Jul 29, 2014

Posted in Uncategorized

LGBT Group Releases Signatures of 50,000 Houstonians Who Signed Petition To Repeal Discrimination Ordinance

Earlier this year, Houston passed the  The Houston Equality Rights Ordinance, which “prohibits discrimination on the basis of protected characteristics in city employment, city services, city contracting services, housing, public accommodations and private employment.” Led by the Harris County GOP and a number of Churches, signatures were collected for petitions to put on the ballot a repeal of the ordinance. Approximately 18,000 signatures were needed. Over 50,000 were collected.

HERO Petition, a group “dedicated to shining a light on the public petition process through the open records process,” has released the signatures and identifying information of over 50,000 Houstonians who signed this petition.

GayStarNews has a report:

A Texas LGBT group has published on the Internet the personal details of Texans who signed a petition against a recent LGBT anti-discrimination bill.

A group under the website HeroPetition.com, named after the Houston Equal Rights Ordinance (HERO), published the 50,000 names and addresses of Texans who want to overturn an anti-discrimination ordinance via public vote in November elections.

On their website, the group claims some voters have been conned into signing against the ordinance and encourages citizens to review all the signed pages of the petitions to watch for voter fraud.

‘There is documented evidence of deliberate voter fraud that may actually put petition signers at risk of criminal prosecution, including video of a petition gatherer telling people they could register to vote and immediately sign the petition – a direct violation of Texas Election Law.’

Beyond allegations of election fraud, I think there are also likely other motives for posting all of these names and addresses, with no redaction.

In Doe v. Reed, the Supreme Court found that a Washington law that permitted the public disclosure of petition signatures for ballot initiatives survived First Amendment scrutiny. In dissent, Justice Thomas alone wrote that disclosing the signatures “chills participation in the referendum process.”

Just as “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participa- tory democracy,” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent.

Doe v. Reed emerged as supporters of the same-sex marriage ban reported allegations of harassment and intimidation in Washington. Similar reports were made for supporters of Prop 8 in California.

Recently, I was talking to a friend who would have signed this Houston petition, but he told me that he feared what would happen to him if his name and contact information were released. Being publicly associated with this petition could harm him personally, and professionally, now and in the future. His concerns were well-founded.

I am in the process of researching Texas law concerning ballot initiatives. Here is the relevant section from the Houston code. Stay tuned.

Update: Rick Hasen addresses the issue of intimidation in this paper:

This concern about leftist harassment appears to be widespread among staunch conservatives. As NOM lawyer Jim Bopp recently put it in a posting to the Election Law listserv, “Blacks, gays and leftist[s] were harassed yesterday; conservatives and Christians are harassed today. And no one is safe from the thugs and bullies tomorrow.”24 But courts looking at the empirical evidence of harassment have concluded otherwise. In the remand in the Doe case, the court found virtually no evidence that voters who signed of the anti-gay rights referendum were subject to harassment.25 Nor did financial contributors who supported the referendum face harassment. It was true, and lamentable, that national public leaders of anti-gay marriage measures suffered some harassment, but mere petition signers or contributors did not.26

25 Doe v. Reed, No. C09 5456BHS, 2011 WL 4943952, at *18 (W.D. Wash. Oct. 17, 2011) (“Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as ‘serious and widespread.’”).

26 Id. at *19 (Plaintiffs “have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence.”).

Update 2: I used the word “leak” in the title because that was the word the report from GayStarNews used. I don’t know the provenance of the signatures, nor do I know how the group obtained them. I spoke with a reporter friend at the Houston Chronicle, and he hadn’t even heard of this. When I know more, I’ll update the post accordingly.

Update 3: A friend who is well-versed in Texas law refers me to a 1990 opinion of the Texas Attorney General. Texas election law is silent about the disclosure of public information. The AG opinion finds that petitions are public records, that can be disclosed under the Open Records Act.

opinion1

There are other limits identified in the AG opinion:

opinion-2

The Houston charter says that citizen referendums follow the same process. So, they would have to be disclosed under the public records law.

Stay tuned for more information. I modified the title of the post as it isn’t clear exactly what a “leak” would constitute here, in light of the law, as reported by GayStarNews.

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