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.
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.
Historically, Weslaco city candidates have been allowed to place their signs near the City Hall visitors center before early voting. There was no formal procedure, candidates simply showed up and claimed their spots, and those who arrived earliest got the prime locations. This year, Greg Kerr, who is running against Johnny Cuellar, beat Cuellar to the punch and got a prime spot. Suddenly, city officials showed up and literally tore down his materials and took them to a city storage location for Kerr to pick up later. All of a sudden, they claimed the City would institute a new procedure whereby spots would be chosen by a drawing. In other words, Kerr beat Cuellar to the punch, and the drawing would at least give Cuellar the chance to get the spot back.
This all smacks of viewpoint discrimination by the City–enforcing the law selectively to favor one side over another–which is a First Amendment violation. I sent the following letter to the City on behalf of Mr. Kerr today.