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Could Kitchen recall vote make the May 7 ballot? Group argues yes

The group pushing for the recall of Austin City Council Member Ann Kitchen is arguing that the petition it submitted Friday came in early enough that a vote on Kitchen could occur as soon as the May 7 election.

“There is much gray area surrounding the Feb. 19 deadline,” said Tori Moreland, co-director of the Austin4All political action committee. “Our legal team is of the belief that, according to the letter of the law, our submission prior to the Feb. 19 (deadline) should trigger a May ballot should Council Member Kitchen choose not to resign.”

Texas Secretary of State spokeswoman Alicia Pierce disagrees, however, pointing to a portion of the Texas Election Code stipulating that such an election “shall be ordered not later than the 78th day before election day.”

That would make Feb. 19 — last Friday — the cutoff for the council to place an item on the May 7 ballot. But the city clerk has not yet counted or verified the box of petitions that Austin4All delivered just after 4 p.m. Friday.

The petitions called for a recall of Kitchen “because she has purposefully hurt businesses that employ citizens of Austin.” Among other things, the group has pointed to Kitchen’s leading role in the ongoing dispute with ride-hailing companies Uber and Lyft over whether drivers should undergo fingerprint-based background checks. As the result of a different petition drive, Austin voters will decide May 7 on what the rules for ride-hailing services should be.

Kitchen and her allies, including most of the City Council and an array of neighborhood representatives in her district, say Kitchen has done an excellent job in her year-plus on the council, and that recall elections are not a proper response to policy disagreements.

Moreland, in an email Monday, said the group had collected 7,000 signatures in Kitchen’s South Austin District 5 and turned in about 5,300 Friday, “all of which passed our internal verification process.”

City officials have indicated that the signatures of about 4,800 registered voters in Kitchen’s district would be needed to force a recall election.

Simply turning in the signatures, however, is several critical steps short of the official ordering of an election. Only the Austin City Council can take that action, and it would only do so after the Austin city clerk decided that the petition met the threshold and certified it. Beyond that, Kitchen would then have five days to decide whether to resign in response to the petition (Kitchen has made it clear that will not occur).

The clerk has 20 days under the City Charter to review the petition. So the matter might not be in the council’s hands until as late as March 15, just 53 days before the election.

Kitchen said city lawyers have told her the council had to call an election by Feb. 19 for it to happen May 7.

Buck Wood, a veteran Austin election law expert, said that appellate decisions offer some support for the idea that the deadlines in state law are “directory” in nature rather than hard and fast rules. A court could order the election to be held May 7 even if the council calls it well after Feb. 19, he said, as long as it can reasonably be carried out by election officials. However, Wood (who is not working for Austin4All) said the courts would also consider whether the group expeditiously collected and submitted its signatures.

Austin4All issued a Feb. 1 press release indicating it had enough signatures and was about to turn them in. However, another 18 days passed before the group brought them to the clerk.

“You have to have ‘clean hands,’ ” Wood said. “In this case, they clearly didn’t have clean hands. They held onto them until it was too late.”

And with just 75 days left until May 7, Wood said, Austin4All and its lawyers would have to get cracking or accept that a recall vote will occur in November.

Austin4All also submitted its initial campaign finance report Friday. The group reported $29,500 in cash donations but showed $44,100 in contributions still on hand, a $14,600 discrepancy.

The group listed no expenditures despite considerable evidence that it had paid petition canvassers at work for several weeks in January and February.

Austin4All gathered its donations from six people (none of them living in District 5, based on the addresses in the report), led by $20,000 from Trilogy Systems founder and President Joe Liemandt, who did not respond to an email seeking comment Monday.

Other contributors: Stacy Hock, a board member with the Texas Public Policy Foundation, $2,500; Anire Okpaku, a Cedar Park plastic surgeon, $2,500; John Papola, founder of an Austin video production firm, $1,000; Shannon and Don Tracy of Hutto, $1,000; and Dan Wyman, owner of the Summit nightclub in downtown Austin, $1,000.

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