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.
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.
A few days ago I posted my analysis concluding that the City of Houston’s requirement that referendum petition circulators sign the petition themselves is likely unenforceable, because it’s unconstitutional to require a circulator to be a registered voter of the jurisdiction. See Buckley v. Am. Const’l Law Found., 525 U.S. 182 (1999). Charles Kuffner points out that in Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013), the Fifth Circuit upheld the Texas statute requiring “volunteer deputy registrars” (“VDRs”) to be Texas residents (and appointed as VDRs under a perfunctory statutory process), and wonders what gives. How are there different results in these similar circumstances?
It’s a smart point. First, there is a distinction between a residency requirement and a requirement to be a registered voter. Buckley has some discussion about how the registered-voter requirement may be more of a constitutional burden than a bare residency requirement, and in Voting for America the Fifth Circuit began by pointing out that a state residency requirement for petition circulators had been upheld by the Eighth Circuit. See 732 F.3d at 389 (citing Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001)). However, the plaintiffs challenging the voter registrar residency requirement argued that Buckley’s rule should apply to strike down the residency requirement as applied to VDRs who transport completed voter registration applications to the elections officials. The Fifth Circuit squarely addressed the argument, but rejected it:
At oral argument, [the voter registration organizations] urged the court to draw a close parallel to the Supreme Court’s reasoning in Meyer, 486 U.S. at 422, 108 S.Ct. 1886, finding that the circulation of initiative petitions was a matter involving the core political speech rights of the circulators under the First Amendment. The analogy is improper. The circulation and submission of an initiative petition is closely intertwined with the underlying political ideas put forth by the petition. The petition itself is the protected speech. Moreover, the very nature of a petition process requires association between the third-party circulator and the individuals agreeing to sign. In the voter registration context, the underlying expressive conduct (encouraging democratic participation and voting) does not implicate a third-party’s right to process the application. Voter registration applications are individual, not associational, and may be successfully submitted without the aid of another. Here, the actual expression is not being limited.
Voting for America, Inc., 732 F.3d at 390 (quoting the previous motions panel in the same case that had granted a stay of the district court’s injunction, at Andrade II, 488 Fed.Appx. at 898 n. 13 (emphasis added)). The Fifth Circuit continued:
Buckley and Meyer are further distinguishable because those cases involved laws that specifically regulated the process of advocacy itself, dictating who could speak (only unpaid circulators and registered voters) or how to go about speaking (with name badges and subsequent detailed reports). Thus, the Colorado law had “the inevitable effect of reducing the total quantum of speech,” limiting “the number of voices who will convey [Plaintiffs’] message and the hours they can speak and, therefore, limit[ing] the size of the audience they can reach.” Meyer, 486 U.S. at 422–23, 108 S.Ct. at 1892.
Id. at 390.
I think there are some distinctions between initiative/referendum petitions and voter registration drives for some purposes, but the court’s rationale in Voting for America is not terribly persuasive. One can argue that persuading folks to vote is just as important to one’s cause or message as persuading a voter to sign a petition. So it seems to raise the same speech concerns. If the government’s concern is making sure VDRs are amenable to legal service, then the state could do that by requiring them to designate an agent for service, providing their residence address, etc. just as the Buckley court noted in the petition context. Thus, to my mind, to the extent there is an inconsistency in these two lines of cases, it is Voting for America that gets it wrong. And there are other cases holding residency requirements for petition circulators are unconstitutional burdens on First Amendment rights. See, e.g., Libertarian Party v. Judd, 718 F.3d 308 (4th Cir. 2013). That does not foreclose the distinction the Fifth Circuit draws, however, in the voter registration context.
I note that the plaintiffs on Monday filed an original petition for writ of mandamus (posted by Big Jolly) in the Fourteenth Court of Appeals, which does not challenge the constitutionality of the requirement for circulators to sign the petition. It appears to raise the same arguments as the state petition. The plaintiffs might have wanted to file in both courts simultaneously to ensure that at least one court has jurisdiction. This is not an easy question–depending on how the courts view the factual posture of the situation, the court of appeals may be the only court with jurisdiction to issue relief. If that’s the case, then you can’t wait for the district court to decide that and encourage you to file in the court of appeals, because by then the clock will have expired. So the plaintiffs are smart to file simultaneously in both courts. But I think challenging the circulator requirements should be the focus of this case, because Buckley is clear. I think the state district court could declare the law on that issue, and issue an order requiring the city secretary (or the city, through whomever has the delegaged authority) to tell the City Council whether the petition requirements are met in the absence of the requirement that circulators sign the petition. The court of appeals may have the jurisdiction to issue the same opinion and order in the mandamus proceeding.
*This post was updated to clarify that Voting for America upheld a bare residency requirement, not a requirement to be a registered voter.
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.
Video report by KSAT 12 News in San Antonio features a just-released survey commissioned by a candidate for county judge showing opposition to streetcar, and covers the letter NLF sent on behalf of Let the People Vote to the city council.
Story in the San Antonio Express-News yesterday about the charter amendment petition regarding streetcars.
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.
I got a little sidetracked with all the excitement over McCutcheon this week, but on April 1 the First Court of Appeals in Houston issued a memorandum opinion denying Don Mafrige and Elizabeth Beeton’s petition for mandamus, which asked the court of appeals to require the Galveston City Secretary to declare Jim Yarbrough ineligible for Galveston mayor under the city charter residency requirements. The order contains no explanation, but as I indicated earlier, residency is a fact-intensive inquiry and it’s almost always fruitless to ask a city secretary or court of appeals (via mandamus) to declare a candidate a nonresident. Beeton and Mafrige might have been able to argue the factual residency issue if they had filed for an injunction in district court, but it looks like they were hoping the Galveston charter provisions were sufficiently specific to allow the court of appeals to dispose of this via mandamus. That didn’t happen.