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The case against tossing the HERO repeal petitions

Jerad Najvar makes a constitutional argument that the city of Houston should have accepted the HERO repeal petitions even though many of the petition pages fell short of the requirements laid out in the city charter.

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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).

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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.

As you know – say it with me now – I Am Not A Lawyer, so take what I’m about to say with an appropriate dosage of salt. Najvar notes that the original brief that was filed didn’t specifically bring this issue up, but he expects it to be aired at the hearing on Friday. That may well be, but I have to say I thought that constitutional issues were supposed to be aired in federal court; the case is now back in state court, and the plaintiffs complained bitterly about the one-day journey to the federal courthouse. I’m a bit confused by all that now, but that’s probably just the non-lawyer in me talking.

Anyway, as far as the substantive issue here is concerned, I will confess that I have some sympathy for the argument Najvar makes. I said throughout the Ray Jones saga that I’d prefer to err on the side of inclusiveness. This case definitely tests my resolve on that, but the principle is the same even if the petitioners are vile and knew fully well the rules that they then went ahead and violated. Having said that, I can’t comment specifically on the precedents that Najvar cites, but I do know that in 2011 the Texas Legislature passed a law that required deputy voter registrars to be residents of Texas. A federal lawsuit was filed against this, and in 2012 a federal judge in Galveston sided with the plaintiffs and agreed that this requirement was a violation of the First Amendment. However, the Fifth Circuit Court of Appeals, villainous as ever, stayed the ruling and allowed the residency requirement to be enforced. The Supreme Court declined to intervene, and last year a three-judge panel, which included the infamous Edith Jones, ruled that the district court judge had erred in allowing a preliminary injunction.

Given all that, it’s not clear to me that Najvar’s constitutional argument would carry the day. At the very least, recent precedent suggests that residency requirements, however you think of them, may be allowable in some circumstances. I don’t know what the plaintiffs’ lawyers will argue in this case – I’m pretty sure Steve Hotze isn’t about to file an amicus brief for the challengers in the voter registration suit – but if they do bring it up I believe the city has a valid response it can make, even if it leaves a bad taste in my mouth. We’ll see how it goes.

UPDATE: Jerad follows up to address the points I raised about the voting registration lawsuit.

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4 Comments

  1. Kenneth Fair says:

    I follow the argument up to this point:

    “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.”

    I don’t think the consequent here necessarily results from the antecedent.

  2. Mainstream says:

    Federal constitutional issues may be decided by state courts as well as federal ones. Both are required to follow the constitution. Thus state criminal law courts decide every day issues relating to 4th Amendment searches and seizures, and defamation cases with First Amendment defenses are routinely heard in state civil courts. Ultimately, the US Supreme Court could resolve any dispute on cert from a state supreme court.

  3. Mainstream says:

    Wasn’t the issue of who could circulate petitions an issue in the Congressman Conyers lawsuit earlier this year?

  4. Greg Enos says:

    My latest newsletter focuses on the $1.9 million paid by Harris County to GOP heavy weight Gary Polland for court appointments.

    http://archive.constantcontact.com/fs152/1109660142763/archive/1118142374770.html

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