If an Austin court hearing this week is an early indication of how a lawsuit blocking Texas’ $3 billion dementia research fund will fare, state leaders who championed it and the voters who overwhelmingly approved it by more than a 2-1 margin may have little worry.
On Tuesday, it took 21 minutes of back-and-forth between state District Judge Maya Guerra Gamble and one of plaintiffs — a self-proclaimed Texas voter representing herself without an attorney — for the judge to politely but firmly point out she had missed a critical step to move forward with any lawsuit: properly notify the people she is suing.
“You’re not going to have a temporary injunction hearing today,” the judge told Shannon Huggins that she and fellow plaintiffs Lars Kuslich and Jose Silvester had missed properly serving Gov. Greg Abbott and Texas Comptroller Kelly Hancock with their Nov. 13 lawsuit.
The trio’s case is still in play — and the Dementia Prevention and Research Institute, one of 17 constitutional amendments voters passed on Nov. 4, is still blocked from going into effect — but this first shaky court appearance offered a look at what Lt. Gov. Dan Patrick considered a pressing problem: “frivolous” challenges to constitutional amendments.
Challenges to constitutional amendments have become such a growing concern and problem that this year the Texas Legislature passed a comprehensive judicial bill that included a provision to prevent lawsuits from halting constitutional amendments like DPRIT’s Proposition 14, which 2 million Texas voters approved.
However, that law, House Bill 16, didn’t go into effect until Thursday, much too late to have blocked last month’s lawsuit from halting DPRIT.
The crux of the plaintiff’s DPRIT lawsuit is this: they say the voting machines used in 251 of the state’s 254 counties used to tabulate the results in the Nov. 4 election were not properly tested for accuracy, invalidating any ballots tabulated on them, and, they want a new election. The concerns are unfounded and the machines were properly certified. That’s untrue, according to the Secretary of State’s website, which tests and approves the machines used.
Legal experts and lawmakers say faulty voting machines isn't the chief concern of the plaintiffs, who are typically conservative citizens who oppose any attempts at increasing government spending. Their main goal is to block an expensive piece of legislation, such as DPRIT and not the 16 other relatively low-cost constitutional amendments that passed this year, from going into effect. DPRIT would initially provide $3 billion in funding to researchers and up to $300 million annually after that.
This strategy was used in 2023 to block all constitutional amendments, which included billions of dollars of state spending. Soon after those lawsuits were filed, those constitutional amendments went into effect because the state’s attorneys were able to show that the plaintiffs did not properly serve the Secretary of State with their lawsuits. Because they had not served the Secretary of State properly, Abbott was able to certify the results, allowing the ballot measures to go into effect.
In the most recent lawsuit challenging DPRIT, it’s not clear whether the plaintiffs’ flub as shown during Tuesday’s hearing will result in the same outcome as the 2023 cases. Abbott’s office offered no comment on the matter, saying only that the governor had advised Texans to vote for all the constitutional amendments. The Texas Attorney General’s office has not returned requests for comment on the DPRIT lawsuit or the next legal steps to be taken.
The fear for DPRIT supporters is that it could meet the same fate as a 2021 constitutional amendment. Filed by Sen. Robert Nichols, R-Jacksonville, that amendment — which would have allowed counties to issue more bonds — hasn’t gone into effect because the lawsuit against it is still caught up in court.
“So the court can kill the constitutional amendment and override two thirds of each [legislative] body and the will of the people,” Nichols said. “That's insane to me.”
2021 flop and 2023 win
Because Texas has one of the most restrictive state constitutions in the country, it has placed hard limits on what state government can do, requiring frequent statewide elections on constitutional amendments to adjust that document accordingly.
But more frequent elections have prompted more court challenges and while some have been better than others, all those challenges have kept voter approved initiatives from moving forward for weeks, even years.
Nichol’s 2021 measure would have provided counties the ability to create special taxing authorities to allow the issuance of bonds to improve roads; 63% of voters approved the measure.
In that case, plaintiffs challenged the amendment language as being vague and won a ruling in their favor. However, it remains in limbo because the state has not answered whether it will appeal, according to plaintiffs’ lawyer Tony McDonald and Nichols.
“They killed it by district court,” Nichols said. “They should not be able to sit on it forever.”
Challenges centering on the voting machines have become new fodder for citizen-backed legal challenges to election results. So far, such challenges to voting machines have been unsuccessful.
According to Dave Becker, a former voting rights attorney for the U.S. Department of Justice, there’s nothing wrong with the machines used in Texas to tabulatecast ballots.
“First, I don’t know what they’re talking about with regard to the certification,” said Becker, who now helms the Washington-based Center for Election Innovation & Research. “Federal certification is not required.”
Each state certifies election equipment, and the federal Election Assistance Commission establishes voluntary voting system guidelines that states can choose to use in determining whether to certify equipment. Those guidelines cover things like security, accuracy, usability, and other factors. Becker said Texas uses some of the federal guidelines, and has their own state-level processes as wellbut certification of election equipment in Texas and other states occurs at the state level.
“Secretary [of State] Nelson knows what she’s doing,” Becker said. “Her staff knows what they’re doing.”
From Becker’s standpoint, if election integrity really is the biggest concern for plaintiffs, then plaintiffs should ask for an easy remedy — count the paper ballots fed into the machine.
“I mean if you have a 2-1 margin, you don’t need to review many paper ballots to confirm,” he said. The answer he said is not to demand a redo of an election. “Why aren’t they requesting a remedy of going back to all of the paper ballots?”
What happens next?
On Nov. 19, six days after the DPRIT lawsuit was filed, Abbott declared the results of DPRIT’s Proposition 14 election final, but noted that his certification can’t go into effect until the lawsuit is resolved.
Outside Gamble’s courtroom this week, Huggins was resistant to taking questions about the motivation behind the challenge to DPRIT and rejected requests to better explain her voting machine argument.
Shannon Huggins speaks to members of the media while fellow plaintiff Jose Silvester looks on after having their temporary injunction hearing suspended by Judge Maya Guerra Gamble at the Travis County Civil and Family Courts Facility in Austin. She clarified only that she had “no opposition” to dementia research and that picking this item from the 17 because of the large amount of state taxpayer money involved — an initial $3 billion from state revenue — was one made to help streamline their challenge.
At Tuesday’s appearance, a state attorney representing the only party properly notified so far, Texas Secretary of State Jane Nelson, did appear and was prepared to argue why the election results approving DPRIT should stand that would allow DPRIT to begin using $3 billion to fund research efforts. But, the judge told the plaintiffs that they need to properly serve all the defendants first, namely Abbott and Hancock, and both sides need to come up with a future court date to proceed.
As of Thursday, no new date for the case had been set.
This article first appeared on The Texas Tribune.
