Just in Time for Halloween, Fifth Circuit Reanimates Challenge to “Zombie” Law

In Pool v. City of Houston, No. 19-20828 (5th Cir. Oct. 23, 2020), the Fifth Circuit holds that the district court had subject-matter jurisdiction to consider a constitutional challenge to a petitioning ordinance deemed unconstitutional 20 years earlier and arguably no longer enforced.

“It is often said that courts ‘strike down’ laws when ruling them unconstitutional. That’s not quite right …. Courts hold laws unenforceable; they do not erase them …. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example.

“The City of Houston contends that it’s being sued for one of these so-called ‘zombie’ laws. Its Charter allows only registered voters to circulate petitions for initiatives and referenda, even though the Supreme Court held a similar law unconstitutional twenty years ago. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999). This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court.”

The plaintiffs wished to circulate a “2019 petition sought to put an ordinance on the Houston ballot that would limit campaign contributions from City contractors to candidates for municipal office.” The city’s petition form continued to say that only qualified voters could legally circulate petitions. After making an inquiry of the city’s Legal Department and getting no definitive response, the plaintiffs filed their federal lawsuit. “Within a week, however, the City informed the Pools that it would not enforce the Charter’s voter-registration requirement.” During the proceedings, the City conceded that the ordinance was unconstitutional.

The district court granted the plaintiffs a preliminary injunction to circulate their petitions for the 2019 election cycle, then thereafter dismissed the remaining claims for permanent injunctive relief on mootness grounds.

The Fifth Circuit reverses. It holds that the plaintiffs had standing to bring the action and, despite the City’s concession of unconstitutionality, their action for permanent relief was not moot.

Regarding standing, at least one of the plaintiffs “show[ed] a likelihood that they will continue to engage in the protected activity.” That plaintiff “has circulated petitions since at least 2008, runs a company devoted to circulating petitions, and says he wants to circulate petitions in Houston in future cycles. The 2019 … petition was not his first involvement with Houston petitions. [He] organized signature collections in support of the last referendum to reach the ballot, one seeking to undo the Houston Equal Rights Ordinance (HERO) that the City Council enacted in 2014.”

Although the plaintiff – to obtain standing – would need to show a “sufficient threat of future enforcement of the qualified-voter requirement,” the panel concluded that there was such a threat even though the ordinance was effectively a zombie law.

First, “the [Houston] petition form still obligated circulators to swear they are ‘qualified voters of the City of Houston’ … The City counters that this requirement remained on the form because it can be changed only by amending the Charter, which itself requires a successful referendum. But that does not explain why the City failed to inform the public during the two decades following Buckley that it would no longer enforce the qualified-voter provision even if it had to remain in the Charter.”

Second, “there is an objective basis for believing that the City has attempted to enforce the unconstitutional Charter provision since Buckley. In 2014, the last time that an initiative or referendum petition made it onto the ballot, the City deposed petition organizers—including [plaintiff]— about the validity of signatures they collected in view of the Charter’s petition-form requirements.” During the litigation of that case, the City argued that “[b]ecause the circulator’s affidavit is an express requirement of the City Charter, if a page does not contain a proper circulator’s affidavit then, as a matter of law, the signatures on that page are invalid and may not be counted.”

Thus, “[a]lthough there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston’s qualified-voter requirement we have recounted gives [plaintiff] standing to seek an injunction that would guard against continued chilling of his speech. This zombie shows signs of life.”

Regarding mootness, the panel observes this jurisdictional limitation covers only the period after the case commences, and that the burden is on defendant rather than plaintiff. It holds that at most during the pendency of the case, the City added a disclaimer to its website telling would-be petitioners that it was no longer enforcing the ordinance. “[I]t is not clear the City made a formal policy change. There is no evidence that the City Council approved the nonresident petition form published on the City’s website, so we do not know how permanent—or legally effective—the new form and editor’s note are.”

 “In ruling on the request for a permanent injunction, the district court may consider whether to allow additional evidence concerning the legal authority behind the new form and the extent to which it is binding. At this stage in the litigation, however, the City has told us that the new form is ‘irrelevant’ to our analysis. On its own words then, the City has not met its ‘heavy burden’ of showing that the … challenges are moot.”

In sum, “[a] reasonable concern that the City might enforce its unconstitutional Charter provision has raised this zombie law from the statutory necropolis.”

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