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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.

There are other limits identified in the AG opinion:

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.

Chris Geidner has the report:

After Boulder County Clerk Hillary Hall had been issuing marriage licenses to same-sex couples for more than a month, the Colorado Supreme Court on Tuesday ordered her to stop doing so for the time being.

Hall’s office reported Tuesday that it granted 202 licenses to same-sex couples since starting doing so last month.

“I am disappointed by the Colorado Supreme Court’s stay, but I will comply with the order,” Hall said in a statement. “Given the avalanche of recent cases determining that same-sex marriage bans are unconstitutional, I am hopeful the stay will be short-lived and that we will be able to resume issuing licenses soon.”

 

This morning my colleagues and I announced our new paper, discussing our model that was able to predict 70.9% of the votes of the Justices, in every case decided since 1953. This afternoon I spoke with Debra Cassens Weiss, who wrote a feature about the new project.

A South Texas College of Law assistant professor who developed a Supreme Court fantasy league says he and two colleagues have developed a computer model that can predict decisions of the court and individual justices.

Law professor Josh Blackman, writing at his blog, says his computer model, applied to cases since 1953, correctly identifies 69.7 percent of the court’s affirmances and reversals, as well as 70.9 percent of the votes of individual justices. A paper at SSRN has details.

The predictions are based on data that was available before the court’s decision. Ninety variables are used, including the party of the appointing president, the court era in which the decision is written, the court and justice’s ideological direction, and the agreement level of the court. The model compares predictions for each case to what actually happened, learning which variables work and which don’t.

“While other models have achieved comparable accuracy rates,” Blackman writes, “they were only designed to work at a single point in time with a single set of nine justices. Our model has proven consistently accurate at predicting six decades of behavior of thirty justices appointed by 13 presidents.”

Blackman says he will be hosting a tournament where fantasy SCOTUS players compete against the algorithm. “What IBM’s Watson did on Jeopardy, our model aims to do for the Supreme Court,” he writes.

Stay tuned for a lot more cool stuff.

In the aftermath of the Ashby High Rise decision, which allowed neighbors to sue for damages under a nuisance theory for out-of-place constructions, another suit has been filed.

 A second lawsuit filed against the 17-story office tower planned in a River Oaks-area neighborhood may be a sign that residents increasingly feel empowered to fight developments they don’t like in court, fulfilling a prediction made by observers in the years-long battle over the Ashby high-rise.

One legal observer said it could portend more “fireworks” in the future.

Construction is well underway on San Felipe Place, a “boutique” office tower by Houston-based Hines. Yet a lawsuit filed earlier this month argues the tower would increase traffic, interfere with privacy, cast plant-killing shadows and erode the character of the neighborhood. Hines denies the allegations and says the lawsuit is without merit.

This is the second lawsuit filed against the tower at 2229 San Felipe planned in a mixed-use area between Shepherd and Kirby. The arguments made by a husband and wife who own a home on nearby Stanmore Street are similar to those made in an earlier lawsuit filed against the development company.

…

In the lawsuit filed June 15 against the San Felipe tower, the homeowners are seeking damages for their loss of property value. This differs slightly from the previous lawsuit, filed in February, which sought to stop the project through permanent injunction. A judge denied the plaintiffs’ request for a temporary restraining order to stop construction.

This has echoes of the Ashby litigation:

Both actions seem to echo complaints in the battle against the residential tower planned at 1717 Bissonnet, widely referred to as the Ashby high-rise, in an affluent neighborhood near Rice University.

A Harris County judge ruled earlier this year that tower can go forward but the development company, Houston-based Buckhead Investment Partners, must pay damages for loss of market value to 20 of the residents who sued last year. Defense lawyers have said they will challenge those damages on appeal.

My colleague Matt Festa aptly sums up the suits–“death by a thousand cuts”:

Observers have said the Ashby case could have an effect on development moving forward. Now, local land-use experts say the San Felipe project and the neighbors’ fight against it may be the first evidence of that.

“They could be taking from the Ashby logic,” said Matthew Festa, a South Texas College of Law professor who specializes in land use issues, who testified for the developers in the November trial. “It could be a death by a thousand cuts: everyone who lives nearby suddenly feels empowered to sue for damages.”

The real damages of awarding damages is that it chills construction:

Barry Klein, president of the Houston Property Rights Association, said not many homeowners could afford the costly litigation involved in the Ashby and San Felipe cases.

“Maybe this is a case where people have so much money, it’s a way to cause pain to the developer, even though they recognize they can’t stop the tower,” Klein said. “It could simply be spite on their part to cause the developer more trials and tribulations. … Most neighborhoods don’t have people that can take the legal gamble like this. I don’t expect this will happen in many parts of Houston.”

Stay tuned.

 

In her Potomac Watch Column, Kimberly Strassel discusses at length how the Treasury Department promulgated the rule at issue in Halbig. Based on report by the House Government Oversight and Ways and Means Committee, Strassel observes that political appointees in Treasury and HHS pushed to issue the rule, even though career employees thought the statute prohibited the payment of subsidies in states that did not establish exchanges. Here are the key paragraphs.

We know that in the late summer of 2010, after ObamaCare was signed into law, the IRS assembled a working group—made up of career IRS and Treasury employees—to develop regulations around ObamaCare subsidies. And we know that this working group initially decided to follow the text of the law. An early draft of its rule about subsidies explained that they were for “Exchanges established by the State.”

Yet in March 2011, Emily McMahon, the acting assistant secretary for tax policy at the Treasury Department (a political hire), saw a news article that noted a growing legal focus on the meaning of that text. She forwarded it to the working group, which in turn decided to elevate the issue—according to Congress’s report—to “senior IRS and Treasury officials.” The office of the IRS chief counsel—one of two positions appointed by the president—drafted a memo telling the group that it should read the text to mean that everyone, in every exchange, got subsidies. At some point between March 10 and March 15, 2011, the reference to “Exchanges established by the State” disappeared from the draft rule.

Emails viewed by congressional investigators nonetheless showed that Treasury and the IRS remained worried they were breaking the law. An email exchange between Treasury employees in the spring of 2011 expressed concern that they had no statutory authority to deem a federally run exchange the equivalent of a state-run exchange.

Yet rather than engage in a basic legal analysis—a core duty of an agency charged with tax laws—the IRS instead set about obtaining cover for its predetermined political goal. A March 27, 2011, email has IRS employees asking HHS political hires to cover the tax agency’s backside by issuing its own rule deeming HHS-run exchanges to be state-run exchanges. HHS did so in July 2011. One month later the IRS rushed out its own rule—providing subsidies for all.

I went through the lengthy report, which provides a fascinating window into the rule-making process, or what I have affectionally dubbed regulation by blog post. These Issa reports are like crack for policy wonks. Here are some of the highlights.

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