3/19/2015 1:04:41 AM

Chris Daniel - District Clerk Harris County

Envelope No. 4555897
By: KATINA WILLIAMS
Filed: 3/19/2015 1:04:41 AM

CAUSE NO. 2014-44974

VS.

HARRIS COUNTY, TEXAS

152ND JUDICIAL DISTRICT

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ANNISE D. PARKER, MAYOR;

ANNA RUSSELL, CITY
SECRETARY; AND
CITY OF HOUSTON,
Defendants.

IN THE DISTRICT COURT

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JARED WOODFILL,
STEVEN F. HOTZE, MD
F.N. WILLIAMS, SR. and
MAX MILLER,
Plaintiffs,

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PLAINTIFFS POST-TRIAL BRIEF ON LEGIBILITY

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In response to the Defendants March 9, 2015 assertion that 8510 voter signatures should

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be disqualified on the basis that certain Circulator signatures are allegedly illegible, Plaintiffs

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respond as follows:

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I.

The purpose of this filing is fourfold. First, Plaintiffs will demonstrate that there is no

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INTRODUCTION

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legal basis for disqualifying citizen/voter signatures at the top of the page of the Referendum

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Petition when a particular Circulators signature within the body of the oath is not legible.
Second, Plaintiffs ask the Court to adopt a framework of analyzing these particular signatures by
placing them into five (5) discrete subcategories and then counting the total number of affected
signatures, either by accepting the count by sub-categorization offered by the Plaintiffs, or by
conducting a review and count sua sponte by the Court itself. Third, Plaintiffs have audited the
Citys March 9, 2015 analysis that 8,510 signatures should be disqualified, and will report that

those numbers are grossly exaggerated and nowhere near accurate. And fourth, Plaintiffs will
demonstrate that the failure to sign legibly by a Circulator is not a mandatory requirement, and
substantial compliance exists for all of the reasons asserted in this post-trial brief.
II.

Plaintiffs would begin by pointing out that the Defendants have no legal basis for their

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THERE IS NO LEGAL BASIS FOR DISQUALIFYING CITIZEN/VOTER

SIGNATURES AT THE TOP OF THE PAGE OF THE REFERENDUM
PETITION WHEN A PARTICULAR CIRCULATORS SIGNATURE
WITHIN THE BODY OF THE OATH IS NOT LEGIBLE.

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assertion that the law requires a particular Circulators signature to be legible. The Houston City

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Charter says absolutely nothing about a Circulator signature having to be legible. The Texas

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Election Code imposes no such requirement either. Instead, the Texas Election Code only talks

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about the requirements for a petition voters signature to be valid, specifically in Section

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277.002. Even a cursory review of that statute demonstrates that it is only referencing the

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information that a voter has to provide at the top of the page, such as printed name and address,

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etc. But that statute is not specifying anything whatsoever that is required in the bottom portion

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of the form where the Circulator affidavit exists. This is not at all surprising, as the type of form

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required for a Circulator of a Referendum Petition is not specified by state law. Instead, the
Thus, this Court

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specific requisites of such a form come from the local municipality itself.

would have to look to the Houston City Charter itself for guidance. But, as pointed out before,
that Charter is absolutely silent about legibility. Nor is there any case law which requires a
Circulators Affidavit signature to be legible.

Simply put, the Defendants creation of a

legibility standard is not countenanced anywhere in the law.

3.

In pretrial motions and during the evidence phase of the trial, the Defendants tried to

argue that the Plaintiffs training materials and the deposition testimony of certain petition
organizers and/or circulators recognized the necessity for a Circulators signature to be legible.
This is a false statement. No person ever said this. What was said is that it was important for a

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voter signing the petition to print their name legibly, so as not to run the risk of the City
Secretary refusing to count a voter because their name could not be read. Again, the discussion
was focused on the voter information at the top of the form. There was no discussion about the

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Circulators signature at the bottom of the form where the Circulator Affidavit is located, and all

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of the training materials were specifically referencing the voter information required to be filled

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Despite the complete lack of any legal requirement of legibility, the Defendants argue

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out at the top of the form.

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that legibility was important in order to allow the City Secretary to ascertain the identity of the

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Circulator. Of course, this purported argument does not find any support in the evidence, as the

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City Secretary did not even look at the Circulator affidavit portion of the Referendum Petition,

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much less conduct a review of each Circulator signature for good penmanship. And, although

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the Defendants cite Section 277.002(a)(1)(A) of the Texas Election Code, as well as the

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Municipal City Clerks handbook, both of those sources are talking about a situation where the

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voter signature and the other accompanying information (such as their printed name) is illegible
at the top of the page. Those sources are not talking about a situation where the Circulator
signature at the bottom of the page is not legible.
5.

But even though there is no such legal requirement that a Circulator signature be legible,

Plaintiffs accept the practical premise of the Defendants argument, e.g., that legibility is
important for the simple reason that the City cannot evaluate the truthfulness of the oath if they

do not know the identity of the person who gave the oath. Although Plaintiffs recognize the
importance of being able to hold a Circulator accountable for his/her oath, the illegibility of a
particular Circulators signature on the oath is not the end of the inquiry. The four corners of the
Referendum Petition itself shows that each and every Circulator signed his/her oath in front of a

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notary public. As shown by the testimony of several notaries, each notary public has all of the
identifying information the City could ever need, such as the Circulators printed and signed
name, address, drivers license number, etc.

Indeed, the evidence at trial proved that an

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investigator for the City procured the notary book of Diane Waters. The City has always had the

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ability to obtain this information whenever it deemed it advisable to do so. Accordingly, there is

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no real risk that the Circulator cannot be identified, as that information is certainly available 1.
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Plaintiffs anticipate that the City may argue that there just is not sufficient time to track down the identity of all of
the Circulators. It is true that the City Secretary has only 30 days to do her review, and it is also true that she may
face some difficulty in tracking down all of the identifying information of a particular Circulator before the end of
that 30 day cycle, although no such evidence of any alleged difficulty is in this record. But the answer to that
concern is to say that the City should raise its concern about not being able to identify a particular Circulator by the
end of the 30 day cycle, which is precisely what the City did when it attached David Feldmans analysis to the City
Secretarys memo on August 4, 2014. See Plaintiffs Exhibit 4. It must be emphasized that the citizens are under
the same 30 day timeframe. So if the citizens cannot cure any legibility concerns, then why should the City be
allowed to raise brand new legibility concerns seven (7) months later which were not raised during the initial 30 day
timeframe? The evidence in this case indicates that the City evaluated the entire Referendum Petition and stated
which pages fell into a category of illegibility on August 4, 2014. See Plaintiffs Exhibit 4. The Defendants also
updated their legibility analysis on December 19, 2014, at the end of the discovery period in this lawsuit. See
Plaintiffs Exhibit 23. Finally, the Defendants asserted which pages they claimed were indeed illegible at the end of
the trial and just before the case went to the jury. See Defendants Exhibit 163. In each of these submissions, the
City only claimed that a couple of thousand signatures should be disqualified on the basis that a particular
Circulators signature was illegible. Only after the Court recently ruled against the Citys sign and subscribe
standard did the number of illegible signatures suddenly quadruple to 8510 signatures. But the fact of whether a
signature is legible is something the City could assess as far back as July 3, 2014, the day the Referendum Petition
was filed with the Houston City Secretary. The only new information we now have is what the Court thinks the
legal impact is of an illegible signature on the blank line in the body of the Circulator oath. But a side by side
comparison of the above-referenced exhibits and the analysis offered by the City on March 9, 2015 shows what
really happenedthe City changed strategy after this Courts February 20, 2015 rulings and grabbed as many pages
as possible to now claim, for the very first time, that 8510 signatures were in jeopardy. This is trial by ambush, and
totally ignores the duty to supplement that the City has to obey when Plaintiffs asked them in written discovery
which pages fell into which categories and they pointed the Plaintiffs to an analysis which only included a couple of
thousand signatures, 2,720 to be precise, in Plaintiffs Exhibit 23. Had this claim been made earlier, Plaintiffs would
have asked the jury whether they thought certain signatures were illegible and/or whether they could be reasonably
identified somewhere in the document, as was done in the case of Sylvia Sims. No such question was asked about
any other high volume Circulators like Monica Duplechain or Tori Albarqauie, for the simple reason that the
Defendants never argued their signatures were illegible. Plaintiffs therefore ask the Court to rule that the Citys
March 9th analysis violates the Citys duty to supplement discovery, and cannot be used for any purpose.

Although the City pays lip service to the need to verify the identity of a Circulator, the real
reason for their illegibility standard is to simply disqualify as many voter signatures as possible
in an effort to make sure Houston voters do not get to vote on whether to repeal the Mayors socalled Equal Rights Ordinance.
When the undersigned counsel made this point during a hearing held on March 13th, the

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6.

Court inquired about the practical difficulty in requiring a City Secretary to make phone calls of
notary publics or to conduct an investigation in an effort to identify illegible Circulator

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signatures, especially where there is a 30 day clock within which to perform the required count.

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This is a fair question, and Plaintiffs acknowledge that resorting to extrinsic evidence outside the

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parameters of the physical pages of the petition itself can, indeed, be daunting. But it can be

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done, so the City should not be allowed to pretend that it had no ability to determine the identify

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of these particular Circulators. Simply put, the identification of the Circulators whose signature

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is illegible is not an impossible task, and certainly well worth the effort, given that we are talking

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about the constitutional right to vote on the one hand, as compared to the modest importance of

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good penmanship, on the other hand. The evidence at trial was that all notary publics in the State

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of Texas are required to provide their address and contact information to the State of Texas, and

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that submitted information is publicly accessible on the internet. Accordingly, the ability to

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contact the specific notary for a specific Circulator is just a few clicks away on a computer.
Accordingly, Plaintiffs submit that none of the 8510 signatures should be disqualified because
each and every one of the alleged illegible signatures of the Circulators can be connected to
specific individuals in order to evaluate the truthfulness of the oaths each of them signed.
III.
PLAINTIFFS ASK THE COURT TO ADOPT A FRAMEWORK OF
ANALYZING THESE PARTICULAR SIGNATURES BY PLACING

THEM INTO FIVE (5) DISCRETE CATEGORIES AND THEN

COUNTING THE TOTAL NUMBER OF AFFECTED SIGNATURES,
EITHER BY ACCEPTING THE COUNT BY SUB-CATEGORIZATION
OFFERED BY THE PLAINTIFFS, OR BY CONDUCTING A REVIEW
AND COUNT SUA SPONTE BY THE COURT ITSELF.
7.

Alternatively, should this Court not require or permit the examination of any extrinsic

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evidence, it would nevertheless be error to create a standard for disqualification of an illegal

signature which focuses solely on one isolated region of the document, e.g., only the portion of
the Circulator affidavit where the illegible signature exists. To the contrary, the intrinsic four

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corners of the document would include not only the area of the oath itself, and not only the

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entire page in question, but it would also include all of the other pages of the document. Thus,

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the common sense solution to the Courts concern--of not requiring the City to resort to extrinsic

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evidence--and not unduly burdening the Citys task of completing its review within a 30 day

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timeframecan be dealt with by creating five (5) subcategories of alleged illegibility. These

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categories are: (1) the signature of a Circulator is not actually illegible but can be determined by

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reading the signature itself (twenty representative examples are attached hereto as Exhibit A); (2)

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the signature of a one-page Circulator is not totally legible by itself but the identity of the signer

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is nevertheless ascertainable by comparing the illegible signature to the signature of a particular

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voter whose identity is identified on that same page (Linda Spaulding, page 255, is an example);

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(3) the signature of a multi-page Circulator is not totally legible by itself but the identity of the
signer is ascertainable by comparing the illegible signature to the signature of a particular voter
whose identity is identified on one of the pages bearing the mark of the illegible signature
(Monica Duplechains signature of Mo Dup, page 4022, is an example, or Tori Albarqauies
initials of TA, page 1291, is another example); (4) the signature of a either a one-page or a
multi-page Circulator is not totally legible by itself but the identity of the signer is ascertainable

by comparing the illegible signature to the signature of a particular voter whose identity is
identified on a different Circulator page (Sylvia Sims, for example); and (5) the signature is
illegible and the Circulators identity cannot otherwise be ascertained (Page 486, for example).
IV.

Using these classifications, Plaintiffs counsel has reviewed all 8510 allegedly illegible

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PLAINTIFFS HAVE AUDITED THE CITYS MARCH 9, 2015

ANALYSIS THAT 8,510 SIGNATURES SHOULD BE DISQUALIFIED,
AND WILL DEMONSTRATE THAT THOSE NUMBERS ARE
GROSSLY EXAGGERATED AND NOWHERE NEAR THE TRUTH.

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signatures. Of that number, approximately 4,648 signatures are legible without resorting to

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anything other than the signature itself; (2) 179 signatures on pages containing a Circulator

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signature that is allegedly not totally legible can be ascertained by simply looking at the identical

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voter signature at the top of the same page; (3) 2,395 signatures on pages containing a Circulator

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signature which are allegedly not completely legible can be validated by comparing those

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Circulator signatures with the identical voter signature of the same person on one of the pages

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that is signed by that same Circulator; (4) 1,057 signatures on Circulator pages containing

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allegedly illegible signatures can be validated by comparing those signatures with the location

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within the Referendum Petition where he/she signed as a voter; and (5) 277 signatures that are

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allegedly illegible could not be validated without resorting to the notary public would
authenticated the signature, and thus were not counted for purposes of this example.

spreadsheet showing this analysis is attached hereto as Exhibit B.

9.

Accordingly, as demonstrated above, even if the signature of a Circulator is not legible by

itself, it can nevertheless be validated by comparing it to the voter signatures at the top of the
page. Any concerns about the difficulty of such a review should be ameliorated by the fact that

the overwhelming majority of illegible Circulator signatures can be easily and quickly
validated by simply comparing those illegible signatures to the same signature of that same
individual when he/she signed the petition as a voter at the top of the page. In many cases, the
Circulator whose identity is in question due to an allegedly illegal signature at the bottom of

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the page only acted as a circulator one time. If that is true, then almost in every situation that
same Circulator signed the very same page at the top as a voter. Thus, the City Secretary can
validate the allegedly illegible Circulator signature by simply examining the voter signatures

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on the top of that same page of the petition. In other cases, a particular Circulator gathered more

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than one page of signatures, and therefore signed multiple oaths on multiple pages at the bottom

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as a Circulator. Since the legal requirements for counting petition voter signatures restrict a

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Circulator to signing the petition only one time in his/her capacity as a voter, it will often be the

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case that the City Secretary cannot determine who signed a particular oath by examining only

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that one page for similar voter signatures. But the City will know that one page of those multiple

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pages has been authenticated, so it is a simple task to authenticate the rest.

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Even if the Court remains concerned about the presence of any allegedly illegible

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THE FAILURE TO SIGN LEGIBLY BY A CIRCULATOR IS NOT A

MANDATORY REQUIREMENT, AND SUBSTANTIAL COMPLIANCE
EXISTS

signatures, it is crucial to understand that nowhere in the law is there any suggestion that the
consequence of such illegibility is the invalidation of all of the voter signatures gathered by that
particular Circulator. In support of their argument, the Defendants cite the Texas Supreme
Courts decision in In re Francis, 186 S.W. 3d 534 (Tex. 2006). In that case, the High Court
invalidated an entire page of voter signatures because statutorily required information was

lacking. But this is like comparing apples to oranges. The Francis case deals with a statewide
judicial candidates attempt to submit qualifying petition signatures in order to get on the
primary ballot. In particular, Section 141 of the Texas Election Code governs that process, and
Section 141.063 specifically conditions the validity of petition signatures on whether the

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required Circulator affidavit of Section 141.065 has been used. That is why the High Court
made the point that the omission of any statutorily required info (e.g., a proper affidavit) would
render signatures on that petition invalid. Unlike Section 141, Section 277 is the Code section
Nowhere does Section 277 contain similar language that the

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which applies in this case.

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Circulator affidavit has to be in conformity with any particular requirements or else otherwise

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valid voter signatures will be invalidated. Nor does the Houston City Charter say this either.

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Thus, there is no law which supports the idea that an illegible Circulator signature bears the

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This Court must next examine each of the Referendum Petition requirements with a view

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consequence of invalidating all of that Circulators work 2.

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towards whether any particular requirement is mandatory or directory. If the requirement

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falls into a mandatory category, then strict compliance is indeed required. However, to the
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The City will no doubt argue the case of City of Sherman v. Hudman, 996 S.W.2d 904 (Tex.
App.Dallas 1999, pet. granted, judgmt vacated w.r.m.), for the proposition that Chapter 277
of the Texas Election Code and the relevant referendum standards in the Houston City Charter
are mandatory rather than directory requirements. This argument misses the mark for several
reasons. First, in order for a mandatory obligation to exist, there must first be the existence of
the requirement itself. Here, there is no requirement that a Circulator signature be legible. The
Charter does not require it. The Texas Election Code does not require it. No case requires it,
either. So it is impossible to elevate a legibility standard to a mandatory standard when the
standard itself does not exist. Second, the mere fact that, as a practical matter, the City needs to
know the identity of a Circulator, does not then mean that innocent voters on all of the pages
gathered by a Circulator who has poor penmanship must be disqualified from being counted on a
Referendum Petition. Indeed, there is no such sanction anywhere in the law. Third, a
requirement of legibility must be subject to a directory standard, because otherwise such an
subjective, non-objective standard is subject to severe abuse and potential inconsistent
application.

extent that a particular requirement falls into a directory category, then only substantial
compliance is necessarya much lower and lenient standard for compliance. Of significance to
the determination of which category a particular requirement should fall is whether the
consequence of failing to satisfy that requirement is expressly stated and requires the exclusion

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or invalidation of the affected signatures. For example, the Francis case involved a state
election code provision which specifically stated the consequence of failing to satisfy a particular
requirement was the exclusion of the affected signatures. Unlike that situation, the Houston City

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Charter does not specify that the failure to comply with its provisions should result in the

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invalidation of the affected signatures. Thus, the general rule which presumes a requirement is

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merely directory rather than mandatory applies. The Texas Constitution has limited legislative

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action to legislation "necessary to detect and punish fraud and preserve the purity of the ballot

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box," and to protect the exercise of free suffrage from "all undue influence . . . from power,

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bribery, tumult or other improper practice." TEX. CONST. art. 6, 2,4; Mitchell v. Jones, 361

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S.W.2d 224, 227 (Tex. Civ. App.-Texarkana 1962, no writ). "The general rule of interpretation is

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that the election laws are to be construed as directory in the absence of fraud or a mandatory

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provision which requires the voiding of a ballot for failure to comply with its provisions." Kelly,

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733 S.W.2d at 313-14 (emphasis added); see also Honts v. Shaw, 975 S.W.2d 816, 822 (Tex.

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App.-Austin 1998, no pet.) ("the courts have been liberal in construing and enforcing as directory
only the provisions of the election laws which are not upon their face clearly mandatory").
Furthermore, the individual pages of the Referendum Petition clearly demonstrate that
substantial compliance has occurred.
8.

For these reasons, Plaintiffs request the Court to reject the Defendants inaccurate

allegation that 8,510 voter signatures should be disqualified on the basis that the Circulators who

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gathered these signatures did not sign their names legibly and instead find that all of these
signatures are valid and should be counted. In the alternative, Plaintiffs request the Court to
ignore the Citys classification and count in its March 9, 2015 analysis on the basis that it

in accordance with this brief and the law and the facts.

Respectfully Submitted,

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violates the duty to supplement, and either accept the Plaintiffs count or conduct its own count

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ANDY TAYLOR & ASSOCIATES, P.C.

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BY: /s/ Andy Taylor

Andy Taylor
State Bar No. 19727600
Amanda Peterson
State Bar No. 24032953
2668 Highway 36S, #288
Brenham, Texas 77833
713-222-1817 (telephone)
713-222-1855 (facsimile)

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ATTORNEYS FOR JARED WOODFILL, F.N.

WILLIAMS, SR. AND MAX MILLER

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CERTIFICATE OF SERVICE

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I hereby certify that a true and correct copy of the attached document was served via
email on the 19th day of March, 2015 to the following attorneys.

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Geoffrey L. Harrison
gharrison@susmangodfrey.com
State Bar No. 00785947
Alex Kaplan
akaplan@susmangodfrey.com
State Bar No. 24046185
Kristen Schlemmer
kschlemmer@susmangodfrey.com
State Bar No. 24075029
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366

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Facsimile: (713) 654-6666

HAYNES AND BOONE, LLP

Lynne Liberato
State Bar No. 00000075
Kent Rutter
State Bar No. 00797364
William Feldman
State Bar No. 24081715
Katie Dolan-Galaviz
State Bar No. 24069620
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
Lynne.Liberato@haynesboone.com
Kent.Rutter@haynesboone.com
william.feldman@haynesboone.com
katie.dolan-galaviz@haynesboone.com
Appellate Attorneys for All Defendants

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FULBRIGHT & JAWORSKI LLP

Edward B. Teddy Adams, Jr.
State Bar No. 00790200
Andrew Price
State Bar No. 24002791
Seth Isgur
State Bar No. 24054498
Geraldine W. Young
State Bar No. 24084134
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone: (713) 651-5151
Facsimile: (713) 651-5246
Teddy.Adams@nortonrosefulbright.com
Andrew.Price@nortonrosefulbright.com
Seth.Isgur@nortonrosefulbright.com
Geraldine.Young@nortonrosefulbright.com
Attorneys for Anna Russell, City Secretary

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CITY OF HOUSTON LEGAL DEPARTMENT

David Feldman
State Bar No. 06886700
Lynette Fons
State Bar No. 13268100
Judith L. Ramsey
State Bar No. 16519550
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone: (832) 393-6412
Facsimile: (832) 393-6259
David.Feldman@houstontx.gov
Lynette.Fons@houstontx.gov
Judith.Ramsey@houstontx.gov
Attorneys for Annise D. Parker, Mayor

/s/ Andy Taylor________

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