Off the Kuff Rotating Header Image

Jerad Najvar

Another lawsuit filed over Prop 1 ballot language in Austin

Sure, why not?


It’s Uber Zimmerman!

Litigious District 6 Councilman Don Zimmerman sued Mayor Steve Adler in his official capacity Thursday, challenging the outcome of the Proposition 1 election on the grounds the ballot language “misled voters and omitted main features” and did not conform to the required format, case caption information shows.

A copy of the lawsuit, apparently filed late Thursday, was not immediately available.

“I’m deeply concerned about how the process, about how that went down,” Zimmerman said, late Thursday. “What I noticed from the campaign is that both sides were confused by the ballot language — the people for it and the people against it.”

If you’re keeping score, this is the second lawsuit filed over ballot language; there are also lawsuits over the use of automated text messages sent during the campaign, and over claims that Uber and Lyft’s exit violated federal labor law. The full Statesman story adds some further details.

A statement from the city of Austin defended the ballot measure and its language, saying, “The City Council respected the citizen-initiated petition process and voted to call a May election. The council made every effort to ensure that the ballot language fairly represents the petition’s intent.”

“The city prevailed in the pre-election lawsuit filed on this same topic, and is prepared to defend the actions it took as part of this election process,” the city’s statement said.

Zimmerman and his lawyer, Jerad Najvar of Houston’s Najvar Law Firm, argue that “the City’s much-touted fingerprint background check regime” will be enforced too slowly and “lacks any enforcement teeth” even once it’s fully implemented.


Zimmerman and Najvar asked in the suit that their complaint be consolidated with any other challenge to the same election to conform with a requirement under state law. They specifically cited the May 10 suit brought by Austin lawyer Martin Harry, who also objected to the city’s ballot language.

I still think the ballot language argument is dumb. Honestly, was there anyone in Austin who didn’t understand that Uber and Lyft wanted you to vote Yes on Prop 1? The proposition itself could have been written in Esperanto for all that it mattered. But as always, you never know what will happen once this sort of thing gets inside a courtroom. Engadget has more.

Churches and recall elections

This ought to be interesting.


Are Texas churches prohibited from campaigning to recall politicians?

The 5th U.S. Circuit Court of Appeals [weighed] that question Thursday in a case set to clarify if and how a church as a corporate entity can influence the political process of ousting a sitting elected official.

A San Antonio congregation, Faith Outreach International Center, and two Houston churches, Joint Heirs Fellowship Church and the Houston First Church of God, sued Texas last year arguing state election code prevented them from supporting recall efforts in the two cities.

Ordinances to protect gay people passed in both cities in 2013. Upset with those measures, the churches planned to launch coordinated recall movements targeting former San Antonio Mayor Julian Castro, along with the entire City Council at the time, and Houston Mayor Annise Parker.

A lower court tossed the case, ruling the coordinated plans from the churches would have amounted to a “prohibited political contribution” because of their corporate status. The court also said the churches could band together under Texas law and form the equivalent of a state-level super PAC, which is allowed to accept corporate contributions to electioneer without coordinating with a candidate.

The state attorney general’s office has taken the position that there is nothing in state law preventing the churches from spending money in a recall election. Like the lower court, however, the state argues the churches would simply have to register as a super PAC, which is formally called a “direct expenditure only committee.”

“Not every payment of money, or transfer of a thing of value, by a corporation in connection with a recall election is prohibited by” state law, the attorney general’s office argues in a brief. “And the statute permits all the conduct in which Plaintiffs want to engage.”

However, lawyers for the churches have dismissed the idea of registering as any type of PAC and are taking aim at the state’s law banning corporate contributions in recall elections, claiming it infringes on their First Amendment rights.

“This is a very live dispute,” said Jerad Najvar, a campaign finance lawyer representing the three churches. “More issues like this are going to arise in which religious groups are going to want to participate in the political process.”


Corporations are currently allowed to give to a political action committee that is set up to support or oppose a specific ballot measure. But state election code also “specifies that a corporation is prohibited from making political contributions in connection with a recall election, including the circulation and submission of petitions to call an election.”

Lawyers representing the churches are arguing the two statutes dealing with corporate contributions are unclear.

They also point to a court ruling from a case out of El Paso, in which the former mayor successfully sued a pastor and a church spearheading recall efforts, as part of the “chilling effect” for churches wanting to engage, said Najvar, the lawyer representing the three congregations.

In the El Paso case, a state appeals court reached the conclusion that a corporation engaged in the support of a recall. The court said the church failed to use a political action committee designated for a specific ballot measure.

“As far as Texas law is concerned right now, the courts have already applied what is the law,” Najvar said.

I don’t remember the original filing of this lawsuit, so I don’t have any background to give you. I guess I don’t know why the law makes that distinction for recall elections, and without knowing any more than that it sure does seem like a fair target. Against that, I’m not sure what the problem is with using a PAC, as state law allows. Fortunately, this Press story on the oral arguments gives us some insight.

The hearing [Thursday] largely centered on whether the churches even had standing to bring the suit in the first place.

A lawyer representing the Texas Ethics Commission, which oversees political contributions, argued that the churches’ concerns that they would be breaking the law was actually a moot point. He held that, as long as the churches wouldn’t be making contributions to individual political candidates or officeholders, they could post as many recall promotions on their websites and submit as many petitions as they wanted. “The reason they don’t have standing is because there is no case for controversy,” he said. “It is the commission’s position that it is not going to enforce any provision of the election code in a way that restricts political contributions, as long as they’re not coordinated to a political candidate or officeholder.”

Nevertheless, the churches’ counsel continued to claim the churches faced discrimination, despite the state’s continued promise that everything they wanted to do—on the record, at least—was already allowed under state law. When Jerad Najvar, the attorney arguing on behalf of the churches, continued to press the issue, one Fifth Circuit judge told him, “Your clients can’t take yes for an answer.”

Najvar claimed that the “restrictions” the election code placed on his clients’ ability to promote a recall—which no one else seemed to believe were restrictions—were still content-based speech restrictions. Najvar said he worried that if his clients proceeded with recall efforts, they could still face legal troubles. He cited a 2012 case in El Paso , Cook v. Tom Brown Ministries, in which church officials faced jail time for trying to oust the El Paso mayor. The state, however, more than once reminded Najvar and the court that a 2013 case brought against the commission by Texans for Free Enterprise made the Cook case irrelevant and ensured that the churches’ actions would be deemed legal by the state.

Najvar wouldn’t buy it. “Our clients are very fearful,” Najvar said. “There should be confidence that you can proceed in the democratic process and not be concerned that your actions might somehow put you subject to criminal sanctions.”

Which led one judge to ask, “Isn’t that a little paranoid?”

OK then. It will likely be awhile before we hear back from the court. In the meantime, if you have more familiarity with these issues, please feel free to weigh in.

Injunction granted against Houston fundraising blackout period

It’s a whole new ballgame out there.

Trebor Gordon

Trebor Gordon

A federal judge on Friday temporarily blocked a law limiting when candidates in Houston municipal elections can raise money, prompting a scramble to contact donors sooner than campaigns had intended.

The injunction, two months after a City Council candidate said the law infringed on his constitutional rights, could reorder the timeline for future elections and accelerate this year’s mayoral race – the first without an incumbent since 2009.

An ordinance prevented city candidates from raising money prior to Feb. 1. But hours after the ruling from U.S. District Judge Sim Lake, some mayoral campaigns said they were planning fundraisers and placing calls to donors who were thought to be off-limits for three more weeks.

“There’s not that many days, but political calendars will start to shift based on this ruling,” said Mustafa Tameez, a longtime Democratic consultant. “It creates more pressure for people to announce sooner.”

The lawsuit against the city, filed by candidate Trebor Gordon, argued that his First Amendment right to political expression authorized him to raise money for his campaigns whenever his contributors wished to donate. Lake said in the order that Gordon was likely to succeed on the merits in the case.

“It’s a great victory for the First Amendment,” said Jerad Najvar, the attorney for Gordon, who plans to begin raising funds immediately. “It’s a bigger matter than just this campaign.”

See here and here for the background, and here for Judge Lake’s ruling. This is only an injunction – the merits of the case have not been decided – but it seems clear from that ruling that Gordon is very likely to prevail. I won’t be surprised if the city, which has chosen to accept this ruling rather than appeal it, seeks a settlement. In the meantime, anyone that has filed a designation of treasurer for the 2015 elections can start raising money now. If your mailbox is still a smoldering wreck from all the solicitations it had to handle last year, its brief period of respite is now officially over. You have been warned.

As I’ve said before, I think this was the correct ruling. I also think it will benefit incumbents more than challengers, but we’ll see. The January finance reports will be posted soon, so we’ll get a picture of where things stood going into the year – in particular, who had an advantage prior to the opening of what had been the fundraising season – but the July finance reports will tell the story. We’ll need to look for all donations made in January and see who took the biggest advantage of this change in the rules.

One more thing:

Still unclear Friday was how the decision would affect a separate lawsuit filed by likely candidate Chris Bell, who charges that Rep. Sylvester Turner’s fundraising strategy violates the ordinance. Bell’s attorney said Friday afternoon that he still planned to follow through with his suit, which will be heard in court Monday.

See here for the background on that. The crux of that issue is whether Turner, and possibly Sheriff Adrian Garcia, who were free to raise all the money they wanted for their non-city campaign accounts under the old rules, could then transfer those funds to accounts to be used for a city election. Then-City Attorney David Feldman said that they could, and Bell filed suit to stop it. I’m hard pressed to see how Bell prevails here, but let’s wait and see what arguments he and his attorney present in court.

First city campaign finance lawsuit action this week

As you may recall, City Council candidate Trebor Gordon filed a lawsuit last month alleging that the city of Houston’s campaign fundraising blackout period was illegal. This week, a federal judge is expected to rule on a request for a temporary injunction that would suspend that ordinance.

Trebor Gordon

Trebor Gordon

In court filings, Gordon argues that the abridged timeline makes it impossible for a political challenger to amass the financial wherewithal to unseat an incumbent with a war chest. The city counters that the blackout period is essential to preventing corruption and that nothing stops Gordon from working the stump before asking for checks.

“Campaigning is a larger universe than simply soliciting and accepting donations,” the city attorneys argued in court filings. “Gordon is not prohibited right now from spreading his ideas and seeking support. He simply chooses not to.”


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.

Plaintiffs also note that the fundraising window is unfair. Candidates who currently hold non-city office – such as likely mayoral contenders Rep. Sylvester Turner and Harris County Sherriff Adrian Garcia – can raise money while others cannot and then potentially transfer the money to their city campaign accounts after Feb. 1.

That raise-and-transfer strategy, conducted openly by Turner and approved by City Hall, is the subject of a second lawsuit to be heard in mid-January.

I’ve said before, I think Gordon’s case has merit. Other cities don’t have a similar blackout period, and the Legislature’s blackout is for when they are in session, five months every two years, while Council is in session year-round. One can certainly argue that the 14-month prohibition on fundraising for Council is arbitrary and far too broad. In John Roberts’ America, it’s hard to see how that argument loses.

[Lobbyist Robert] Miller said that if the blackout period is declared unconstitutional, it would make irrelevant when Turner, considered the favorite in the field, raised the donations. He also disagreed with Najvar that allowing donations year round would disadvantage incumbents.

“With term limits, they know that once they win their first election, they only got two more so they’ll be focused,” he said. “There are no incumbents that you’re going to be sneaking up on.”

Here I agree with Miller. Who else has a reason to fundraise during the first few months of even-numbered years? Sure, there are some candidates who know right after one election that they’re in for the next one, but that’s true for every single non-term-limited incumbent. I guarantee you, while a few select non-incumbents may benefit from this if the blackout period is struck down, the main effect you’ll see is greater cash on hand totals for current electeds each January.

On PACs in city elections

Houston Politics looks at something we haven’t seen much of in city elections – PACs that are candidate-specific instead of being centered on a referendum.


Among the topics bandied about last week was why [Ben] Hall and District A candidate Brenda Stardig (who is seeking to regain the seat she lost in 2011 to current incumbent Helena Brown) had formed specific-purpose political committees, or SPACs, as part of their campaigns.

There was speculation that Hall, in particular, may have fallen afoul of city ordinance by his PAC spending more than $10,000 in coordination with his campaign (Stardig’s had only spent $1,300 as of June 30, thus under the $10,000 limit).

The city’s rules are similar to federal guidelines on this: If a PAC coordinates with a candidate, it is capped at $10,000. If it just sends the check and doesn’t help decide how to spend it, the support can be limitless. City Attorney David Feldman said he planned to contact Hall and Stardig’s campaign treasurers to discuss the issue, given that there was clear evidence of coordination in both camps: The PACs, for instance, carry the candidates’ names (as opposed to the typically vague variety, such as Karl Rove’s Crossroads GPS or satirist Stephen Colbert’s Making a Better Tomorrow, Tomorrow).

Jerad Najvar, an election lawyer Hall consulted, and Susybelle Gosslee, who works compliance for Stardig, said there really isn’t any intrigue here.

Najvar points to Section 18-2 of the city code, which states, “To the extent that any candidate elects to receive contributions or make expenditures through a (SPAC) … then the (SPAC) shall be regarded as the agency of the candidate, and the actions of the (SPAC) shall be deemed to be actions of the candidate.” These actions explicitly include, ”The soliciting or accepting of a campaign contribution or the making of a campaign expenditure.”

But perhaps these candidates were seeking to get around the $5,000 limit on individual contributions, or around the limits on the amount of personal loans candidates can repay themselves using campaign cash: $75,000 in the mayor’s race, $15,000 in an at-large race and $5,000 in a district race?

No again, said Najvar and Gosslee.

“You either file a report that says ‘Ben Hall,’ personally, or you file a report that says ‘The All for Hall Committee.’ Substantively the law is no different,” Najvar said. “Filing an SPAC does not allow you to get around any contribution limits or any other limits. When you’re a candidate, you have a campaign account: It’s either filed on a COH (individual) report or an SPAC report, and it doesn’t matter which one.”

“No candidate benefits financially from having an SPAC,” Gosslee agreed.

For what it’s worth, this sort of thing is common in county and state politics, especially with Republican candidates and officeholders. Search for the finance reports for numerous Republican incumbents and you’ll find that all the action is in their “Texans For” or “Friends Of” PACs. Most of them also have regular candidate finance reports, but usually there’s little to them. I’m okay with this arrangement in city elections as long as everything gets disclosed and there are no contributions bigger than $5K from an individual or $10K from a PAC. I don’t see it as altering the dynamics of city races, but I suppose we’ll find out.

TEC approves texting campaign contributions

From Jerad Najvar:

After brief discussion and comments by Jerad Najvar, attorney for Harris County Republicans, the TEC voted unanimously to approve a draft opinion permitting Texas political committees to accept contributions by text message. APPROVED OPINION HERE (the first page is a diagram of each method)

The request proposed two methods for processing text message contributions. One method would have permitted a political committee to accept small-dollar contributions without collecting the contributor’s identifying information, relying on the ability of political committees to accept small-dollar contributions without itemizing contributor information on its campaign finance reports. Although the FEC has approved this method for unitemized contributions, the TEC has previously decided (in Advisory Opinion 207) that Texas law doesn’t permit acceptance of even the smallest of contributions from an anonymous source. This method, therefore, was not approved.

The second method proposed that the committee use a series of reply text messages to collect the contributor’s name, address, and other required information before processing the contribution. This is the method approved today. The final opinion also confirms that the processing firms do not make a prohibited corporate contribution by advancing a portion of each confirmed text contribution to the political committee pursuant to a normal business agreement (in other words, the committee doesn’t have to wait until the contributor pays the cell phone bill before receiving some of the funds).

See here for the full opinion, and here for the background. I think this is perfectly sensible, and I’m glad to see it happen. I doubt this will be revolutionary, but it’s certainly a tool every candidate and grassroots campaign should have in its bag. I will be very interested to see how this gets deployed in the coming elections.

Texting campaign contributions

I see no reason why this should not be allowed.

A Houston-based PAC is asking the Texas Ethics Commission to approve a proposal that would allow the committee to solicit text message contributions from donors in the state.

The Federal Election Commission has approved a text-to-donate model for federal campaigns, but demand for the service is already spreading down the ballot. The PAC—Harris County Republicans—wants the Ethics Commission to move quickly so donation functionality can be added to a voter mobilization app developed by PAC founder Robert Flanagan.

“When a campaign buys the app from the company, it’s customized for their jurisdiction,” says Jerad Najvar, the PAC’s attorney. “They put it in the app store, and the volunteers for that person’s campaign can then download.”

The app syncs with the state’s voter registration database so that once a volunteer downloads the app, an algorithm runs contacts against the voter file and identifies those who are registered in the jurisdiction. From there, the volunteer can call or email highlighted contacts with one touch. Soon Flanagan hopes users will be forwarding the keyword “donate” to their friends with the touch of a button.


Najvar thinks the company’s text donation model is readily passable under Texas law, but he’s not sure about the timetable for approval from the state’s Ethics Commission, noting “the TEC is not as efficient as the FEC.”

You can, of course, already make a contribution from your smartphone – just browse to your favorite candidate’s webpage, or go to Act Blue, and give to your heart’s content. The distinction between an app and a webpage on a smartphone is one without much difference – they’re both just fancy ways of accessing a web server and backend database. As this KHOU story notes, there are a few extra wrinkles with texting.

For example, if someone makes a text donation over his employer’s phone and the employer simply pays the company cell phone bill, it could be considered an illegal corporate campaign contribution. Then again, people who aren’t supposed to contribute to campaigns, like foreign nationals, may innocently break the law by texting contributions.

Najvar predicts Texas candidates will simply put a verification screen in their text message donation process, asking contributors to certify that their contributions are legal.

“The issue here, of course, is verification on the candidate side,” said Bob Stein, the Rice University political scientist and KHOU political analyst. “He or she has to prove that these are legitimate campaign contributions and has to be able to back it up with some verification.”

And cell phone carriers are skimming a huge portion of donors’ campaign contributions, political operatives say. In some cases, Najvar says, phone companies are keeping anywhere from 20 percent to 50 percent of text message donations.

Nonetheless, he’s convinced the questions raised by the new technology will be resolved as more campaign money flows in from text messages.

I would think you could solve the verification issue by having the contribution site send back a link for the donor to click to verify that he or she is the bill-paying owner of the phone, and is an American citizen. I suppose that eliminates anyone who’s still using a non-smartphone, but how many such people with an interest in texting campaign contributions could there possibly be? I figure if this catches on, someone will push legislation to limit the amount that a provider could skim off the top. I’ll be surprised if this doesn’t become reality soon. A press release from Attorney Najvar is here, and Texas Watchdog has more.