Following a pretrial hearing yesterday, trial in this Weslaco election contest is slated to proceed as planned beginning next Monday, March 24.
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.
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.
As soon as I posted on this brewing residency issue in Galveston, the City Secretary issued an official statement certifying Yarbrough’s name for the May 10 ballot. That statement in substance reads in full:
James Yarbrough claimed no homestead exemption on any property in the year 2013.
He is eligible to be a candidate and his name will be on the May 2014 ballot.
He applied for a homestead exemption on property in Fayette County in March, 2012 and requested the exemption removed on September 8, 2013. The homestead exemption therefore was not applicable for the year 2013.
In my earlier post I said that, given the specific residency disqualifiers in the Galveston charter, the question as to whether or not the city secretary had authority to look beyond the application itself was perhaps more nuanced than in a regular case (in which such factual review is clearly verboten). It appears that the secretary did examine extrinsic evidence but determined that Yarbrough still met the city requirements.
Galveston Daily News reported even before the City’s announcement that Mafrige was prepared to go to court if the Secretary certified Yarbrough for the ballot. If suit is filed, the court will have to determine whether the city charter requirements displace the Election Code default definitions (or supplement it), and if so, whether the city secretary’s application of the charter was correct.
The Houston Chronicle reported yesterday (behind paywall) that the presumed frontrunner for Mayor of Galveston, Jim Yarbrough, is having his residency challenged by his two opponents, Councilwoman Elizabeth Beeton and businessman Don Mafrige. The two hired an attorney to file a letter with the City Secretary alleging that Yarbrough is ineligible under the city charter’s residency requirements because he claimed a homestead outside the city within the relevant period.
At first glance, this situation appears to raise some interesting legal issues. The general rule is that the official with authority for placing names on the ballot (be it the party official or city official) cannot resolve disputed fact issues as a matter of law. Rather, the official is required to judge the ballot application based on information within its four corners.
The only exception to this duty, allowing an administrative declaration of ineligibility, is severely restricted. The relevant Election Code provision states that “a candidate may be declared ineligible only if: (1) the information on the candidate’s application for a place on the ballot indicates that the candidate is ineligible for the office; or (2) facts indicating that the candidate is ineligible are conclusively established by another public record.” Tex. Elec. Code § 145.003(f) (emphasis added). As the United States Court of Appeals for the Fifth Circuit has stated, “the governing standard, ‘conclusively established,’ bears emphasis. Something is conclusive when…it puts an end to the debate or question….Accordingly, Texas courts have explained that public records must leave no factual dispute concerning the conclusiveness of ineligibility.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 592 (5th Cir. 2006). In the typical case this means that residency is not an issue that can be successfully raised with the city official, because determining residency, per the Election Code definition, is a fact-intensive question.
The caveat here appears to be the specific provision in the Galveston charter purporting to flesh out certain scenarios under which residency may not be claimed:
Each Councilmember elected at large shall have been domiciled and shall have had his or her principal physical residence in the City for a period of not less than one (1) year immediately preceding the Councilmember’s election. For the purposes of this section, a person must meet all of the following to meet the requirement for a “principal physical residence”, if applicable:
(a) The person must use the residence address for voter registration and driver’s license purposes;
(b) The person must use the residence address as the person’s home address on documents such as employment records, resumes, business cards, government forms, and loan applications;
(c) The person must not claim a homestead exemption on any property other than the residence.
Galveston, Tex., charter art. II, sec. 2. Subsection (c) is the basis upon which the challengers assert Yarbrough cannot satisfy the city’s more-specific residency requirements. In a normal case, claiming a homestead someplace does not per se prevent the establishment of a residence elsewhere for purposes of voting or eligibility for office, but the claim is that this specific provision would have such effect for Galveston candidates.
However, there are some open questions raised by this situation. First, home rule cities are permitted to displace the default Election Code residency requirements, but only if the city rules are clear that they are meant to be the exclusive residency requirements. That raises potentially unresolved issues of statutory construction between the Charter and the Election Code. So the question even as to what the appropriate substantive standard is is not necessarily clear. As to the process quesiton–whether the Galveston city secretary (as opposed to a court) may consider any evidence that Yarbrough claimed a homestead elsewhere, much less whether same constitutes “conclusive” evidence–that may also be affected by the fact that the city charter contains this specific provision.
As in any election case, time is of the essence and both sides here are likely teed up for some fun briefing on these issues, both procedural and substantive.
According to this article. This is a huge case with very important implications for freedom of speech and association, specifically, the freedom to associate with like-minded persons without being subject to government demands for a list of group members or supporters. Texas hasn’t seen the level of campaign finance or related political litigation that some other states have seen, but this is a big one that we will watch closely.
Empower Texans’ federal court complaint is available here.
The Fifth Circuit has announced that it will set oral argument in Catholic Leadership Coalition, Inc., et al. v. Reisman, et al., the week of April 28. See the June 2013 press release announcing the appeal here. NLF represents plaintiffs-appellants.
This Breitbart Texas story on the recently-filed lawsuit by Empower Texans against the TEC links to last year’s Lex Politico post explaining the ill-conceived (and ultimately vetoed) SB 346, which would have regulated nonprofits as political committees but excepted labor unions.
An interesting read. Here’s hoping for a First Amendment victory in McCutcheon.