San Antonio Appellate Court to Decide Important Case Documenting Systematic Manipulation of Assisted Voters and Indications of Ballot Box Stuffing

From a Najvar Law Firm press release, August 23, 2018:

Case Pending Before San Antonio Court of Appeals Presents Opportunity to Restore Election Integrity in South Texas

Everyone who lives in the Rio Grande Valley knows that the systematic manipulation and exploitation of vulnerable voters, through both mail-ballot schemes and assisted voting at the polls, is a fact of life in local elections.  The trouble is proving it and finding someone to enforce the law, even-handedly.  Najvar Law Firm is representing Leticia Galvan and Martie Garcia Vela, two Democratic candidates contesting the results of the March 2018 primaries in Starr County, a border county west of McAllen, Texas.  Galvan ran for County Judge against long-time incumbent Eloy Vera; Garcia Vela ran for an open seat on the 229th District Court.  After five days of sworn testimony in open court, the trial record documents the manipulation of elderly and other vulnerable voters voting early in person in perhaps more detail than has been available ever before. The San Antonio Court of Appeals is expected to decide by August 29 whether new elections will be ordered.

A five-day trial was held in April 2018, featuring testimony from poll workers, the Starr County elections administrator and several of his staff, candidates, voters, and two poll watchers who spent a combined minimum of 70-80 hours observing the conduct of assisted voting at the Rio Grande City Courthouse polling site.  The evidence and arguments are all summarized in detail in Contestants’ brief to the Fourth Court of Appeals, unsealed just this week by the Court of Appeals.  Some of the highlights from trial include the following, all established through clear testimony that went uncontradicted:

Abuses of “assisted” voting

  • Poll watcher Monica Pena, who observed 7-8 full days of early voting (from the time the polls opened to the time they closed) testified that she saw between 40 and 70 (and sometimes up to 100) voters voting curbside with assistance each day. These voters would typically arrive in the same vehicle with the assistant.  About half the time a voter received assistance voting from a vehicle, the process began with the assistant telling the voter—sometimes with a “nudge”—to “remind” the clerk that the assistant would help.  Pena testified that “in some occasions they almost seemed coached by whoever…brought them in.  Uh, and they would nudge them…to remind them, ‘ask for me, ask for me.’”
  • Pena testified that “for the most part,” the assistant, not the voter, would receive and complete the ballot. (“They would just swear in the assistant, they would provide the assistant with the ballot. Observing them they would close the doors to the vehicle, and on many if not all occasions they would be filling out the ballots.”).
  • Pena observed that sometimes it appeared to be “just a pattern of filling out….whatever party they were with,” even voting based off of a sample ballot in the vehicle, without any observable conversation between the assistant and the voter (which would be required if the assistant were actually asking the voter whom the voter wished to vote for).
  • On many occasions, the assistants would “tote” numerous voters to the polling place at once in the same vehicle, and on such occasions Pena said that the assistants would not read the ballots, and she overheard them telling voters, “No, no, no…No, not that one,” or “ ‘Con ese candidato no,’ which means not with that candidate, he’s not with us or they are not with us.”
  • Norma Lopez, a military veteran who served tours of duty overseas, filled in as a watcher one day for Monica Pena, and observed the same things. She testified that she was troubled by the exploitation of elderly voters that she witnessed.  Lopez is not typically active politically, but when she heard that this case was filed, she contacted Leticia Galvan via Facebook and reported her experience.
  • Lopez happened to be inside the polling place at one point when one of the women who had been observed assisting repeated voters outside in the manner described above came inside with a voter she referred to as “Panchito.” Panchito asked the election clerk for a Republican ballot, but the “assistant,” Ester Ayala (a Starr County employee who testified she was volunteering to help County Judge Eloy Vera in the campaign) immediately said, “No Panchito, you are not voting Republican, you are voting Democrat.”  Lopez was standing right there, as was the presiding judge, and Lopez told the judge, “She can’t do that!”  But instead of ensuring Panchito had the ability to vote the ballot of his choice, the judge told poll watcher Lopez to “back off,” and gave Panchito the Democratic ballot.  Lopez then remained watching as Panchito told Ester, “well you fill it out because I don’t know who you want me to vote for.”
  • Both poll watchers complained repeatedly to the election judge and clerks, to no avail. They became so frustrated by the lack of action that they stopped complaining.
  • It is now impossible to identify which voters were assisted, and by whom. While Election Code 64.032(d) requires that poll workers record the assistant’s “name and address on the poll list beside the voter’s name,” the poll workers refused to do so, at the direction of Elections Administrator John Rodriguez.

“In normal circumstances absent fraud, the failure to properly record the assistant’s information would not invalidate the votes,” said attorney Jerad Najvar, representing Contestants.  “But where there is fraud in the election—and here there was fraud by the assistants who unlawfully assisted and the poll workers who failed to prevent violations of the code—the failure to record this information should invalidate the affected votes, because it prevents an audit of the election.”

Ballot Box Security Failures and Indications of Stuffed Ballots

  • Boxes of ballots from multiple election sites contained stacks of sequentially-numbered ballots, “stuck together” as if pulled from a paper stack, unsigned by the presiding judge (who is required to randomize and then sign each ballot before offering them to voters).
  • To understand the implications of finding ballots in such a manner, one must understand the way the Starr County voting machines work. Starr County utilizes paper ballots, and after the voter fills in the ballot, he or she feeds it into an M-100 precinct ballot scanner, which tabulates the votes at the polling site as the ballot then falls into an attached ballot box.
  • An election judge testified that she knows from ten years of election experience that the M-100 will alternate flipping ballots to the right and left side of the ballot box as they are scanned in.
  • Thus, if a ballot box contains stacks of ballots, sequentially numbered, “stuck together,” and unsigned by the presiding judge, it is clear that those ballots were not scanned through the machine by successive voters. There can be no explanation other than as someone’s attempt to cover up a fraud, as if they had manipulated the electronic results on the machines during the election and then, when they realized a recount was requested (requiring the ballot boxes to be opened), they placed the ballots in the box to cover up the fraud.
  • Yet, as with the failure to record the assistant’s information next to the voters, election officials did not keep required records of the numbers to the seals on the M-100s and ballot boxes, preventing any audit of manipulation of the equipment.
  • Further, when a box that was not properly sealed was discovered during the recount, a sheriffs’ deputy made an official report, and testified that an elections official was trying to “act like” the seal was not open when it was obvious to the deputy and others that it was open. Elections Administrator John Rodriguez walked away from the area and did not return to the recount that day, and never followed up with the sheriff’s department to investigate.

Early Voting Ballot Board

  • The Early Voting Ballot Board, responsible for processing all mail-in ballots to determine whether each ballot will be accepted or rejected, had five members, and three of them were statutorily disqualified from serving on the Board because they are Starr County employees and County Judge Eloy Vera was an opposed candidate on the ballot.
  • Additionally, each member of the Board was reviewing her own stack of ballots and deciding unilaterally whether each ballot would be accepted or rejected, as opposed to reviewing them as a board.

After a five-day trial in April, a vising district judge held that Contestants had failed to prove by clear and convincing evidence that the election was invalid.  (The trial court’s judgment and findings are found in the appendix to Appellants’ brief as Tabs A and B.)

“The trial court erred in failing to recognize that the undisputed facts in this case established fraud as a matter of law in various phases of the election,” said Najvar, “which means that the statutory violations by election officials, including failure to record the assistants’ information and failure to record ballot box seal numbers, require a new election.  If the Court of Appeals orders new elections based on these violations, it will go a long way to restoring election integrity in South Texas, and will send a message that the laws that are meant to protect vulnerable voters—our elderly and infirm family members—cannot be ignored and abused.”

The Fourth Court of Appeals has indicated that it will decide the case by August 29.  It initially set the case for oral argument, indicating that the Court is interested in one or more issues in the case.  However, Galvan and Garcia Vela asked the Court to expedite its decision, including by foregoing oral argument if necessary, so that time remains to conduct new primary elections (before the General Election in November) in the event the Court rules in their favor.

The case is Leticia Garza Galvan and Martie Garcia Vela v. Eloy Vera and Baldemar Garza, No. 04-18-00309-CV, pending in the Fourth Court of Appeals.  The court’s case page is here, reflecting the status of the case and links to the documents.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of the Najvar Law Firm, PLLC in Houston. He successfully litigated an election contest in Hidalgo County in 2014, Letty Lopez v. Guadalupe Rivera, proving 30 votes were illegally cast in a Weslaco race, including instances of ballot by mail fraud.

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Hearing Wednesday June 13: District Court to Decide City of Houston’s Attempt to Prohibit Testimony in Suit Challenging Billion Dollar Pension Bond Deal

FOR IMMEDIATE RELEASE                                                                      Contact: Jerad Najvar

Hearing Wednesday as City of Houston Seeks to Avoid Depositions of Its Employees Regarding Pension Bond Lawsuit 

HOUSTON, TEX.—On Wednesday, June 13, at 3:30 pm in the Harris County District Courthouse, the district court will hold a hearing to consider the City of Houston’s attempt to avoid producing key witnesses to answer questions regarding the billion dollar bond measure from November 2017 that has been challenged as materially misleading to the voters.

Concerned Houston taxpayer James Noteware filed a lawsuit in December challenging the City’s use of deceptive language on the November ballot with regard to Proposition A, which asked voters to approve a billion dollars in additional city debt for the Mayor’s pension plan.  The lawsuit argues that the ballot was materially misleading because, while it correctly disclosed that the City would issue the pension bonds and levy taxes to pay for them, it conveniently omitted the fact that those taxes would not be subject to the default limits in the city charter, including the limit on the annual growth of property taxes. This effectively created a massive exception to the charter limits without telling voters.  Although the bonds have been issued, Noteware’s lawsuit, if successful, will protect the property tax cap and nullify the City’s authority to tax outside of the cap or other charter limits.

Noteware has subpoenaed two witnesses from the City of Houston to discuss issues related to the lawsuit.  One is Melissa Dubowski, a high level employee of the city finance department whom the City itself actually put forward as a witness in an earlier hearing in the case, when it wanted her to testify about why the pension deal had to close without delay before the end of 2017.  Documents produced in discovery now reveal that the City actually had three more months to finish the deal under its contracts with the pensions, but the City shoveled all the money out the door and has now used that fact to argue that the case is moot. Now that Noteware wants to ask his own questions of this witness rather than relying solely on the self-serving affidavit the City drafted for her, the City suddenly claims her testimony is not relevant.

Documents also now reveal the disconcerting fact that Mayor Turner all along has planned to use city utility fees to pay a portion of the costs of the bonds.  This may explain how Mayor Turner was able to campaign on the claim that “no new taxes” would be required to pay the bonds off, which accumulate to approximately $1.8 billion with accrued interest through 2047:  if utility fees are not technically a “tax,” then perhaps the Mayor’s “no new taxes” claim was technically accurate while being materially deceptive.  The failure to tell voters that they would be hit on their utility fees as well as their property taxes is another reason why the November ballot was materially deceptive. Noteware has requested the City to produce a witness who can explain what authority the City has—if any—to use utility and other such enterprise or special fund revenues to pay the bonds.  The City’s official response to the Court claims unabashedly that they have such authority, and they did not have to tell the voters about such plans at the time of the vote.

The hearing details are as follows, and Noteware and counsel will be available for questions afterward:

Wednesday, June 13 at 3:30 p.m.

Harris County Ct. at Law No. 2  133rd District Courtroom (Fifth Eleventh Floor)

201 Caroline

Houston, TX 77002

SEE NOTEWARE’S MOTION TO COMPEL RESPONSES HERE

SEE THE CITY OF HOUSTON’S RESPONSE HERE

The case is Noteware v. Turner, No. 2017-83251, presided over by visiting judge Mark Morefield of Liberty County.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of Najvar Law Firm, PLLC in Houston. He secured a federal-court judgment in 2014 striking down Houston’s former campaign “blackout period,” which prohibited candidates from fundraising until the last nine months before an election.

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Texas Prop 4 and Separation of Powers

When I initially heard about Prop 4 (S.J.R. 6 from the 85th Reg. Session) on the November ballot, I was concerned that it encroached too far on the judicial sphere and imperiled the ability of plaintiffs to get relief from unconstitutional laws.  However, after reviewing it, the amendment only requires the notice and “waiting period” before a final judgment is entered, and does not encroach on a court’s ability to enter injunctive relief against an unconstitutional state law.

Texas Government Code sec. 402.010, passed in 2011, requires that, where a party to litigation challenges the constitutionality of a state “statute,” the court must provide notice of the challenge to the Texas Attorney General’s office.  Further, “[a] court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after the date notice required by Subsection (a) is served on the attorney general.”  The idea is to ensure the State has notice of any court challenges to state statutes so that the State may intervene to defend it, if it wishes to do so. In most civil cases, when a party is challenging the constitutionality of a state statute, the plaintiff will be suing the appropriate state official or institution, the Attorney General’s office will be involved in the defense, and this provision is not triggered.  However, it is not uncommon for cases to arise in which a party brings a constitutional challenge to a state statute where the State is not a party.  One prime example: the Texas Election Code authorizes a candidate or PAC to sue a political adversary for alleged illegal contributions or expenditures. See Tex. Elec. Code 253.131-.32. Those cases arise with some regularity, and the party sued often raises (with good reason) constitutional objections to the statutes at issue. A recent example is the Texas Democratic Party’s lawsuit against King Street Patriots, a nonprofit organization which the TDP alleged had violated various Election Code provisions, with KSP arguing (successfully) the statutes could not be applied to it. See King Street Patriots v. Tex. Democratic Party, 521 S.W.3d 729 (Tex. 2017).

The notice-and-waiting-period requirement in Gov’t Code sec. 402.010 would apply in such a case, but it was held unconstitutional as a violation of the separation of powers by the Texas Court of Criminal Appeals. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Court had previously recognized that part of the “core judicial power” is the power to “enter final judgment based on the facts and the law,” and held that “the 45–day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.” Id. at 29. The Legislature responded with S.J.R. 6, which essentially says that, despite the express separation of powers provision in the Texas Constitution, the Legislature is authorized to do what it did in section 402.010. The proposed constitutional amendment expressly provides that section 402.010 will be “validated and effective” if Prop 4 is approved at the polls, and will apply to any challenges filed beginning in 2018.

If Prop 4 is approved, it should not at all harm the ability of plaintiffs to get timely relief from unconstitutional statutes. The 45-day waiting period limits only the court’s ability to “enter a judgment holding the statute unconstitutional.”  The word “judgment” has a particular meaning, and includes only the final disposition in a case, disposing of all parties and claims. A “judgment” is therefore different than other orders a court may enter on a party’s motion, such as TROs, temporary injunctions, and anything else short of a final judgment. See, e.g., Lindley v. Flores, 672 S.W.2d 612, 614 (Tex. App.–Corpus Christi 1984). The statute (sec. 402.010) actually makes this more apparent since it uses the term “final judgment” (whereas the constitutional provision says “judgment”), but the word “final” is not necessary, as there is only one type of “judgment” in Texas practice, and any temporary order (such as an injunction prohibiting the government from enforcing the offending statute while the litigation is pending) would not be subject to the 45-day waiting period.

This reading is the only legitimate interpretation of S.J.R. 6, based on its plain text (and that of sec. 402.010), and it is further supported by the federal counterpart to S.J.R. 6.  Federal Rule of Civil Procedure 5.1 imposes a similar waiting period, stating that the party and the court must provide notice to the attorney general of a constitutional challenge and permit same to intervene within 60 days, and during that 60 days, the court “may not enter a final judgment holding the statute unconstitutional.” The federal advisory committee’s note explains that “[p]retrial activities may continue without interruption during the intervention period, and the court retains authority to grant interlocutory relief.” Senator Zaffirini, the sponsor of S.J.R. 6, expressly justified the amendment as the state counterpart to the federal rule.

A couple of takeaways:

First: it is clear from the language of the amendment (and the statute that it would resurrect) that Prop 4 will not establish any hindrance whatsoever to a Texas court’s ability to enter timely and effective relief against an unconstitutional Texas statute through entry of a TRO or temporary injunction. This is true regardless of whether the sponsors and those who voted for the amendment in the Legislature would be surprised to hear that. Therefore, I don’t think it presents any problem, and is good policy to notify the AG of such challenges.

Second: the Texas Constitution is entirely too easy to amend. This exercise does point up a danger that the Legislature could someday draft an amendment that does real violence to the principle of separation of powers. While a bad constitutional amendment, if passed, would mean that the thing accomplished would by definition be consistent with the constitution (as amended), the constitution should not be amended in ways that undermine sound principles of separation of powers. (For example, if the Lege proposed an amendment to authorize imposing the waiting period on even preliminary orders like temporary injunctions.) Legislators have a duty to guard against this, and voters have a duty to pay attention and reject bad amendments when they are proposed.

Zimmerman Exonerated as TEC Drops Inquiry Based on Politically-Motivated 2015 Complaint; Decision is Important Victory Recognizing Candidates’ Ability to Trace Funds in Accounts

In an update regarding the sworn complaint filed in February 2015 against then-Austin councilmember Don Zimmerman, Najvar Law Firm issued the following press release today:

Don Zimmerman Exonerated as TEC Drops Inquiry Based on 2015 Complaint Filed by Political Opponent

AUSTIN, TEX.—The Texas Ethics Commission (TEC) has now resolved all enforcement efforts related to Zimmerman’s 2014 payment to his wife for campaign work without any finding that a violation occurred and without any fine.

Soon after Zimmerman took his seat on the Council, Bill Aleshire, the former Democratic Travis County Judge, filed a complaint with the TEC alleging that Zimmerman had paid his wife $2,000 “from political contributions” for campaign work in violation of the Election Code.  The relevant statute provides that a candidate “may not knowingly make…a payment from a political contribution” to the candidate’s spouse or dependent child “if the payment is made for personal services rendered by…the spouse or dependent child.”  Tex. Elec. Code § 253.041(a).  Zimmerman has confirmed that his wife Jennifer worked tirelessly for the campaign, helping with fundraising, proofreading, blockwalking and organizing volunteers.  He estimated the value of her work at a minimum of $10,000, and he was embarrassed to pay her only $2,000.

The TEC initially demanded a $5,000 fine to settle the complaint.  However, in March, Najvar Law Firm (NLF) submitted a legal memorandum explaining why the TEC had no authority to find a violation in these circumstances or issue a fine of any amount.  NLF explained that the TEC’s analysis was faulty because it relied on one particular accounting method (“first in-first out” or FIFO), but ignored the fact that, under “last in-first out” (LIFO) accounting, Zimmerman’s campaign always retained sufficient funds from his initial deposit of personal funds to cover the payment to Jennifer.  There is no requirement in any Texas law or TEC rule governing the tracing of funds within a campaign account, and therefore there was no basis for the TEC to retroactively impose one particular method to find a violation.

Moreover, even if there were no personal funds left in the account under any accounting method, NLF explained that the payment still would be permissible because Zimmerman was entitled to $20,000 in reimbursement on his loans to the campaign.  In effect, Zimmerman had a claim on the entire amount in the campaign account due to his entitlement to repayment for his loans.  He could have written a check directly to “Don Zimmerman” for the entire balance in the account.  There can be no basis for finding that a candidate “knowingly” made a payment “from political contributions” where the candidate is owed reimbursement from the account.  NLF pointed out that the TEC had endorsed this very principle in prior advisory opinions, but was ignoring it here.

“In the end, the TEC did the right thing, recognizing that there was no basis in the law to support finding a violation in these circumstances,” said NLF principal attorney Jerad Najvar.  “But we only got to this point because we pushed back and explained the law to the TEC. That shouldn’t be necessary.  The TEC should be mindful that not every candidate is able to retain a campaign finance specialist to defend them, and the agency has a responsibility to proceed with more caution, especially since everything it does impacts fundamental rights of speech and association.”

Jerad Najvar practices political and appellate law and is founder of the Najvar Law Firm, PLLC in Houston.  He served as co-counsel to Shaun McCutcheon in McCutcheon v. FEC, in which the U.S. Supreme Court struck down the federal aggregate contribution limits, and lead counsel in Catholic Leadership Coalition v. Reisman, in which the Fifth Circuit Court of Appeals struck down a waiting period on Texas PACs.

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NLF moves Corpus Christi Court of Appeals to publish important 2015 illegal-voting decision

In May 2015, the Thirteenth Court of Appeals in Corpus Christi, TX affirmed a judgment in a Hidalgo County election contest which found by “clear and convincing evidence” that thirty illegal votes had been cast in a race with a 16-vote margin of victory, and ordering a new election.  In full disclosure, NLF represented the prevailing party, Letty Lopez, and Lopez won the ensuring court-ordered election in November 2015.  This week, NLF filed a motion with the court of appeals requesting that the opinion be officially published.  This is somewhat inside baseball, but the opinion was designated a “memorandum opinion” upon release, meaning that, while it is still binding precedent and available in online legal databases, it would not appear in the Southwestern Reporter volumes.  We believe it is important that this opinion is accorded the weight it deserves, as it was the first time the Thirteenth Court of Appeals has addressed several critical issues regarding residency and mail-in ballot fraud and illegal voting.  The opinion shows that the voter residency requirement does have teeth and can be enforced.  Also, critically, it affirms that failure to disclose required information on a carrier envelope where someone takes the envelope from the voter to mail will render the ballot uncountable.

NLF Release: Zimmerman Explains Why TEC Must Dismiss Groundless Complaint Filed by Political Opponent

AUSTIN, TEX.—This week, Austin taxpayer-advocate and former District 6 Councilmember Don Zimmerman explained to the Texas Ethics Commission why it must dismiss a groundless complaint filed by a political opponent in 2015.

Zimmerman, a conservative activist who has long rankled the tax-and-spend liberal establishment in Austin, really riled up his opposition when he won a seat on the City Council in December 2014.  That was Austin’s first election cycle with district (rather than at-large) elections.  Many powerful local Democrats had fought aggressively to retain the all-at-large electoral system, fearing that a district-based system would break up the “progressive” stranglehold on local politics.  They lost that battle, and then when Zimmerman actually won the District 6 seat, the opposition intensified further.

Soon after Zimmerman took his seat on the Council, Bill Aleshire, the former Democratic Travis County Judge, filed a complaint with the TEC alleging that Zimmerman had paid his wife $2,000 “from political contributions” for campaign work in violation of the Election Code.  The relevant statute provides that a candidate “may not knowingly make…a payment from a political contribution” to the candidate’s spouse or dependent child “if the payment is made for personal services rendered by…the spouse or dependent child.”  Tex. Elec. Code § 253.041(a).  Zimmerman has confirmed that his wife Jennifer worked tirelessly for the campaign, helping with fundraising, proofreading, blockwalking and organizing volunteers.  He estimated the value of her work at a minimum of $10,000, and he was embarrassed to pay her only $2,000.

Aleshire’s complaint acknowledges that it is based only on Zimmerman’s campaign finance report (which accurately disclosed the $2,000 payment to Jennifer Zimmerman for “campaign office and field work”) and news reports.

However, if Aleshire reviewed Zimmerman’s campaign reports, he must have also been aware that Zimmerman had deposited $20,000 of his personal funds into the campaign account, because those deposits were properly reported as loans as required by law.  Of course, Aleshire had no good-faith basis for alleging whether the payment came “from a political contribution,” which would implicate the statute he cited in his complaint, or from Zimmerman’s personal funds, because he had no access to Zimmerman’s campaign bank statements or any knowledge of Zimmerman’s internal campaign operations.

In response to the complaint, Zimmerman voluntarily provided his campaign bank statements to the TEC, which show that the first deposit was $10,000 from Zimmerman’s personal funds (the first loan, as disclosed on his campaign report).  Between that first deposit and the payment to Jennifer, the balance never dipped below $2,900.  Therefore, more than enough personal funds remained in the account from which to draw the $2,000 payment.

Zimmerman filed a legal memorandum with the TEC this week explaining that Texas law does not require candidates to designate or use any particular accounting method.  This is something Former TEC Chair Paul Hobby has expressly recognized, when he chastised a group responsible for filing numerous complaints based merely on assumptions from information on the face of candidates’ reports.  See Letter from Chair Hobby (Dec. 31, 2014).  Even if a formal accounting method were required, applying “last in-first out” accounting, a generally accepted accounting principle, more than $2,900 of Zimmerman’s personal funds remained in the account when the payment was made.

“The TEC has recognized that the campaign finance reporting system is not an accounting system,” said attorney Jerad Najvar, “but even if formal accounting were required, it’s clear that sufficient personal funds remained in the account.”  Najvar continued: “But we don’t even need to go that far.  Zimmerman had loaned the campaign $20,000, something everyone knew because it was properly reported.  So the idea that he ‘knowingly’ used campaign contributions doesn’t make sense.  He could have written a check to ‘Don Zimmerman’ as a partial loan repayment and put the money in his pocket, instead of writing a transparent check to his wife for a small part of the invaluable assistance she provided to the campaign.”

The TEC is expected to consider the complaint at an upcoming meeting, either March 30 or May 17.

Jerad Najvar practices political and appellate law and is founder of the Najvar Law Firm in Houston.  He served as co-counsel to Shaun McCutcheon in McCutcheon v. FEC, in which the U.S. Supreme Court struck down the federal aggregate contribution limits, and lead counsel in Catholic Leadership Coalition v. Reisman, in which the Fifth Circuit Court of Appeals struck down a waiting period on Texas PACs.

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Texas Ethics Commission v. Empower Texans: Comprehensive Update and Preview of What’s to Come

Empower Texans (dba “Texans for Fiscal Responsibility”) is an influential 501(c)(4) nonprofit corporation dedicated to promoting free markets and limited government; Michael Quinn Sullivan is its President.  Empower sponsors a separate general-purpose committee (Empower Texans PAC, registered in 2007) as permitted under Texas law.  Also, since 2012, Empower Texans (the nonprofit) has elected to exercise its First Amendment rights to make its own independent expenditures for political activity, periodically endorsing candidates and measures under its own name.  One of Empower Texans’ signature, non-campaign activities since 2007 has been to compile a “Fiscal Responsibility Index” grading legislators based on their votes and sponsorship of legislation.  The Index is published online and sometimes distributed by mail to registered voters.

Two nominally-Republican legislators criticized by Empower were State Representatives Jim Keffer and Vicki Truitt.  In April 2012, Keffer and Truitt filed four complaints with the Texas Ethics Commission (TEC) against Empower and Sullivan.  Keffer and Truitt each lodged the same allegations against Sullivan and Empower.

As to Mr. Sullivan, they claimed he failed to register as a lobbyist after receiving compensation for contacting legislators on behalf of Empower Texans.

As to Empower Texans, Keffer and Truitt claimed that the group had violated the Election Code in one of two ways: either by engaging in campaign activity that turned the group into a “political committee” without having first appointed a campaign treasurer with the TEC; or, if Empower Texans did not qualify as a political committee, that it had nonetheless failed to file reports of independent expenditures, as required for corporations making campaign expenditures with their general treasury funds.

These complaints have spawned important litigation regarding many issues, including Texas campaign finance statutes, Texas lobbying statutes, the authority of the TEC and the TEC’s abuse of said authority.  These issues will be covered in more detail on this blog, but first it’s helpful to set out the background and current status of this sprawling litigation.

As to the complaints against Sullivan, the TEC held a formal hearing and issued a final decision on July 21, 2014.  The TEC issued a $10,000 civil fine against Sullivan, ruling that he failed to register as a lobbyist after directly communicating with legislators, on behalf of Empower Texans, in order to influence legislation. Sullivan appealed this decision in district court, and the proceedings are ongoing.

As to Empower Texans, the basic legal theory underlying the enforcement action was that, while Empower Texans is a 501(c)4 “social welfare” organization, it became a “political committee” under Texas law by engaging in activity regulated under Texas’s campaign finance statutes.  In an interesting and revealing twist, after a four-year investigation and multiple rounds of invasive subpoenas, the TEC suddenly dismissed the complaints against Empower Texans in October 2016.   Empower’s claims for declaratory judgment, which include constitutional challenges to the TEC’s theory as how a corporation can “morph” into a PAC, and for attorneys’ fees, remain pending. Future posts will explore how the TEC’s sudden change of heart, while welcome as the TEC finally dropped its ill-conceived enforcement, was disingenuous and self-preserving.

Sullivan Challenges the TEC finding that he violated lobbying disclosure statute

The TEC theory that Sullivan must register as a lobbyist is premised on his contact, on behalf of Empower Texans, with legislators seeking to influence legislation.  Sullivan (a former newpaper reporter) claims that Empower qualifies as a media organization and that he remains a journalist currently, and therefore is exempt under the media exception, which excepts from registration:

a person who owns, publishes, or is employed by a newspaper, any other regularly published periodical, a radio station, a television station, a wire service, or any other bona fide news medium that in the ordinary course of business disseminates news, letters to the editors, editorial or other comment, or paid advertisements that directly or indirectly oppose or promote legislation or administrative action, if the person does not engage in further or other activities that require registration under this chapter and does not represent another person in connection with influencing legislation or administrative action.

Tex. Gov’t Code 305.004(1).

After the TEC fined Sullivan on July 21, 2014 for failing to register, Sullivan sought review of  the agency’s decision in state district court under Texas Government Code § 571.133.  That statute provides for de novo review of final decisions of the Ethics Commission, which means that the court does not give any deference to the TEC’s factual or legal findings.  See Tex. Ethics Com’n v. Sullivan, No. 14-06508-16 (158th Jud. Dist., Denton Cnty.) (filed Aug. 22, 2014).

Sullivan filed the suit in Denton County.  In addition to claiming the media exemption, Sullivan argued that the TEC’s enforcement action should be dismissed under the Texas anti-SLAPP statute (the Texas Citizens’ Participation Act (TCPA), Texas Civil Practice & Remedies Code ch. 27), on the basis that the enforcement action was based on Sullivan’s exercise of his First Amendment rights, and sought attorneys’ fees under the TCPA.  The TEC hired a private investigator to collect evidence that Sullivan was not a resident of Denton County to support a motion to transfer venue to Travis County.  The TEC also argued that the TCPA was not applicable to an administrative-enforcement respondent’s appeal by trial de novo.

On February 18, 2015, Judge Steve Burgess denied the TEC’s motion to transfer venue, and granted Sullivan’s motion to dismiss under the TCPA.  However, five days after the February 18 ruling, the TEC filed a motion to recuse Judge Burgess, in part because the Judge followed Sullivan on Twitter.

The regional presiding judge granted the TEC’s motion to recuse and, on March 9, 2015, assigned Judge David Cleveland to preside in the case.  On March 11, 2015, Sullivan filed a motion for an award of attorneys’ fees based on Judge Burgess’s previous order dismissing the TEC complaints under the TCPA.  The TEC asked Judge Cleveland to reconsider the venue issue.  On March 18, 2015, Judge Cleveland granted Sullivan’s motion to dismiss but denied any court costs or attorneys’ fees, and effectively denied the TEC’s venue argument.

The TEC appealed the denial of its motion to transfer venue.  The Second Court of Appeals in Fort Worth held that the district court had erred as to venue, and ordered the case transferred to Travis County for further proceedings.  Tex. Ethics Com’n v. Sullivan, No. 02-15-00103, 2015 WL 6759306 (Tex. App.—Ft. Worth Nov. 5, 2015), pet. denied (No. 15-0917).   This case doesn’t appear in Travis County’s online docket system yet, but presumably will resume soon.  The issues Sullivan has raised are important, both as to the scope of the media exception and of the TCPA, and this case could yield important precedent.

TEC investigation of whether Empower Texans became a political committee; litigation ensues after “absurd” subpoenas

With characteristic overreach, the TEC kicked off its investigation of Empower Texans with an April 2013 subpoena demanding the “name and address of each person that made a contribution” to Empower in 2011, along with dates and amounts of contributions.  The TEC also demanded (among other things) the account number for every Empower bank account.  This initial subpoena immediately raises red flags, because the TEC doesn’t need the identities of all contributors in order to determine whether a nonprofit became a political committee under the theory advanced by the TEC.  Empower immediately objected and refused to provide the information.  Empower did provide some federal tax documents requested by the TEC, and appeared in two preliminary hearings.  Following these proceedings, the TEC recognized that “there is insufficient credible evidence of violations of laws administered and enforced by the commission,” but issued a Notice of Formal Hearing.

Empower and Sullivan participated in a Pre-Hearing Conference on February 12, 2014, and raised due process objections for the TEC’s failure to adopt procedural rules governing the upcoming formal hearing, despite being statutorily required to adopt such rules (Tex. Gov’t Code § 571.131(c)).  Ironically, that same day, TEC voted unanimously to issue new subpoenas to Empower and Sullivan, requesting documents by March 5, but providing that pre-hearing motions would not be heard until March 14 (i.e., after the deadline for compliance with the subpoenas).

These subpoenas were startlingly broad.  As to Empower, the TEC demanded, for a period of more than three years, “all written communications” sent by or on behalf of Empower Texans supporting and opposing candidates, officeholders and measures and “any” communications “regarding” Empower’s solicitation and use of political contributions and making political expenditures.  These requests are written such that they would require not only Empower’s solicitations themselves (that is, e.g., copies of emails sent to supporters seeking funds), but all drafts and internal communications related in any way to Empower’s solicitations, or even internal communications regarding their “acceptance” and “use” of “political contributions.”

Empower and Sullivan went to federal court on February 26, 2014, seeking to quash the subpoenas.  Empower asserted that the TEC’s theory—that a corporation that receives contributions and then makes “direct campaign expenditures” (independent expenditures) becomes a political committee because it is deemed to be working in concert with others (the contributors)—was being asserted for the first time and violated First Amendment rights.  Empower pointed out in its complaint that, on the same day the TEC issued the new subpoenas, it had also proposed a new rule expanding the disclosures required by nonprofits that make independent expenditures.  (Proposed Rule 20.68 would have presumed a contribution is a campaign contribution based on that contribution’s use by the recipient, irrespective of the contributor’s intent, contrary to the preexisting Election Code definition.) Empower and Sullivan alleged that “[t]he TEC is attempting to ‘out’ any source that have contacted Plaintiffs or had communications with them so that these sources may be silenced.”  Compl. para. 53.

Judge Sam Sparks held a temporary restraining order hearing and stated that the subpoenas were “absurd” and “overbroad,” but ultimately dismissed the case on abstention grounds, holding that Empower must raise its constitutional claims in the TEC enforcement proceedings before bringing them in a federal suit.  (This abstention holding is important because the court found that TEC administrative proceedings are an “adequate opportunity” for plaintiffs to present their constitutional claims.)

The TEC held a meeting on April 3, 2014 and withdrew its third-round subpoenas which a federal judge had described as “absurd” and served Empower Texans and Sullivan with a fourth round of subpoenas.  While the TEC maintains that the revised subpoenas were more narrowly drawn than the requests at issue in the federal lawsuit, in many ways they were broader and more objectionable.  These April subpoenas now defined “Empower Texans” to include “any other affiliated or subsidiary entities” (even though the complaint was filed only as to Empower), and requested many new invasive categories of information (e.g., “telephone and personnel directories”; “personnel files”; “records or evidence of incoming and outgoing telephone calls”; “accounting and bookkeeping records”; lists of recipients of Empower’s emails; and calendars and time records documenting Sullivan’s and other staff time.  [Note that Empower later pointed out that the TEC’s purpose in requesting time records later became clear, when TEC proposed a new definition of “principal purpose” (Rule 20.1(20)]).

Empower/Sullivan raised constitutional objections at the April 3 meeting, prompting TEC Counsel John Moore to advise the Commissioners that it’s not the TEC’s responsibility “to determine whether something is constitutional or not.”  See Transcript of Apr. 3, 2014 hrg.  Sullivan and Empower filed a lawsuit in Travis County district court on April 30, 2014, seeking an injunction against the subpoenas.  Tex. Ethics Com’n v. Empower Texans, Inc. and Michael Q. Sullivan, No. D-1-GN-14-001252 (53rd Dist. Ct., Travis Cnty.).  Empower and Sullivan asserted that the subpoenas should be quashed for violating First Amendment rights. They also argued the subpoenas were not supported by probable cause and thus violated the Fourth Amendment, and that the sworn complaint proceedings violated due process for lack of procedural rules.

Apparently inspired to take Empower’s objections a little more seriously now that their actions were under review in another court, the TEC discussed Empower/Sullivan’s objections in a meeting May 28, 2014, and pared back the subpoenas.  While these modifications did slightly scale back the scope of the requests, they still requested bounds of unnecessary information.  Empower and Sullivan filed renewed objections and responses with the TEC.

At this point, coincidentally, another Texas judicial decision was issued that burnished Empower’s position.  On December 19, 2014, the Third Court of Appeals in Austin released its opinion in the long-running case of Sylvester v. Texas Association of Business, 453 S.W.3d 519 (2014)Sylvester involved a similar claim that a nonprofit entity (TAB) had incurred regulation as a political committee by engaging in a limited amount of communications which losing legislative candidates argued were not merely “issue” ads but “campaign expenditures” in opposition to their respective candidacies.  Importantly, Sylvester applied a textually-sound interpretation to the political committee definition—holding that an entity can have only one “principal purpose”—and held that TAB could not be considered a political committee (even assuming, arguendo, that the ads were express advocacy) because TAB’s principal purpose was to be a trade association, not to influence elections.  Id. at 529-30.  Sylvester additionally explained that “[w]ere we to interpret ‘principal purpose’ in the definition of ‘political committee’ as suggested by appellants so that corporations making independent political expenditures morph into political committees under the Election Code…when they made the expenditures, the definition would be an affront to the First Amendment.”  Id. at 529.

Four days later, a senior TEC attorney emailed TEC legal staff and, with quite a dose of understatement, noted that Sylvestercould be used against us by those wishing to argue that a corporation cannot be a political committee.”  In fact, Sylvester stated directly that a corporation can have only one “principal purpose” for purposes of determining political committee status, directly precluding the TEC’s position that a committee can have multiple principal purposes.  It seems pretty clear that Empower’s principal purpose is to operate as a 501(c)(4) organization, with independent expenditures (and their supporting solicitations) constituting only a minor part of its overall activity.

Nonetheless, TEC staff argued in a memo on May 25, 2015, that the Commission should continue pressing its investigation and, specifically, should seek enforcement of the subpoenas in district court.

The TEC Goes on Offense

Following the staff’s recommendation, the TEC voted on June 11, 2015 to file a lawsuit against Empower/Sullivan, seeking a judicial order to enforce the subpoenas.  The suit was brought under Texas Government Code sections 571.137(c) and 2001.201.  Section 571.137(c) states that when “a person to whom a subpoena is directed” refuses to comply with the subpoena requests, the TEC must “report that fact to a district court in Travis County.” Section 2001.201 authorizes an administrative agency to file suit, in a district court in Travis County, to enforce an administrative subpoena.  The TEC filed their suit on October 5, 2015.  Tex. Ethics Com’n v. Empower Texans, Inc. and Michael Q. Sullivan, No. D-1-GN-15-004455 (345th Dist. Ct., Travis Cnty.).

In response to the TEC’s petition, Empower and Sullivan filed a counterclaim seeking declaratory judgment that a corporate entity cannot be turned into a political committee under the TEC’s “morph-into-pac” theory, and alleged that the TEC complaints were a frivolous claim by a state agency under Texas Civil Practice and Remedies Code, Chapter 105 and that TEC should be liable for Empower/Sullivan’s attorneys’ fees.  Essentially, these counterclaims advanced the same legal theories that Empower and Sullivan were simultaneously asserting in the lawsuit they filed against the TEC.

Empower/Sullivan’s Request for Injunctive Relief is Denied, but TEC Suddenly Drops Investigation

Meanwhile, the suit initially filed by Empower/Sullivan progressed.  In November 2015, Plaintiffs filed their Second Amended Petition.  Primarily, Empower/Sullivan argue that “the TEC does not have an authorized purpose [supporting its subpoenas] because there is no statute it can clearly identify EMPOWER may have broken pursuant to the complaints to authorize the issuance of a subpoena.”  “In fact,” Plaintiffs argue, apparently referring to the Sylvester holding as to principal purpose, “the law is conclusively decided against the TEC’s claim” that Empower may constitute a political committee.  Plaintiffs also sought judicial declarations restricting the definitions of “principal purpose,” “campaign expenditure,” “in connection with,” and “campaign contribution,” and declarations that Empower did not violate the Election Code based on the Keffer/Truitt allegations, and mandating that the TEC adopt certain procedural safeguards governing sworn complaints.  Plaintiffs also seek to force the TEC to pay their attorneys’ fees as a result of the TEC’s frivolous position ignoring governing caselaw. Plaintiffs argue:

[T]he Commissioners have known for one year [that] the interpretation of the Election Code they seek to apply against Empower has been directly disavowed by controlling case authority….Even with the knowledge of the controlling authority eviscerating its case, the Commissioners will not rule on the merits….Instead, they seek to harass the Plaintiffs with multiple subpoenas, hearings, and orders to obtain constitutionally privileged…documents, the result of which is to intentionally and knowingly cause an unnecessary expense of time, cost and attorneys’ fees to EMPOWER.

Second Amended Pet., para. 106.

A temporary injunction hearing was scheduled for December 21, 2015.  Four days before the hearing, the TEC once again modified its subpoenas.  This time the TEC was represented by an attorney from the Texas Attorney General’s office, and drastically reduced the scope of the requests, basically seeking only enough information as necessary to determine how much Empower received from contributors who intended to fund “independent expenditures” (as opposed to, e.g., general operations of the nonprofit, or issue ads) in response to five specific emails Empower had distributed requesting funds for that purpose.  This was now the fifth permutation of the subpoenas.

On December 29, 2015, the district court denied the request for an injunction, in an order stating that Empower/Sullivan’s pleadings were “without merit.”  The court order does not explain its reasoning.  Empower filed an interlocutory appeal.  See Empower Texans, Inc. and Michael Quinn Sullivan v. State of Texas Ethics Commission et al., No. 03–16–00019–CV (Tex. App.—Austin).

The TEC, in its appellate brief filed on June 30, 2016, stated that it would not go forth with any further proceedings related to the Keffer/Truitt complaints if Empower Texans either affirmed that there was no more responsive information, or affirmed that the total amount of funds raised from the solicitations for “independent expenditures” was less than $500.  TEC’s Brief at 2-3 (filed Jun. 30, 2016). (The “political committee” definition includes a $500 threshold.)  In a reply brief filed August 19, 2016, Empower affirmed that the total funds raised were less than $500:

Empower Texans did not request political contributions. Instead, it sent out five e-mails with a donate button, where the accompanying text read: “Our work is made possible only through the generous support of friends like you. Please consider making a monthly or one time contribution of $5, $10, or $25 to fund independent expenditure activities that promote conservative leadership in the Lone Star State.”  (E.g., RR4:DX16 at Ex. 3.) The complaints are based entirely on that statement’s appearing in five e-mails.  However, independent expenditure activities is not a defined term in the Texas Election Code and does not trigger TEC supervision or reporting obligations. Nonetheless, even if the term triggered an obligation to file reports with the TEC, the total amount of all electronic donations during the timeframe the donate button could have been used is $375 from 11 separate donations.  (RR4:DX15.) It is not possible to determine whether the e-mails’ donate button was ever used. The $375 is all electronic donations from every possible source.  If it is assumed that the donate button was used for all electronic donations, the total amount still falls below the $500 threshold that the TEC asserts applies.

After this reply, the TEC moved quickly to dismiss all remnants of the enforcement action regarding the claim that Empower Texans had become a political committee.  The TEC filed a notice of non-suit on September 6, 2016, dropping its request to enforce the subpoenas (in the 345th District Court) against Empower and Sullivan.  On October 13, 2016, the TEC dismissed the underlying Keffer/Truitt sworn complaints against Empower Texans.  A week later, on October 21, 2016, the TEC filed a plea to the jurisdiction requesting that the court dismiss certain of Empower/Sullivan’s counterclaims pending in the 345th, arguing that they were moot because the TEC had dismissed the Keffer/Truitt complaints.

The TEC also moved quickly to argue that, since it had now dismissed the underlying Keffer/Truitt complaints, the appeal in Empower Texans’ own case filed against the TEC (in the 53rd Dist. Ct.) was moot as well. The Third Court of Appeals agreed and, on November 22, 2016, dismissed Empower Texans’ appeal without ruling on any of the underlying legal issues.  Empower Texans, Inc. v. State of Tex. Ethics Com’n, No. 03-16-00019, 2016 WL 6946810 (Tex. App.—Austin Nov. 22, 2016).

Last week, the Attorney General’s office withdrew from the case, so the TEC is now represented only by Eric Nichols of Beck Redden LLP. There have been no other developments in this case since the Court of Appeals’ decision.  While the interlocutory appeal was dismissed, Empower/Sullivan’s underlying claims for relief remain pending.

TEC’s authority under the Texas Constitution: Legislative or Executive Agency?

As noted above, Empower and Sullivan have argued that the TEC’s underlying theory that Empower Texans could morph into a PAC was frivolous (based on Sylvester), and asked the courts in two separate cases to order the TEC to reimburse the attorneys’ fees incurred in defending against that theory.  Texas law allows a court to order a “state agency” to pay fees, expenses, and attorneys’ fees to an opposing party if the agency asserts a cause of action that is “frivolous, unreasonable, or without foundation.”  Tex. Civ. Prac. & Rem. Code § 105.002.  In order to be considered a “state agency” within the meaning of this provision, the agency must be “in the executive branch of state government.”  Id. § 105.001(3).

The TEC claimed that it could not be liable for attorneys’ fees and expenses because it is not an executive branch agency but is in fact a legislative branch agency.  The TEC is, in fact, established under the article of the Texas Constitution establishing the legislative branch.  Tex. Const. art. III (the “Legislative Department”), § 24a.  The TEC challenged the district court’s jurisdiction to hear several of Empower’s counterclaims, including this request for attorneys’ fees, arguing that the attorneys’ fees provision clearly did not apply since TEC is under the legislative branch.

Empower/Sullivan responded by arguing that the TEC was too cute by half: if the TEC is not an executive agency, then the TEC can have no authority to make rules, enforce laws, issue orders, or collect fines under the constitutional separation of powers.  Empower added a claim requesting that if the court found the TEC was not a “state agency,” to find that it was a legislative agency as claimed by TEC, and order that it therefore had no enforcement authority.

The district judge granted the TEC’s plea to the jurisdiction, but did not explain a rationale as to any provision dismissed.  Empower’s request for a declaratory judgment that TEC was an executive agency or, in the alternative, a legislative agency without enforcement authority, was dismissed; its request for attorneys’ fees for TEC’s allegedly frivolous theory was dismissed with prejudice.  Order Granting TEC’s Plea to the Jurisdiction (November 28, 2016), in Tex. Ethics Com’n v. Empower Texans, Inc., et al., No. D-1-GN-15-004455 (345th Jud. Dist., Travis Cnty.).

Empower/Sullivan filed an interlocutory appeal on December 19, 2016; the case is pending in the Third Court of Appeals as No. 03-16-00872-CV and all district court actions are stayed pending a decision on the interlocutory appeal.  Empower’s brief is due March 23, 2017.  Note that these same issues (raised in the plea to the jurisdiction) are still potentially live in the case Empower initiated in the 54th District Court, although it is unclear if any action will be taken there pending this appeal.

Texas Supreme Court hearing in Texas Democratic Party v. King Street Patriots, Inc.

The Texas Supreme Court heard arguments today in part of Texas Democratic Party v. King Street Patriots, Inc.  The Texas Election Code allows private parties to sue political opponents for alleged violations of campaign finance law, and the Texas Democratic Party and some of its candidates sued KSP in 2010 for allegedly acting as a “political committee” as defined in Texas law without registering with the Ethics Commission, and for making corporate political contributions, which are prohibited.  (There is no allegation that actual money was transferred; the allegation is that KSP’s activities resulted in deemed in-kind contributions to certain candidates by training poll watchers, etc.).

I went to Austin to watch the argument.   More to come on this case later, but I wanted to post an initial reaction to the argument.  Among other things, because the plaintiffs are claiming KSP made an illegal corporate contribution, KSP brings a facial challenge to the Texas ban on corporate contributions (which applies to both nonprofits and for-profit corporations).  The attorney for the Democratic Party focused his argument on convincing the Court that if the Texas corporate contribution ban is struck down, it will “open the floodgates” to anonymous contributions funneled to campaigns through sham corporations set up to serve exactly that purpose.  This is misleading.

In fact, just like federal law, Texas law already bans undisclosed earmarking.  In other words, it is illegal in Texas to give money to an intermediary (individual or organization) earmarked for a campaign, without disclosing the true source of the contribution (that is, without informing the campaign of the true source of the funds so the campaign can report the true source).  TEC Rule 22.3 (effective since 1993) states that “[a] person may not knowingly make or authorize a political contribution or political expenditure in the name of or on behalf of another unless the person discloses the name and address of the person who is the true source of the contribution.”  1 Tex. Admin. Code 22.3.

The U.S. Supreme Court has already indicated that the government cannot point to a hypothetical horrible that is “already illegal under current campaign finance laws” to justify additional restrictions on First Amendment-protected contributions.  McCutcheon v. FEC, 134 S. Ct. 1434, 1456 (2014).  Notably, the hypothetical rejected by the McCutcheon Court relied on already-illegal earmarking, just as the hypothetical offered by the Texas Democratic Party attorney today.  In McCutcheon, the government claimed the aggregate limits were necessary because, otherwise, a single person could write a huge check to a joint fundraiser, where each participant would then conspire to transfer its portion of the contribution to a pre-ordained ultimate recipient, which would then spend the money to support a single candidate.  The Court correctly pointed out that “this speculation relies on illegal earmarking.”  Id. at 1455.

There are many aspects of this case.  But the Democratic Party clearly wants to scare the Texas Court into following this theme of anonymous corporate cash. It is a ruse that ignores current Texas law (although nobody cited this provision today). The Court would err if it were to take the bait, as McCutcheon instructs.

Reported #voterfraud investigation in Nueces County, Texas

I just noticed this story from the Corpus Christi Caller-Times, reporting on an apparent investigation by state authorities into allegations that campaign workers filled out a voter’s mail-in ballot without his direction:

“He said he had a mail in ballot, but it had already been filled out,” Franklin said. “I asked if (Gonzalez) had helped him, and he said, ‘No, she took it from me and she filled it out the way she wanted to.’

“There’s so much fraud there it’s unbelievable,” she added.

Franklin, who has been working Nueces County elections for about 15 years, said a relative of Flores “brought in people every day that she didn’t seem to know.”

This type of fraud is commonplace in the Rio Grande Valley, and was part of the reason Letty Lopez prevailed in her election contest and the court ordered a new election.