Shipley v. Harris County Democratic Executive Committee , 795 S.W.2d 766 ( 1990 )

OPINION

SAM BASS, Justice.

This is an election mandamus in which the relator, Donald K. Shipley, seeks to have this court disqualify his opponent in the Democratic primary election for judge of the 182nd District Court. He claims that a sufficient number of signatures contained on the petitions supporting Correa’s application are invalid so that the total is below the required 250.

To be entitled to appear on the ballot, Correa’s application must be accompanied by a petition, or petitions, containing the valid signatures of not less than 250 qualified voters. Tex.Elec.Code Ann. §§ 141.-062, 141.063 (Vernon 1986), 172.021 (Vernon Supp.1990). Section 141.063 sets out the requirements for a valid signature on a petition. A signature must, among others, meet the following requirements: 1) the signer must be a registered voter; 2) the petition must include the signer’s residence address, the signer’s voter registration number, the date of signing, and the signer’s printed name; and 3) the petition containing the signature must contain an affidavit of the circulator.

Shipley challenges signatures on the following bases: the signer is not a registered voter; the voter registration number is missing; the voter registration number is incorrect; the signature is missing; neither a city nor zip code are listed; the name listed does not match the voter registration number on file with Harris County Tax Assessor; the affiant witnessed his or her own signature; there is no printed name; no city is listed; an incomplete or no zip is listed; the address listed does not correspond with address listed by the Harris County Tax Assessor; date of signature is missing; and date of signature on the petition is incomplete.

Attached to the petition is an affidavit from the Harris County Tax Assessor-Collector showing that 59 names on the petition “do not appear on the current list of registered voters.” Correa disputes this list and has submitted an affidavit of the deputy clerk and assistant supervisor in the voter registration section of the Harris County Tax Assessor-Collector’s office. The deputy clerk states that 24 of the 59 signatures do in fact represent registered voters. Assuming that these 24 signatures are valid, 35 remain for which Correa presents no evidence that they are registered voters. Dunn v. Slagle, 783 S.W.2d 953 (Tex.App.-Houston [14th Dist.], 1990, orig. proceeding), citing Sparks v. Busby, 639 S.W.2d 713, 718 (Tex.Civ.App.-Tyler 1982, writ dism’d w.o.j.). We find that these 35 signatures are not valid.

We also find that, accounting for overlap, the net 3 signatures that do not include a voter registration number are not valid. Id. (Citing Gray v. Vance, 567 S.W.2d 16, 17 (Tex.Civ.App.-Fort Worth 1978, no writ)).¹ We find that the net 5 signatures that contain an incorrect registration number are invalid. Id. We find that the 1 signature that does not contain either the city or a complete zip code is not valid. Id.

Three of the signers witnessed their own signatures. Tex.Elec.Code Ann. § 141.063(3) requires that the part of the petition in which the signature appears contain the affidavit required by section 141.-065. This section requires that the affidavit of the circulator state that he or she has:

(1) pointed out and read to each signer, before the petition was signed, each statement pertaining to the signer that appears on the petition;

(2) witnessed each signature;

(3) verified each signer’s registration status; and

(4) believes each signature to be genuine and the corresponding information to be correct.

Tex.Elec.Code Ann. § 141.065 (Vernon 1986).

This ensures that a third person has pointed out the required information to the signer and is designed to be a check on the signature signing process. See Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App.-Dallas 1976) (orig. proceeding). We hold a signature verified by its signer invalidates the signature and we find that the 3 signatures in this category are invalid.

Next we turn to the issue of whether the signer must include his or her full address on the petition, including both city and zip code. This challenge is directed at a net 33 signatures.²

Tex.Elec.Code Ann. § 141.063(2)(A) requires that the petition include the signer’s residence address. Tex.Elec.Code Ann. § 1.005(17) defines residence address as:

the street address and any apartment number, or the address at which mail is received if the residence has no address, and the city, state, and zip code that correspond to a person’s residence.

(Emphasis added.)

In Love v. Veselka, 764 S.W.2d 564 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding), this Court found that the requirement that the state be included in the address was not essential. The court based its decision, in part, on the fact that the form provided by the secretary of state did not contain a line or blank space designating that the petition signer should insert the word “Texas” as a required item of information. Id. at 565. It also noted that the inclusion of the word “Texas” would seem to be “superfluous” because of the requirement that the petition signer designate a valid Texas voter registration number. The inclusion of the address or zip code is not superfluous. Unlike the Love case, there are blanks in the forms for the city and the zip code; and, in fact, the abbreviation “TX” is now printed in the prescribed form. The requirements of § 141.063 are mandatory and a candidate must strictly comply with the Election Code. Gray v. Vance, 567 S.W.2d 16 (Tex.Civ.App.-Fort Worth 1978, no writ, orig. proceeding). Therefore, we hold that the 33 signatures that either do not contain the city or do not contain a complete zip code are not in compliance with the code. We find that these 33 signatures are not valid.

Because the requirements are mandatory, we also find that the omission of a signature invalidates the attempt to sign the petition. In our case, there is 1 instance in which there is no signature. Under the same rationale that the § 141.063 requirements are mandatory, we find that the omission of the date of signing and an incomplete date³ invalidate the signature. Tex.Elec.Code Ann. § 141.063(2)(C). On this basis, we find a total of 4 invalid signatures.

Correa’s petition contains 333 signatures. We have found that 35 are not registered voters, that 3 do not include a voter registration number, that 5 contain an incorrect registration number, that 1 contains neither the city nor the zip code, that 3 signers witnessed their own signatures, that 33 do not include both the city and a complete zip code, that 1 signature is missing, and that 4 contain no date or an incomplete date. These figures total 85 invalid signatures, leaving 248, less than the required 250. We, therefore, need not reach the other contentions of the parties.

Accordingly, we grant the petition for writ of mandamus and order the chair of the Harris County Democratic Executive Committee to reject Correa’s application, deliver to Correa written notice of the reason for rejection, and certify in writing a declaration of ineligibility to the canvassing authority for the election. See Sears v. Bayoud, 786 S.W.2d 248 (Tex.1990); Tex. Elec.Code Ann. § 145.003(g) (Vernon 1986). Because of the time constraints on the action, we will entertain no motion for rehearing.

1 . In Pilcher v. Rains, 853 F.2d 334 (5th Cir. 1988), the trial court found that a provision of the Texas Election Code requiring voter registration numbers on minor-party ballot access petitions was an impermissible burden on access to the ballot under the first and fourteenth amendments to the United States Constitution. In order to have its nominees placed on the ballot, Tex.Elec.Code Ann. § 181.006(b)(2) (Vernon 1986) required the Libertarian party to collect a number of signatures of registered voters equal to one percent of the total votes cast in the last gubernatorial election. Each signature had to he accompanied by the signer’s voter registration number. This meant that the Libertarian party was required to obtain 34,415 signatures and corresponding voter registration numbers. Pilcher, 853 F.2d at 334. After reviewing the evidence and noting that the State had produced no evidence concerning the necessity of the requirement, the court held that the trial court’s finding was not clearly erroneous.

Pilcher is distinguishable from the case before this Court. First, Pilcher dealt with a political party’s access to the ballot, as opposed to an individual candidate’s access. Second, the number of voter registration numbers required in Pilcher was 34,415 compared to 250 in the case before this Court. Finally, the Libertarian party had to fulfill requirements not imposed on the major political parties; in the case before this Court, relator does not have to fulfill any requirement that has not been imposed on the other candidates. Because this case does not involve a complaint that the voter registration number requirement is an unconstitutional burden on a political party's access to the ballot, Pilcher is not controlling.

2 . This number does not include those signatures with partial zip codes. We do not decide the issue of whether a partial zip code is sufficient.

3 . Relator claims an additional incomplete date, but the poor quality of reproduction of the petition keeps us from being able to determine absolutely that the date is incomplete. Accordingly, respondent is credited with a complete date.