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City of Houston’s stated ground for invalidating thousands of ERO petition signatures is unconstitutional

The Houston City Attorney has argued that thousands of signatures on the referendum petition submitted to repeal the Equal Rights Ordinance are invalid under the Charter for several alleged defects.  While it is unclear whether the City Attorney even has the authority to override the Secretary’s determination that the petition was valid (the primary issue raised at present in the plaintiffs’ emergency lawsuit to validate the petition), this post addresses another issue that may prove determinative, even if the City Attorney establishes that he has authority to review the petition himself.

The City Attorney’s memo leaves much to be desired in terms of clarity.  For example, the first category of defective pages states that “Legal was not able to confirm that the circulator also validly signed the petition.”  This purported defect, according to the City Attorney, affected 347 pages with 2,694 signatures.  It is not immediately clear, at least from the memo itself, whether this means the signatures within this category are allegedly invalid because the City Attorney could not verify whether the circulator signed at all, or that the circulator’s signature was not “valid” because though she signed, she was not a registered Houston voter.

The Houston Chronicle reported that:

Most pages were thrown out because those who collected names for the petition were not registered Houston voters or did not sign the petition themselves. Those errors invalidated more than 2,000 pages with about 11,300 signatures

While we lack clarity as to exact numbers, it appears that given a blatant constitutional infirmity with part of the circulator requirement, and the structure of the language of the relevant charter provision, the requirement that the circulator be a petition signatory herself may be unenforceable.  If so, at least those 2,694 signatures in the City Attorney’s first category, and possibly many more, would be effective.

Under the Houston City Charter, only “qualified voters” of the City may sign a recall petition, Charter art. VIIa, § 2, and in this context, the Texas Election Code defines “qualified voter” as “registered voter.” § 277.0021. This same requirement applies to the referendum petition filed by the opponents of the City’s Equal Rights Ordinance, because referendum petitions must be “signed and verified in the manner and form” required for recall petitions. Charter art. VIIb, §§ 2, 3.  So, one must be a registered Houston voter to sign a referendum petition.

The signatures also must be verified in one of two ways.  The first option is for each petition signer to sign the petition in the presence of a licensed notary or other “officer authorized by law to take acknowledgments and proof of deeds.” Charter art. VIIa, § 3; art. IX, § 3. This is plainly burdensome on the petition process; petition gatherers do not typically travel door to door with a notary.  Alternatively, a petition circulator may complete an affidavit swearing that all of the signatures on a petition page were made in his presence on the date the signature indicates. Charter art. VIIa, § 3. The circulator, however, must be one of the signers of the petition. Id. Since only registered Houston voters may sign a petition, these provisions together mean that the Houston Charter requires that petition circulators also be registered Houston voters.

Here we have the blatant constitutional infirmity:  the requirement that the circulator be a registered voter of the jurisdiction has been unconstitutional since the Supreme Court decided Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999).

Buckley held that circulation of an initiative petition constitutes core political speech, and that the registered-voter requirement as applied to petition circulators reduced the total quantity of speech by reducing the pool of potential circulators.  525 U.S. at 195-97.  This burden was not justified, Buckley held, because the government could achieve its stated interest (in ensuring that circulators are amenable to legal process in order to police lawbreaking) by requiring that they simply file a statement of residence rather than actually being a registered voter.  Id. at 197.

This holding has been applied in many other cases to strike down registered-voter requirements for initiative circulators, and has been extended to strike the same requirement as applied to petitions for a candidate to get on the ballot.  This year, Congressman John Conyers successfully advanced this argument to force Michigan election officials to place him on the primary ballot after initially being declared ineligible because some of his circulators turned out to have not been registered voters.  Moore v. Johnson, 14-cv-11903 (E.D. Mich. May 23, 2014).

[Interestingly, Gov. Rick Perry sued Virginia officials in 2012 seeking to be placed on the presidential primary ballot, arguing that the Virginia law requiring circulators to be registered voters was unconstitutional. See Perry v. Judd, 840 F. Supp. 2d 945 (E.D. Va. 2012), aff’d 471 Fed. App’x. 219 (4th Cir. 2012).   That case was rejected on standing grounds; the court held that Perry was asking it to assume that he would have gathered enough signatures if he hadn’t been hindered by the requirement.  The Perry case was distinguished by Moore v. Johnson.]

It is unclear how many petition pages the City Attorney has called invalid due to the determination that the circulator was not a registered Houston voter.  However, it is clear a great number of pages were invalidated for an alleged inability to determine that the circulator had “validly” signed the petition himself.  To the extent that any circulator has been deemed to have not “validly” signed the petition because the circulator was not a Houston registered voter, such determination is unconstitutional under Buckley, and those pages would be reinstated.  But the issue may be even broader than that.  The text of the circulator statement–provided in the charter itself (art. VIIa, sec. 3)–does not make any distinction between circulators who are registered Houston voters and those who are not.  All circulators are required to affirm they signed the petition.  If it’s unconstitutional to require a circulator to be a registered Houston voter, it’s unconstitutional to require circulators to affirm that they signed a petition which they are only eligible to sign if they are a Houston voter.  The circulator statement may be facially invalid, unenforceable to the extent it requires any circulator to affirm they signed the petition.

A hearing is scheduled for Aug. 15.  As of now, the plaintiffs’ petition alleges that the City Secretary has already validated the petition as sufficient and that interference from the City Attorney’s office does not excuse the city from following through with the consequences of certification.  The petition doesn’t specifically challenge the substantive validity of the circulator requirement.  But I suspect it will come up at the hearing.

Lupe Rivera wants to delay new Weslaco election; Letty Lopez responds

On June 12 the district court announced that Letty Lopez had proved by clear and convincing evidence that last November’s election for Weslaco District 5 Commissioner was tainted by more illegal votes than incumbent Lupe Rivera’s margin of victory.  (NLF represents Lopez.)  Rivera immediately claimed he would appeal.  Lopez requested that the district court sign a judgment that includes an expedited appellate schedule, so that District 5 may finally hold a free and fair election as soon as possible.  Rivera has notified the court that he objects to the proposal to expedite the appeal, but he hasn’t provided any reason why.  Instead, he has requested a hearing, which he says can’t occur until his attorney is available July 28 at the earliest.  This is Lopez’s response, filed today.

The duplicitous Texas Ethics Commission and Empower Texans

Today the Texas Ethics Commission (TEC) is scheduled to finally hold a hearing to consider its case against Empower Texans and Michael Quinn Sullivan.  David Rauf of the SA Express News has a story, though it doesn’t touch on some key points and background to put this whole sad affair into context.  I’ll fill in more of that as this overreaching investigation continues. The investigation, which was initiated by bare allegations lodged by two sitting state legislators with an assist from a registered lobbyist (and based on “information and belief,” rather than personal knowledge), focuses on two issues: (1) the allegation that Empower Texans, a 501(c)(4) organization, meets the definition of a “general purpose political committee” and therefore should be disclosing donors to the TEC; and (2) that Michael Quinn Sullivan, its director, meets the definition of “lobbyist” under Texas law and therefore should have registered, and paid an annual lobbying fee to the state, before advocating policy to the Legislature.

There is much that needs to be said about all of this, which the news media (like the TEC) is totally oblivious to. This morning, I at least thought it would be appropriate to point out the TEC’s duplicity on the issue of nonprofit disclosure.

The TEC has led a two-year-long witch hunt against the nonprofit Empower Texans, including the issuance of subpoenas for financial records, calendars, internal communications and the like, which a federal district judge described as “absurd.”  All of it aimed at determining whether Empower Texans meets the definition of “political committee,” which would require donor disclosure.

Now shift gears for a second. In a case called Catholic Leadership Coalition v. Reisman (as in David Reisman, former Exec. Dir. of the TEC), I’m representing three “general purpose political committees” in a First Amendment lawsuit challenging a Texas law (Elec. Code 253.037(a)) that requires general purpose committees to wait 60 days before spending $500 on political speech. Two of those groups have related nonprofit arms associated with them. This is common practice–a group of people want to engage in discussion, advocacy, and political action, so to comply with the law they set up a nonprofit to do what nonprofits do and a PAC to do what PACs do.  Realizing that there is no substantive argument that can sustain Texas’s two-month ban on spending by general purpose committees, the TEC decides to argue all the way through district court that my two clients with associated nonprofits should have just funded their election speech via the nonprofits, rather than having the gall to come into court to challenge Texas’s $500 speech limit. Citizens United–the TEC argues–validated the rights of independent nonprofits to spend on electioneering, so nonprofits should just do that, rather than set up a general purpose committee and complain about a two month blackout period.

We argued Catholic Leadership April 30 in the Fifth Circuit, and the TEC continued the same theme throughout its appellate briefing and even at oral argument (audio here).  (A decision could be released any day.)

Make no mistake: my clients in Catholic Leadership are not in the same category as Empower Texans.  The Catholic Leadership groups challenging the waiting period on PACs are undeniably PACs–they specifically solicit funds for express advocacy communications about candidates, which means those funds are “political contributions” and the group soliciting them is a PAC. Empower Texans does not do that.  In fact, it has a related PAC that exists for that purpose.

This situation reveals the true motivations and duplicity of the decision-makers at the TEC. Suspend your disbelief and consider the TEC’s positions in these two concurrent cases over the last two years:

  • In Empower Texans’ case, TEC pursues an aggressive investigation to determine whether a nonprofit became a political committee and violated the law by failing to register and disclose donors.  But:
  • In Catholic Leadership, TEC tries mightily to hoodwink two federal courts into believing that my clients–who have loudly proclaimed all along that they had to, and in fact did, solicit political contributions to fund their speech–should have simply spent the money through their nonprofits (which don’t disclose donors).

Where is the media to pick up on this blatant inconsistency? If my clients had taken the route the TEC has suggested in litigation, they would have found themselves in the chair next to Empower Texans today. Except that they would have deserved to be there, while Sullivan does not. Much more to come on this.

Open letter to Valley View ISD employees: fight back against voter intimidation

Najvar Law Firm sent this open letter to the Valley View ISD Board of Trustees (Pharr, TX) Friday.  With municipal elections for the City of Hidalgo approaching May 10, the letter points out the criminal and civil provisions protecting public employees from attempts by their employers to coerce votes, and requests that the school distribute the letter to all its employees.

See this recent video report by KRGV discussing the type of voter intimidation that occurs in parts of the Rio Grande Valley.

NLF victory: Lawsuit seeking to protect Hidalgo councilman’s bus monopoly dismissed

Press release by Najvar Law Firm:

Hidalgo District Court Dismisses Frivolous Lawsuit Filed by Hidalgo City Councilmember Rodolfo Franz

HIDALGO, TX. – Late yesterday, visiting District Judge Rose Vela signed an order dismissing the lawsuit filed last August by Hidalgo City Councilman Rudy Franz to protect his own bus company from legitimate competition at the Hidalgo-Reynosa International Bridge.

“This lawsuit has been frivolous from day one,” said Jerad Najvar, the attorney for Defendants Juan Munoz (owner of competitor S to N Transport) and Hidalgo councilmembers Guillermo Ramirez and Gustavo Sanchez.  “Rudy Franz doesn’t have any right to operate a monopoly in the Hidalgo transportation industry, and we are satisfied that the court recognized that fact and dismissed this case. My clients will be seeking sanctions against the plaintiffs for wasting the time of the City and Munoz, and for the costs of defending this baseless lawsuit.”

For more than a decade, Franz’s company STS Transportation was the only bus company permitted by the City of Hidalgo.  Franz also owns seven of 14 Hidalgo taxi permits, and until June 2013 Franz and his wife owned the only towing companies included in the Police Department’s non-consent towing rotation.  However, after a five-year effort, on September 23, 2013, S to N Transport finally secured the City Council’s approval to provide bus services.  This contested vote represented a major victory against Franz’s political machine for a city accustomed to official reprisals for anyone who challenged its authority.

S to N did not get to this point without a fight.  Franz first sued two political rivals on the City Council, Guillermo Ramirez and Gustavo Sanchez, alleging “political retaliation” and seeking an injunction to prevent them from voting on the permit.  Franz was initially granted a temporary restraining order (TRO) on August 12, but when that case was removed to federal court and the order expired, Franz filed another lawsuit—this time adding as a defendant the city he is supposed to represent—and secured another TRO.

After retaining Najvar Law Firm, a political and constitutional law firm based in Houston, Ramirez and Sanchez persuaded the judge that no court may enjoin members of city council from doing the job for which they were elected and voting on legislative matters. See Editorial, “Judicial restraint” (The Monitor, Sept. 10, 2013).  This ruling finally allowed a vote in City Council, which approved the permit September 23.

Franz immediately filed another request for an injunction to prohibit S to N from operating under the newly-approved permit.  Still lacking any basis in the law, District Judge Jesse Contreras signed that TRO on September 24, preventing competition in the bus market until that order expired on October 25.

After a multiple-day hearing in November considering the plaintiffs’ injunction request, Judge Contreras announced from the bench that he intended to grant the injunction enjoining the City of Hidalgo (which was not even a party) from approving any further permits for any transportation services, including limousines and jitneys, which were never at issue in the case. (See article in The Monitor, Nov. 6, 2013).  This ruling prompted an editorial from The Monitor, stating in part:

[W]e watched dumbfounded as Contreras listened to three days of testimony and decided this week to grant Franz’ request to temporarily block the newly licensed bus company from operating and also block the city council’s right to issue licenses to other competitors – just months after ruling such judicial actions were inappropriate.

Then bemusement turned to incredulity when we heard the judicial reasoning behind Contreras’ decision. “If I don’t file a temporary injunction to enjoin the city, the taxicab drivers will suffer irreparable injury in their line of work,” Contreras said, before effectively allowing the monopoly to stay in place.

In other words, forget the free enterprise system and forget the merits of competition. A monopoly that happens to protect the business interests of an elected public official is preferable to businesses competing for customers, which might protect the interests of the public.

That was not all.  As the defendant councilmembers left the hearing at the 449th District Court after listening to the ruling, Judge Contreras chased them down in his black SUV on Highway 281, motioning for them to pull over.  Startled, the councilmembers did so, only to field a request from Judge Contreras for the cell phone number of a local candidate running for state representative.  Defendants filed a motion to recuse, based on this incident and other disturbing facts, and Judge Contreras immediately recused himself.  Judge Rose Vela was then appointed to take over the case.  Defendant Munoz filed a motion December 20 to dismiss entire case, which Judge Vela granted yesterday.

The case is Palmas, et al. v. Sanchez, et al., No. C-4917-13-K, in the 449th Dist. Ct. of Hidalgo County.

###

See this early video report for more background on the dispute.

Why is the Obama Admin trying to suppress healthcare for those without photo ID?

I’m in McAllen preparing for the trial in Lopez v. Rivera, beginning next Monday.  Whatever radio station I had on this morning featured a guest from Democratic Cong. Ruben Hinojosa’s (TX-15) office, promoting the Affordable Care Act registration fair at the McAllen Convention Center.  Hinojosa’s staffer advised that folks come out and register before they’re “penalized” for lack of coverage by March 31, and said everyone should bring their Social Security card and…wait for it…photo ID.

So, my question is: Why are the authorities promoting Obamacare intentionally suppressing fellow citizens who may not have access to a photo ID and infringing on their access to healthcare?  Because we know from Democrats that when you require a photo ID, you are intentionally suppressing access, rather than serving some anti-fraud purpose.

“The ACLU and the McCutcheon Case”

HT to the Election Law Blog for linking to these SCOTUSblog posts:

First, SCOTUSblog posted an excerpt of an upcoming ebook on McCutcheon.  The excerpt explains the divisions within the ACLU and between ACLU and its former officials in past campaign finance cases.

Then, ACLU’s Steven Shapiro responded here, with a “rejoinder” from the ebook’s authors.

#LopezvRivera: Court compels deposition of homeowner where 23 people registered to vote

The New York Times recently provided the nation with a glimpse into the unfortunate political corruption that residents of Texas’s Rio Grande Valley have suffered under for far too long. In a January 12 story, the Times covered the suicide of Alfredo Lugo, President of the Donna ISD school board, which occurred days after three “politiqueras”–the familiar term for the Valley’s unique type of campaign workers–were arrested and charged in a vote-buying scheme in support of certain Donna school board candidates during the 2012 elections. As the report states, abuses by politiqueras and candidates in the Valley are widespread and extend beyond buying votes, to include various forms of voter fraud, especially with respect to mail-in ballots.  (See these additional reports by The Monitor and KRGV, including links to the federal charging documents.)

Hidalgo County DA Rene Guerra is quoted by The Times as stating that vote-buying is hard to prove and he doesn’t have the manpower to pursue illegalities in the 2012 Donna elections. However, criminal prosecution is only one enforcement tool available to right election improprieties.  Candidates themselves have tremendous power–and in fact are the only persons with legal standing under Texas law–to prosecute an election contest which can establish illegal votes and permit a court to either conduct its own recount or call a new election.

One such case is currently pending in Hidalgo County district court and moving toward a February trial.  Letty Lopez lost a campaign for Weslaco City Commission (District 5) by 16 votes to incumbent Lupe Rivera.  Lopez has never held elective office and is part of a slate of candidates who campaigned on transparency, among other things.  While Lopez and Rivera each received the same number of votes on Election Day (85), and Lopez received many more in-person early votes than Rivera, Rivera racked up a large enough margin in ballots cast by mail to make up the difference and claim a 16-vote victory.  Red flags were immediately apparent, however, including a single-family residence in District 5 that claimed 23 registered voters.  Lopez retained Najvar Law Firm and filed an election contest on November 18. (NLF is the author of this blog.)  You can find Lopez’s FIRST AMENDED PETITION here.  Lupe Rivera is represented by Gilberto Hinojosa of Brownsville, the current chair of the Texas Democratic Party.  This case presents a critical opportunity to achieve justice in a case of apparent voter fraud, including allegations of non-resident voting and various illegalities with mail-in votes handled by the Rivera campaign, and this week has been particularly instructive.

Lopez, of course, subpoenaed the homeowner of the residence boasting 23 registered voters. He failed to appear for his deposition, necessitating a motion to compel and court hearing.  Hinojosa threatened NLF with sanctions if we proceeded with the motion to compel, claiming that the process server had actually served the homeowner’s son by mistake.  We were confident our process server had served the correct person, and proceeded with the hearing on Wednesday, January 22.  The hearing proved to be very informative.

Lopez called her process server to the stand, who testified in great detail about how he went to the home in question and spoke with the homeowner, who confirmed he was the correct individual. The server testified that the homeowner and his wife both personally accepted their respective subpoenas.

Questioning the server on cross, Mr. Hinojosa pointed to a man sitting in the front row of the courtroom wearing dark sunglasses, and asked if this was the man who had actually been served.  The server answered no, the man he served was much older.  When Hinojosa was done, Najvar called the (as yet unidentified) man to the stand.  Citing no rule, Hinojosa objected that Najvar couldn’t call a witness to testify unless he knew the witness’s name. In response, Najvar turned to the man, still seated in the audience, and asked his name.  The man sat silent, looking straight ahead.  Hinojosa again objected, stating that the unidentified man was under no obligation to answer the question since he was not under oath.  To summarize, Mr. Hinojosa’s position was that the man Hinojosa had hauled to court to try and undercut Lopez’s process server’s testimony did not have to identify himself because he was not under oath, and could not be called to the stand unless Najvar was aware of his name.

The court overruled the objection and required the man to take the stand.  Upon questioning, he revealed his name, identifying himself as a son of the man who was the target of the subpoena, and claimed that he was the one who received the subpoenas for both of his parents.  He acknowledged that he was more than 30 years younger than his father.  Najvar re-called the process server, who again disputed the man’s testimony and explained in detail how he had personally served both of the individuals subpoenaed.

The court found the process server to be credible, the man proffered by Hinojosa to be not credible, and concluded that the homeowner had been personally served.  Consequently, the court granted Lopez’s motion to compel, ordering the deposition to occur Monday, January 27 at 9 am.