Texas Petition Strategies, Inc.
1201 West Abram Arlington, Texas 76013 (817) 265-2438
816 Congress Avenue, Suite 1125 Austin, Texas 78701 (512) 482-8011
To: Cecilia Jones, KCBD TV-Channel 11
From: John Hatch, Partner
Date: July 11, 2007
Subject: District 1 Recall Election, City of Lubbock
The staff at Texas Petition Strategies (TPS) has reviewed the recall petition for District 1-City of Lubbock. According to the City Charter, petitioners needed 494 valid signatures in order to force the recall election.
Point of Clarification: Both I, John Hatch, nor anyone at Texas Petition Strategies is attorneys and none of the information provided should be construed as being legal advice or recommendation.
TPS is the leading company in Texas conducting petitions efforts including over 100 local option alcohol elections in over 50 jurisdictions. Historically, local option alcohol election requirements are much more stringent than any other type of petition required by state law.
TPS reviewed the signatures on the petitions based on the requirement by the Lubbock City Charter, information obtained thru the Texas Secretary of State Elections Division and Texas Supreme Court and Federal Court cases.
There is a general understanding in elections that the most important issue for consideration is "voter intent" and the "will of the voter". There have been many legal challenges to petition requirements particularly relating to omissions of voter certificate numbers, city, state zip, on the petitions.
Two court cases are the main basis for what is considered the guidelines for verifying a petition. In re: Bell (91 S.W.3d 784, Case No. 02-0034) which was a case decided by the Texas Supreme Court and Fjetland v Weddington (Case No. A-02-CA-045-SS) a case before the United States District Court, Western District, Austin, Texas.
In these two cases the Courts ruled signatures should have been counted even though all of the information required on the petitions was incomplete or missing. The basic premise is the signature of the voter is the primary requirement of the petition and all other data is necessary only as needed to assist in verifying the signer is qualified to sign the petition.
In re: Bell, the main issue was missing city, state and zip code and in re: Fjetland the basis was on the voter certificate number and missing city, state and zip code. However, in the Fjetland case the opinion written by Judge Sam Sparks makes clear "the court identified the purpose of the requirement that signers list their residence address was to verify the signers eligibility to participate in a particular election, thereby preventing voter fraud . . . Accepting the defendant's representation that the signatures were otherwise valid, the Court finds it is likely the signatures included enough information to verify the signers voting eligibility."
Based on the opinions of these 2 recent cases, it reaffirms the true purpose of verifying the signature is to 1) prevent voter fraud and 2) provide enough information to confirm the signer is qualified to sign the petition and vote in the election.
Using these cases, TPS verified the signatures based on whether or not the signer provided enough information to be verified as valid
As no one in TPS is a licensed handwriting expert, we did not determine the validity based on whether or not the signature is the actual signature of the person named. As there have been no claims by the Lubbock City Attorney or Clerk of forgery or fraud, we assume the signature is a valid and does purport to be the person listed.
Using these criteria, TPS made the following findings:
TPS City (final count)
Total Number of Signatures Gathered 670 670
Total Valid Signatures 485 453
Total Signatures Not Validated 185 217
Difference from No. Required for Recall 9 41
While we were successful in verifying a number of signatures denied by the City of Lubbock, the threshold needed to order the recall was not reached by the petitioners and was insufficient by 9 signatures. However, we did find 11 signatures, some of which could have been valid but were not counted due to incorrectly filling out the form or inconsistent information. Some of these signatures may in deed be valid registered voters.
TPS Findings vs. City of Lubbock
Clearly TPS finds issues with some of the signatures not counted by the City of Lubbock, particularly as it relates to the date of birth and the date the petition was signed.
Date of Birth
There are two issues that could cause an otherwise valid signature to appear to be invalid, when the date of birth does not match exactly what is listed on the voter list.
The State of Texas says a signature is valid if either the date of birth or voter certificate number is present. The City of Lubbock Charter requires the signature, residence address and "other information as may be required by the State of Texas". Therefore, the City of Lubbock should have accepted any signature where either the date of birth OR voter number is present and correct. If one is incorrect but the other correct, then the signature would still be valid.
However, the City of Lubbock denied several signatures based on DOB. We felt a number of the signatures should have been accepted because there was other data present (address, voter #) to determine if the signature can be verified and in some cases, the verifier simply erred when invalidating a signature due to DOB when the numbers actually matched or the number on the petition was off by a digit from what is listed on the voter rolls-i.e. example #1 above. (Mojica (p 157), Ramos (p.168), Perez (p. 158), Alcorte (p. 144) and others.
This is clearly the area ripest for legal challenge. Again, going on the premise of "voter intent" and "the will of the voter", invalidating a signature because the date signed box is left blank is grounds for challenge when you consider:
Both In re: Bell and Fejtland, the standard is not to throw out otherwise valid signatures on superficial technical grounds if the signatures can be verified by other means.
This is even more the case for those signatures denied due to missing date signed, when other signatures before and after the particular signer do have the date signed, ie. If the person who signed above Jane Doe signed on May 15 and the person after Jane Doe signed on May 15th, it is reasonable to ascertain that Jane Doe must have signed the petition on May 15th.
One issue that should be addressed by the City and State officials are those instances when the person is registered to vote, but their residence no longer matches the information on the voter lists. Several signatures were disallowed for the reason "not registered in District 1", which leads us to believe the person was registered to vote in the City of Lubbock, but in some other District.
Example: John Doe registers to vote in 2006. He lives in District 3. In 2007, he moves to an address in District 1 and has not updated his voter information to his new address. Technically he is still a registered voter in the City of Lubbock. The fundamental question is which "residence address" is valid? Is the person required to go by the address on the voter card, which is clearly no longer his residence or by his current address?
If the issue is resolved that the current address is correct, TPS identified 30 signatures disallowed as "not registered in District 1". Assuming the current address is in District 1, and all other data is accurate, the petitioners would have had enough to force the recall election.
Even with the liberal interpretation of state law and city charter, the petitioners did not meet the threshold necessary to order the recall, unless the current vs. former address is resolved.
City of Lubbock
The City of Lubbock should review its policy on validation and determine a more reasonable approach to accepting signatures particularly when the date of birth and date signed are the stated reasons for denial.
The list of registered voters is available as public information thru various government entities (County, City, and State). Therefore, the petitioners should have verified and completed missing information such as the date of signing and voter registration number. This would have enabled them to keep a more accurate count of how many qualified voters had signed the petition and enabled them to continue circulating the petition until the proper amount had been collected.
State of Texas
The issue of which residence address should be more clearly defined as it relates to when people move within the same jurisdiction.