Fight over Houston LGBT policy goes to court

Courts | The jury will decide whether city officials intentionally sabotaged a petition drive to put the Equal Rights Ordinance on the ballot
by Bonnie Pritchett
Posted 1/28/15, 11:00 am

HOUSTON—An attorney defending the City of Houston lobbed accusations of fraud and forgery against a coalition of pastors during the first day of the trial challenging the city’s dismissal of a petition to repeal a controversial LGBT rights ordinance. The plaintiffs’ attorney acknowledged the inevitability of errors in the signature collection process but called the city’s disqualification of more than 90 percent of the signatures groundless and without precedent.

Geoffrey Harrison, one of more than a dozen private and municipal attorneys defending the City of Houston, was unrelenting Tuesday as he questioned the first witness, Dave Welch, president of the Houston Area Pastors Council and a leader in the effort to repeal the Equal Rights Ordinance. Harrison admitted into evidence dozens of pages of petitions he said were “rife with fraud and forgery.”

At issue is the validity of 54,000 signatures on a petition circulated by The No UnEqual Rights Coalition, an ad hoc association of area pastors and Houston residents. The group organized to repeal a city ordinance passed last May that gives protected status to individuals based on their sexual orientation and gender identity. The coalition submitted a 5,199-page petition in June to City Secretary Anna Russell, who initially certified the requisite number of signatures to put the ordinance on the November ballot.

But then-City Attorney Dave Feldman, who conducted a simultaneous review of the petition pages, disqualified more than half of them, leaving the coalition with just 15,249 of the 17,269 valid signatures needed to call the referendum. In an Aug. 4 press conference, Mayor Annise Parker and Feldman announced the petition had failed and the ordinance would be enforced immediately. The coalition sued.

As the city prepared for trial, attorneys requested copies of the pastors’ sermons, email communication, and other correspondence that included reference to their beliefs about homosexuality. The request sparked a national outcry and accusations of free speech suppression. Parker and her attorneys withdrew the request, but only in part.

The plaintiffs assert Feldman, who resigned in December, had no authority under the city’s charter to review and summarily disqualify the petitions. They also claim he used an arbitrary standard for excising whole swaths of pages.

The jury panel of six men and eight women—a mix of white, African-American, Hispanic, and Asian jurors—listened expressionless for most of the proceedings but appeared to tire of Harrison’s four-hour cross-examination of Welch.

As he presented the jury with page after page of disqualified petitions, Harrison repeatedly asked Welch, “Is it fraud? Is it forgery? Is it a mistake?”

Welch, who maintained a calm demeanor during most of the grilling, visibly bristled at the accusations.

“You are calling an entire community of people criminals,” Welch said. “Fraud and forgery are crimes of intent, which you know. That’s what you’re asserting and it’s a flat-out lie.”

The definition of “signature” and where it should be located on the sworn affidavit portion of the petition represented two of the city’s major points of contention and most potent means of eliminating signatures. Before submitting their petition pages, each circulator was required to present them to a notary public, before whom the circulator would sign a sworn oath stating all of the signatures had been collected in his or her presence. The bottom portion of the petition page was reserved for that documentation and the notary’s signature and seal.

Welch testified he created the petition page by copying relevant elements gleaned from the Houston City Charter provided in a link on the city’s official website.

That proved problematic.

Welch left out a line in the notary verification portion of the document he said appeared “superfluous.” Harrison insinuated the line was for the circulator’s signature. Without a notary-certified circulator signature, the entire petition sheet with all its signatures was unacceptable, he said. That charge alone invalidated 1,268 petition pages containing 6,443 signatures.

When Harrison asked Welch why he left out the signature line, Welch pointed blame at the documentation provided by the city: “We had reason to trust the city, that what they presented on their website was accurate.”

In the absence of an obvious signatory line, circulators signed the portion of the affidavit reserved for their name in the sworn oath. Some circulators printed their names, others used cursive.

That, too, became justification for dismissing entire pages. Harrison asserted the circulator’s signature had to be in cursive, and legible, in order to be valid.

But plaintiffs attorney Andy Taylor noted in his opening comments and subsequent questions to Welch that the State of Texas recognizes a person’s “mark” as a signature if it is witnessed by a notary who confirmed the identity of the signer.

“Every notary puts their license on the line when they validate a document,” he said.

The city tossed out an additional 5,000 signatures because no one reviewing the pages could read the circulators’ handwriting.

In their effort to “pre-certify” the petition to ensure they had enough valid signatures before submitting them to the city, volunteers only looked to see if a person’s name matched a voter registration number for a city of Houston resident. But with only 30 days to train volunteers to collect and research signatures, Welch admitted some collectors probably made mistakes.

“We’re not saying anyone committed fraud,” Taylor told reporters during a break in the proceedings. “What we’re saying is well-intentioned voters from time to time did not following all of the rules. We’re not here to try and defend things that were mistakes.”

The trial is expected to last into February, with Parker likely to testify next week.

Bonnie Pritchett

Bonnie reports on First Amendment freedoms for WORLD Digital.

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