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Pool v. City of Houston No. 19-20828
Before GRAVES, COSTA, and ENGELHARDT, Circuit Judges.
REVERSED and REMANDED. (October 23, 2020).
At the heart of this appeal was the City of Houston’s contention that it was being sued for a so-called “zombie” law. The City’s 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. Trent and Trey Pool sought a preliminary injunction allowing them to collect signatures for their anti-pay-to-play petition as well as a declaratory judgment that the Charter’s voter-registration and residency provisions were unconstitutional, permanent injunctive relief against enforcement of those provisions, and nominal damages. The Pools also filed an emergency motion for a temporary restraining order (“TRO”) to allow them to circulate the petition through the deadline of July 9, 2019. The District Court granted a TRO, allowing the Pools to circulate the petition for the next week, but concluded that the Pools had not demonstrated an injury sufficient to support standing with regard to future petitions. The District Court later dismissed their remaining claims. Although the City now conceded that the qualified-voter requirement was unconstitutional, at issue was whether the Pools could obtain a permanent injunction preventing its enforcement. The Fifth Circuit holds that, although there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston’s qualified-voter requirement gives Trent Pool standing to seek an injunction that would guard against continued chilling of his speech. The Court also holds that the City has not met its heavy burden of showing that the Pools’ challenges are moot. Because the record supports a reasonable concern that the City might enforce its unconstitutional Charter provision, the Court reverses the judgment dismissing this case and remands for further proceedings.
On Appeal from the United States District Court for the Southern District of Texas (Vanessa D. Gilmore).
Attorney for Appellant – Jerad Wayne Najvar, Houston, TX
Attorney for Appellee – Collyn Ann Peddie, Houston, TX


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