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.