Update here at the Dallas Morning News Plano blog.
More background from the Plano Star Courier.
The Texas Supreme Court today issued a decision (with no dissenters) ordering the City of Houston to place on November’s ballot the question whether the city’s recently-enacted “Equal Rights Ordinance” shall be repealed. Mayor Parker and the City Attorney’s office have been arguing that the petition was insufficient for various reasons (some of which I have written about before), and Council had refused to honor the petition claiming there were not enough signatures. However, the City Secretary had initially “certified” that the petition contained a sufficient number of valid signatures. The wrinkle was that the City Attorney had conducted his own review, overlapping with the Secretary’s, concluded the petition was insufficient, and the Secretary’s report to Council referred (but did not adopt) the City Attorney’s contrary finding.
The linchpin of the decision is the fact that the Charter vests the City Secretary alone with the duty to certify whether a petition contains a sufficient number of valid signatures. The Supreme Court’s analysis is pretty simple: because the Charter vests the Secretary with certification responsibility, and the Secretary’s report stated that she had certified a sufficient number of signatures, the Council’s duty to act (repealing the ordinance or putting it to a public vote) immediately kicked in. The Court conditionally granted a writ of mandamus ordering the Council to either repeal the ordinance itself or put it to a vote on the November 2015 ballot, which are the only two options available under the Charter once a sufficient petition has been certified.
This blog will cover this case going forward. If the City wants to challenge the validity of the petition, the Supreme Court states that the City has the duty to seek affirmative relief stopping the election process. However, this points up another thorny issue as to when it is appropriate for a court to enjoin an election process that has already begun. I suspect Mayor Parker will want to file an immediate original petition in district court.
The decision will be warmly received by petition groups across the State. Municipalities commonly throw up objections to petitions, claiming–often disingenuously–that signatures are invalid for various reasons. This decision will solve that problem, at least in cases where the official vested with certification duty (like the Secretary here) certifies the petition. Most charter petition procedures are written like Houston’s, where the Council’s duty to act becomes ministerial upon certification. However, if the official with certification authority acts like the City Attorney’s office did here, petitioners will still be required to go to court first.
The Monitor reports today on an interesting situation with dueling motions to remove three Port Isabel, Texas councilmembers. One member filed an agenda item requesting the removal of a fellow member for alleged delinquent taxes; subsequently, a motion was made to remove the original complainant as well as another member. The latter two were in fact removed after a council vote, but they sued, alleging failure to follow charter procedures and due process before the removal. The hearing Tuesday should be to determine whether the council acted properly in removing the two members.
NLF represents Trebor Gordon, candidate for Houston City Council at-large in November 2015’s elections. We filed a lawsuit November 4 challenging Houston’s ordinance that prevents fundraising by city candidates until February 1 of the election year. The fundamental argument is that Gordon has the right to fundraise for his campaign whenever he wants; he does not have to wait until February 1 to start raising money. Today, the court issued an order granting Gordon’s request for a preliminary injunction.
According to the court’s original briefing schedule, both parties filed their opening briefs Dec. 29, and then each side was to respond by Jan. 5 to the opponent’s brief. However, last night the Court of Appeals notified Rivera that he must amend his opening brief (because it lacked the required appendix). Now he must file the amended brief by Jan. 12. Then, Lopez must file her response by Jan. 19.
After a four-day trial in March 2014 (see case timeline at bottom of story), a Hidalgo County district court found by clear and convincing evidence that 30 votes had been illegally cast in a race for Weslaco City Commission, wiping out incumbent Lupe Rivera’s 16-vote victory and requiring a new election. Central to the case are two issues common across the Rio Grande Valley: residency requirements (voting by persons who do not reside in the electoral district) and failure to follow the strict disclosure requirements enacted to prevent ballot by mail fraud. Once Rivera appealed the decision, Lopez filed a cross-appeal, arguing that the court should have thrown out eleven more illegal votes.
Both sides filed their opening briefs December 29. Responses are due January 5. Lopez’s opening brief is below. Disclosure: NLF represents Lopez at trial and on appeal.