TX Supreme Court orders Houston City Council to honor referendum petition seeking repeal of ERO

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to place on November’s ballot the question whether the city’s recently-enacted “Equal Rights Ordinance”  shall be repealed.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.


Effort to remove Port Isabel councilmembers goes to Cameron County court Tuesday

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.

Federal court enjoins Houston blackout period on political fundraising

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.


#LopezvRivera update: Rivera’s amended opening brief now due Jan. 12; Lopez’s response due Jan. 19

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.

Opening briefs filed in Corpus Christi Court of Appeals in case raising important voter residency and ballot by mail fraud issues

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.

Houston Chronicle: Ruling expected any day on NLF’s challenge to Houston fundraising blackout period

Chronicle reporter Teddy Schleifer has an update on the First Amendment challenge NLF filed in November against the blackout period on fundraising for city offices in Houston (candidates cannot solicit or accept political contributions until February of the year of the election).  A ruling on Gordon’s request for a preliminary injunction–which would permit him to fundraise immediately–is expected any day.  An excerpt:

Gordon and his attorney, campaign finance lawyer Jerad Najvar, sharply disagree, charging that any campaign is feeble and futile until the candidate has the money to execute it.

“A candidate may decide that it would be counterproductive to make sporadic statements via social media before he has amassed enough resources to properly roll out a campaign,” Najvar said in court papers. “This is the kind of tactical decisions that candidates can make with their advisers, without the need for spitballing by government lawyers.”

The current blackout period, they say, is merely a “paternalistic” way for the powerful to insulate themselves from challengers and does little to prevent quid-pro-quo corruption by city officials. In Gordon’s eyes, a contribution is political expression, and Gordon has a constitutional right to serve as the vehicle for his donors’ opinions.