Opinion
No. 05-17-00209-CV
03-06-2017
IN RE KRISTI PENA, Relator
Original Proceeding from the City of Irving Dallas County, Texas
MEMORANDUM OPINION
Before Justices Francis, Evans, and Whitehill
Opinion by Justice Whitehill
This election dispute turns on whether a petition accompanying a ballot application for a candidate for the office mayor of the city of Irving, contain the required number of valid registered voter signatures. More specifically the issue in this mandamus context is whether there is a genuine fact issue regarding the validity of at least three of the five petition signatures that the respondent Shanae Jennings, Irving's city secretary, refuses to accept as valid signatures. If at least three of those five challenged signatures are valid, then relator Kristi Pena (an Irving mayoral candidate) has the required number of valid signatures on her petition and Jennings has a ministerial duty to accept the application and place the candidate on the ballot and mandamus is proper.
Resolving the fundamental question requires us to address these subsidiary questions:
1. What constitutes a valid signature?
2. Who has the burden on the question of validity?
3. What evidence is to be considered? For the reasons discussed below, we conclude that the challenged signatures are facially valid and there is no evidence to invalidate at least three of the five signatures Jennings deemed invalid. Therefore, the petition contains the required valid signatures needed to obtain a place on the ballot. Consequently, Jennings has a ministerial duty to place Pena on the upcoming Irving mayoral election ballot.
I. Factual Background
We draw the following facts from the mandamus record compiled from the pleadings and evidence both parties submitted:
Relator Kristi Pena filed an application to be included as a candidate in the May 2017 election for the office of mayor for the city of Irving. To be listed on the ballot, Pena was required to timely file with respondent Jennings a proper application with an accompanying petition containing at least thirty-six valid signatures of registered Irving voters.
Pena filed her application shortly before the filing deadline. Her application included petition pages containing the names of thirty-eight registered voters residing in Irving. Each of the required spaces for each of the thirty-eight petition signers contains information responsive to the required information.
Although the signature line for one of the challenged signers, George Carter, has information in two spaces transposed, Jennings does not object to that discrepancy and it would not matter if she did. TEX. ELEC. CODE ANN. § 141.063.
Jennings attempted to verify the validity of those thirty-eight signatures by searching on the Dallas County voter registration website. Based on that web-search, Jennings determined that Pena's petitions contained five invalid signatures, which reduced the number of valid signatures to three signatures below the minimum of thirty-six signatures Pena needed to secure her place on the ballot. The five signatures Jennings deemed invalid are for (i) Diane Gilbert, (ii) Judy Gillespie, (iii) "Ge P Carter," (iv) Allen Schram, and (v) Brittani Rose. Jennings therefore notified Pena that Pena would not be listed on the ballot for this election.
Pena responded by providing Jennings with affidavits from the Dallas County Elections Administrator and each of the five signers whose signatures Jennings considered invalid. According to Pena, those affidavits establish that each of the five challenged signatures was valid when Pena submitted her application.
Jennings responded that Pena's post-filing period evidentiary submissions to Jennings are untimely attempts to amend her application and cannot be considered when deciding whether the challenged signatures are valid.
Pena filed a petition for mandamus asking us to order Jennings to place Pena on the ballot. We denied that particular petition without prejudice based on procedural grounds. Pena filed the current petition, to which Jennings responded.
Now having an adequate record before us, we conclude Pena is entitled to her requested relief.
II. Analysis
A. Mandamus Standards
This Court has jurisdiction to consider relator's petition and to "compel the performance of any duty imposed by law in connection with the holding of an election ... regardless of whether the person responsible for performing the duty is a public officer." TEX. ELEC. CODE ANN. § 273.061. To be entitled to mandamus relief, relator must establish (i) a legal duty to perform a non-discretionary act, (ii) a demand for performance, and (iii) a refusal to perform the non-discretionary act. In re Cullar, 320 S.W.3d 560, 563-64 (Tex. App.—Dallas 2010, orig. proceeding). This Court, however, may not resolve factual disputes in a mandamus proceeding. Id. Further, "[a]ny constitutional or statutory provision which restricts the right to hold office must be strictly construed against ineligibility." Id. (quoting Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992) (orig. proceeding)).
Given the time exigencies that exist in this case, we conclude that Pena would not have an adequate remedy by appeal. See In re Meyer, No. 05-16-00063-CV, 2016 WL 375033, at *4-6 (Tex. App.—Dallas Feb. 1, 2016, orig. proceeding) (mem. op.)
B. What constitutes a valid signature?
(a) A signature on a petition is valid if:
(1) except as otherwise provided by this code, the signer, at the time of signing, is a registered voter of the territory from which the office sought]. . .;TEX. ELEC. CODE ANN. § 141.063.
(2) the petition includes the following information with respect to each signer: (A) the signer's residence address; (B) the signer's date of birth . . .; (C) the date of signing; and (D) the signer's printed name;
(3) the part of the petition in which the signature appears contains the affidavit required by Section 141.065;
(4) each statement that is required by this code to appear on each page of the petition appears, at the time of signing, on the page on which the signature is entered; and
(5) any other applicable requirements prescribed by this code for a signature's validity are complied with.
Notably, this statute does not require any specific form of signature in terms of using formal names or nicknames. Nor does it require the signer to use the exact name form shown on his or her voter registration. Rather, as to the signer's name, the statute requires only that it be the signature of a registered voter residing in the relevant territory for that election. Indeed, the statute expressly permits abbreviated names. TEX. ELEC. CODE ANN. § 141.063(c). The statute provides additional examples of when a non-essential defect is excused. See id. § 141.063(d). Thus, the critical aspect is that the signature in fact be that of a registered voter residing in the relevant area at the relevant time.
We also conclude that the secretary of state's Election Advisory No. 2013-14 concerning "Substantially Similar Names and Voting," while not binding authority, presents persuasive logic. That advisory presents persuasive logic because it comports with the relevant statutory language in this case.
As discussed below, as to Gillespie and Schram, Jennings does not raise a fact issue regarding whether the information on their signatures lines is incomplete or inaccurate. Thus, to resolve this case we need decide only whether Carter's abbreviated-name signature met these requirements when the filing period ended. We conclude, based on this record, that it does.
C. What evidence is to be considered?
Jennings argues that the five signatures should be invalidated because she could not verify their validity from the county's voter registration website. We disagree because the election code imposes no such requirement.
Jennings further contends that a signature's validity is to be determined as of when the filing period ends. The election code, however, does not limit the evidence to only what is on the face of the petitions. Jennings consulted the Dallas County voter registration website to obtain additional information. Likewise, Pena was also permitted to provide evidence beyond the face of the petition pages themselves to establish validity and answer Jennings' concerns. Her evidence does not amend the petition, it merely bears on whether the signatures on the petition are valid.
D. Who has the burden on the question of validity?
Election code § 141.065(b) provides that if a petition contains the information required in subsection (a) addressing the petition's affidavit requirements, then:
[F]or purposes of determining whether the petition contains a sufficient number of valid signatures, the authority with whom the candidate's application is filed may treat as valid each signature to which the affidavit applies, without further verification, unless proven otherwise.TEX. ELEC. CODE ANN. § 141.065(b)(emphasis added).
This statute's necessary import is that a petition signature appearing valid on its face creates a rebuttable presumption that it is a valid signature unless proven otherwise. See In re McReynolds, 502 S.W.3d 884, 886 (Tex. App.—Dallas 2016, no pet.) (when construing a statute, the appellate court's "starting point is the plain and ordinary meaning of the statute's words"); Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812, 816 (Tex. App.—Dallas 2009, no pet.) (statutory construction begins with the statute's plain language "because we assume the legislature said what it meant, and thus, that its words are the surest guide to its intent"). Thus, the person claiming invalidity has the burden of overcoming that presumption with contrary evidence.
Because mandamus relief is not available if fact questions exist, Jennings has the burden to present evidence establishing a genuine issue of material fact regarding the validity of the challenged signatures she relies on to reject Pena's application. See, e.g., In re Meyer, 05-16-00063-CV, 2016 WL 375033, at *5-6 (Tex. App.—Dallas Feb. 1, 2016, orig. proceeding) (mem. op.) (denying request for order prohibiting certification of candidate because "[a] suit for injunctive relief in an appropriate trial court is the proper avenue for relief if a person is in danger of being harmed by a threatened violation of the election code."); see also In re Cullar, 320 S.W.3d 560, 566-67 (Tex. App.—Dallas 2010, orig. proceeding) (denying mandamus relief where relator failed to present public records to election authority before seeking relief in the appellate court)
E. Did Jennings show that there is there a genuine issue of fact that would invalidate at least three of the five disputed signatures?
For purposes of this opinion, we discuss only whether the signatures for Gillespie, Schram, and Carter are valid signatures (without expressing any opinion regarding whether Gilbert's and Rose's signatures are valid). For each of these three signers, the evidence shows that their signature met all six requirements when Pena submitted the petitions to Jennings. Specifically, Pena's evidence shows that for each such signer
1. he or she was at all relevant times a registered voter in Irving;
2. he or she provided his or her residence address, date of birth, and printed name; and
3. the petition reflects the date he or she signed the petition. The only such aspect Jennings contests for any of these three signers is whether Carter's abbreviated name "Ge P Carter" invalidates his signature. As to abbreviations, the election code provides that "The use of . . . abbreviations does not invalidate a signature if the required information is reasonably ascertainable." See TEX. ELEC. CODE ANN. § 141.063(c).
We conclude "Ge" is a reasonably ascertainable abbreviation for George because it contains the first and last letters of the name George like the abbreviation "Wm" contains the fist and letters of the name William. Regardless, Carter's affidavit confirms that he uses "Ge" to abbreviate George and Jennings produced no contrary evidence.
Because the evidence shows Carter uses "Ge" to abbreviate his name George, which premise is reasonable on its face and which fact Jennings does not contest with contrary evidence, we conclude Jennings did not create a fact issue regarding his signature's validity. Therefore, Jennings has a ministerial duty to accept his signature as valid.
III. Conclusion
Pena complied with all requirements to be on the ballot. Where the refusal to place a candidate on the ballot is outside the candidate's control and caused by an election official's failure to perform a ministerial duty, the Texas Supreme Court has consistently held that the candidate should not be punished and should not suffer the consequences caused by the election official's failure. See, e.g., Davis v. Taylor, 930 S.W.2d 581, 583, 584 (Tex. 1996) ("In the past, when a candidate has been denied a place on the ballot solely through the fault of responsible officials, we have generally granted mandamus relief."); see also LaRouche v. Hannah, 822 S.W.2d 632, 633 (Tex. 1992) (ordering a candidate in the Democratic presidential primary to be certified after the statutory deadline where the party's refusal to certify the candidate was based on a mistake of law); Painter v. Shaner, 667 S.W.2d 123, 125 (Tex. 1984) (granting mandamus relief for sheriff who was threatened with omission from the ballot where the candidate was unable to timely file a statutorily required application with the county party chair because the party's offices were locked on the date of the statutory deadline and noting that the candidate would be deprived of a place on the ballot through no fault of his own).
Here, Pena should not be denied a place on the ballot simply because the City Secretary failed to perform her ministerial duty of accepting the application and placing Pena on the ballot.
IV. Disposition
Accordingly, we conditionally grant the writ of mandamus. We order respondent, in her official capacity as City Secretary of Irving, Texas, to accept Kristi Pena's application and petition, certify her to be placed on the May 6, 2017 ballot for the office of Mayor of the City of Irving, and redraw for the order of names on the ballot. A writ will issue only in the event the City Secretary fails to comply as directed herein within three business days of the date of this opinion. We further order respondent to file with this Court, within three business days of the date of this opinion, proof that she has complied.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 170209F.P05