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.