4/14/2015 4:14:26 PM

Chris Daniel - District Clerk Harris County

Envelope No. 4887396
By: SALENE SMITH
Filed: 4/14/2015 4:14:26 PM

Case No. 2014-44974

In the District Court of

Harris County, Texas

152nd Judicial District Court

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Jared Woodfill; F.N. Williams, Sr.;

and Max Miller
Plaintiffs,
v.
Annise D. Parker, Mayor; Anna Russell,
City Secretary; and City of Houston
Defendants.

Citys Response to Plaintiffs Saturday and Sunday Night Emails

Since the jury rendered its verdict in favor of the City two months ago, the Court has

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issued certain rulings and findings. Under any honest application of the jurys verdict and the

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Courts rulings and findings, plaintiffs false oath and forgery-ridden petition falls short of the

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minimum number of valid signatures. Plaintiffs defective petition failed.

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On Sunday April 12 at 9.21pm, less than 12 hours before the Courts Monday hearing,

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plaintiffs for the first time offered their own count. The best plaintiffs (incorrectly) can do is

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claim 17,512 valid signatures a scant 243 above the threshold by improperly including

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hundreds of invalid/disqualified signatures that have been excluded by this Courts orders,

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findings, and instructions. Plaintiffs false count disregards the jurys verdict, disregards many

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of this Courts rulings and findings, and so plainly does violence to the facts and law that

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plaintiffs must know they are taking positions that simply are not true. Plaintiffs 17,512 number

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improperly includes:

339 signatures already disqualified under this Courts 4/1/15 findings based on the
circulator signatures illegibility

383 signatures already disqualified for other reasons under this Courts 2/4/15 and
2/20/15 Orders

63 signatures with other potential defects, including non-accidental defects identified

by handwriting expert Janet Masson

Giving effect to this Courts rulings and findings which plaintiffs have not done

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would reduce plaintiffs 17,512 number by 785 signatures down to at most 16,727 signatures,
leaving plaintiffs well short of the mark by 542 signatures. Even that already-insufficient
number is too high.1
Properly reduced, plaintiffs maximum 16,727 number is very close to the Citys count of

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16,619 per this Courts instructions. Plaintiffs cannot morph invalid signatures into valid ones.
This Court should enter judgment for the City.

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I.
Illegibility

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Plaintiffs Sunday night 17,512 number includes/counts 339 signatures that were

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excluded by this Courts 4/1/15 legibility findings. Plaintiffs do not identify any alternative bases

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for counting these pages and, instead, simply assert this Court got it wrong. Plaintiffs omit any

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mention of their own failure to follow the City Charters form and manner requirements, omit

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compounding their error by using an incorrect form, and omit the fact that plaintiffs and their

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associates created their own legibility problems because so many circulators failed to identify

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themselves in the I, ______ portion of the circulators oath.

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This Court carefully reviewed each of the pages plaintiffs identified, and correctly found

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that the circulator signatures on those pages are illegible. See Exs. A & B to plaintiffs 4/11/15 at

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clearly are not:

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5:34pm email. For example, plaintiffs claim the following signatures are legible, when they

This brief identifies additional pages in plaintiffs count (also in the Citys count at this Courts
direction) containing 417 more signatures by a circulator identified by plaintiffs as Gay Nell
Harper that should be disqualified. This Court concluded these pages contained legible
circulator signatures and must be counted. Reviewing these pages shows that the circulator
signatures in fact are illegible. The City therefore asks this Court to exclude them from all
counts. Even without these pages, plaintiffs still fall short of the required minimum by hundreds
of signatures. Other than these signatures belonging to Gay Nell Harper, all signatures
identified in this brief already are excluded from the Citys count of 16,619 on other grounds.
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149

532

1131

1196

1561

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This Court should reject all of plaintiffs latest arguments about legibility for what they

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are: shameless gaming for signatures, and an attempt to back-fill plaintiffs failure to present

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evidence and request a fact finding at trial.

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The Court should reconsider its finding of legibility for some pages circulated by an

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individual who plaintiffs now have identified as Gay Nell Harper.

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The Court found illegible the circulators signature on petition page 1162, which

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plaintiffs now say is from Gay Nell Harper:

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That is illegible. But the Court found legible some other similarly illegible signatures from this
same circulator, including these:

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293

294

350

These signatures are illegible too.

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These and other legibility findings likely are the product of after-the-fact suggestion and
confirmation bias given the Courts knowledge of the persons identity knowing the persons
name in advance enhances the ability to read a signature. City officials reviewing these
signatures among thousands of others on 5,199 petition pages would not have the sort of explicit

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and implicit knowledge this Court has. The Court also should find that the signatures of Gay

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Nell Harper on some or all of these pages (154, 155, 195, 196, 198-206, 293-297, 300-306, 348-

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350, 369, 370, 380, 389-410, 2406, and 2408) are illegible, which would reduce plaintiffs

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17,512 by 417 to 17,095, and reduce the Citys 16,619 by 417 to 16,202.

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This Court should not accept plaintiffs unsubstantiated, tardy, improper, and false

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identify assertions. Plaintiffs have not presented evidence to support their statements, and they

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waived their right to do so by failing to do so at trial.

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II.
Circulators Who Did Not Validly Sign the Petition

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Plaintiffs inflated 17,512 number improperly includes signatures on invalid pages

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circulated by those who did not validly sign the petition, such as D. Anderson and S.

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Johnson. As explained in the Citys 4/1/15 response brief, all of these pages were disqualified
under the Courts rulings because plaintiffs failed to show that these two circulators signed the
petition.2

All of D. Andersons pages also should be excluded on the additional and alternative basis that
this circulators signatures are illegible, despite this Courts ruling that some D. Anderson pages
include legible signatures. See Courts 4/1/15 findings (finding that D. Andersons circulator
signatures were legible on petition pages 2717-2804, 2808-2813, 2849, 2932-2946, 3244, 3262).
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Plaintiffs say 119 petition pages circulated by a person with an illegible signature, who
they call D. Anderson, were circulated by a person who signed her name Deborah Cook
Anderson, on page 2314:

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With page 2717

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Compare page 2314

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The illegible signature plaintiffs identify as D. Anderson looks nothing like the
No other identifying

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signature of Deborah Cook Anderson in the body of the petition.

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information on the pages circulated by the purported D. Anderson suggest that he or she is the

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Deborah Cook Anderson on page 2314, as opposed to one of the 27 other Deborah Andersons
See

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(or hundreds of other D. Andersons) registered to vote in Harris County.

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http://www.hctax.net/voter/search (searches for Deborah Anderson and D. Anderson).

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Similarly, plaintiffs attribute pages circulated by an individual with the nearly anonymous

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signature S. Johnson to a petition signer whose rather unique name is Servetra Johnson:

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Servetra Johnsons signature and handwriting differ from S. Johnsons in nearly all measurable

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respects, from slant, to style of lettering, to name. As further evidence of plaintiffs improper
attribution, neither the address nor signature Servetra Johnson uses on the petition match the
address and signature of S. Johnson listed in the notary book of Judy Wright, which was offered
by plaintiffs as an exhibit at trial:

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Compare

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With

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Consistent with this Courts rulings, the City did not include D. Anderson or S.

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Johnson circulated pages in its 16,619 number. Plaintiffs inflated 17,512 number needs to

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be reduced by 163 signatures with respect to D. Anderson and reduced by 90 signatures

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with respect to S. Johnson.

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In addition to D. Anderson and S. Johnson, plaintiffs make this same error with different
Edward Martinez (circulating at page 1164, purportedly

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individuals with common names:

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signing at page 3645), Elizabeth Moreno (circulating at pages 4092, 4117, and 4118, signing at

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page 3562), Maria Peters (circulating at 3460, signing at 653), Robert Perkins (circulating at

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page 2266, signing at 3135), Linda Fair (circulating at page 1304, signing at 2879), and Richard
Campbell (circulating at page 1577, signing at page 1018). In each case, plaintiffs identified
circulators with common names and improperly matched them up with petition signers with
similar names and different handwriting.
Plaintiffs went so far as to include in their inflated count pages gathered by circulators
who plaintiffs matched up with petition signers with different names. For example, plaintiffs

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claim a circulator writing her name as Rita Turner on page 2207 is the same person who
signed her name, in different handwriting, as Lettie M. Turner on page 2815. Plaintiffs
matched pages 594, 595, 624, and 642 circulated by Craig Ussery to a petition signer with
different handwriting named Gordon C. Ussery on page 642. Plaintiffs did the same for a

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circulator who signed her name as Debi Matthews on pages 1147-1149 and printed her name as
Deborah A Matthews, but who signed as DMatthews on page 1150.

Plaintiffs did not present evidence to meet their burden of proof to support their

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improbable petition-defying assertions.

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III.
Some Specific Invalid/Disqualified Signatures

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In their Sunday 4/12/15 at 4:04pm email, plaintiffs identified supposed errors with the

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Citys court-directed count, but plaintiffs failed to mention that each of the pages at issue also

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was disqualified on an alternative basis and plaintiffs did not challenge that other basis.

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Plaintiffs then improperly included all of these 49 invalid/disqualified signatures plus 24 more in

Plaintiffs say Simien signed the petition on June 10, not June 1.

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Michael Simien.

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their Sunday night 17,512 count. Plaintiffs are wrong all around.

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Plaintiffs miss the point. Simiens page properly was disqualified (and improperly included in

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plaintiffs count) because the only page Simien circulated (page 1541) was dated June 1, too

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early under the Texas Election Code and too early under this Courts 2/4/15 Order.
Barbara Maseberg and Andrea Gonzalez. Plaintiffs say their signatures were not crossed
out. As the City explained in its 4/1/15 brief, Masebergs and Gonzalezs signatures were
excluded because their names were crossed-out before the petition was submitted to the City or
otherwise were excluded as legally invalid. Maseberg did not list her voter certificate number,
as is required under the Texas Election Code. Gonzalez was not a qualified City of Houston

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voter, as is required to validly sign the petition. Their pages properly are excluded under the
Citys count, and improperly included in plaintiffs count.
Theresa Allen, Sherry Oradat, and Ronald McCleland. Plaintiffs say they signed the
petition. Plaintiffs again miss the point: the pages circulated by these circulators were

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disqualified on other bases. Allens page was excluded because of notary defects, pursuant to this
Courts 2/4/15 Order. This Court ruled on 4/1/15 that all of Oradats and McClelands pages
contained illegible circulator signatures and therefore must be excluded. Allens, Oradats, and

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McClelands pages all must be excluded. Plaintiffs attempt to count them in their 4/12/15 count

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is wrong.

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Roberta Swank. In addition to the non-errors identified in plaintiffs Sunday night email,

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plaintiffs improperly included signatures circulated by an individual they now say is Roberta

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plaintiffs say is Roberta Swank:

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Swank. The Court found illegible the circulators signature on petition page 2409 which

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That is illegible. But the Court found legible some other similarly illegible signatures from this

2411

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same circulator, including these:

2412

2413

2414

These signatures are illegible too. The Courts legibility findings inevitably are the product of
confirmation bias the signatures only begin to resemble Roberta Swank after being told

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thats the name.

The City disputes this legibility finding but legibility/illegibilty does not matter for
Roberta Swank all the signatures on those pages are invalid/disqualified for another reason
based on this Courts rulings. Swank signed the petition too early (on June 2 at page 307),

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which means plaintiffs number must be reduced further by 24 signatures.

The only error here is plaintiffs error in including these invalid/disqualified signatures in
their inflated count.

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IV.
Other Flawed Signatures

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Plaintiffs Sunday night number identifies 63 more signatures that plaintiffs improperly

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are counting because, they say, they belong to registered City of Houston voters. Plaintiffs

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generically mentioned these 63 signatures at the hearing on Monday and falsely insinuated the

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For example, plaintiffs are not entitled to include in the count these

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invalid/disqualified signatures:

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the Courts orders.

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City was manipulating addresses to exclude signatures.3 Plaintiffs are wrong, based primarily on

Signatures accompanied by voter registration numbers that do not match the name
listed. See, e.g., 1679 (Loyd), 3604 (Jackson), 3605 (all names identified by
plaintiffs), 3607 (Bass), 3610 (Harris, Joubert), 3611 (Ellis), 4008 (Meeks), 4192
(Haller), 4229 (Green), 4277 (Ward), 4381 (Davis), 4435 (Alfaro).

Signatures that were added to the petition after the circulators signature was
notarized. See, e.g., 439, 492, 843, 947, 999.

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Signatures missing statutorily required information, such as voter registration

numbers, addresses, or names. See, e.g., 4423 (Cantu), 4484 (Rodriguez).
Signatures that properly were excluded based on forgery and other defects identified

Plaintiffs repeatedly provided incorrect voter identification numbers, ignored the matching
name and address in the Harris County Voter Registration database, and continued their
improper practice of playing games with names by selecting voter registration numbers for
similar names of City voters when the petition address was not within City limits. See, e.g, 3622
(Paxton, Hines, Thompson, Jones).
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by handwriting expert Janet Masson. See, e.g., 256, 1573 (Spaulding).

Plaintiffs did not present any evidence to support their claims. It appears that plaintiffs
are trying to manipulate the petition and mislead the Court in a desperate attempt to add to their
improperly inflated count. Plaintiffs fall short, even based on their counter-factual and contra-

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legal approach.
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If this Court accepts any of plaintiffs arguments and is inclined to add any signatures to

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the 16,619 number it should not it will be necessary to determine whether there is another

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reason why such signatures are invalid/disqualified. As the Court is well aware, under the

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Court's 2/4/15 and 2/20/15 Orders (as interpreted by the Court at the 3/13/15 conference), the

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signature count shows that plaintiffs have not met the minimum threshold. Many signatures are

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invalid/disqualified for multiple reasons, not simply that circulators did not validly sign the

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petition. And, of course, thousands more signatures are invalid/disqualified under the jurys

Conclusion

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2/13/15 verdict.

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Plaintiffs submitted a defective petition that failed to comply with the City Charters

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requirements, compounded their error through rampant forgeries and false oaths, and then badly

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lost the jury trial they so fervently demanded. This is important. Plaintiffs insisted on a jury
trial. The City won resoundingly won. Plaintiffs lost. This Court no longer should allow
plaintiffs to escape the consequences of demanding and losing the jury trial. Plaintiffs lose on
the facts. Plaintiffs lose on the law. This Court should enter final judgment for the City.
All defendants join in this response.

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Respectfully submitted,

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By: /s/ Geoffrey L. Harrison

Geoffrey L. Harrison
gharrison@susmangodfrey.com
State Bar No. 00785947
Alex Kaplan
akaplan@susmangodfrey.com
State Bar No. 24046185
Kristen Schlemmer
kschlemmer@susmangodfrey.com
State Bar No. 24075029
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Facsimile: (713) 654-6666

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Lead Counsel for City of Houston

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CITY OF HOUSTON LEGAL DEPARTMENT

Donna L. Edmundson
Donna.Edmundson@houstontx.gov
State Bar No. 06432100
Judith L. Ramsey
Judith.Ramsey@houstontx.gov
State Bar No. 16519550
James Martin Corbett
Jim.Corbett@houstontx.gov
State Bar No. 00783875
Patricia L. Casey
pat.casey@houstontx.gov
State Bar No. 03959075
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone: (832) 393-6412
Facsimile: (832) 393-6259
Attorneys for Annise D. Parker, Mayor

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Of Counsel:

NORTON ROSE FULBRIGHT US LLP

Edward B. Teddy Adams, Jr.
Teddy.Adams@nortonrosefulbright.com
State Bar No. 00790200

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Certificate of Service

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HAYNES AND BOONE, LLP

Lynne Liberato
Lynne.Liberato@haynesboone.com
State Bar No. 00000075
Kent Rutter
Kent.Rutter@haynesboone.com
State Bar No. 00797364
William Feldman
William.Feldman@haynesboone.com
State Bar No. 24081715
Katie Dolan-Galaviz
Katie.Dolan-Galaviz@haynesboone.com
State Bar No. 24069620
1221 McKinney, Suite 2100
Houston, Texas 77010-2007
Telephone: (713) 547-2000
Facsimile: (713) 547-2600
Appellate Attorneys for All Defendants

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Andrew Price
Andrew.Price@nortonrosefulbright.com
State Bar No. 24002791
Seth Isgur
Seth.Isgur@nortonrosefulbright.com
State Bar No. 24054498
Geraldine W. Young
Geraldine.Young@nortonrosefulbright.com
State Bar No. 24084134
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone: (713) 651-5151
Facsimile: (713) 651-5246
Attorneys for Anna Russell, City Secretary

I certify that on April 14, 2015, a true and correct copy of this document properly was served on
the following counsel of record in accordance with the TRCP via electronic efiling and email by
agreement with the parties.
/s/ Geoffrey L. Harrison
Geoffrey L. Harrison

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