The U.S. Fifth Court of Appeals held plaintiffs had standing to challenge zombie law provision in charter despite the election being over.
Special contributing author Laura Mueller, City Attorney for Dripping Springs
Joe Richard Pool, III, et al. v. City of Houston, et al., No. 19-20828 (5th Cir. October 23, 2020).
In this appeal from a trial court’s dismissal of an election case. The U.S. Fifth Circuit reversed the trial court’s dismissal and held that the plaintiffs had standing to continue the suit for future petitions.
The plaintiffs are petition circulators who attempted to circulate a petition in the city where they are not registered voters. The city stated that it had a charter provision that required petitions to be circulated or signed by registered voters, but that they were going to look into the issue. While the city was researching the issue, the plaintiffs filed suit in federal district. The district court held that the charter provision was unconstitutional and granted the temporary restraining order preventing enforcement. After the petition period was over, the trial court dismissed the case as moot. The plaintiffs appealed. During the litigation, the city added an “editor’s note” to its charter that it would accept petitions from anyone and had a link to a new form regarding such. The city argues that it will not be enforcing the provision and has approved a form and notation to that effect which should preclude a permanent injunction case.
When laws are deemed unconstitutional they are not always updated or removed from documents. These are called zombie laws. The Houston Charter has a provision that limits petition signers to registered voters. This type of law was deemed unconstitutional in 1999 but was not removed from the city’s charter. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999). In order to show standing to overturn such a zombie law, plaintiffs must show that they are “seriously interested in disobeying, and the defendant seriously intent on enforcing, the challenged measure.” Justice v. Hosemann, 771 F.3d 285, 291 (5th Cir. 2014). The Fifth Circuit held that it was clear that the plaintiffs would continue to try to submit petitions despite not being registered voters and that the city’s notation and form were insufficient to prevent enforcement. The court held that the plaintiffs have standing and could continue their suit against the city for future petitions.
If you would like to read this opinion click here. Panel consists of Justices Graves, Costa, and Engelhardt. Opinion by Circuit Judge Gregg Costa.
