HOUSTON, TEX.—Yesterday, the federal district court in Houston issued an
emergency order making clear that one need not be a registered voter of the City of Houston in order to gather signatures on an initiative petition to amend the City’s code of ordinances. The order allows the plaintiffs, Trent Pool, Trey Pool, and Accelevate2020 LLC, their professional petition circulation firm, to immediately gather signatures for a petition currently circulating that aims to address “Pay to Play” activities in the City.
Houston’s home-rule charter allows for legislation by the people through initiative and referenda. In June 2019, an initiative campaign was spearheaded by Houston citizens, including current mayoral candidate Bill King, for an ordinance addressing “pay to play” practices in City politics. Plaintiffs support the initiative, and wished to volunteer to help collect signatures to put the issue on the November ballot. However, a provision in the Houston charter since 1913 requires anyone circulating a petition to affirm, under penalty of perjury, that they are “one of the signers of the petition.” Because only registered Houston voters are eligible to sign the petition, this effectively prevents anyone who is not a registered voter in the City from helping to collect signatures. In a 1999 case out of Colorado, the United States Supreme Court held that requiring initiative petition circulators to be registered voters in the territory violates the First Amendment because it reduces the pool of potential circulators and the quantum of political speech available. While Houston’s rule has thus been clearly invalid since 1999, the City released a dozen lawyers to aggressively enforce it during the 2014 litigation over the so-called “equal rights ordinance,” seeking to invalidate thousands of signatures and deny ballot access for that referendum.
Despite these no-holds-barred efforts in 2014, when Plaintiffs here filed suit June 21 to strike the law down, representatives of the City Attorney’s office suddenly claimed the City would not enforce the requirement. Instead, they suggested that nonresident circulators simply “scratch out” the offending part of the required affidavit language (despite the fact that such language is mandated by the Charter), and have such mutilated affidavits notarized when they turned in their signatures. This was nothing more than a litigation tactic, seeking to avoid a court judgment striking down the provision once and for all.
Plaintiffs are represented by Paul Rossi of Michigan, and Jerad Najvar and Austin Whatley of Houston-based Najvar Law Firm, PLLC, a litigation boutique specializing in election and constitutional litigation.
“I’m glad the City now agrees, 20 years after the Supreme Court said so, that this requirement is unconstitutional,” Najvar said.
“But this situation illustrates exactly why it’s important to have the Court declare this provision invalid, so it does not remain on the books as a tool of selective enforcement and censorship of petitions disfavored by the administration in power.”
Judge Vanessa D. Gilmore of the United States District Court held a hearing Monday, July 1, 2019, and issued an order a few hours later finding that the provision is likely unconstitutional, and permitting the plaintiffs to gather signatures. In addition to collecting signatures for the current initiative, Plaintiffs intend to continue to prosecute the case to a final judgment, declaring the provision unconstitutional and permanently enjoining its enforcement.
The case is
Pool v. City of Houston, Tex., No. 4:19-cv-02236, in the U.S. District Court for the Southern District of Texas at Houston.
READ THE EMERGENCY ORDER HERE
Najvar Law Firm, PLLC, based in Houston, specializes in litigation and appeals in election and constitutional matters. NLF has successfully litigated several constitutional cases, including a case against the Texas Ethics Commission, in which the Fifth Circuit struck down a waiting period on Texas PACs, and other successful constitutional cases against Houston, Dallas, and Austin.
