing the canvass of the election returns, the governing body must make an order declaring the result of the election. • In a successful election to prohibit the sale of a category of alcoholic beverages, the order must state that the sale of the type(s) of beverages is prohibited effective the 30th day after the date the order is entered. • In a successful election to prohibit the sale of a category of alcoholic beverages, the county clerk or city secretary must publish the order declaring the result of the election at three public places in the political subdivision and record the posting of the order in the minutes of the governing body. • In a successful election to legalize the sale of a category of alcoholic beverages, the sale of such beverages is legal upon the entering of the court’s order. Not later than the third day after the canvass of the election, the county clerk or city secretary must certify the results to the Secretary of State and to the Alcoholic Beverage Commission. Texas Secretary of State Elections Division

Q. Is there a limit on the frequency of local option liquor elections? [Sec. 501.038] A. Yes. When one of the issues in Sections 501.035 and 501.109 is presented to the voters of a political subdivision, that identical issue may not be presented to them again until one year has elapsed. • See Attorney General’s Opinion No. MW-12 (1979), holding that a ballot proposition may present the same issue as an earlier proposition even when one election is an election to legalize and the other is an election to prohibit. Texas Secretary of State Elections Division

Thanks for your attention! Please let me know if you have questions. To find the outline on our website, visit: http://www.sos.state.tx.us/elections/laws/liquorelections.shtml Texas Secretary of State Elections Division

Local Option Liquor Elections