Category Archives: Texas election law

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 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.

Election Manipulation Dies Hard in Weslaco, Texas

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The testimony above is from the Feb. 4, 2014 deposition of Maria Berrones, a proud Weslaco voter who has some experience with current candidate for Wesalco Commission District 5, Lupe Rivera, Jr.

Recently, Rivera, Jr. announced that he would challenge Letty Lopez for the District 5 Commissioner seat, providing another chapter in this ongoing struggle against illegal voting practices in South Texas.

After a four-day trial in March 2014, Letty Lopez, represented by Najvar Law Firm, won a landmark election contest.  She proved 30 illegal votes were cast in the November 2013 election between Lopez and Lupe Rivera, Sr, nearly twice the margin of victory. Ten of those votes were cast by friends and relatives of Lupe Rivera, Sr., who registered to vote in District 5 but did not live in District 5. Twenty votes were illegal because the Rivera campaign had violated one or more Election Code statutes specifically passed to protect against coercion or fraud in mail-in balloting. The district court ordered a new election. Najvar Law Firm successsfully defended the case on appeal, and that opinion–from Texas’s Thirteenth Court of Appeals in Corpus Christi–provides a valuable precedent enforcing the residency requirement in the Election Code, and the anti-fraud provisions regarding mail-in ballots.

Back to Maria Berrones.  Her testimony proved devastating to Rivera’s defense, because here-for once-was a rare example of someone willing and able to testify to exactly the type of coercion and abuse of elderly mail-ballot voters that is commonplace in South Texas elections. She said she requested a mail-in ballot because Lupe Rivera, Sr. had come by her house and suggested that she vote by mail. He told her to call him when the ballot arrived, and not to give it to anyone else. He showed up at Berrones’ house after it arrived, even before she called. She handed it to him and he filled it out. He didn’t ask how she wanted to vote. He handed it to her to sign, then left in a hurry because he had to visit other people.

Berrones’s family was incensed when they heard what happened, and tried to take her to vote in person with them, hoping they could cancel the mail ballot. Berrones testified that she wanted to vote for Lopez. But the poll workers told her that the mail ballot had already been counted, so she could not vote:

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After trial, the district court found the evidence sufficient to conclude that the ballot was illegal, and that since Rivera had completed the ballot, he had “voted for himself,” and the court deducted the vote from Rivera’s total.

Apparently Lupe Rivera, Jr., who had helped his father collect the mail ballots, had an idea that Berrones’ testimony would be devastating. So after she had been subpoenaed by Lopez for a pre-trial deposition, Rivera, Jr. went to her house and tried to convince her not to show up.

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Thankfully, to her great credit, Ms. Berrones showed up and testified courageously.  Her testimony was critical to the case and provides a window into the tactics used in coercing and taking advantage of ballot by mail voters. There were 29 other votes the court also threw out.  Weslaco got a new election, and Letty Lopez defeated Rivera Sr. in the rematch in November 2015.

Weslaco residents filed a criminal complaint with the Texas Secretary of State based on evidence from the election contest, and the Attorney General’s office filed 16 misdemeanor charges against Lupe Rivera, Sr. and two against Lupe Rivera, Jr.  Senior pled guilty to unlawful assistance of a voter, i.e., “while assisting Maria Berrones…knowingly prepar[ing] the voter’s ballot in a way other than the way the voter directed or without direction from the voter,” and got a year in jail (suspended during community supervision) and $500 fine. The state prosecutor testified in a legislative hearing in Austin in September that the Weslaco case illustrated an example of how elections are tained by manipulation of voters through false pretenses. Apparently the prosecutors dropped charges against Junior on account of Senior’s guilty plea.

So, naturally, Lupe Rivera, Jr., who desperately tried to convince an elderly woman to disobey a subpoena, is now running to take back the seat that his father lost after Lopez proved in court that the Rivera campaign had harvested 30 illegal votes.

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One lesson from this is that rooting out these practices and restoring integrity to elections in South Texas–famous for Lyndon Johnson’s “ballot box 13” that miraculously put him over the top in 1948’s Senate elections–will require a sustained effort. I hope the voters of Weslaco turn out in droves in November and send a message in this election.

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.

 

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.

ERO referendum petition saga: Plaintiffs withdraw injunction request; trial set for Jan. 19, 2015

It appears this case will be around for a while, and I’ll be writing about it occasionally. Let me preface this post with an observation. I don’t appreciate the way the referendum petition organizers have presented this issue (the ERO ordinance) and their objections to it.  I think there is a compelling case against such ordinances that can and must be made on traditional liberty and economic freedom grounds that does not require anyone to demean homosexuals or make the incendiary statements some of the organizers have.  The kinds of arguments they have made against it not only miss the compelling point, but they are counterproductive and hurtful to a lot of people. More on all that later.

I just returned from watching the hearing. A few key developments:

1. The plaintiffs withdrew their request for a temporary injunction, and agreed to set trial for January 19, 2015.  This development apparently arose after it was clear the court did not see any immediacy to justify an emergency injunction.  There was no immediacy because (1) the City stipulated that it would suspend the ordinance until trial on the merits, and (2) apparently the plaintiffs did not dispute the City’s contention (made in its response) that if plaintiffs’ petition is indeed valid and the City refuses to repeal the ordinance, the referendum would be placed on the November 2015 ballot, not November 2014.  The City may be right on that point, but there is room to argue the statute is ambiguous.

2. Andy Taylor, the plaintiffs’ attorney, raised the argument I posted on this blog this week that it is a violation of the First Amendment to require a petition circulator to be a registered Houston voter.  I think this argument goes another step.  If it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction, it’s unconstitutional to require the circulator to sign the petition that she is only eligible to sign if she is a registered voter.  In other words, even for those circulators who are registered Houston voters, it is improper to reject pages submitted by that circulator on the ground that she did not sign the petition as a signatory (as opposed to signing as a circulator). The city rejected some pages because the circulator was not a registered Houston voter, but it rejected many more because (it says) the circulator did not sign the petition as a signatory.  I think Buckley means the City may not throw out signatures on either of those grounds, not just the first.

3. The Fourteenth Court of Appeals apparently has denied plaintiffs’ request for mandamus on the grounds that the plaintiffs have an adequate remedy at law in the district court.  The case page for that is here, but the court of appeals hasn’t posted the order yet.

4. The City showed up with 14 lawyers on its pleadings and probably half were in the courtroom.  They threatened in writing and orally that they would seek attorneys fees from the plaintiffs.  I think the plaintiffs will prevail, and the certainly should prevail on the constitutional argument under Buckley.  I think they should amend their petition to state this constitutional claim under 42 USC 1983 (federal civil rights action), and seek attorneys’ fees from the City under 42 USC 1988.  See, e.g., Pruett v. Harris County Bail Bond Bd., 356 S.W.3d 103 (Tex. App.–Houston [1st Dist.] 2011) (illustrating fee award in state court for prevailing plaintiff under 42 U.S.C. 1988). The City’s legal team came in with an air of unnecessary pomposity, and their response reads the same way.  Fourteen lawyers from premier law firms is clearly overkill for the taxpayer, and if the plaintiffs establish that the City is paying fourteen lawyers to defend a charter provision that is clearly unconstitutional under an unequivocal Supreme Court case that has been on the books since 1999 (and followed by many other cases), the City should have to pay for it. Time will tell.

ERO referendum petition saga: City of Houston files response to request for temporary injunction

The City of Houston has apparently hired three premier law firms to represent it in defending against the plaintiffs’ state-court petition.  Those law firms are Susman Godfrey LLP, Haynes & Boone LLP, and Fulbright & Jaworski LLP.  The three law firms have each listed three or four attorneys on the pleadings.  That makes 14 attorneys on the pleadings for the City of Houston, including those from the City’s legal department.

Their response in opposition to the request for temporary injunction is here:

20140814 Response in Opposition

The hearing is set for 1:30 today in the 152nd District Court.