Analysis: The will of the voters — when the Legislature agrees

By Ross Ramsey

Voters are either smart, or not, depending on whether the state’s legislators agree with them.

When the politicians agree with the voters, they cite the wisdom of the crowd to bolster their arguments. When they disagree, they see voters as unruly mobs.

Want examples? Look at fracking in Denton, at Houston’s equal rights ordinance and at ride-hailing in Austin. And look at the words uttered and written this week by the authors of legislation that would regulate who uses which bathrooms in public buildings in Texas.

The 2015 legislative session saw the state stepping in to protect hydraulic fracking operators in Denton and elsewhere, after that city's voters approved a ballot measure outlawing fracking inside the city limits.

The losers of that vote — property owners and operators alike — convinced legislators that voters had overstepped their authority. They had a point; some of their operations were in place before the suburbanites encroached and got cranky, and they felt their property rights had been trampled.

That said, the citizens went to the polls to express their preference. They were overruled by the Texas Legislature, with the result being a statewide law that overrides those kinds of local regulations and initiatives when it comes to oil and gas wells.

More recently, Austin voters inspired at least one legislator — state Sen. Don Huffines, R-Dallas — to cry “mob rule” after they approved an ordinance that requires drivers for ride-hailing companies like Lyft and Uber to pass the same kinds of background checks required of cab drivers. The companies waged an expensive and divisive campaign for their side and got trounced in the polls. They dropped out of the Austin market, which has since sprouted a number of new ride-hailing operations. But Huffines was incensed.

“It’s official: Austin has gone from being the ‘weird’ neighbor to being a national embarrassment for the free market, liberty loving state of Texas,” he wrote in an editorial at the time. “With its mob-rule vote against Proposition 1 effectively forcing Uber and Lyft to leave the city, Austin has used ‘local control’ as a thinly veiled excuse to trample economic liberty and drive out a popular, innovative, disruptive service.”

He’s one of several lawmakers who have promised to exert state control of that issue during the current session, pushing for statewide regulations instead of sometimes conflicting local laws.

Lawmakers don’t always fret over the local stuff. Public smoking and texting-while-driving laws have remained a local concern, in part because the Legislature has never approved statewide bans on those things.

Sometimes, state politicians are actually pleased with the work of local voters — even when they’re trying to assert state control.

In the state’s largest city, voters rejected the Houston Equal Rights Ordinance in 2015, swayed in part by arguments that the local law would allow men into women’s bathrooms. On Thursday, Lt. Gov. Dan Patrick and state Sen. Lois Kolkhorst, R-Brenham, introduced a much-anticipated state law that would direct transgender people to the bathrooms that match their biological sex, making a similar argument about men using the ladies’ rooms.

Their Senate Bill 6, which is signed by Kolkhorst but high on Patrick’s list of priorities for the 85th Legislature that begins tomorrow, starts with an amendment to a section of state law called the Local Government Code. Where that code now has a Chapter 250 titled “Miscellaneous Regulatory Authority of Municipalities and Counties,” the bill would strike the last four words,  replacing local control on these kinds of bathroom regulations with statewide laws drawn up in the state capital.

Kolkhorst deployed the wisdom-of-the-crowd argument, saying the HERO vote was the only time something like this has been on the ballot in Texas and suggesting that the local public opinion evident in that 2015 election should be a guide to lawmakers now.

“That’s because the public has a way of getting it right,” she said, as she presented the bill that would replace local preferences with those of the state.

This article originally appeared in The Texas Tribune.