NO.

22-0335

IN THE SUPREME COURT OF TEXAS

IN RE WYLIE “SCOOTER” CHEATHAM, CAROLYN

ANDERSON, RONALD BARNARD, ALBERTA SHELTON,
ROGER DALE LINEBARGER, JACKSON WALSH, STELLA
YOUNG, KENNETH BURRIS, JENNIFER MUSHTALER,
MAHMOOD WADIWALA, YASSIN SIBAI, NELSON SHIPLEY,
MELVIN MASON
RELATORS

RELATORS’ MOTION FOR REHEARING FROM DENIAL OF

ORIGINAL PETITION FOR WRIT OF MANDAMUS

BILL ALESHIRE
BAR NO. 24031810
ALESHIRELAW, P.C.
3605 SHADY VALLEY DR.
AUSTIN, TEXAS 78739
PHONE: (512) 320-9155
CELL: (512) 750-5854
FACSIMILE: (512) 320-9156
BILL@ALESHIRELAW.COM

ATTORNEY FOR RELATORS

 Relators submit this motion for rehearing respectfully asking the Supreme

Court to reconsider its denial, without a written opinion, of Relators’ Original

Petition for Writ of Mandamus in its Order on June 24, 2022.

ISSUES PRESENTED

ISSUE NO. 1: BASED ON STANDARDS FOR ORIGINAL-PROCEEDING RELIEF

ENUNCIATED BY THE COURT IN IN RE KHANOYAN, RELATORS’ PETITION FOR WRIT
OF MANDAMUS SHOULD BE GRANTED.

ISSUE NO. 2: IN THE ALTERNATIVE, IN CONSIDERATION OF THE IMPORTANCE

OF THE ISSUES IN THIS CASE TO THE JURISPRUDENCE OF THE STATE’S ELECTION
LAWS, RELATORS RESPECTFULLY ASK THE COURT TO HAND DOWN A WRITTEN
OPINION, EVEN IF IT IS STILL TO DENY RELATORS’ PETITION, ARTICULATING THE
COURT’S BASIS FOR THE DENIAL.

ARGUMENT

ISSUE NO. 1: BASED ON STANDARDS FOR ORIGINAL-PROCEEDING RELIEF

ENUNCIATED BY THE COURT IN IN RE KHANOYAN, RELATORS’ PETITION FOR WRIT
OF MANDAMUS SHOULD BE GRANTED.

In its In re Khanoyan opinion, denying mandamus relief over a similar issue

but with different circumstances, this Court denied relief—in a written opinion—

because:

1. The Khanoyan original proceeding was commenced too late.

Khanoyan was filed with this Court 10 days after the filing period

for candidates for the county offices ended, putting the Court in a

position that its orders would interfere in the timely conduct of the

RELATORS’ MOTION FOR REHEARING

Page 2 of 8
 election. In re Khanoyan, 637 S.W.3d 762, 766 (Tex. 2022). In

contrast, this Cheatham original proceeding1 was commenced on

April 27, 2022, 87 days before the Austin Council filing period even

starts and 117 days before the filing period ends, allowing the Court

to act without interfering with the City Council election on

November 8, 2022.

2. The pleadings in Khanoyan were lacking. “The lack of a record and

the lack of precision about the requested relief make it impossible

for us to” give the issue “full deliberation and full consideration or

the larger history of our Constitution.” Khanoyan, 637 S.W.3d at

769. In contrast, there was an extensive record in this Cheatham case

because Relators’ counsel took the time that was necessary to fulfill

this requirement. And the Cheatham Relators asked for specific

relief, in fact, the relief suggested by the Court in Khanoyan, i.e., an

order requiring all positions to stand for election in 2022. Id. at 767,

770.

3. There were disputed allegations in Khanoyan. See Khanoyan, 637

S.W.3d at 766 (“This is an original mandamus proceeding brought

1
Suit was filed in Travis County District Court on March 1, 2022, amended on
March 18, 2022.
RELATORS’ MOTION FOR REHEARING
Page 3 of 8
 in this Court with a bare record that contains only allegations—some

of which are not disputed, but many of which are. Ordering the

requested relief on the paltry record before this Court would be an

irresponsible shot in the dark.”). There were no material allegations

or facts disputed in this Cheatham case. Cheatham presented this

Court with issues of law.

This Court clearly recognized in Khanoyan that the right to vote is “the most

fundamental individual liberty of our people” that “undergirds the premise that

the government has the consent of the governed.” Khanoyan, 637 S.W.3d at 763.

But by denying any relief to the Relators in Cheatham, and without a written

opinion, the meaningfulness of such grand descriptions of the right to vote and

its role in our democracy in Texas is unclear. What is clear is that even today,

and until January 6, 2025, there are tens of thousands of Austin voters who are

represented by Council Members who have not received the “consent of the

governed.” This case affords the Court the opportunity to substantively explain

and enforce the right to vote under our Texas Constitution.

Relators ask the Court to reconsider the denial of relief and order all positions

on the Austin City Council be on the November 8, 2022 ballot.

RELATORS’ MOTION FOR REHEARING

Page 4 of 8
ISSUE NO. 2: IN THE ALTERNATIVE, IN CONSIDERATION OF THE IMPORTANCE
OF THE ISSUES IN THIS CASE TO THE JURISPRUDENCE OF THE STATE’S ELECTION
LAWS, RELATORS RESPECTFULLY ASK THE COURT TO HAND DOWN A WRITTEN
OPINION, EVEN IF IT IS STILL TO DENY RELATORS’ PETITION, ARTICULATING THE
COURT’S BASIS FOR THE DENIAL.

It is clear under Tex. R. App. P. 52.8(d) that, when denying relief in an original

proceeding such as this, the Court is not required to hand down an opinion but may

do so. But the issues on the merits raised in this case go to the heart of what the equal

right to vote means under the Texas Constitution and what protections of that right

there may be after redistricting disadvantages some voters by delaying when they

can vote while advantaging other voters by enabling them to vote more often than

normal. This Court said in Khanoyan, “To be abundantly clear, by denying the

petition today, we do not dispute that the constitutional issue Relators raise is a

serious question that warrants this Court's full consideration when properly

presented.” Khanoyan, 637 S.W.3d at 769.

As noted in Khanoyan, the issue, of the constitutionality of “temporarily

disenfranchising” voters after redistricting, has been “a highly uncertain issue of

Texas constitutional law never before addressed by the courts of our state.”

Khanoyan, 637 S.W.3d at 767 (emphasis added). This Court denied the mandamus

in Khanoyan but said it did “not do so lightly or summarily.” Khanoyan, 637 S.W.3d

at 764. The Court also said, “Nor do we suggest that mandamus would never be an

appropriate vehicle to resolve this question or ones like it.” Id. The Court said,

RELATORS’ MOTION FOR REHEARING

Page 5 of 8
“...when a proper case comes, this Court will have to clarify what the Constitution

requires.” Khanoyan, 637 S.W.3d at 770. The Court’s decision in Khanoyan

inspired, even if it unintentionally invited, this Cheatham case.

By denying relief to the Cheatham Relators without explanation in an opinion,

the Court still has not explained what the law is related to this “ most fundamental

individual liberty” of having a vote equal to other voters. For future original

proceedings, the Court has not even explained what makes this case not “a proper

case” or “properly presented” to clarify the law for Texas Courts and the voters. Was

this petition submitted too late? Should the petition have been submitted earlier even

if it would have meant there could not have been an evidentiary record available to

prove the impact on voting rights? Given the late approval of the Austin redistricting

and delayed availability of amended voter lists, would the Cheatham Relators have

had a realistic opportunity to reach the Supreme Court in time with a traditional

appeal? Is the Court joining the federal courts and other state courts that condone

“temporarily disenfranchising” voters after redistricting, even if other voters are

advantaged by the redistricting? Was the Court’s denial of relief based on standing?

How did the Court balance the voting interests of Relators (and others similarly

situated) with voters who elected the incumbents anticipating a 4-year term despite

redistricting? Is the denial based on this case not meeting standards for an original

proceeding? Is the denial because, even if there is a constitutional violation, the

RELATORS’ MOTION FOR REHEARING

Page 6 of 8
Court does not see a way to remedy it? Is the denial to be taken to mean this Court

finds the outcome for the disenfranchised voters of Austin constitutionally

acceptable? Without an opinion, neither the voters nor future litigants know what

the law is as applied to this case.

Relators respectfully ask the Court to hand down an opinion, even if it is still

to deny mandamus relief and is issued later. See Tex. Const. art. V, § 31(d) (“... if

the supreme court does not act on a motion for rehearing before the 180th day after

the date on which the motion is filed, the motion is denied.”

PRAYER

For these reasons, Relators ask the Court to reconsider its denial of Relators’

Original Petition for Writ of Mandamus, grant the petition, or, in the alternative,

hand down a written opinion related to the denial.

Respectfully submitted,

/s/ Bill Aleshire

BILL ALESHIRE
BAR NO. 24031810
ALESHIRELAW, P.C.
3605 SHADY VALLEY DR.
AUSTIN, TEXAS 78739
TELEPHONE: (512) 320-9155
CELL: (512) 750-5854
FACSIMILE: (512) 320-9156
BILL@ALESHIRELAW.COM

ATTORNEY FOR RELATORS

RELATORS’ MOTION FOR REHEARING

Page 7 of 8
 CERTIFICATE OF COMPLIANCE

The undersigned herby certifies that this document was computer generated
and the word count of the document, except for those items “excluded” by section
T.R.A.P. 9.4(i)(2)(D), is 1,310 based on the count of the computer program used to
prepare the document.
/s/ Bill Aleshire
BILL ALESHIRE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has
been served electronically on the following counsel of record for Respondents on
June 27, 2022:

COUNSEL FOR RESPONDENTS:

RENEA HICKS
STATE BAR NO. 09580400
RHICKS@RENEA-HICKS.COM
MEGHAN L. RILEY
STATE BAR NO. 24049373
DIVISION CHIEF, LITIGATION
SARA RICE
STATE BAR NO. 24110273
BRANDON MICKLE
STATE BAR NO. 24123140
CITY OF AUSTIN LAW DEPARTMENT
PO BOX 1546
AUSTIN, TX 78767-1546
PHONE 512 974-2458
MEGHAN.RILEY@AUSTINTEXAS.GOV
SARA.RICE@AUSTINTEXAS.GOV
BRANDON.MICKLE@AUSTINTEXAS.GOV

/s/ Bill Aleshire

BILL ALESHIRE

RELATORS’ MOTION FOR REHEARING

Page 8 of 8