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Ray Jones

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).

[…]

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.

Remember Ray Jones

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So now that the HERO-haters’ petitions have been rejected by the city for not having enough valid signatures after all of the petition pages that were not compliant with the requirements of the city charter were thrown out, the story shifts to the courthouse. We don’t know exactly what the antis are going to claim but I think it’s fair to assume that they will assert that they city was too broad in its rejections and that at least some of the pages that were tossed should have been accepted. The rejections were for fairly technical reasons – the circulator didn’t sign his or her name, or there was a signature but no printed name, or the circulator was not a registered voter in Houston, and so on. There are many arguments one could make to get more signatures accepted, and if the haters’ legal counsel in their litigation is less incompetent than their counsel during the petition signing process was, they will make as many of them as they can and hope enough of them stick.

I’m not a lawyer and can’t really say what might or might not work, but I do know that the city has been down a road similar to this before, involving someone whose attempt to make it onto a ballot was rejected for narrow technical reasons and who didn’t settle for that answer. I’m thinking about Ray Jones, who was a candidate for District C in 2005, then tried to join the field of what ended up as nine candidates in the special election for At Large #3 in 2007, which was eventually won by Melissa Noriega. Jones, as is often the case with candidates, turned in his ballot application just before the deadline. Unfortunately for him, there was a problem with it, and the city rejected it, along with those of two other candidates. Here’s a report from the Chron about what the problem was.

Under the Texas Public Information Act, I got copies of rejected applications submitted by Ray Jones Jr., Greg Locke and Darryn Call. The city also released the form filed by Roy Morales, who is on the ballot.

Here’s what I found out about the four applications. You can download them here [PDF] and read along:

CALL: He didn’t complete the oath section. Leaving this blank is what city attorneys consider a “fatal” error. It’s the section in which candidates affirmatively swear that they’re submitting “true and correct” applications, and that they comply with all the requirements.

LOCKE: He got the oath part right, but he didn’t fill in his voter-registration number. This, too, is fatal because Article V of the City Charter requires that candidates be “qualified” voters.

[…]

JONES: He also didn’t complete the oath.

Jones got a call from the legal department about the error a few minutes before the deadline, but it was too late for him to submit a new form. He believes the city unfairly excludes candidates. He wrote [PDF] City Secretary Anna Russell and City Attorney Arturo Michel about it, too.

If you look at the forms in question, you see that the “oath” section is basically the part that you fill out and sign in order to get the document notarized. There’s blanks for your name, your county, and the office you’re seeking, then your signature, which is the one part everyone got right. I suppose it’s possible that a novice candidate might miss these places on the form, but you’d think a notary public would know to tell them to fill them in.

In any event, this is by any reasonable measure fairly small potatoes. The document is signed notarized, after all, and the missing information can be found or inferred from other boxes. One could certainly argue that the city might cut them some slack and err on the side of inclusiveness. The city for its part did try to contact Jones and get him to fix his mistake, but they weren’t able to reach him in time for him to do so – remember, he turned in his application on deadline day. After some back and forth in the press and an allegation that the city employee that received his document did not give him correct information about its accuracy, Ray Jones filed suit with the 14th Circuit Court of Appeals to get on the ballot. He got some sympathy from the Chron, but the city held fast. In their response, the city pointed out that his application was “defective on its face”, and they cited precedent in their favor:

The Court of Appeals of Waco held that an application that left blank the spaces of an oath/verification identical to the Jones application was defective and incomplete. The application failed to satisfy the “statutory requirements governing a candidate’s application.” In re Gibson, 960 S.W. 2d 418, 420-421 (Tex. App. – Waco 1998) (original proceeding); contra, Yapor v. McConnell, 597 S.W. 2d 555 (Tex. App. – El Paso 1980) (original proceeding). The court found that an official has the duty to review an application within five days and make a determination as to whether the application complies with all statutory requirements. If the application does not comply with the requirements of the Election Code, the application must be rejected. Tex. Elec. Code § 141.032 (e).

In Gibson, the candidate made the exact same errors as Jones by failing to fill in the blanks of the oath which is required by the Election Code . Tex. Elec. Code § 141.031(4)(K). Like Jones, the candidate in Gibson attempted to blame his omissions on the official that received his application or on the notary. In rejecting Gibson’s argument, the court held that “the completion of a candidate’s application rests primarily on the shoulders of the candidate.” Id. at 421. Statutory requirements are mandatory and the candidate must “ensure that the application strictly complies with state law.” Id. at 421.

The city ultimately prevailed, and an appeal to the Supreme Court also failed. Now again, I’m not a lawyer and I can’t say how the haters’ litigation will go. I don’t know if this case would be relevant to what they will put forth. My job is to remember stuff like this and bring it up at appropriate moments. The point I’m making is that just because these prohibitions may seem nitpicky doesn’t mean you’ll get any relief from a judge. Maybe there’s another precedent out there that would favor the petitioners, I don’t know. We’ll know soon enough how they plan to attack this. In the meantime, I say remember Ray Jones and the example he gave us. The Observer has more.

UPDATE: And the lawsuit has been filed. You can see a copy of it here, but the TL;dr version is that they claim Anna Russell’s is the One True Count, and none of the work done to invalidate individual pages means anything. I guess that’s one way of approaching this. The judge could rule as early as this morning.

Filing deadline today

Today is the last day to file for the November 2011 election, which means that today is the day we separate the contenders from the pretenders and see which perennials will bloom on the ballot. There are no surprises so far, but as always it ain’t over till it’s over. As of the close of business yesterday, the following announced candidates had not yet officially filed their paperwork:

Jerry Davis, District B

Randy Locke, District C

Alexander Gonik, District K

Chris Carmona, At Large #3

Louis Molnar, At Large #4

Jack O’Connor, At Large #5

I expect most if not all of them will submit their applications by the end of the day today, but you never know. At times like this, it’s best to remember Ray Jones and ask yourself whether it was really necessary to wait till the last minute.

Anyway. I’ve been making updates to the 2011 Election page to match the City Secretary’s list of candidates. Not too surprisingly, most of the late entrants do not have webpages that I can find; if you know better about any of them, please let me know. I’ll be back to discuss the lineup once it becomes official. In the meantime, what you see is what we’ve got.

UPDATE: The 7 AM update of the City Secretary’s list of candidates shows that Randy Locke, Louis Molnar, and Alex Gonik are officially in. In addition, CM Al Hoang has drawn two opponents, and there’s a third entrant for District K.

Filing deadline

Today at 5 PM is the filing deadline for city elections. Martha has her usual roundup of who has filed. So far, the only bit of suspense is in the Mayor’s race, where Roy Morales has yet to do his paperwork. I presume he’s just taking his time, but you never know what can happen. And whatever does happen, be sure to come by Cafe Adobe at 5:30 to have a drink and talk about it.

Meanwhile, the only contested HISD Trustee race is in the District I seat that Natasha Kamrani is leaving open. Oddly, the open District V still has only one candidate. Mike Lunceford may be the luckiest guy of the cycle. We’ll know soon enough. Of interest to me since I brought it up yesterday is this:

On Monday, in his last day on the job, now-retired HISD Superintendent Abelardo Saavedra suggested in an interview that the structure of the Houston school board be changed so that four of the nine members are elected at-large by the entire community — rather than by a smaller geographic district.

In most Texas school districts, the board members are elected at-large, said Thompson and Kelly Frels, another longtime school attorney.

HISD’s system of single-member districts is the result of a 1975 state statute designed to increase minority representation specifically on the Houston school board, the attorneys said.

If Houston wanted to change to at-large board members, the Legislature would have to act and the Justice Department would have to sign off, Frels said.

The Dallas school board is set up similar to Houston’s, while Austin has a hybrid board, with two of the nine trustees elected at-large.

Laurie Bricker, a former HISD board member, said she agrees with Saavedra’s suggestion of a hybrid board.

“I think it would bring a nice blend,” Bricker said. “This is not a criticism of single-member district board members. But they have to be mindful. There is a group that elected them. They have special interests.”

I guess I figured that there would be a Justice Department issue. I’m still not sure what the allure of a hybrid system is, though.

One more thing: According to a sidebar on the story, this is the filing situation for the Houston Community College Board of Trustees:

HCC CANDIDATES

Like HISD, the Houston Community College board election has drawn few candidates so far. The filing deadline is today. HCC board candidates as of Tuesday:

• District 3: Diane Olmos Guzman (incumbent), Mary Ann Perez

• District 6: Sandra Meyers

• District 8: No candidates

The District 6 incumbent is Mills Worsham, who as we know is running for City Council. The District 8 incumbent is Abel Davila, who I presume is running for re-election. I’m just curious, though: What happens if Davila somehow manages to screw up his filing (think Ray Jones), and no one else files? Anybody know the answer offhand?